THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
IN MEMORY OF
PROFESSOR
EUGENE I. McCORMAC
THE STATE
ELEMENTS OF HISTORICAL AND
PRACTICAL POLITICS
BY
WOODROW WILSON
SPECIAL EDITION
REVISED TO DECEMBER, 1918
BY
EDWARD ELLIOTT, PH.D.
PROFESSOR OF INTERNATIONAL LAW AND POLITICS
IN THE UNIVERSITY OF CALIFORNIA
D. C. HEATH & CO., PUBLISHERS
BOSTON NEW YORK CHICAGO
LIBRARY
UNIVERSITY OF TAT TCV^T>XTT A
COPYRIGHT, 1898 AND 1918
BY WOODKOW WILSON
PREFACE
THE present edition of The State has been prepared for use by
the Students' Army Training Corps in the study of the govern-
ments of the principal belligerent powers ; to meet the needs of
the course the chapters dealing with ancient Greece, Borne, Nor-
way, and Sweden have been omitted, and new chapters on Italy,
Belgium, Serbia, Rumania, Bulgaria, modern Greece, Russia,
Turkey, and Japan have been added, as has a chapter on After
the War. The original chapters on England, France, the United
States, Switzerland, Germany, and Austria have been revised.
In view of the unsettled conditions in Germany and Austria, the
governments of these countries have been described as they existed
in 1914, and a brief statement made of their condition as it exists
as this is written (December 1, 1918). The changes made in the
revision have sought merely to bring the work up to date ; they
are relatively few, and the text of the original chapters remains
for the most- part that of the author, both in language and opinion.
For the new chapters I must assume full responsibility.
It has seemed wise to include in this edition the chapters of a
general character, dealing with the origin, nature, functions, and
objects of government, and with the nature of law. Though they
were written thirty years ago, it is believed that they represent
substantially President Wilson's views to-day. In the new chap-
ters I have not indicated specifically the sources upon which I
have relied, nor can I do more here than make general acknowl-
edgment of my indebtedness to those whose work has been most
helpful.
I wish to express my appreciation of the aid given me by my
colleague, Dr. Ludwik Ehrlich, who has freely placed at my
service his wide knowledge of European governments and in par-
ticular of the governments of Germany and Austria.
EDWARD ELLIOTT.
BERKELEY, CALIFORNIA,
December 1, 1918.
iii
CONTENTS
CHAPTER PAOK
I EARLIEST FORMS OF GOVERNMENT 1
II THE NATURE AND FORMS OF GOVERNMENT .... 26
III THE FUNCTIONS OF GOVERNMENT 41
IV THE OBJECTS OF GOVERNMENT 68
V LAW ITS NATURE AND DEVELOPMENT 69
VI POLITY AND Go\ i .i:\ MI .\ i-< i>i i:i\; THE MIDDLE AGES. . 94
VII THE GOVERNMENT OF FRANCE 129
VIII THE GOVERNMENT OF GREAT BRITAIN . . . . . 178
IX THE GOVERNMENT OF UNITED STATES 267
X THE GOVERNMENTS OF SWITZERLAND ..... 387
XI THE GOVERNMENT OF ITALY 421
XII THE GOVERNMENT OF BELGIUM 432
XIII THE GOVERNMENTS OF GERMANY 438
XIV THE GOVERNMENTS OF AUSTRIA-HUNGARY .... 491
XV THE GOVERNMENT OF SERBIA 607
XVI THE GOVERNMENT OF RUMANIA 612
XVII THE GOVERNMENT OF BULGARIA 616
XVIII THE GOVERNMENT OF GREECE 619
XIX THE GOVERNMENTS OF RUSSIA AND TURKEY .... 523
XX THE GOVERNMENT OF JAPAN 626
XXI SUMMARY: CONSTITUTIONAL AND ADMINISTRATIVE DEVELOP-
MENTS 634
XXII AFTER THE WAB 651
I.
THE EARLIEST FORMS OF GOVERNMENT.
Nature of the Question. The probable origin of govern-
ment is a question of fact, to be settled, not by conjecture, but
by history. Some traces we can still discern of the history of
primitive societies. As fragments of primitive animals have
been kept for us sealed up in the earth's rocks, so fragments
of primitive institutions have been preserved, embedded in the
rocks of surviving law or custom, mixed up with the rubbish of
accumulated tradition, crystallized in the organization of still
savage tribes, or kept curiously in the museum .of fact and rumor
swept together by some ancient historian. Limited and perplex-
ing as such means of reconstructing history may be, they repay
patient comparison and analysis as richly as do the materials of
the archaeologist and the philologian. The facts as to the origin
and early history of government are at least as available as the
facts concerning the growth and kinship of languages or the
genesis and development of the arts and sciences. Such light
as we can get from the knowledge of the infancy of society thus
meagrely afforded us is, at any rate, better than that derived
from a priori speculations founded upon our acquaintance with
our modern selves, or from any fancies, how learnedly soever
constructed, that we might weave as to the way in which jiistory
might plausibly be read backwards.
Races to be studied : the Aryans. For purposes of widest
comparison in tracing the development of government it would
of course be desirable to include in a study of early society not
only those Aryan and Semitic races which have played the chief
parts in the history of the European world, but also every primi-
tive tribe, whether Hottentot or Iroquois, Finn or Turk, of whose
1
2 THE EARLIEST FORMS OF GOVERNMENT.
institutions and development we know anything at all. Such a
world-wide survey would be necessary to any induction which
should claim to trace government in all its forms to a common
archetype. But, practically, no such sweeping together of incon-
gruous savage usage and tradition is needed to construct a safe
text from which to study the governments that have grown and
come to full flower in the political world to which we belong.
In order to trace the lineage of the European and American
governments which have constituted the order of social life for
those stronger and nobler races which have made the most nota-
ble progress in civilization, it is essential to know the political
history of the Greeks, the Latins, the Teutons, and the Celts
principally, if not only, and the original political habits and
ideas of the Aryan and Semitic races alone. The existing gov-
ernments of Europe and America furnish the dominating types
of to-day. To know other systems which are defeated or dead
would aid only indirectly towards an understanding of those
which are alive and triumphant.
Semitic and Turanian Instance. Even Semitic institutions,
indeed, must occupy only a secondary place in such inquiries.
The main stocks of modern European forms of government are
Aryan. The institutional history of Semitic or Turanian peoples
is hardly part of the history of European governments : it is only
analogous to it in many of the earlier stages of development.
Aryan, Semitic, and Turanian races alike seem to have passed
at one period or another through similar forms of social organiza-
tion. Each, consequently, furnishes illustrations in its history,
and in those social customs and combinations which have most
successfully survived the wreck of change, of probable early
forms and possible successive stages of political life among the
others, Aryan practice may often be freed from doubt by
Semitic or Turanian instance j but it is Aryan practice we prin-
cipally wish to know.
Government rested First upon Kinship. 1 What is known of
the central nations of history clearly reveals the fact that social
organization, and consequently government (which is the visible
form of social organization), originated in kinship. The original
1 The origin of government in kinship has been sharply questioned,
THE EARLIEST FORMS OF GOVERNMENT. 3
bond of union and the original sanction for magisterial authority
were one and the same thing, namely, real or feigned blood-rela-
tionship. In other words, families were the original units of
social organization ; and were at first, no doubt, in a large degree
separate. It was only by slow stages and under the influence of
many changes of habit and environment that the family organi-
zation widened and families were drawn together into communi-
ties. A group of men who considered themselves in some sort
kinsmen constituted the first State.
Early History of the Family; was it originally Patriarchal?
The origin of government is, therefore, intimately connected
with the early history of the family. It is the more unfortunate
that the conclusions to be drawn from what is known of the
beginnings of the family should furnish matter for much modern
difference of opinion. This difference of opinion may be defi-
nitely summed up in the two following contrasted views :
(1) That the patriarchal family, to which the early history of
the greater races runs back, and with which that history seems
to begin, was the family in its original estate, the original, the
true archaic family.
The patriarchal family is that in which descent is traced to a common
male ancestor, through a direct male line, and in which the authority ol
rule vests in the eldest living male ascendant.
(2) That the patriarchal family, which is acknowledged to be
found in one stage or another of the development of almost every
race now civilized, was a developed and comparatively late form
of the family, and not its first form, having been evolved through
various stages and varieties of polyandry (plurality of husbands)
and of polygyny (plurality of wives) out of a possibly original
state of promiscuity and utter confusion in the relations of the
sexes and of consequent confusion in blood-relationship and in
the government of offspring.
In brief, it is held on the one hand that the patriarchal family
was the original family; and on the other, that it was not the
original but a derived form, others of a less distinct organization
preceding it.
The Evidence. It is of course impracticable to set forth
4 THE EARLIEST FORMS OF GOVERNMENT.
here the miscellaneous evidence which has been swept together
concerning so very obscure and complex a question. Suffice it
to say that among many primitive races cases abound of the
reckoning of kinship through mothers only, as if in matter-of-
course doubt as to paternity; of consanguinity signified through-
out the wide circle of a tribe, not by real or supposed common
descent from a human ancestor, but by means of the fiction of
common descent from some bird or beast, from which the tribe
takes its name, as if for lack of any better means of determining
common blood; of marriages of brothers with sisters, and of
groups of men with groups of women, or of groups of men with
some one woman. In the case of some tribes, moreover, among
whom polygamy or even monogamy now exists, together with a
patriarchal discipline, it is thought to be possible to trace clear
indications of an evolution of these more civilized forms of family
organization from 'earlier practices of loose multiple marriages
or even still earlier promiscuity in the sexual relation.
The peoples, however, among whom such confusions of sexual
relationships have been observed are not those who have emerged
upon the European field. Among almost every European folk
there is clear, unbroken tradition running back to a patriarchal
power and organization. Roman law, that .prolific mother of
modern legal idea and practice, bears impressed upon every
feature of it indubitable marks of its descent from a time when
the father ruled as king and high priest in the family. Greek
institutions speak hardly less unequivocally of a similar deriva-
tion. No belief is more deeply fixed in the traditions of the
great peoples who have made modern history than the belief of
direct common descent, through males, from a common male
ancestor, human or divine; and nothing could well be more
numerous or distinct than the traces inhering in the very heart
of their polity of an original patriarchal organization of the
family as the archetype of their political order.
The Warrantable Conclusion. The evidence of more con-
fused marriage relationships, moreover, is nowhere of such a
character as to warrant the conclusion that promiscuity in sexual
connections has among any people marked the first or any regular
stage of social development. "All the evidence we possess tends
THE EARLIEST FORMS OF GOVERNMENT. 5
to show that among our earliest human ancestors the family, not
the tribe, formed the nucleus of every social group, and, in many
cases, was itself perhaps the only social group." "It seems
probable, moreover, that monogamy prevailed almost exclusively
among our earliest human ancestors." 1 Promiscuity belongs,
not to the most primitive times or to the regular order of social
life, but rather to exceptional seasons of demoralization or con-
fusion ; to times of decadence rather than to the origins of the
race. Polyandry has grown up only where the women were fewer
than the men, and has almost necessarily broken down when the
numerical balance between, the sexes was restored. Polygyny
"has been less prevalent at the lowest stages of civilization,
where wars do not seriously disturb the proportion of the sexes ;
where life is chiefly supported by hunting, and female labor is
consequently of slight value ; where there is no accumulation of
wealth and no distinction of class, than it is at somewhat higher
stages." 2 Where it does exist, it is invariably confined to a
small minority of wealthy and powerful men; the majority, from
choice or necessity, are always monogamous. First and last, the
strong monogamous instinct, has tended to exclude promiscuous
or multiplied sexual connections, and to build up a distinct family
order round about monogamous marriages. 3
The efficient races who have dominated the European stage, at
any rate, came into their place of leadership and advantage under
the discipline of the patriarchal order of family life. Whether
with several wives or with only one, the father was chief and
master among them, and the family showed that clear authority
and close organization which was to serve in fulness of time as
the prototype and the model for the State.
From the Patriarchal Family to the State. Among these
Aryan peoples there was first the family ruled by the father as
king and priest. There was no majority for the sons so long as
their father lived. They might marry and have children, but
they could have no entirely separate and independent authority
during their father's life save such as he suffered them to exer-
1 Westermarck, History of Human Marriage, pp. 638, 649. 2 Id. 648.
3 For a contrary view see Avebury, The Origin of Civilization and the
Primitive Condition of Man. 6th ed., London, 1902.
6 THE EARLIEST FORMS OF GOVERNMENT.
else. All that they possessed, their lives even and the lives of
those dependent upon them, were at the disposal of this abso-
lute father-sovereign. Such a group naturally broadens in time
into the 'House/ or gens, and over this too a chief kinsman rules.
There are common religious rites and observances which the gens
regards as symbolic of its unity as a composite family; and heads
of houses exercise many high representative and probably some
imperative magisterial functions by virtue of their position.
Then, as the social order widens, Houses are in their turn
absorbed. The first distinctively political unit, no doubt, was
the Tribe: broader than the gens and tending to subordinate it;
a body in which kinship must still have been deemed the bond
of union, but in which, nevertheless, it must have been a very
obscure bond indeed, and in which family rights must steadily
have tended to give way before the establishment of a common
order within which the House served only as a unit of member-
ship and a corporation for worship.
Tribes at length united to form a State. In days of nomadic
habit the organization of the Tribe sufficed, and no more fixed,
definite, or effective order was attempted. But when a people's
travelling days were over, a settled life brought new needs of
organization: a larger power must have sprung up almost of
itself. Then a very significant thing happened. The State in
effect ousted both the House and the Tribe from their functions
as political units, and came itself to rest, not upon these for
foundation, but upon the family, the original formation of the
social substructure. Tribe and gens served henceforth only as
religious corporations or as the convenient units of representa-
tion in the action of the State.
Prepossessions to be put away. In looking back to the first
stages of political development, it is necessary to put away from
the mind certain prepossessions which are both proper and legiti-
mate to modern conceptions of government, but which can have
found no place in primitive thought on the subject. It is not
possible nowadays to understand the early history of institutions
without thus first divesting the mind of many conceptions most
natural and apparently most necessary to it. The centuries which
separate us from the infancy of society separate us also, by the
THE EARLIEST FORMS OF GOVERNMENT. 7
whole length of the history of human thought, from the ideas into
which the fathers of the race were born ; and nothing but a most
credulous movement of the imagination can enable the student of
to-day to throw himself back into those conceptions of social con-
nection and authority in which government took its rise.
The State and the Land. How is it possible, for instance, f 01
the modern mind to conceive distinctly a travelling political organi-
zation, a State without territorial boundaries or the need of them,
composed of persons, but associated with no fixed or certain habi-
tat ? And yet such were the early tribal states, nomadic groups,
now and again hunting, fishing, or tending their herds by this or
that particular river or upon this or that familiar mountain slope
or inland seashore, but never regarding themselves or regarded by
their neighbors as finally identified with any definite territory.
Historians have pointed out the abundant evidences of these facts
that are to be found in the history of Europe no further back than
the fifth century of our own era. The Franks came pouring into
the Roman empire just because they had had no idea theretofore
of being confined to any particular Frank-farad. They left no
France behind them at the sources of the Rhine; and their kings
quitted those earlier seats of their race, not as kings of France,
but as kings of the Franks. There were kings of the Franks
when the .territory now called Germany, as well as that now
known as France, was in the possession of that imperious race :
and they became kings of France only when, some centuries later,
they had settled down to the unaccustomed habit of confining
themselves to a single land. Drawn by the processes of feudali-
zation (pages 109, 115, 129), sovereignty then found at last a
local habitation and a name.
The same was true of the other Germanic nations. They
also had chiefs who were the chiefs of people, not the chiefs of
lands. There were kings of the English for many a year, even
for several centuries after A.D. 449, before there was such a thing
as a king of England. John was the first officially to assume the
latter title. From the first, it is true, social organization has
everywhere tended to connect itself more and more intimately
with the land from which each social group has drawn its suste-
nance. When the migratory life was over, especially, and the
8 THE EARLIEST FORMS OF GOVERNMENT.
settled occupations of agriculture had brought men to a stand
upon the land which they were learning to till, political life,
like all the other communal activities, came to be associated
more and more directly with the land on which each community
lived. But such a connection between lordship and land was a
slowly developed notion, not a notion twin-born with the notion of
government.
Modern definitions of a State always limit sovereignty to
some definite land. " A State " runs the modern definition
"is a People organized for law within a definite territory." But
the first builders of government would not have found such a
definition intelligible. They could not have understood why
they might not move their whole people, 'bag and baggage/ to
other lands, or why, for the matter of that, they might not keep
them moving their tents and possessions unrestingly-from place
to place in perpetual migration, without in the least disturbing
the integrity or even the administration of their infant ' State/
Each organized group of men had other means of knowing their
unity than mere neighborhood to one another; other means of
distinguishing themselves from similar groups of men than dis-
tance or the intervention of mountain or stream. The original
groups were knit together by bonds closer than those of geog-
raphy, more real than the bonds of mere contiguity. They were
bound together by real or assumed kinship. They had a corporate
existence which they regarded as inhering in their blood and as
expressed in all their daily relations with each other. They
lived together because of these relations ; they were not related
because they lived together.
Contract versus Status. Scarcely less necessary to modern
thought than the idea of territorially as connected with the exist-
ence of a State, is the idea of contract as determining the relations
of individuals. And yet this idea, too, must be put away if we
would understand primitive society. In that society men were
born into the station and the part they were to have throughout
life, as they still are among the peoples who preserve their earliest
sonceptions of social order. This is known as the law of status.
It is not a matter of choice or of voluntary arrangement in what
relations men shall stand towards each other as individuals. He
THK KAHLIKST F<> KMS <>F < ;< V Ki: NMKNT. 9
who is born a slave, let him remain a slave ; the artisan, an arti
san; the priest, a priest, is the command of the law of status.
Excellency cannot avail to raise any man above his parentage ;
aptitude is suffered to operate only within the sphere of each
man's birthright. No man may lose ' caste' without losing
respectability also and forfeiting the 'protection of the law. Or,
to go back to a less developed society, no son, however gifted,
may lawfully break away from the authority of his father, how-
ever cruel or incapable that father may be ; or make any alliance
which will in the least degree draw him away from the family
alliance and duty into which he was born. There is no thought
of contract. Every man's career is determined for him before
his birth. His blood makes his life. To break away from one's
birth station, under such a system, is to make breach not only of
social, but also of religious duty, and to bring upon oneself the
curses of men and gods. Primitive society rested, not upon con-
tract, but upon status. Status had to be broken through by some
conscious or unconscious revolution before so much as the idea
of contract could arise ; and when that idea did arise, change and
variety were assured. Change of the existing social order was
the last thing of which the primitive community dreamed ; and
those races which allowed the rule of status to harden about their
lives still stand where they stood a thousand years ago. " The
leaving of men to have their careers determined by their efficien-
cies," says Mr. Spencer, " we may call the principle of change in
social organization."
Theories concerning the Origin of the State : the Contract
Theory. Such views of primitive society furnish us with destruc-
tive dissolvents of certain theories once of almost universal vogue
as to the origin of government. The most famous, and for our
present purposes most important, of these theories is that which
ascribes the origin of government to a 'social compact' among
primitive men.
The most notable names connected with this theory as used to account
for the existence of political society are the names of Hooker, Hobbes,
Locke, and Rousseau. It is to be found developed in Hooker's Ecclesias-
tical Polity, Hobbes' Leviathan, Locke's Civil Government, and Rousseau's
The Social Contract.
10 THE EARLIEST FORMS OF GOVERNMENT.
This theory begins always with the assumption that there exists,
outside of and above the laws of men, a Law of Nature. 1 Hobbes
conceived this Law to include "justice," "equity," "modesty,"
" mercy " ; " in sum, < doing to others as we would be done to.' "
A.11 its chief commentators considered it the abstract standard to
which human law should conform. Into this Law primitive men
were born. It was binding upon their individual consciences ; but
their consciences were overwhelmed by individual pride, ambi-
tion, desire, and passion, which were strong enough to abrogate
Nature's Law. That Law, besides, did not bind men together. Its
dictates, if obeyed, would indeed enable them to live tolerably
with one another ; but its dictates were not obeyed ; and, even if
they had been, would have furnished no permanent frame of civil
government, inasmuch as they did not sanction magistracies, the
setting of some men to be judges of the duty and conduct of other
men, but left each conscience to command absolutely the conduct
of the individual. In the language of the ' judicious Hooker/
the laws of Nature "do bind men absolutely, even as they are
men, although they have never any settled fellowship, never any
solemn agreement, amongst themselves what to do or not to do ;
but forasmuch as we are not by ourselves sufficient to furnish
ourselves with competent store of things needful for such a life
as our Nature doth desire, a life fit for the dignity of man, there-
fore to supply these defects and imperfections which are in us
living single and solely by ourselves, we are naturally induced to
seek communion and fellowship with others. This was the cause
of men uniting themselves at first in politic societies." 2 In other
words, the belligerent, non-social parts of man's character were
originally too strong for this Law of Nature, and the ' state of
nature,' in which that Law, and only that Law, offered restraint
to the selfish passions, became practically a state of war, and con-
sequently intolerable. It was brought to an end in the only way
in which such a condition of affairs could be brought to an end
without mutual extermination, namely, by common consent, by
men's " agreeing together mutually to enter into one community
1 For the natural history of this conception of a Law of Nature, see Maine,
Ancient Law, Chap. III.
2 Ecclesiastical Polity, Book I., sec. 10.
THE EARLIEST FORMS OF GOVERNMENT. ll
and make one body politic." (Locke.) This agreement meant sub-
mission to some one common authority, which should judge between
man and man; the surrender on the part of each man of all rights
antagonistic to the rights of others ; forbearance and cooperation.
Locke confidently affirmed "that all men are naturally in that
state [a state, i.e., of nature], and remain so till, by their own
consents, they make themselves members of some politic society."
It was only as the result of deliberate choice, in the presence of
the possible alternative of continuing in this state of nature, that
commonwealths came into being.
Traditions of an Original Lawgiver. Ancient tradition
had another way of accounting for the origin of laws and institu-
tions. The thought of almost every nation of antiquity went back
to some single lawgiver at whose hands their government had
taken its essential and characteristic form, if not its beginning.
There was a Moses in the background of many a history besides
that of the Jews. In the East there was Menu ; Crete had her
Minos ; Athens her Solon ; Sparta her Lycurgus ; Rome her
Xuma; England her Alfred. These names do not indeed in
every instance stand so far back as the beginning of government ;
but they do carry the mind back in almost every case to the birth
of national systems, and suggest the overshadowing influence of
individual statesmen as the creative power in framing the greater
combinations of politics. They bring the conception of conscious
choice into the history of institutions. They look upon systems
as made, rather than as developed.
Theory of the Divine Origin of the State. Not altogether
unlike these ancient conceptions of lawgivers towering above
other men in wisdom and authority, dominating political construc-
tion, and possibly inspired by divine suggestion, is that more
modern idea which attributes human government to the imme-
diate institution of God himself,^ to the direct mandate of the
Creator. This theory has taken either the definite form of regard-
ing human rulers as the direct vicegerents of God, or the vague
form ot regarding government as in some way given to man as
part of his original make-up
The Theories and the Facts. Modern research into the
early history of mankind has made it possible to reconstruct,
12 THE EARLIEST FORMS OF GOVERNMENT.
in outline, much of the thought and practice of primitive society,
and has thus revealed facts which render it impossible for us to
accept any of these views as adequately explaining what they
seek to explain. The defects of the social compact theory are too
plain to need more than brief mention. That theory simply has
no historical foundation. The family was the original, and status
'the fixed basis, of primitive society. The individual counted for
nothing; society the family, the tribe counted for everything.
Government came, so to say, before the individual and was coeval
with his first human instincts. There was no place for contract ;
and yet this theory makes contract the first fact of social life.
Such a contract as it imagines could not have stood unless sup-
ported by that reverence for ' law ' which is an altogether modern
principle of action. The times in which government originated
knew absolutely nothing of law as we conceive it. The only bond
was kinship, the common blood of the community; the only
individuality was the individuality of the community as a whole.
Man was merged in society. Without kinship there was no duty
and no union. It was not by compounding rights, but by assum-
ing kinship, that groups widened into States, not by contract,
but by adoption. Not deliberate and reasoned respect for law,
but habitual and instinctive respect for authority, held men
together; and authority did not rest upon mutual agreement,
but upon mutual subordination.
Of the theories of the origination of government in indi-
vidual lawgiving or in divine dictate, it is sufficient to say that
the one exaggerates the part played by human choice, and the
other the part played by man's implanted instincts, in the
formation and shaping of political society.
The Truth in the Theories. Upon each of these theories,
nevertheless, there evidently lies the shadow of a truth. Although
government did not originate in a deliberate contract, and although
no system of law or of social order was ever made { out of hand '
by any one man, government was not all a mere spontaneous
growth. Deliberate choice has always played a part in its devel-
opment. It was not, on the one hand, given to man ready-made
by God, nor was it, on the other hand, a human contrivance. In
its origin it was spontaneous, natural, twin-born with man and
THE EARLIEST FORMS OF GOVERNMENT. 13
the family; Aristotle was simply stating a fact when he said,
"Man is by nature a political animal." But, once having arisen,
government was affected, and profoundly affected, by man's
choice ; only that choice entered, not to originate, but to modify
government.
Conclusion. Viewed in the light of " the observed and
recorded experience of mankind," "the ground and origin of
society is not a compact ; that never existed in any known case,
and never was a condition of obligation either in primitive or
developed societies, either between subjects and sovereign, or
between the equal members of a sovereign body. The true
ground is the acceptance of conditions which came into exist-
ence by the sociability inherent in man, and were developed by
man's spontaneous search after convenience. The statement that
while the constitution of man is the work of nature, that of the
state is the work of art, is as misleading as the opposite state-
ment that governments are not made, but grow. The truth lies
between them, in such propositions as that institutions owe their
existence and development to deliberate human effort, working in
accordance with circumstances naturally fixed both in human
character and in the external field of its activity." l
The Beginnings of Government. Government must have
had substantially the same early history amongst all progressive
races. It must have begun in clearly defined family discipline.
Such discipline would scarcely be possible among races in which
consanguinity was subject to profound confusion and in which
family organization therefore had no clear basis of authority on
which to rest. In every case, it would seem, the origination of
what we should deem worthy of the name of government must
have awaited the development of some such definite family as
that in which the father was known, and known as ruler.
Whether or not the patriarchal family was the first form of the
family, it must have furnished the first adequate form of gov-
ernment.
The Family the Primal Unit. The family was the primal
unit of political society, and the seed-bed of all larger growths of
government. The individuals that were drawn together to con*
1 John Morley, Rousseau, Vol. II., pp. 183-4.
14 THE EARLIEST FORMS OF GOVERNMENT.
stitute the earliest communities were not individual men, as
Locke and Locke's co-theorists would lead us to believe, but
individual families; and the organization of these families,
whether singly or in groups, furnished the ideas in which politi-
cal society took its root. The members of each family were
bound together by kinship. The father's authority bore the
single sanction of his being the fountain-head of the common
blood-relationship. No other bond was known, or was then con-
ceivable, except this single bond of blood-relationship. A man
out of this circle of kinship was outside the boundaries of pos-
sible friendship, was as of course an alien and an enemy.
Persistence of the Idea of Kinship. When society grew,
it grew without any change of this idea. Kinship was still,
actually or theoretically, its only amalgam. The commonwealth
was for long conceived of as being only a larger kindred. When
by natural increase a family multiplied its branches and widened
into a gens, and there was no grandfather, great-grandfather, or
other patriarch living to keep it together in actual domestic
oneness, it would still not separate. The extinct authority of
the actual ancestor could be replaced by the less comprehensive
but little less revered authority of some selected elder of the
'House,' the oldest living ascendant, or the most capable. Here
would be the materials for a complete body politic held together
by the old fibre of actual kinship.
Fictitious Kinship : Adoption. Organization upon the
basis of a fictitious kinship was hardly less naturally contrived
in primitive society. There was the ready, and immemorial,
fiction of adoption, which to the thought of that time seemed no
fiction at all. The adopted man was no kss real a member of
bhe family than was he who was natural-born. His admittance
to the sacred, the exclusive religious mysteries of the family, at
which no stranger was ever suffered even to be present, and his
acceptance of the family gods as his own gods, was not less effi-
cacious in making him one with the household and the kin than
if he had opened his veins to receive their blood. And so, too,
Houses could grow by the adoption of families, through the
sngrafting of the alien branches into this same sacred stock of
bhe esoteric religion of the kindred. Whether naturally, there-
THE EARLIEST FORMS OF GOVERNMENT. 15
fore, or artificially, Houses widened into tribes, and tribes into
commonwealths, without loss of that kinship in the absence of
which, to the thinking of primitive men, there could be no com-
munion, and therefore no community, at all.
Kinship and Religion. In this development kinship and
religion operated as the two chief formative influences. Reli-
gion seems in most instances to have been at first only the expres-
sion of kinship. The central and most sacred worship of each
group of men, whether family or tribe, was the worship of ances-
tors. At the family or communal altar the worshipper came into
the presence of the shades of the great dead of his family -or race.
To them he did homage; from them he craved protection and
guidance. The adopted man, therefore, when received into this
hallowed communion with the gods of the family, accepted its
fathers as his own, and took upon himself the most solemn
duties and acquired the most sacred privileges of kinship. So,
too, of the family adopted into the gens, or the gens received into
the tribe. The new group accepted the ancestry by accepting the
worship of the adopting House or community.
Religion was thus quite inseparably linked with kinship. It
may be said to have been the thought of which kinship was the
embodiment. It was the sign and seal of the common blood, the
expression of its oneness, its sanctity, its obligations. He who
had entered into the bonds of this religion had, therefore, entered
into the heart of kinship and taken of its life-blood. His blood-
relationship was thus rendered no fiction at all to the thought of
that day, but a solemn verity, to which every religious ceremo-
nial bore impressive witness.
The Bonds of Religion and Precedent. The results of such
a system of life and thought were most momentous. It is com-
monplace now to remark upon English regard for precedent, and
upon the interesting development of ' common' and 'case' law.
But not even an Englishman or an American can easily conceive
of any such reverential regard for precedent as must have resulted
from a canonization of ancestors. We have ourselves in a meas-
ure canonized our own forefathers of the revolutionary era, wor-
shipping them around fourth of July altars, to the great benefit
both of our patriotism and of our political morality. But the men
16 THE EARLIEST FORMS OF GOVERNMENT.
of '76, we are all willing to acknowledge, were at their greatest
only men. The ancestor of the primitive man became, on the
contrary, a god, and a god of undying power. His spirit lived
on to bless or to curse. His favor had to be propitiated, his
anger appeased. And herein was a terribly effective sanction
for precedent. It was no light matter to depart from the prac-
tices of these potent ancestors. To do so was to run in the face
of the deities. It was to outrage all religious feeling, to break
away from all the duties of spiritual kinship. Precedent was
under such circumstances imperative. Precedent of course soon
aggregated into custom, such custom as it is now scarcely pos-
sible to conceive of, a supreme, uniform, imperious, infrangible
rule of life which brought within its inexorable commands every
detail of daily conduct.
The Reign of Custom. This reign of customary law was
long and decisive. Its tendency was to stiffen social life into a
formula. It left almost no room at all for the play of individu-
ality. The family was a despotism, society a routine. There
was for each man a rigorous drill of conformity to the custom of
his tribe and house. Superstition strengthened every cord and
knot of the network of observance which bound men to the prac-
tices of their fathers and their neighbors. That tyranny of social
convention which men of independent or erratic impulse nowa-
days find so irksome, that < tyranny of one's next-door neigh-
bor' against which there are now and again found men bold
enough to rebel, had its ideal archetype in this rigid uniformity
of custom which held ancient society in hard crystallization.
Fixity of System the Rule, Change the Exception. Such
was the discipline that moulded the infancy of political society :
within the family, the supreme will of the father; outside the
family; the changeless standards of religious opinion. The ten-
dency, of course, was for custom to become fixed in a crust too
solid ever to be broken through. In the majority of cases, more-
over, this tendency was fulfilled. Many races have never come out
of this tutelage of inexorable custom. Many others have advanced
only so far beyond it as those caste systems in which the law of
status and the supremacy of immemorial custom have worked out
their logical result in an unchanging balance of hereditary classes.
THE EARLIEST FORMS OF GOVERNMENT. 17
The majority of mankind have remained stationary in one 01
another of the earliest stages of political development, their laws
now constituting as it were ancient records out of which the
learned may rewrite the early history of those other races whom
primitive custom did not stagnate, but whose systems both of
government and of thought still retain many traces (illegible
without illumination from the facts of modern savage life) of a
similar infancy. Stagnation has been the rule, progress the ex-
ception. The greater part of the world illustrates in its laws and
institutions what the rest of the world has escaped ; the rest of
the world illustrates what favorable change was capable of mak-
ing out of the primitive practices with which the greater part of
the world has remained per force content.
Changes of System outrun Changes of Idea. The original
likeness of the progressive races to those which have stood still
is witnessed by that persistency of idea of which I have already
spoken. Progress has brought nations out of the primitive prac-
tices vastly more rapidly than it has brought them out of the
primitive ideas of political society. Practical reform has now
and again attained a speed that has never been possible to thought.
Instances of this so abound in the daily history of the most pro-
gressive nations of the world of to-day that it ought not to be
difficult for us to realize its validity in the world of the first days
of society. Our own guilds and unions and orders, merely volun-
tary and conventional organizations as they are, retain in their
still vivid sense of the brotherhood of their members at least a
reminiscence of the ideas of that early time when kinship was
the only conceivable basis of association between man and man,
when " each assemblage of men seems to have been conceived as
a Family." 1 In England political change has made the great
strides of the last two centuries without making the Grown
any less the central object of the theoretical or lawyerly concep-
tion of the English constitution. Every day witnesses impor-
tant extensions and even alterations of the law in our courts
under the semblance of a simple application of old rules.
Circumstances alter principles as well as cases, but it is only the
cases which are supposed to be altered. The principles remain,
1 Maine, Early History of Institutions, p. 232.
18 THE EARLIEST FORMS OF GOVERNMENT.
in form, the same. Men still carry their brides on wedding
journeys, although the necessity for doing so ceased with the
practice, once general, of stealing a bride. 'Good blood' still
continues to work wonders, though achievement has come to be
the only real patent of nobility in the modern world. In a thou-
sand ways we are more advanced than we think we are.
How did Change enter ? The great question, then, is, How
did change enter at all that great nursery of custom in which all
nations once wore short clothes, and in which so many nations
still occupy themselves with the superstitions and the small play
of childhood ? How did it come about that some men became
progressive, while most did not ? This is a question by no means
easy to answer, but there are probabilities which may throw some
light upon it.
Differences of Custom. In the first place, it is not prob-
able that all the groups of men in that early time had the same
customs. Custom was doubtless as flexible and malleable in its
infancy as it was inflexible and changeless in its old age. In
proportion as group separated from group in the restless days
of the nomadic life, custom would become differentiated from
custom. Then, after first being the cause, isolation would become
the natural result of differences of life and belief. A family or
tribe which had taken itself apart and built up a practice and
opinion all its own would thereby have made itself irrevocably
a stranger to its one-time kinsmen of other tribes. When its life
did touch their life, it would touch to clash, and not to harmonize
or unite. Greeks, Romans, Celts, had probably once been a single
people ; but how unlike did they become !
Antagonism between Customs. We need not specially
spur our imaginations to realize* how repugnant, how naturally
antagonistic, to each other families or tribes or races would be
rendered by differences of custom. " We all know that there is
nothing that human beings (especially when in a low state of
culture) are so little disposed to tolerate as divergencies of cus-
tom," says Mr. Hamerton, who is so sure of the fact that he does
THE EARLIEST FORMS OF GOVERNMENT. 19
not stop to illustrate it. How ' odd/ if not * ridiculous/ the ways
of life and the forms of belief often seem to us in a foreign
country, how instinctively we pronounce them inferior to our
own ! The Chinaman manages his rice quite as skilfully with
his ' chop-sticks ' as we manage ours with our forks ; and yet how
* queer,' how ' absurd ' chop-sticks are ! And so also in the
weightier matters of social and religious practice.
Competition of Customs. To the view of the primitive
man all customs, great or small, were matters of religion. His
whole life was an affair of religion. For every detail of conduct
he was accountable to his gods and to the religious sentiment
of his own people. To tolerate any practices different from those
which were sanctioned by the immemorial usage of the tribe was
to tolerate impiety. It was a matter of the deepest moment,
therefore, with each tribal group to keep itself uncontaminated
by alien custom, to stamp such custom out wherever and when-
ever it could be discovered. That was a time of war, and war
meant a competition of customs. The conqueror crushed out the
practices of the conquered and compelled them to conform to his
own.
The Better prevail. Of course in such a competition the
better custom would prevail over the worse. 1 The patriarchal
family, with its strict discipline of the young men of the tribe,
would unquestionably be "the best campaigning family,"
would supply the best internal organization for war. Hence,
probably, the national aspect of the world to-day: peoples of
patriarchal tradition occupying in unquestioned ascendency the
choicest districts of the earth ; all others thrust out into the heats
or colds of the less-favored continents, or crowded into the for-
gotten corners and valley-closets of the world. So, too, with the
more invigorating and sustaining religions. Those tribes which
were least intimidated by petty phantoms of superstition, least
hampered by the chains of empty but imperative religious cere-
monial, by the engrossing observance of times and seasons, having
greater confidence in their gods, would have greater confidence in
themselves, would be freer to win fortune by their own hands,
1 For the best development of the whole idea of this paragraph and others
In this connection, see Bagehot, Physics and Politics, Chap. H.
20 THE EARLIEST FORMS OF GOVERNMENT.
instead of passively seeking it in the signs of the heavens or in
the aspects of nearer nature; and so would be the surer con-
querors of the earth. Religion and the family organization were
for these early groups of kindred men the two -indexes of charac-
ter. In them was contained inferiority or superiority. The most
serviceable customs won the day.
Isolation, Stagnation. Absolute isolation for any of these
early groups would of course have meant stagnation ; just as
surely as contact with other groups meant war. The world,
accordingly, abounds in stagnated nationalities ; for it is full of
instances of isolation. The great caste nations are examples. It
is, of course, only by a figure of speech that we can speak of vast
peoples like those of China and India as isolated, though it is
scarcely a figure of speech to say that they are stagnated. Still
in a very real sense even these populous nations were isolated.
We may say, from what we discern of the movements of the
nations from their original seats, that the races of China and
India were the ' back-water ' from the great streams of migration.
Those great streams turned towards Europe and left these out-
lying waters to subside at their leisure. In subsiding there was
no little commotion amongst them. There were doubtless as
many intertribal wars in the early history of China before the
amalgamation of the vast kingdom as there have been in the his-
tory of India. That same competition of custom with custom
which took place elsewhere, also took place there. But the tribes
which pressed into China were probably from the first much of a
kind, with differing but not too widely contrasted customs, which
made it possible for them to assume at a now very remote period
a uniformity of religion and of social organization never known
amongst the peoples that had gone to the West ; so that, before
the history that the rest of the world remembers had begun,
China's wall had shut her in to a safe stagnation of monotonous
uniformity. The great Indian castes were similarly set apart in
their vast peninsula by the gigantic mountains which piled them-
selves between them and the rest of the continent. The later
conquests which China and India suffered at the hands of Oriental
invaders resulted in mere overlordships, which changed the desti-
nation of taxes, but did not touch the forms of local custom.
THE EARLIEST FORMS OF GOVERNMENT. 21
Movement and Change in the West. It is easy to imagine
a rapid death-rate, or at least an incessant transformation, amongst
the customs of those races which migrated and competed in the
West. There was not only the contact with each other which
precipitated war and settled the question of predominance between
custom and custom ; there was also the slow but potent leaven
of shifting scene and changing circumstance. The movement of
the peoples was not the march of a host. It was only the slow
progress of advancing races, its stages often centuries long, its
delays fruitful of new habits and new aspirations. We have,
doubtless, a type of what took place in those early days in the
transformation of the Greeks after they had come down to the
sea. We can dimly see them beginning a new life there. Slowly
they acquired familiarity with tlu-ir new neighbor, the sea. They
learned its moods. They imagined new gods breathing in its
mild or storming in its tempestuous winds. They at length
trusted themselves to its mercy in boats. The handling of boats
made them sailors ; and, lured from island to island across that
inviting sea, they reached those later homes of their race in Asia
Minor. And they reached this new country changed men, their
hearts strengthened for bolder adventure, their hands quick with
a readier skill, their minds opened to greater enthusiasms and en-
riched with warmer imaginings, their whole nature profoundly
affected by contact with Father ^Egeus.
Migration and Conquest. And so, to a greater or less
extent, it must have been with other races in their movements
toward their final seats. Not only the changes of circumstance
and the exigencies of new conditions of life, but also the con-
quests necessarily incident to those days of migration, must have
worked great, though slow, alterations in national character. We
know the Latins to have been of the same stock with the Greeks ;
but by the time the Latins had reached Italy they were already
radically different in -habit, belief, and capacity from the Greeks,
who had, by other routes, reached and settled Magna Graecia.
Conquest changes not only the conquered, but also the con-
querors. Insensibly, it may be, but deeply, they are affected
22 THE EARLIEST FORMS OF GOVERNMENT.
by the character of the subdued or absorbed races. Norman does
not merge with Saxon without getting Saxon blood into his own
veins, and Saxon thoughts into his own head ; neither had Saxon
overcome Celt without being himself more or less taken captive
by Celtic superstition. And these are but historical instances of
what must have been more or less characteristic of similar events
in ' prehistoric ' times.
Intertribal Imitation. There must, too, have been among
the less successful or only partially successful races a powerful
tendency towards imitation constantly at work, imitation of the
institutions of their more successful neighbors and rivals. Just
as we see, in the histories of the Old Testament, frequent instances
of peoples defeated by Jewish arms incontinently forsaking their
own divinities and humbly commending themselves to the God
of Israel, so must many another race, defeated or foiled in un-
recorded wars, have forced themselves to learn the customs in
order that they might equal the success of rival races.
Individual Initiative and Imitation. And this impulse
towards imitation, powerful as between group and group, would
of course, in times of movement and conquest, be even more
potent amongst individual men. Such times would be rich with
opportunity for those who had energy and enterprise. Many a
great career could be carved out of the events of days of steady
achievement. Men would, as pioneers in a new country or as
leaders in war, be more or less freed from the narrow restrictions
of hard and fast custom. They could be unconventional. Their
individual gifts could have play. Each success would not only
establish their right to be themselves, but would also raise up
after them hosts of imitators. New types would find acceptance
in the national life ; and so a new leaven would be introduced.
Individual initiative would at last be permitted a voice, even as
against immemorial custom.
Institutional Changes : Choice of Rulers. It is easy to see
how, under the bracing influences of race competition, such forces
of change would operate to initiate and hasten a progress towards
the perfecting of institutions and the final abolition of slavery to
habit. And it is no less plain to see how such forces of change
would affect the constitution of government. It is evident that,
THE EARLIEST FORMS OF GOVERNMENT. 23
as has been said (p. 19), the patriarchal family did furnish the
best campaigning materials, and that those races whose primitive
organization was of this type did rapidly come to possess the
'' rnost-competed-for " parts of the earth. They did come to be
the chief, the central races of history. But race aggregations,
through conquest or adoption, must have worked considerable
changes in the political bearings of the patriarchal principle.
The direct line of male descent from the reputed common pro-
genitor of the race could hardly continue indefinitely to be ob-
served in filling the chieftainship of the race. A distinct element
of choice of election must have crept in at a very early period.
The individual initiative of which I have spoken, contributed
very powerfully to effect this change. The oldest male of the
hitherto reigning family was no longer chosen as of course, but
the wisest or the bravest. It was even open to the national
choice to go upon occasion altogether outside this succession and
choose a leader of force and resource from some other family.
Hereditary replaced by Political Magistracy. Of course
mere growth had much to do with these transformations. As
tribes grew into nations, by all the processes of natural and
artificial increase, all distinctness of mutual blood-relationship
faded away. Direct common lines of descent became hopelessly
obscured. Cross-kinships fell into inextricable confusion. Family
government and race government became necessarily divorced,
differentiated. The state continued to be conceived as a Family ;
but the headship of this huge and complex family ceased to be
natural and became political. So soon as hereditary title was
broken in upon, the family no longer dominated the state; the
state at last dominated the family. It often fell out that a son,
absolutely subject to his father in the family, was by election
made master of his father outside the family, in the state. Politi-
cal had at least begun to grow away from domestic authority.
Summary. Enough has been said here to make plain the
approaches to those systems of government with which we are
familiar in the modern world. We can understand how custom
crystallized about the primitive man ; how in the case of the ma-
jority of mankind it preserved itself against all essential change ;
how with the favored minority of the race it was broken by war,
24 THE EARLIEST FORMS OF GOVERNMENT.
altered by imperative circumstance, modified by imitation, and
infringed by individual initiative ; how change resulted in prog-
ress ; and how, at last, kinsmen became fellow-citizens.
SOME REPRESENTATIVE AUTHORITIES.
Bachofen, Das Mutterrecht.
Bagehot, Walter, Physics and Politics, N. Y., 1884.
Coulanges, Fustel de, The Ancient City, Boston, 1882.
Darwin, Charles, The Origin of Species, 2 vols., London, 1888.
Draper, J. W., History of the Intellectual Development of Europe, 5th
ed., N. Y., 1870.
Farnell, L. R., Cults of the Greek States, 5 vols., Oxford, 1896-1909.
Ford, H. J., The Natural History of the State, Princeton, 1915.
Freeman, E. A., Comparative Politics, London, 1873.
Hearn, W. E., The Aryan Household, London, 1879.
Howard, G. E., History of Matrimonial Institutions, Chicago, 1904.
Huxley, T. H., Evidence as to Man's Place in Nature, London, 1863.
Lang, Andrew, Custom and Myth, London, 1885 ; and article " Family,"
in the Encyclopaedia Britannica.
Lecky, W. E. H., History of European Morals, 3d ed., N. Y., 1913.
Letourneau, Ch., The Evolution of Marriage, N. Y., 3d ed., London and
N.Y., 1911.
Lord Avebury, The Origin of Civilization and the Primitive Condition of
Man, 6th ed., London, 1902 ; and Prehistoric Times, 7th ed., London,
1913.
Lyall, Sir A. C., Asiatic Studies, Religious and Social, London, 1882.
McLennan, J. F., The Patriarchal Theory, London, 1885 ; and Studies in
Ancient History, London, 1886 ; Studies in Ancient History, Second
Series, London and N. Y., 1896.
Maine, Sir H. S., Ancient Law, with notes by Sir Frederick Pollock, 4th
American from 10th London ed., N. Y., 1885 ; Early Law and Cus-
tom, N. Y., 1883, especially Chap. VII. ; Early History of Institutions,
N". Y., 1875 ; and Village Communities in the East and West, N. Y.,
1880.
Mayne, J. D., Hindu Law and Custom, Madras, 1888.
Morgan, L. H., Ancient Society, London, 1877.
Peschel, O., The Races of Man, trans. London, 1876.
Smith, W. Robertson, Marriage and Kinship in Early Arabia, Cambridge,
1885.
THE EARLIEST FORMS OF linVKIINMKNT. . 25
Spencer, H., Principles of Sociology, Vol. I., Part III. ; " Ceremonial In-
stitutions," and " Political Institutions."
Spencer ami fi'Hhn, The Native Tribes of Central Australia.
SW/v, C. N., Tin- Primitive Family, N. Y., 1889.
Tyler, E. B., Early History of Mankind, London, l*7s ; Primitive Culture,
London, 1871, 3d ed., 1891.
Wtttrniir<-i, Kdwa^d, History of Human Marriage, London, 1891.
The classical statements of the contract theory of the origin of gov-
ernment will be found in
ke.r, Ecclesiastical Polity.
Hobbes, Leviathan.
Locke, John, Essays on Civil Government.
Rousseau, J. J., The Social Contract.
II.
NATURE AND FORMS OF GOVERNMENT
Government rests upon Authority and Force. The es-
sential characteristic of all government, whatever its form, is
authority. There must in every instance be, on the one hand,
governors, and, on the other, those who are governed. And the
authority of governors, directly or indirectly, rests in all cases
ultimately on force. Government, in its last analysis, is organ-
ized force. Not necessarily or invariably organized armed force,
but the. will of a few men, of many men, or of a community pre-
pared by organization to realize its own purposes with reference
to the common affairs of the community ; organized, that is, to
rule, to dominate. The machinery of government necessary to
such an organization consists of instrumentalities fitted to
enforce in the conduct of the common affairs of a community
the will of the ruling men: the ruling minority, or the ruling
majority.
Not necessarily upon Obvious Force. This is not, how-
ever, to be' interpreted too literally, or too narrowly. The force
behind authority must not be looked for as if it were always to
be seen or were always being exercised. That there is authority
lodged with ruler or magistrate is in every case evident enough:
but that that authority rests upon force is not always a fact upon
the surface, and is therefore in one sense not always practically
significant. In the case of any particular government, the force
upon which the authority of its officers rests may never once for
generations together take the shape of armed force. Happily
there are in our own day many governments, and those among
the most prominent, which seldom coerce their subjects, seeming
in their tranquil, noiseless operations to run of themselves. They
26
KATURE AND FORMS OF GOVERNMENT. 27
in a sense operate without the exercise of force. But there
is force behind them none the less because it never shows itself.
The better governments of our day, those which rest, not upon
the armed strength of governors, but upon the free consent of the
governed, are founded upon constitutions and laws whose
source and sanction are the habit of communities. The force
which they embody is not the force of a dominant dynasty or of
a prevalent minority, but the force of an agreeing majority.
And the overwhelming nature of this force is evident in the fact
that the minority very seldom challenge its exercise. It is latent
just because it is understood to be omnipotent. There is force
behind the authority of the elected magistrate, no less than
behind that of the usurping despot, a much greater force behind
the President of the United States than behind an autocratic
monarch. The difference lies in the display of coercive power.
Physical force is the prop of both, though in the one it is the
last, while in the other it is the first, resort.
The Governing Force in Ancient and in Modern Society.
These elements of authority and force in government are quite
plain to be seen in modern society, even when the constitution
of that society is democratic ; but they are not so easily discover-
able upon a first view in primitive society. It is common nowa-
days when referring to the affairs of the most progressive nations
to speak of 'government by public opinion,' 'government by the
popular voice ' ; and such phrases possibly describe sufficiently
well the full-grown democratic systems. But no one intends such
expressions to conceal the fact that the majority, which utters
'public opinion,' does not prevail because the minority are con-
vinced, but because they are outnumbered and have against them
not the 'popular voice ' only, but the 'popular power ' as well,
that it is the potential might rather than the wisdom of the ma-
jority which gives it its right to rule. When once majorities
have learned to have opinions and to organize themselves for en-
forcing them, they rule by virtue of power no less than do despots
with standing armies or concerting minorities dominating unor-
ganized majorities. But, though it was clearly opinion which
ruled in primitive societies, this conception of the might of
majorities hardly seems to fit our ideas of primitive systems of
28 NATURE AND FORMS OF GOVERNMENT.
government. What shall we say of them in connection with our
present analysis of government? They were neither democracies
in which the will of majorities chose the ways of government,
nor despotisms, in which the will of an individual controlled, nor
oligarchies, in which the purposes of a minority prevailed.
Where shall we place the force which lay behind the authority
exercised under them? Was the power of the father in the patri-
archal family power of arm, mere domineering strength of will?
What was the force that sustained the authority of the tribal
chieftain or of that chief of chiefs, the king? That authority
was not independent of the consent of those over whom it was
sxercised ; and yet it was not formulated by that consent. That
3onsent may be said to have been involuntary, inbred. It was
born of the habit of the race. It was congenital. It consisted
of a custom and tradition, moreover, which bound the chief no
less than it bound his subjects. He might no more transgress the
unwritten law of the race than might the humblest of his fellow-
tribesmen. He was governed scarcely less than they were. All
were under bondage to strictly prescribed ways of life. Where,
chen, lay the force which sanctioned the authority of chief and
sub-chief and father in this society? Not in the will of the
ruler: that was bound by the prescriptions of custom. Not in
the popular choice : over that too the law of custom reigned.
The Force of the Common Will in Ancient Society. The
real residence of force in such societies as these can be most easily
discovered if we look at them under other circumstances. Nations
still under the dominion of customary law have within historical
times been conquered by alien conquerors ; but in no such case
did the will of the conqueror have free scope in regulating the
affairs of the conquered. Seldom did it have any scope at all.
The alien throne was maintained by force of arms, and taxes were
mercilessly wrung from the subject populations; but never did
the despot venture to change the customs of the conquered land.
Its native laws he no more dared to touch than would a prince of
the dynasty which he had displaced. He dared not play with
the forces latent in the prejudices, the fanaticism of his subjects.
He knew that those forces were volcanic, and that no prop of
armed men could save his throne from overthrow and destruction
NATURE AND FORMS OF GOVERNMENT. 29
should they once break forth. He really had no authority to
govern, but only a power to despoil, for the idea of government
is inseparable from the conception of legal regulation. If, there-
fore, in the light of such cases, we conceive the throne of such a
society as occupied by some native prince whose authority rested
upon the laws of his country, it is plain to see that the real force
upon which authority rests under a government so constituted is
after all the force of public opinion, in a sense hardly less vividly
real than if we spoke of a modern democracy. The law inheres
in the common will: and it is that law upon which the authority
of the prince is founded. He rules according to the common
will : for that will is, that immemorial custom be inviolably ob-
served. The force latent in that common will both backs and
limits his authority.
Public Opinion, Ancient and Modern. The fact that the
public opinion of such societies made no deliberate choice of laws
or constitutions need not confuse the analogy between that public
opinion and our own. Our own approval of the government under
which we live, though doubtless conscious and in a way voluntary,
is largely hereditary, is largely an inbred and inculcated appro-
bation. There is a large amount of mere drift in it. Conformity
to what is established is much the easiest habit in opinion. Our
constructive choice even in our own governments, under which
there is no divine canon against change, is limited to modifica-
tions. The generation that saw our federal system established
may have imagined themselves out-of-hand creators, originators
of government; but we of this generation have taken what was
given us, and are not controlled by laws altogether of our own
making. Our constitutional life was made for us long ago. We
are like primitive men in the public opinion which preserves;
though unlike them in the public opinion which alters our insti-
tutions. Their stationary common thought contained the generic
forces of government no less than does our own progressive public
thought.
The True Nature of Government. What, then, in the
last analysis, is the nature of government? If it rests upon
authority and force, but upon authority which depends upon the
acquiescence of the general will and upon force suppressed,
30 NATURE AND FORMS OF GOVERNMENT.
latent, withheld except under extraordinary circumstances, what
principle lies behind these phenomena, at the heart of govern-
ment? The answer is hidden in the nature of Society itself.
Society is in no sense artificial ; it is as truly natural as the
individual man himself. As Aristotle said, man is by nature
a social animal ; his- social function is as normal with him as is
his individual function. Society, therefore, is compounded of
the common habit and is an evolution of experience, an interlaced
growth of tenacious relationships, a compact, living whole,
structural, not mechanical.
Government an Organ of Society. Government is
merely the executive organ of society, the organ through which
its habit acts, through which its will becomes operative, through
which it adapts itself to its environment and works out for itself
a more effective life. There is clear reason, therefore, why the
disciplinary action of society upon the individual is exceptional ;
clear reason also why the power of the despot must recognize
certain ultimate limits and bounds ; and clear reason why sudden
or violent changes of government lead to equally violent and
often fatal reactions and revolutions. It is only the exceptional
individual who is not held fast to the common habit of social
duty and comity. The despot's power, like the potter's, is
limited by the characteristics of the materials in which he works,
of the society which he manipulates ; and change which roughly
breaks with the common thought will lack the sympathy of that
thought, will provoke its opposition, and will inevitably be
crushed by that opposition. Society can be changed only by
evolution, and revolution is the antipode of evolution. The
public order is preserved because order inheres in the character
of society.
The Forms of Government : their Significance, The
forms of government do not affect the essence of government :
the bayonets of the tyrant, the quick concert and superior force
of an organized minority, the latent force of a self-governed
majority, all these depend upon the character and develop-
ment of the community. "The obedience of the subject to the
NATl i:K AND FOKMS OF < JoYKItN MKNT. 81
sovereign has its root not in contract but in force, the force
of the sovereign to punish disobedience " ; l but that force must
be backed by the general habit (pages 77, 80). The forms
of government are, nevertheless, in every way most important
to be observed, for the very reason that they express the char-
acter of government, and indicate its history. They exhibit the
stages of political development, and make clear the necessary
constituents and ordinary purposes of government, historically
considered. . They illustrate, too, the sanctions upon which it
rests.
Aristotle's Analysis of the Forms of Government. It has
been common for writers on politics in speaking of the several
forms of government to rewrite Aristotle, and it is not easy to
depart from the practice. For, although Aristotle's enumeration
was not quite exhaustive, and although his descriptions will not
quite fit modern types of government, his enumeration still serves
as a most excellent frame on which to hang an exposition of the
forms of government, and his descriptions at least furnish points
of contrast between ancient and modern governments by observ-
ing which we can the more clearly understand the latter.
Aristotle considered Monarchy, Aristocracy, and De-
mocracy (Ochlocracy) the three standard forms of government.
The first he defined as the rule of One, the second as the rule of
the Few, the third as the rule of the Many. 2 Off against these
standard and, so to say, healthful forms he set their degenerate
shapes. Tyranny he conceived to be the degenerate shape of
Monarchy, Oligarchy the degenerate shape of Aristocracy, and
Anarchy (or mob-rule) the degenerate shape of Democracy. His
observation of the political world about him led him to believe
that there was in every case a strong, an almost inevitable, ten-
dency for the pure forms to sink into the degenerate.
The Cycle of Degeneracy and Revolution. He outlined
a cycle of degeneracies and revolutions through which, as he
conceived, every State of long life was apt to pass. His idea
was this. The natural first form of government for every state
1 John Morley, Rousseau, Vol. II., 'p. 184.
2 Not of the absolute majority, as we shall see presently when contrasting
ancient and modern democracy (sees. 1403, 1406).
32 NATURE AND FORMS OF GOVERNMENT.
would be the rule of a monarch, of a single strong man with
supreme power. This monarch would usually hand on his king-
dom to his 'children. They might confidently be expected to for-
get those pledges and those views of the public good which had
bound and guided him. Their rule would sink into tyranny.
At length their tyranny would meet its decisive check at
some Runnymede. There would be revolt ; and the princely
leaders of revolt, taking government into their own hands, would
set up an Aristocracy. But aristocracies, though often public-
spirited and just in their youth, always decline, in their later
years, into a dotage of selfish oligarchy. Oligarchy is even more
hateful to civil liberty, is even a graver hindrance to healthful
civil life than tyranny. A class bent upon subserving only their
own interests can devise injustice in greater variety than can a
single despot: and their insolence is always quick to goad the
many to hot revolution. To this revolution succeeds Democracy.
But Democracy too has its old age of degeneracy, an old age in
which it loses its early respect for law, its first amiability of
mutual concession. It breaks out into license and Anarchy, and
none but a Caesar can bring it back to reason and order. The
cycle is completed. The throne is set up again, and a new series
of deteriorations and revolutions begins.
Modern Contrasts to the Aristotelian Forms of Govern-
ment. The confirmations of this view furnished by the history
of Europe since the time of Aristotle have been striking and
numerous enough to render it still oftentimes convenient as a
scheme by which to observe the course of political history even
in our own days. But it is still more instructive to contrast the
later facts of political development with this ancient exposition
of the laws of politics. Observe, then, the differences between
modern and ancient types of government, and the likelihood that
the historian of the future, if not of the present and the imme-
diate past, will have to record more divergencies from the cycle
of Aristotle than correspondences with it.
The Modern Absolute Monarchy. In the vast absolute
Monarchies which have grown up in Europe since Aristotle, it
is evident that the modern monarch, if he be indeed monarch, has
NATURE AND FORMS OF GOVERNMENT. 33
a much deeper and wider reach of power than had the ancient
monarch. The monarch of our day is a Legislator; the ancient
monarch was not. Antique society may be said hardly to have
known what legislation was. Custom was for it the law of pub-
lic as well as of private life: and custom could not be enacted.
At any rate ancient monarchies were not legislative. The des-
pot issued edicts, imperative commands covering particular
cases or affecting particular individuals: the Koman emperors
were among the first to . promulgate 'constitutions,' general
rules of law to be applied universally. The modern despot can
do more even than that. He can regulate by his command pub-
lic affairs not only but private as well, can even upset local
custom and bring all his subjects under uniform legislative con-
trol. Nor is he in the least bound to observe his own laws. A
word, and that his own word, will set them aside: a word
will abolish, a word restore, them. He is absolute over his sub-
jects not only, ancient despots were that, but over all laws
also, which no ancient despot was.
Of course these statements are meant to be taken with certain
important limitations. The modern despot as well as the ancient is bound
by the habit of his people. He may change laws, but he may not change
life as easily ; and the national traditions and national character, the
rural and commercial habit of his kingdom, bind him very absolutely.
The limitation is not often felt by the monarch, simply because he haa
himself been bred in the atmosphere of the national life and unconsciously
conforms to it.
The Modern Monarchy usually 'Limited.' But the
absolute monarchy is abnormal in the Europe of to-day, as
abnormal as that of the Turk, a belated example of those
crude forms of politics which the rest of Europe has outgrown.
Turning to the other monarchies of to-day, it is at once plain
that they present the strongest contrast possible to any absolute
monarchy ancient or modern. In Europe, with the exception of
Germany they are * limited ' by the resolutions of a popular
parliament. 1 The people have a distinct and often an imperative
voice in the conduct of public affairs.
Is Monarchy now succeeded by Aristocracy? And what
is to be said of Aristotle's cycle in connection with modern mon-
1 The ' popular ' parliament, the Reichstag, in Germany, has no real power
to ' limit ' the autocratic Kaiser,
34 NATURE AND FORMS OF GOVERNMENT.
archies? Does any one suppose it possible that when the des-
potism of the Czar falls it will be succeeded by an aristocracy;
or that when the modified authority of the emperors of Austria
and Germany or the king of Italy still further exchanges sub-
stance for shadow, a limited class will succeed to the reality of
power? Is there any longer any place between Monarchy and
Democracy for Aristocracy? Has it not been crowded out ? .
English and Ancient Aristocracy contrasted. Indeed,
since the extension of the franchise in England to the working
classes, no example of a real Aristocracy is left in the modern,
world. At the beginning of the nineteenth century the govern-
ment of England, called a < limited monarchy,' was in reality an
Aristocracy. Parliament and the entire administration of the
kingdom were in the hands of the classes having wealth or nobility.
The members of the House of Lords and the Crown together con-
trolled a majority of the seats in the House of Commons. England
was 'represented' by her upper classes almost exclusively. That
Aristocracy has been set aside by the Reform Bills of 1832,
1867, 1885, and 1918 ; but it is worth while to look back to it, in
order to contrast a modern type of Aristocracy with those ancient
aristocracies which were present to the mind of Aristotle. An
ancient Aristocracy constituted the State; the English aristocracy
merely controlled the State. Under the widest citizenship known
even to ancient democracy less than half the adult male subjects
of the State shared the franchise. The ancient Democracy itself
was a government by a minority. The ancient Aristocracy was
a government by a still narrower minority; and this narrow
minority monopolized office and power not only, but citizenship
as well. There were no citizens but they. They were the State.
Every one else existed for the State, only they were part of it.
In England the case was very different. There the franchise
was not confined to the aristocrats ; it was only controlled by
them. Nor did the aristocrats of England consider themselves
the whole of the State. They were quite conscious, and quite
content, that they had the State virtually in their possession;
but they looked upon themselves as holding it in trust for the
people of Great Britain. Their legislation was in fact class
legislation, oftentimes of a very narrow sort; but they did not
NATURE AND FORMS OF GOVERNMENT. 35
\
think that it was. They regarded their rule as eminently advan-
tageous to the kingdom ; and they unquestionably had, or tried
to have, the real interests of the kingdom at heart. They led the
State, but did not constitute it.
Present and Future Prevalence of Democracy. If
Aristocracy seems about to disappear, Democracy seems about
universally to prevail. Ever since the rise of popular education
in the last century has assured a thinking weight to the masses
of the people everywhere, the advance of democratic opinion and
the spread of democratic institutions have been most marked
and most significant. They have destroyed almost all pure forms
of Monarchy and Aristocracy by introducing into them im-
perative forces of popular thought and the concrete institutions
of popular representation ; and they promise to reduce politics
to a single form by excluding all other governing forces and
institutions but those of a wide suffrage and a democratic repre-
sentation, by reducing all forms of government to Democracy.
Differences of Form between Ancient and Modern
Democracies. The differences of form to be observed between
ancient and modern Democracies are wide and important.
Ancient Democracies were ' immediate/ while ours are ' mediate/
that is to say, representative. Every citizen of the Athenian
State, to take that as a type, had a right to appear and vote
in proper person in the popular assembly, and in those com-
mittees of that assembly which acted as criminal courts ; the
modern voter votes for a representative who is to sit for him in
the popular chamber, he himself has not even the right of
entrance there. This idea of representation, even the idea of a
vote by proxy, was hardly known to the ancients ; but among
us it is all-pervading. 1 Even the elected magistrate of an ancient
Democracy was not looked upon as a representative of his fellow-
citizens. He was the State, so far as his functions went, and so
long as his term of office lasted. He could break through all
law or custom, if he dared. It was only when his term had
expired and he was again a private citizen that he could be
called to account. There was no impeachment while in office.
To our thought all elected to office, whether Presidents,
i Where the initiative and referendum have been introduced, the electors
vote directly upon laws, but the representative system has been continued.
36 NATURE AND FORMS OF GOVERNMENT.
ministers, or legislators, are representatives. The limitations
as to the size of the State involved in ancient practices and
conceptions is obvious. A State in which all citizens are also
legislators must of necessity be small. The modern representa-
tive State has no such limitation. It may cover a continent.
Nature of Democracy, Ancient and Modern. The
differences of nature to be observed between ancient and mod-
ern Democracies are no less wide and important. The ancient
Democracy was a class government. As already pointed out,
it was only a broader Aristocracy. It's franchise was at widest
an exclusive privilege, extending only to a minority. There
were slaves under its heel; there were even freedmen who
could never hope to enter its citizenship. Class subordination
was of the essence of its constitution. From the modern Demo-
cratic State, on the other hand, both slavery and class subordina
tion are excluded as inconsistent with its theory, not only, but,
more than that, as antagonistic to its very being. Its citizenship
is as wide as its native population ; its suffrage as wide as its
qualified citizenship, it knows no non-citizen class. And
there is still another difference between the Democracy of
Aristotle and the Democracy of Tocqueville and Bentham. The
citizens of the former lived for the State; the citizen of the
latter lives for himself, and the State is for him. The modern
Democratic State exists for the sake of the individual ; the indi-
vidual, in Greek conception, lived for the State. The ancient
State recognized no personal rights, all rights were State
rights; the modern State recognizes no State rights which are
independent of personal rights.
Growth of the Democratic Idea. In making the last
statement embrace ' the ancient State ' irrespective of kind and
' the modern State,' of whatever form, I have pointed out what
may be taken as the cardinal difference between all the ancient
forms of government and all the modern. It is a difference
which I have already stated in another way. The democratic
idea has penetrated more or less deeply all the advanced systems
of government, and has penetrated them in consequence of that
change of thought which has given to the individual an impor-
tance quite independent of his membership of a State. I can
NATURE AND FORMS OF GOVERNMENT. 37
here only indicate the historical steps of that change of thought;
I cannot go at any length into its causes.
Subordination of the Individual in the Ancient State.
We have seen that, in the history of political society, if we have
read that history aright, the rights of government, the magis-
tracies and subordinations of kinship, antedate what we now
call the rights of the individual. A man was at first nobody in
himself ; he was only the kinsman of somebody else. The father
himself, or the chief, commanded only because of priority in
kinship : to that all rights of all men were relative. Society was
the unit; the individual the fraction. Man existed for society.
He was all his life long in tutelage; only "society was old enough
to take charge of itself. The State was the only Individual.
Individualism of Christianity and Teutonic Institu-
tions. There was no essential change in this idea for centu-
ries. Through all the developments of government down to the
time of the rise of the Roman Empire the State continued, in
the conception of the western nations at least, to eclipse the
individual. Private rights had no standing as against the State.
Subsequently many influences combined to break in upon this
immemorial conception. Chief among these influences were
Christianity and the institutions of the German conquerors of
the fifth century. Christianity gave each man a magistracy over
himself by insisting upon his personal, individual responsibility
to God. For right living, at any rate, each man was to have only
his own conscience as a guide. In these deepest matters there
must be for the Christian an individuality which no claim of his
State upon him could rightfully be suffered to infringe. The
German nations brought into the Romanized and partially Chris-
tianized world of the fifth century an individuality of another
sort, the idea of allegiance to individuals (p. 101). Perhaps
their idea that each man had a money-value which must be paid
by any one who might slay him also contributed to the process of
making men units instead of State fractions; but their idea of
personal allegiance played the more prominent part in the trans-
formation of society which resulted from their western conquests.
The Roman knew no allegiance save allegiance to his State. He
swore fealty to his imperator as to an embodiment of that State,
38 NATURE AND FORMS OF GOVERNMENT.
not as to an individual. The Teuton, on the other hand, bound
himself to his leader by a bond of personal service which the
Roman either could not understand or understood only to despise.
There were, therefore, individuals in the German State : great
chiefs or warriors with a following, (comitatus) of devoted volun-
teers ready to die for them in frays not directed by the State, but
of their own provoking (pages 96-97). There was with all
German tribes freedom of individual movement and combination
within the ranks. When the German settled down as master
amongst the Romanized populations of western and southern
Europe, his thought was led captive by the conceptions of the
Roman law, as all subsequent thought that has known it has
been, and his habits were much modified by those of his new
subjects ; but this strong element of individualism was not
destroyed by the contact. It lived to constitute one of the chief
features of the Feudal System.
The Transitional Feudal System. The Feudal System
was made up of elaborate gradations of personal allegiance.
The only State possible under that system was a disintegrate
state embracing, not a unified people, but a nation atomized into
its individual elements. A king there might be, but he was lord,
not of his people, but of his barons. He was himself a baron also,
and as such had many a direct subject pledged to serve him ; but
as king the barons were his only direct subjects ; and the barons
were heedful of their allegiance to him only when he could make
it to their interest to be so, or their peril not to be. They were
the kings of the people, who owed direct allegiance to them
alone, and to the king only through them. Kingdoms were only
greater baronies, baronies lesser kingdoms. One small part of
the people served one baron, another part served another baron.
As a whole they served no one master. They were not a whole :
they were jarring, disconnected segments of a nation. Every
man had his own lord, and antagonized every one who had not
the same lord as he (pages 103-109).
Else of the Modern State. Such a system was fatal to
peace and good government, but it cleared the way for the rise
of the modern State by utterly destroying the old conceptions.
The State of the ancients had been an entity in itself, an entity
NATURE AND FORMS OF GOVERNMENT. 39
to which the entity of the individual was altogether subordinate.
The Feudal State was merely an aggregation of individuals,
a loose bundle of separated series of men knowing few common
aims or actions. It not only had no actual unity: it had no
thought of unity. National unity came at last, in France, for
instance, by the subjugation of the barons by the king (page 115);
in England by the joint effort of people and barons against the
throne, but when it came it was the ancient unity with a differ-
ence. Men were no longer State fractions ; they had become
State integers. The State seemed less like a natural, and more
like a deliberately organized association. Personal allegiance to
kings had everywhere taken the place of native membership of
a body politic. Men were now subjects, not citizens.
Renaissance and Reformation. Presently came the
thirteenth century with its wonders of personal adventure and
individual enterprise in discovery, piracy, and trade. -Follow-
ing hard upon these, the Kenaissance woke men to a philosophi-
cal study of their surroundings, and above all of their long-
time unquestioned systems of thought. Then arose Luther to
reiterate the almost forgotten truths of the individuality of men's
consciences, the right of individual judgment. Ere long the new
thoughts had penetrated to the masses of the people. Reformers
had begun to cast aside their scholastic weapons and come down
to the common folk about them, talking their own vulgar tongue
and craving their acquiescence in the new doctrines of deliver-
ance from mental and spiritual bondage to Pope or Schoolman.
National literatures were born. Thought had broken away from
its . exclusion in cloisters and universities and had gone out to
challenge the people to a use of their own minds. By using their
minds, the people gradually put away the childish things of their
days of ignorance, and began to claim a part in affairs. Finally,
systematized popular education has completed the story. Nations
are growing up into manhood. Peoples are becoming old enough
to govern themselves.
The Modern Force of Majorities. It is thus no acci-
dent, but the outcome of great permanent causes, that there, is no
more to be found among the civilized races of Europe any sat-
isfactory example of Aristotle's Monarchies and Aristocracies.
40 NATURE AND FORMS OF GOVERNMENT.
The force of modern governments is not now often the force of
minorities. It is getting to be more and more the force of majori-
ties. The sanction of every rule not founded upon sheer military
despotism is the consent of a thinking people. Military despot-
isms are now seen to be necessarily ephemeral. Only monarchs
who are revered as seeking to serve their subjects are any longer
safe upon their thrones. Monarchies exist only by democratic
consent.
New Character of Society. And, more than that, the
result has been to give to society a new integration. The com-
mon habit is now operative again, not in acquiescence and sub-
mission merely, but in initiative and progress as well. Society
is not the unity it once was, its members are given freer play,
fuller opportunity for origination ; but its unified character is
again prominent. It is the Whole which has emerged from
the disintegration of feudalism and the specialization of abso-
lute monarchy. The Whole, too, has become self-conscious, and
by becoming self-directive has set out upon a new course of
development.
*
SELECTED BIBLIOGRAPHY.
(For this and the two succeeding chapters.)
Amos, Sheldon, Science of Politics, London, 1890.
Aristotle, Politics.
Beaulieu, P. Leroy, The Modern State, London, 1891.
Burgess, John W., Political Science and Constitutional, Boston, 1891.
Garner, J. W., Introduction to Political Science, N. Y.
Graham, William, Socialism, 2d ed., London, 1901.
Jellinek, Georg, Das Recht des Modernen Staates, 2d ed., Berlin, 1905.
Lilly, W. S., First Principles in Politics, N. Y., 1899.
Mill, J. S., On Liberty, N. Y., 1877.
Plato, Republic.
Ral, John, Contemporary Socialism, 2d ed., 1891.
Ritchie, Principles of State Interference.
Sidgwick, Henry, Elements of Politics, London, 1891.
Spencer, Herbert, Man versus the State.
Willoughby, W. W., The Nature of the State, N. Y., 1896.
III.
THE FUNCTIONS OF GOVERNMENT.
What are the Functions of Government ? The question
has its own difficulties and complexities : it cannot be answered
out of hand and by the list, as the physiologist might answer the
question, What are the functions of the heart ? In its nature
government is one, but in its life it is many : there are govern-
ments and governments. When asked, therefore, What are the
functions of government ? we must ask in return, Of what gov-
ernment ? Different states have different conceptions of their
duty, and so undertake different things. They have had their
own peculiar origins, their own characteristic histories ; circum-
stance has moulded them; necessity, interest, or caprice has
variously guided them. Some have lingered near those primitive
institutions which all once knew and upheld together; others
have quite forgotten that man ever had a political childhood and
are rtow old in complex practices of national self-government.
The Nature of the Question. It is important to notice
at the outset that this is in one aspect obviously a simple question
of fact ; and yet there is another phase of it, in which it becomes
as evidently a question of opinion. The distinction is important
because over and over again the question of fact has been con-
founded with that very widely different question, What ought the
functions of government to be f The two questions should be kept
entirely separate in treatment. Under no circumstances may we
instructively or safely begin with the question of opinion : the
answer to the question of fact is the indispensable foundation of
all sound reasoning concerning government, which is at all points
based upon experience rather than upon theory. The facts of
government mirror the principles of government in operation.
41
42 THE FUNCTIONS OF GOVERNMENT.
What government does must' arise from what government is :
and what government is must determine what government ought
to do.
Classification. It will contribute to clearness of thought
to observe the functions of government in two groups, I. The
Constituent Functions, II. TJie Ministrant. Under the Constitu-
ent I would place that usual category of governmental function,
the protection of life, liberty, and property, together with all
other functions that are necessary to the civic organization of
society, functions which are not optional with governments,
even in the eyes of strictest laissez faire, which are indeed
the very bonds of society. Under the Ministrant I would range
those other functions (such as education, posts and telegraphs,
and the care, say, of forests) which are undertaken, not by way
of governing, but by way of advancing the general interests of
society, functions which are optional, being necessary only
according to standards of convenience or expediency, and not
according to standards of existence ; functions which assist with-
out constituting social organization.
Of course this classification is based primarily upon objective
and practical distinctions and cannot claim philosophic complete-
ness. There may be room for question, too, as to whether some
of the functions which I class as Ministrant might not quite as
properly have been considered Constituent ; but I must here
simply act upon my own conclusions without rearguing them,
acknowledging by the way that the line of demarcation is not
always perfectly clear.
" The admitted functions of government," said Mr. Mill, " em-
brace a much wider field than can easily be included within the
ring-fence of any restrictive definition, and it is hardly possible
to find any ground of justification common to them all, except the
comprehensive one of general expediency."
I. The Constituent Functions :
(1) The keeping of order and providing for the protection of
persons and property from violence and robbery.
THE FUNCTIONS OF GOVERNMENT. 43
(2) The fixing of the legal relations between man and wife and
between parents and children.
(3) The regulation of the holding, transmission, and interchange
of property, and the determination of its liabilities for
debt or for crime.
(4) The determination of contract rights between individuals.
(5) The definition and punishment of crime.
(6) The administration of justice in civil causes.
(7) The determination of the political duties, privileges, and
relations of citizens.
(8) Dealings of the state with foreign powers : the preservation
of the state from external danger or encroachment and
the advancement of its international interests.
These will all be recognized as functions which persist under
every form of government.
II. The Ministrant Functions. It is hardly possible to
give a complete list of those functions which I have called Minis-
trant, so various are they under different systems of government.
The following partial list will suffice, however, for the purposes
of the present discussion :
(1) The regulation of trade and industry. Under this head I
would include the coinage of money and the establish-
ment of standard weights and measures, laws against
forestalling and engrossing, the licensing of trades, etc.,
as well as the great matter of tariffs, navigation laws,
and the like.
(2) The regulation of labor.
(3) The maintenance of thoroughfares, including state man-
agement of railways and that great group of undertak-
ings which we embrace within the comprehensive term
' Internal Improvements.'
(4) The maintenance of postal and telegraph systems, which is
very similar in principle to (3).
(5) The manufacture and distribution of gas, the maintenance
of water-works, etc.
(6) Sanitation, including the regulation of trades for sanitary
purposes.
44 THE FUNCTIONS OF GOVERNMENT.
(7) Education.
(8) Care of the poor and incapable.
(9) Care and cultivation of forests and like matters, such as the
stocking of rivers with fish.
(10) Sumptuary laws, such as ' prohibition ' laws, for example.
These are all functions which, in one shape or another,
all governments alike have undertaken. Changed conceptions of
the nature and duty of the state have arisen, issuing from changed
historical conditions and deeply altered historical circumstances ;
and part of the change which has thus affected the idea of the
state has been a change in the method and extent of the exer-
cise of governmental functions ; but changed conceptions have
left the functions of government in kind the same. Diversities
of conception are very much more marked than diversities of
practice.
History of Governmental Function : Province of the An-
cient State. Notable contrasts both of theory and of practice sepa-
rate governments of the ancient omnipotent type from governments
of the modern constitutional type. The ancient State, standing
very near, as it did, in its thought, to that time, still more remote,
when the State was the Kin, knew nothing of individual rights as
contrasted with the rights of the state. " The nations of Italy,"
says Mommsen, " did not merge into that of Home more completely
than the single Eoman burgess merged in the Roman community."
And Greece was not a whit behind Rome in the absoluteness
with which she held the subordination of the individual to the
state.
This thought is strikingly visible in the writings of Plato and
Aristotle, not only in what they say, but also, and even more, in
what they do not say. The ideal Republic of which Plato dreams
is to prescribe the whole life of its citizens ; but there is no sug-
gestion that it is to be set up under cover of any new conception
as to what the state may legitimately do, it is only to make
novel experiments in legislation under the old conception. And
Aristotle's objection to the Utopian projects of his master is not
that they would be socialistic (as we should say), but merely that
they would be unwise. He does not fear that in such a republic
the public power would prove to have been exalted too high ; but,
THE FUNCTIONS OF GOVERNMENT. 45
speaking to the policy of the thing, he foresees that the citizens
would be poor and unhappy. The state may do what it will, but
let it be wise in what it does. There is no one among the Greeks
to deny that it is the duty of the state to make its citizens happy
and prosperous; nay, to legislate them happy, if legislation may
create fair skies and a kind fortune ; the only serious quarrel
concerns the question, What laws are to be tried to this end ?
Roman Conception of Private Rights. Roman principles,
though equally extreme, were in some respects differently cast.
That superior capacity for the development of law, which made
the Romans singular among the nations of antiquity, showed
itself in respect of the functions of government in a more distinct
division between public and private rights than obtained in the
polity of the Greek cities. An examination of the conception of
the state held in Rome reveals the singular framework of her
society. The Roman family did not suffer that complete absorp-
tion into the City which so early overtook the Greek family.
Private rights were not individual rights, but family rights : and
family rights did not so much curtail as supplement the powers
of the community. The family was an indestructible organ of
the state. The father of a family, or the head of a gens, was in a
sense a member of the official hierarchy of the City, as the king,
or his counterpart the consul, was a greater father. There was no
distinction of principle between the power of king or consul and
the power of a father ; it was a mere difference of sphere, a divi-
sion of functions.
A son was, for instance, in some things exempt from the author-
ity of the City only because he was in those things still subject, because
his father still lived, to the dominion of that original state, the family.
There was not in Rome that separation of the son from the family at
majority which characterizes the Greek polity, as it now characterizes
our own. The father continued to be a ruler, an hereditary state officer,
within the original sphere of the family life, the large sphere of individual
privilege and property.
This essential unity of state and family furnishes us
with the theoretic measure of state functions in Rome. The
Roman burgess was subordinated, not to the public authority
exactly, but rather to the public order, to the conservative in-
46 THE FUNCTIONS OF GOVERNMENT.
fcegrity of the community. He was subject to a law which
embodied the steady, unbroken habit of the State-family. He
was not dominated, but merged.
Powers of the Roman Senate. The range of state power
in ancient times, as a range broken only by limits of habit and con-
venience, is well illustrated in the elastic functions of the Roman Senate
during the period of the Republic. With an unbroken life which kept
it conscious of every tradition and familiar with every precedent ; with
established standards of tested experience and cautious expediency, it was
able to direct the movements of the compact society at whose summit it
sat, as the brain and consciousness direct the movements of the human
body ; and it is evident from the freedom of its discussions and the
frequency of its action upon interests of every kind, whether of public
or of private import, that the Roman state, as typified in its Senate, was
in its several branches of family, tribe, and City, a single undivided
whole, and that its prerogatives were limited by nothing save religious
observance and fixed habit. Of that individual liberty which we cherish
it knew nothing.
Government the Embodiment of Society. As little was
there in Greek politics any seed of the thought which would
limit the sphere of governmental action by principles of inalien-
able individual rights. Both in Greek and in Eoman conception
government was as old as society, was indeed nothing less
than the express image and embodiment of society. In govern-
ment society lived and moved and had its being. Society and
government were one, in some such sense as the spirit and
body of man are one : it was through government, as through
mouth and eyes and limbs, that society realized and gave effect
to its life. Society's prejudices, habits, superstitions, did
indeed command the actions of government; but only because
society and government were one and the same, not because they
were distinct and the one subordinate to the other. In plain
terms, the functions of government had no limits of principle,
but only certain limits of wont and convenience, and the object
of administration was nothing less than to help society on to all
its ends : to speed and facilitate all social undertakings. So far as
full citizens of the state were concerned, Greek and Roman alike
was what we should call a socialist ; though he was too much in the
world of affairs and had too keen an appreciation of experience,
THE FUNCTIONS OF GOVERNMENT. 47
*
too keen a sense of the sane and possible, to attempt the Utopias
of which the modern socialist dreams, and with which the ancient
citizen's own writers sometimes amused him. He bounded his
politics by common sense, and so dispensed with f the rights of
man.'
Feudalism: Functions of Government Functions of Pro-
prietorship. Individual rights, after having been first heralded
in the religious world by *he great voice of Christianity, broke
into the ancient political world in the person of the Teuton. But
the new politics which the invader brought with him was not
destined to establish at once democratic equality: that was a
work reserved for the transformations of the modern world
During the Middle Ages, government, as we conceive it, may
be said to have suffered eclipse. In the Feudal System the
constituent elements of government fell away from each other.
Society was drawn back to something like its original family
groups. Conceptions of government narrowed themselves to
small territorial connections. Men became sovereigns in their
own right by virtue of owning land in their own right. There
was no longer any conception of nations or societies as wholes.
Union there was none, but only interdependence. Allegiance
bowed, not to law or to fatherhood, but to ownership. The
functions of government under such a system were simply the
functions of proprietorship, of command and obedience : " I say
unto one, Go, and he goeth; and to another, Come, and he
cometh; and to my servant, Do this, and he doeth it." The
public function of the baron was to keep peace among his liege-
men, to see that their properties were enjoyed according to the
custom of the manor (if the manor had been suffered to acquire
custom on any point), and to exact fines of them for all privi-
leges, whether of marrying, of coming of age, or of making a
will. The baronial conscience, bred in cruel, hardening times,
was the only standard of justice; the baronial power the only
conclusive test of prerogative.
This was between baron and vassal. Between baron
and baron the only bond was a nominal common allegiance to a
distant king, who was himself only a greater baron. For the
rest there was no government, but only diplomacy and warfare.
48 THE FUNCTIOKS OF GOVERNMENT.
Government lived where it could and as it could, and was for
the most part divided out piecemeal to a thousand petty holders.
Armed feuds were the usual processes of -Justice.
The Feudal Monarchy. The monarchy which grew
out of the ruins of this disintegrate system concentrated au-
thority without much changing its character. The old idea,
born of family origins, that government was but the active au-
thority of society, the magistrate but society's organ, bound by
society's immemorial laws, had passed utterly away, and govern-
ment had become the personal possession of one man. The
ruler did not any longer belong to the state ; the state belonged
to him : he was himself the state, as the rich man may be said to
be his possessions. The Greek or Roman official was wielded by
the community. Not so the king who had swept together into
his own lap the powers once broadcast in the feudal system : he
wielded the community. Government breathed with his breath,
and it was its function to serve him. The state had become, by
the processes of the feudal development, his private estate.
Modern De-socialization of the State. The reaction from
such conceptions, slow and for the most part orderly in England,
sudden and violent, because long forcibly delayed, on the Conti-
nent, was natural, and indeed inevitable. When it came it was
radical ; but it did not swing the political world back to its old-
time ideas ; it turned it aside rather to new. The ancient man
had had no thought but to live loyally the life of society; but it
became the object of the revolutionist and the democrat of the
new order of things to live his own life. The antique citizen's
virtues were not individual in their point of view, but social;
whereas our virtues are almost entirely individual in their motive,
social only in some of their results.
In brief, the modern State has been largely de-socialized.
The modern idea is this: the state no longer absorbs the indi-
vidual ; it only serves him. The state, as it appears in its organ,
the government, is the representative of the individual, and not
his representative even except within the definite commission of
constitutions ; while for the rest each man makes his own social
relations. ' The individual for the State ' has been reversed and
made to read, 'The State for the individual.'
THE FUNCTIONS OF GOVERNMENT. 49
More Changes of Conception than of Practice. Such are
the divergencies of conception separating modern from ancient poli-
tics, divergencies at once deep and far-reaching. How far have
such changes of thought been accompanied by changes of func-
tion ? By no means so far as might be expected. Apparently the
new ideas which have been given prevalence in politics from time
to time have not been able to translate themselves into altered
functions, but only into somewhat curtailed functions, breeding
rather a difference of degree than a difference of kind. Even
under the most liberal of our modern constitutions we still meet
government in almost every field of social endeavor. Our modern
life is so infinitely wide and complex, it is true, that we may go
great distances in any field of enterprise without receiving either
direct aid or direct check from government ; but that is only be-
cause every field of enterprise is vastly big nowadays, not because
government is not somewhere in it : and we know that the tend-
ency is for governments to make themselves everywhere more and
more conspicuously present. We are conscious that we are by
no means in the same case with the Greek or Koman : the state is
ours, not we the state's. But we know at the same time that the
tasks of the state have not been much diminished. Perhaps we
may say that the matter stands thus : what is changed is not the
activities of government but only the morals, the conscience of
government. Government may still be doing substantially the
same things as of old ; but an altered conception of its responsi-
bility deeply modifies the ivay in which it does them. Social conven-
ience and advancement are still its ultimate standard of conduct,
just as if it were still itself the omnipotent impersonation of
society, the master of the individual; but it has adopted new
ideas as to what constitutes social convenience and advancement.
Its aim is to aid the individual to the fullest and best possible
realization of his individuality, instead of merely to the full
realization of his sociality. Its plan is to create the best and fairest
opportunities for the individual ; and it has discovered that the way
to do this is by no means itself to undertake the administration
of the individual by old-time futile methods of guardianship.
Functions of Government much the Same now as always.
This is indeed a great and profound change j but it is none the
50 THE FUNCTIONS OF GOVERNMENT.
(ess important to emphasize the fact that the functions of govern-
ment are still, when catalogued, found to be much the same both
in number and magnitude that they always were. Government
does not stop with the protection of life, liberty, and property, as
some have supposed; it goes on to serve every convenience of
society. Its sphere is limited only by its own wisdom, alike where
republican and where absolutist principles prevail.
The State's Relation to Property. A very brief examina-
tion of the facts suffices to confirm this view. Take, for example,
the state's relation to property, its performance of one of the
chief of those functions which I have called Constituent. It is
in connection with this function that one of the most decided con-
trasts exists between ancient and modern political practice ; and
yet we shall not find ourselves embarrassed to recognize as natural
the practice of ancient states touching the right of private prop-
erty. Their theory was extreme, but, outside of Sparta, their
practice was moderate.
In Sparta. Consistent, logical Sparta may serve as the
point of departure for our observation. She is the standing clas-
sical type of exaggerated state functions and furnishes the most
extreme example of the antique conception of the relations of the
state to property. In the early periods of her history at least,
besides being censor, pedagogue, drill sergeant, and housekeeper to
her citizens, she was also universal landlord. There was a distinct
reminiscence in her practice of the time when the state was the
family, and as such the sole owner, of property. She was regarded
as the original proprietor of all the land in Laconia, and individ-
ual tenure was looked upon as rather of the nature of a usufruct
held of the state and at the state's pleasure than as resting upon
any complete or indefeasible private title.
Peculiar Situation of the Spartans. There were in Sparta
special reasons for the persistence of such a system. The Spartans had
come into Laconia as conquerors, and the land had first of all been tribal
booty. It had been booty of which the Spartan host as a whole, as a
state, had had the dividing, and it had been the purpose of the early
arrangement to make the division of the land among the Spartan families
as equal as possible. Nor did the state resign the right of disposition in
making this first distribution. It remained its primary care to keep its
citizens, the favored Spartiatce, upon an equal footing of fortune, to the
THE FUNCTIONS OF GOVERNMENT. 51
end that they might rgnain rich in leisure, and so be the better able to
live entirely for the service of the state, which was honorable, to the
avoidance of that pursuit of wealth which was dishonorable. The state,
accordingly, undertook to administer the wealth of the country for the
benefit of its citizens. When grave inequalities manifested themselves in
the distribution of estates it did not hesitate to resume its proprietary
rights and effect a reapportionment ; no one dreaming, the while, of call-
ing its action confiscation. It took various means for accomplishing its
ends. It compelled rich heiresses to marry men without patrimony ; and
it grafted the poor citizen upon a good estate by means of prescribed
adoption. No landed estate could be alienated either by sale or testament
from the family to which the state had assigned it unless express legislative
leave were given. In brief, in respect of his property the citizen was both
ward and tenant of the state.
Decay of the System. As the Spartan state decayed this
whole system was sapped. Estates became grossly unequal, as
did also political privileges even among the favored Spartiatce.
But these changes were due to the decadence of Spartan power
and to the degeneration of her political fibre in days of waning
fortune, not to any conscious or deliberate surrender by the state
of its prerogatives as owner, guardian, and trustee. She had
grown old and lax simply ; she had not changed her mind.
In Athens. When we turn to Athens we experience a
marked change in the political atmosphere, though the Athenians
hold much the same abstract conception of the state. Here men
breathe more freely and enjoy the fruits of their labor, where
labor is without reproach, with less restraint. Even in Athens
there remain distinct traces, nevertheless, of the family duties of
the state. She too, like Sparta, felt bound to dispose properly of
eligible heiresses. She did not hesitate to punish with heavy for-
feiture of right (atimia) those who squandered their property in
dissolute living. There was as little limit in Athens as in
Sparta to the theoretical prerogatives of the public authority.
The freedom of the citizen was a freedom of indulgence rather
than of right: he was free because the state refrained, as a
privileged child, not as a sovereign under Rousseau's Law of
Nature.
In Rome. When we shift our view to republican Eome
we do not find a simple city omnipotence like that of Greece, in
52 THE FUNCTIONS OF GOVERNMENT.
which all private rights are sunk. The .primal constituents of
the city yet abide in shapes something like their original. Roman
society consists of a series of interdependent links : the family
the gens, the city. The aggregate, not the fusion, of these makes
up what we should call the state. But the state, so made up, was
omnipotent, through one or other of its organs, over the indi-
vidual. Property was not private in the sense of being individ-
ual ; it vested in the family, which was, in this as in other
respects, an organ of the gbate. Property was not conceived of as
state property, because it had remained the undivided property of
the family. The father, as a ruler in the immemorial hierarchy
of the government, was all-powerful trustee of the family estates ;
individual ownership there was none.
Tinder Modern Governments. We with some justice
felicitate ourselves that to this omnipotence of the ancient state
in its relations to property the practice of our own governments
offers the most pronounced contrasts. But the point of greatest
interest for us in the present connection is this, that these con-
trasts are contrasts of policy, not of povier. To what lengths it
will go in regulating property rights is for each government a
question of principle, which it must put to its own conscience,
and which, if it be wise, it will debate in the light of political
history : but every government must regulate property in one
way or another and may regulate it as much as it pleases. If the
ancient state was regarded as the ultimate owner, the modern
state is regarded as the ultimate heir of all estates. Failing
other claimants, property escheats to the state. If the modern
state does not assume, like the ancient, to administer their prop-
erty upon occasion for competent adults, it does administer their
property upon occasion for lunatics and minors. The ancient
state controlled slaves and slavery. The modern state has been
quite as absolute : it has abolished slaves and slavery. The
modern state, no less than the ancient, sets rules and limitations
to inheritance and bequest. Most of the more extreme and hurt-
ful interferences with rights of private ownership government has
abandoned, one may suspect, rather because of difficulties of ad-
ministration than because of difficulties of conscience. It is of the
nature of the state to regulate property rights ; it is of the policy
THE FUNCTIONS OF GOVERNMENT. 53
of the state to regulate them more or less. Administrators must
regard this as one of the Constituent functions of political society.
The State and Political Rights. Similar conclusions
may be drawn from a consideration of the contrasts which exist
in the field of that other Constituent function which concerns the
determination of political rights, the contrasts between the
status of the citizen in the ancient state and the status of the citi-
zen in the modern state. Here also the contrast, as between state
and state, is not one of power, but one of principle and habit
rather. Modern states have often limited as narrowly as did the
ancient the enjoyment of those political privileges which we
group under the word Franchise. They, too, as well as the
ancient states, have admitted slavery into their systems; they
too have commanded their subjects without moderation and
fleeced them without compunction. But for all they have been
so omnipotent, and when they chose so tyrannical, they have
seldom insisted upon so complete and unreserved a service of the
state by the citizen as was habitual to the political practice of
both the Greek and the Roman worlds. The Greek and the
Roman belonged each to his state in a quite absolute sense. He
was his own in nothing as against the claims of his city upon
him : he freely acknowledged all his privileges to be but conces-
sions from his mother, the commonwealth. Those privileges
accrued to him through law, as do ours; but law was to him
simply the will of the organized community ; never, as we know
it in our constitutions, a restraint upon the will of the organized
community. He knew no principles of liberty save only those
which custom had built up : which inhered, not in the nature of
things, not in abstract individuality, but in the history of affairs,
in concrete practice. His principles were all precedents. Never-
theless, however radically different its doctrines, the ancient state
was not a whit more completely master touching laws of citizen-
ship than the state of to-day is.
As Regards the State's Ministrant Functions. Of the
Ministrant, no less than of the Constituent functions, the same
statement may be made, that practically the state has been
relieved of very little duty by alterations of political theory. It
is natural enough that in the field of the Constituent functions
54 THE FUNCTIONS OF GOVERNMENT.
the state should serve society now as always ; in this field of the
Ministrant functions one would expect the state to be less active
now than formerly. But there is in fact no such difference : gov-
ernment does now whatever experience permits or the times demand ;
and though it does not do exactly the same things it still does
substantially the same kind of things that the ancient state did.
It will conduce to clearness if I set forth my illustrations of this
in the order of the list of Ministrant functions which I have given
(page 43).
(1) The State in Relation to Trade. All nations have
habitually regulated trade and commerce. In the most remote
periods of which history has retained any recollection the regu-
lation of trade and commerce was necessary to the existence of
government. The only way in which communities which were
then seeking to build up a dominant power could preserve an
independent existence and work out an individual development
was to draw apart to an absolutely separate life. Commerce
meant contact; contact meant contamination: the only way in
which to develop character and achieve cohesion was to avoid
intercourse. In the classical states this stage is passed and
trade and commerce are regulated for much the same reasons
fchat induce modern states to regulate them, in order, that is, to
secure commercial advantage as against competitors or in order
to serve the fiscal needs of the state. Athens and Sparta and
Rome, too, regulated the corn trade for the purpose of securing
for their citizens full store of food. In the Middle Ages the
feuds and highway brigandage of petty lords loaded commerce
with fetters of the most harassing sort, except where the free
cities could by militant combination keep open to it an unhin-
dered passage to and fro between the great marts of North and
South. As the mediaeval states emerge into modern times we
find trade and commerce handled by statesmen as freely as ever,
but according to the reasoned policy of the mercantilist thinkers ;
and in our own days according to still other conceptions of
national advantage.
(2) The State in Relation to Labor. Labor, too, has
always been regulated by the state. By Greek and Roman the
labor of the handicrafts and of agriculture, all manual toil
THE FUNCTIONS OF GOVERNMENT. 55
indeed, was for the most part given to slaves to do ; and of course
law regulated the slave. In the Middle Ages the labor which
was not agricultural and held in bondage to feudal masters was
in the cities, where it was rigidly ordered by the complex rules
of the guild system, as were trade also and almost all other like
forms of making a livelihood. Where, as in England, labor in part
escaped from the hard service of the feudal tenure the state stepped
in with its persistent "statutes of laborers" and sought to tie
the workman to one habitation and to one rate of wages. ' The
rustic must stay where he is and must receive only so much pay/
was its command. Apparently, however, all past regulation of
labor was but elementary as compared with the labor legislation
being tried by the governments of our own day. The birth and
development of the modern industrial system has changed every
aspect of the matter ; and this fact reveals the true character of
the part which the state plays in the case. The rule would
seem to be that in proportion as the world's industries grow
must the state advance in its efforts to assist the industrious to
advantageous relations with each other. The tendency to regu-
late labor rigorously and minutely is as strong in England, where
the state is considered the agent of the citizen, as it was in
Athens, where the citizen was deemed the child and tool of the
state, and where the workman was a slave.
(3) Regulation of Corporations. The regulation of
corporations is but one side of the modern regulation of the in-
dustrial system, and is a function added to the antique list of
governmental tasks.
(4) The State and Public Works. The maintenance of
thoroughfares may be said to have begun with permanent empire,
that is to say, for Europe, with the Komans. For the Romans,
indeed, it was first a matter of moving armies, only secondarily a
means of serving commerce; whereas with us the highway is
above all things else an artery of trade, and armies use it only
when commerce stands still at the sound of drum and trumpet.
The building of roads may therefore be said to have begun by
being a Constituent function and to have ended by becoming a
Ministrant function of government. But the same is not true of
other public works, of the Roman aqueducts and theatres and
56 THE FUNCTIONS OF GOVERNMENT.
baths, and of modern internal improvements. They, as much as
the Roman tax on old bachelors, are parts, not of a scheme of
governing, but of plans for the advancement of other social aims,
for the administration of society. Because in her conception
the community as a whole was the only individual, Rome thrust
out as of course her magnificent roads to every quarter of her
vast territory, considered no distances too great to be traversed
by her towering aqueducts, deemed it her duty to clear river
courses and facilitate by every means both her commerce and her
arms. And the modern state, though holding a deeply modified
conception of the relations of government to society, still follows
a like practice. If in most instances our great iron highways are
left to private management, it is oftener for reasons of con-
venience than for reasons of conscience. l
(5) Administration of the Conveniences of Society.
Similar considerations apply in the case of that modern instru-
mentality, the public letter-post, in the case of the still more
modern manufacture of gas, and in the case of the most modern
telegraph and telephone. The modern no less than the ancient
government unhesitatingly takes a hand in administering the con-
veniences of society.
(6) Sanitation. Modern governments, like the govern-
ment of Rome, maintain sanitation by means of police inspection
of baths, taverns, and houses of ill fame, as well as by drainage ;
and to these they add hospital relief, water supply, quarantine,
and a score of other means.
(7) Public Education. Our modern systems of public
education are more thorough than the ancient, notwithstanding
the fact that we regard the individual as something other than a
mere servant of the state, and educate him first of all for himself.
(8) Sumptuary Laws. In sumptuary laws ancient states
of course far outran modern practice. Modern states have fore-
gone most attempts to make citizens virtuous or frugal by law.
But even we have our prohibition enactments ; and we have had
our fines for swearing.
1 This is clearly shown in the taking over of the railroads by the govern-
ment for the period of the war.
THE FUNCTIONS OF GOVERNMENT. 57
Summary. Apparently it is safe to say with regard to
the functions of government taken as a whole that, even as be-
tween ancient and modern states, uniformities of practice far out-
number diversities of practice. One may justly conclude, not in-
deed that the restraints which modern states put upon themselves
are of little consequence, or that altered political conceptions are
not of the greatest moment in determining important questions
of government and even the whole advance of the race ; but
that it is rather by gaining practical wisdom, rather by long
processes of historical experience, that states modify their prac-
tices. New theories are subsequent to new experiences.
IV.
THE OBJECTS OF GOVEKNMENT.
Character of the Subject. Political interest and con-
troversy have centred nowhere more acutely than in the question,
What are the proper objects of government? This is one of those
difficult questions upon which it is possible for many sharply
opposed views to be held apparently with almost equal weight
of reason. Its central difficulty is this, that it is a question
which can be answered, if answered at all, only by the aid of a
broad and careful wisdom whose conclusions are based upon the
widest possible inductions from the facts of political experience
in all its phases. Such wisdom is quite beyond the capacity of
most thinkers and actors in the field of politics ; and the conse-
quence has been that this question, perhaps more than any other
in the whole scope of political science, has provoked great wars
of doctrine.
The Extreme Views held. What part shall govern-
ment play in the affairs of society ? that is the question which
has been the gauge of controversial battle. What ought the func-
tions of government to be ? On the one hand there are extremists
who cry constantly to government, ' Hands off,' 'laissez faire,'
1 laissez passer,' who look upon every act of government which
is not merely an act of police with jealousy ; who regard govern-
ment as necessary, but as a necessary evil ; and who would have
government hold back from everything which could by any possi-
bility be accomplished by individual initiative and endeavor. On
the other hand, there are those who, with equal extremeness of
view in the opposite direction, would have society lean fondly
upon government for guidance and assistance in every affair of
life ; who, captivated by some glimpse of public power and benefi<
58
THE OBJECTS OF GOVERNMENT. 59
cence caught in the pages of ancient or mediaeval historian, or by
some dream of cooperative endeavor cunningly imagined by the
great fathers of Socialism, believe that the state can be made a
wise foster mother to every member of the family politic. Be-
tween these two extremes, again, there are all grades, all shades
and colors, all degrees of enmity or of partiality to state action.
Historical Foundation for Opposite Views. Enmity to
exaggerated state action, even a keen desire to keep that action
down to its lowest possible terms, is easily furnished with im-
pressive justification. It must unreservedly be admitted that
history abounds with warnings of no uncertain sort against in-
dulging the state with a too great liberty of interference with
the life and work of its citizens. Much as there is that is at-
tractive in the political life of the city states of Greece and
Rome, in which the public power was suffered to be omnipotent,
their splendid public spirit, their incomparable organic whole-
ness, their fine play of rival talents, serving both the common
thought and the common action, their variety, their conception of
public virtue, there is also much to blame, their too wanton
invasion of that privacy of the individual life in which alone
family virtue can dwell secure, their callous tyranny over mi-
norities in matters which might have been left to individual
choice, their sacrifice of personal independence for the sake of
public solidarity, their hasty average judgments, their too confi-
dent trust in the public voice. They, it is true, could not have
had the individual liberty which we cherish without breaking
violently with their own history, with the necessary order of
their development ; but neither can we, on the other hand, imi-
tate them without an equally violent departure from our own
normal development and a reversion to the now too primitive
methods of their pocket republics.
Unquestionable as it is that mediaeval history affords
many seductive examples of an absence of grinding, heartless
competition and a strength of mutual interdependence, confidence,
and helpfulness between class and class such as the modern econ-
omist may be pardoned for wishing to see revived; and true
though it be that the history of Prussia gives at least colorable
justification to the opinion that state interference may under some
60 THE OBJECTS OF GOVERNMENT.
circumstances be of benefit for the industrial upbuilding of a
state, it must, on the other hand, be remembered that neither the
feudal system, nor the mediaeval guild system, nor the paternalism
of Frederic the Great can be rehabilitated now that the revolutions
in industry, in church, and in state have been wrought which have
been witnessed since the beginning of the nineteenth century ; and
that, even if these systems of the past could be revived, we
should be sorely puzzled to reinstate their blessings without re-
storing at the same time their acknowledged evils. No student
of history can wisely censure those who protest against state
paternalism.
The State a Beneficent and Indispensable Organ of
Society. It by no means follows, nevertheless, that because the
state may unwisely interfere in the life of the individual, it
must be pronounced in itself and by nature a necessary evil.
It is no more an evil than is society itself. It is the organic
body of society : without it society would be hardly more than
a mere abstraction. If the name had not been restricted to a
single, narrow, extreme, and radically mistaken class of think-
ers, we ought all to regard ourselves and to act as socialists, that
is, believers in the wholesomeness and beneficence of the body
politic.
If the history of society proves anything, it proves the absolute
naturalness of government, its rootage in the nature of man, its
origin in kinship, and its identification with all that makes man
superior to the brute creation. Individually man is but poorly
equipped to dominate other animals : his lordship comes by com-
bination, his strength is concerted strength, his supremacy is the
supremacy of union. Outside of society man's mind can avail
him little as an instrument of supremacy ; and government is the
visible form of society. If society itself be not an evil, neither
surely is government an evil, for government is the indispensable
organ of society.
Every means, therefore, by which society may be perfected
through the instrumentality of government, every means by
which individual rights can be fitly adjusted and harmonized
with public duties, by which individual self-development may be
made at once to serve and to supplement social development,
THE OBJECTS OF GOVERNMENT. 61
ought certainly to be diligently sought, and, when found, sedu-
lously fostered by every friend of society. Such is the view to
which every true lover of his kind ought to adhere with the full
grip of every noble affection that is in him.
Socialism and the Modern Industrial Organization. It
is possible, indeed, to understand and even in a measure to sym-
pathize with, the enthusiasm of those special classes whom we
have dubbed with the too great name of f Socialists/ The
schemes of social reform and regeneration which they support
with so much ardor, however mistaken they may be, have the
right end in view: they seek to bring the individual with his
special interests, personal to himself, into complete harmony with
society with its general interests, common to all. Their method
is always some sort of cooperation, meant to perfect mutual help-
fulness. They speak, too, a revolt from selfish, misguided in-
dividualism ; and certainly modern individualism has much about
it that is hateful, too hateful to last.
The modern industrial organization has so distorted competition
as sometimes to put it into the power of some to tyrannize over
many, as to enable the rich and the strong to combine against
the poor and the weak. It has given a woful material meaning
to that spiritual law that " to him that hath shall be given,
and from him that hath not shall be taken away even the little
that he seemeth to have/' It has magnified that self-interest
which is grasping selfishness and has thrust out love and com-
passion not only, but free competition in part, as well. Surely
it would be better, exclaims the Socialist, altogether to stamp
out competition by making all men equally subject to the public
order, to an imperative law of social cooperation! But the
Socialist mistakes : it is not competition that kills, but unfair
competition, the pretence and form of it where the substance
and reality of it cannot exist.
A Middle Ground. And there is a middle ground. The
schemes which Socialists have proposed society cannot accept and
live ; and no scheme which involves the complete control of the
individual by government can be devised which differs from theirs
very much for the better. A truer doctrine must be found, which
62 THE OBJECTS OF GOVERNMENT.
gives wide freedom to the individual for his self-development and
yet guards that freedom against the competition that kills, and
reduces the antagonism between self-development and social
development to a minimum. And such a doctrine can be formu-
lated, surely, without too great vagueness.
The Objects of Society the Objects of Government. Gov-
ernment is the organ of society, its only potent and universal
instrument : its objects must be the objects of society. What,
then, are the objects of society ? What is society ? It is an
association of individuals organized for mutual aid. Mutual
aid to what ? To self-development. The hope of society lies in
an infinite individual variety, in the freest possible play of indi-
vidual forces : only in that can it find that wealth of resource
which constitutes civilization, with all its appliances for satisfying
human wants and mitigating human sufferings, all its incitements
to thought and spurs to action. It should be the end of government
to assist in accomplishing the objects of organized society. There
must be constant adjustments of governmental assistance to the
needs of a changing social and industrial organization. Not license
of interference on the part of government, but only strength, and
adaptation of regulation. The regulation that I mean is not inter-
ference : it is the equalization of conditions, so far as possible, in
all branches of endeavor ; and the equalization of conditions is the
very opposite of interference.
Every rule of development is a rule of adaptation, a rule
for meeting ' the circumstances of the case ' ; but the circumstances
of the case, it must be remembered, are not, so far as government
is concerned, the circumstances of any individual case, but the
circumstances of society's case, the general conditions of social
organization. The case for society stands thus: the individual
must be assured the best means, the best and fullest opportunities,
for complete self-development : in no other way can society itself
gain variety and strength. But one of the most indispensable
conditions of opportunity for self-development government alone,
society's controlling organ, can supply. All combinations which
necessarily create monopoly, which necessarily put and keep in-
dispensable means of industrial or social development in the
hands of a few, and those few, not the few selected by society
THE OBJECTS OP GOVERNMENT. 68
itself, but the few selected by arbitrary fortune, must be under
either the direct or the indirect control of society. To society alone
can the power of dominating by combination belong. It cannot
suffer any of its members to enjoy such a power for their own pri-
vate gain independently of its own strict regulation or oversight.
Natural Monopolies. It is quite possible to distinguish
natural monopolies from other classes of undertakings ; their dis-
tinctive marks are thus enumerated by Sir T. H. Farrer in his
excellent little volume on The State in its Relation to Trade which
forms one of the well-known English Citizen series : *
" 1. What they supply is a necessary," a necessary, that is, to
life, like water, or a necessary to industrial action, like railroad
transportation.
"2. They occupy peculiarly favored spots or lines of land."
Here again the best illustration is afforded by railroads or by
telegraph lines, by water-works, etc.
" 3. The article or convenience they supply is used at the place
and in connection with the plant or machinery by which it is sup-
plied " ; that is to say, at the favored spots or along the favored
lines of land.
" 4. This article or convenience can in general be largely, if not
indefinitely increased, without proportionate increase in plant and
capital " ; that is to say, the initial outlay having been made, the
favored spot or line of land having been occupied, every subse-
quent increase of business will increase profits because it will not
proportionately, or anything like proportionately, increase the
outlay for services or machinery needed. Those who are outside
of the established business, therefore, are upon an equality of com*
petition neither as regards available spots or lines of land nor as
regards opportunities to secure business in a competition of rates.
" 5. Certain and harmonious arrangement, which can only be
attained by unity, are paramount considerations." Wide and
systematic organization is necessary.
Such enterprises invariably give to a limited number of persons
the opportunity to command certain necessaries of life, of comfort, or of
industrial success against their fellow-countrymen and for their own
i P. 71. Sir Thomas Farrer was Permanent Secretary of the English
Board of Trade.
64 THE OBJECTS OF GOVERNMENT.
advantage. Once established in any field, there can be no real competi
tion between them and those who would afterwards enter that field. No
agency should be suffered to have such control except a public agenc.y
which may be compelled by public opinion to act without selfish narrow-
ness, upon perfectly equal conditions as towards all, or some agency upon
which the government may keep a strong hold of regulation.
Control not necessarily Administration. Society can by
no means afford to allow the use for private gain and without
regulation of undertakings necessary to its own healthful and
efficient operation and yet of a sort to exclude equality in compe-
tition. Experience has proved that the self-interest of those who
have controlled such undertakings for private gain is not coinci-
dent with the public interest: even enlightened self-interest may
often discover means of illicit pecuniary advantage in unjust dis-
criminations between individuals in the use of such instrumentali-
ties. But the proposition that the government should control
such dominating organizations of capital may by no means be
wrested to mean by any necessary implication that the government
should itself administer those instrumentalities of economic action
which cannot be used except as monopolies. In such cases, as Sir
T. H. Farrer says, " there are two great alternatives. (1) Owner-
ship and management by private enterprise and capital under
regulation by the state. (2) Ownership and management by Gov-
ernment, central or local." Government regulation may in most
cases suffice. Indeed, such are the difficulties in the way of estab-
lishing and maintaining careful business management on the part
of government, that control ought to be preferred to direct admin-
istration in as many cases as possible, in every case in which
control without administration can be made effectual.
Equalization of Competition. There are some things
outside the field of natural monopolies in which individual action
cannot secure equalization of the conditions of competition: and
in these also, as in the regulation of monopolies, the practice of
governments, of our own as well as of others, has been decisively
on the side of governmental regulation. By forbidding child
labor, by supervising the sanitary conditions of factories, by limit-
ing the employment of women in occupations hurtful to theii
health, by instituting official tests of the purity or the quality oJ
THE OBJECTS OF GOVERNMENT. 65
goods sold, by limiting hours of labor in certain trades, by a
dred and one limitations of the power of unscrupulous or heartless
men to out-do the scrupulous and merciful in trade or industry,
government has assisted equity. Those who would act in mod-
eration and good conscience in cases where moderation and good
conscience, if indulged, require an increased outlay of money, in
better ventilated buildings, in greater care as to the quality of
goods, etc., cannot be expected to act upon their principles so
long as more grinding conditions for labor or a more unscrupulous
use of the opportunities of trade secure to the unconscientious an
unquestionable and sometimes even a permanent advantage ; they
have only the choice of denying their consciences or retiring from
business. In scores of such cases government has intervened and
will intervene; but by way, not of interference, by way, rather,
of making competition equal between those who would rightfully
conduct enterprise and those who basely conduct it. It is in this
way that society protects itself against permanent injury and
deterioration, and secures healthful equality of opportunity for
self-development.
Society greater than Government. Society, it must al-
ways be remembered, is vastly bigger and more important than
its instrument, Government. Government should serve Society,
by no means rule or dominate it. Government should not be
made an end in itself; it is a means only, a means to be freely
adapted to advance the best interests of Society. The State
exists for the sake of Society, not Society for the sake of the
State.
Natural Limits to State Action. And that there are
natural and imperative limits to state action no one who seriously
studies the structure of society can doubt. The limit of state
functions is the limit of necessary cooperation on the part of So-
ciety as a whole, the limit beyond which such combination ceases
to be imperative for the public good and becomes merely con-
venient for industrial or social enterprise. Cooperation is neces-
sary in the sense here intended when it is indispensable to the
equalization of the conditions of endeavor, indispensable to the
maintenance of uniform rules of individual rights and relation-
ships, indispensable because to omit it would inevitably be to
66 THE OBJECTS OF GOVERNMENT.
hamper or degrade some for the advancement of others in the
scale of wealth and social standing.
There are relations in which men invariably have need
of each other, in which universal cooperation is the indispensa-
ble condition of even tolerable existence. Only some universal
authority can make opportunities equal as between man and man.
The divisions of labor and the combinations of commerce may for
the most part be left to contract, to free individual arrangement,
but the equalization of the conditions which affect all alike may
no more be left to individual initiative than may the organiza-
tion of government itself. Churches, clubs, corporations, frater-
nities, guilds, partnerships, unions, have for their ends one or
another special enterprise for the development of man's spiritual
or material well-being : they are all more or less advisable. But
the family and the state have as their end a general enterprise
for the betterment and equalization of the conditions of individual
development : they are indispensable.
The point at which public combination ceases to be
imperative is not susceptible of clear indication in general
terms ; but it is not on that account indistinct. The bounds of
family association are not indistinct because they are marked
only by the immaturity of the young and by the parental and
filial affections, things not all of which are defined in the law.
The rule that the state should do nothing which is equally pos-
sible under equitable conditions to optional associations is a
sufficiently clear line of distinction between governments and
corporations. Those who regard the state as an optional, conven-
tional union simply, a mere partnership, open wide the doors to
the worst forms of socialism. Unless the state has a nature which
is quite clearly defined by that invariable, universal, immutable
mutual interdependence which runs beyond the family relations
and cannot be satisfied by family ties, we have absolutely no cri-
terion by which we can limit, except arbitrarily, the activities of
the state. The criterion supplied by the native necessity of state
relations, on the other hand, banishes such license of state action.
The state, for instance, ought not to supervise private morals
because they belong to the sphere of separate individual responsibility,
not to the sphere of mutual dependence. Thought and conscience art
THE OBJECTS OF GOVERNMENT. 67
private. Opinion is optional. The state may intervene only where com-
mon action, uniform law are indispensable. Whatever is merely con-
venient is optional, and therefore not an affair for the state. Churches
are spiritually convenient ; joint-stock companies are capitalistically con-
venient ; but when the state constitutes itself a church or a mere businesg
association it institutes a monopoly no better than others. It should do
nothing which is not in any case both indispensable to social or industrial
life and necessarily monopolistic.
The Family and the State. It is the proper object of the
family to mould the individual, to form him in the period of im-
maturity in the faiths of religion and in the practice of morality
and obedience. This period of subordination over, he is called
out into an independent, self-directive activity. The ties of
family affection still bind him, but they bind him with silken,
not with iron bonds. He has left his i minority ' and reached his
' majority.' It is the proper object of the state to give leave to
his individuality, in order that that individuality may add its
quota of variety to the sum. of national activity Family disci-
pline is variable, selective, formative : it must lead the individual.
But the state must not lead. It must create conditions, but not
mould individuals. Its discipline must be invariable, uniform,
impersonal. Family methods rest upon individual inequality,
state methods upon individual equality. Family order rests upon
tutelage, state order upon franchise, upon privilege.
The State and Education. In one field the state would
seem at first sight to usurp the family function, the field, namely,
of education. But such is not in reality the case. Education is
the proper office of the state for two reasons, both of which come
within the principles we have been discussing. Popular education
is necessary for the preservation of those conditions of freedom,
political and social, which are indispensable to free individual
development. And, in the second place, no instrumentality less
universal in its power and authority than government can secure
popular education. In brief, in order to secure popular education
the action of society as a whole is necessary ; and popular educa-
tion is indispensable to that equalization of the conditions of per-
sonal development which we have taken to be the proper object
of society. Without popular education, moreover, no government
68 THE OBJECTS OF GOVERNMENT.
which rests upon popular action can long endure : the peopte must
be schooled in the knowledge, and if possible in the virtues, upon
which the maintenance and success of free institutions depend.
No free government can last in health if it lose hold of the tradi-
tions of its history, and in the public schools these traditions may
be and should be sedulously preserved, carefully replanted in the
thought and consciousness of each successive generation.
Historical Conditions of Governmental Action. What-
ever view be taken in each particular case of the rightfulness or
advisability of state regulation and control, one rule there is which
may not be departed from under any circumstances, and that is
the rule of historical continuity. In politics nothing radically
novel may safely be attempted. No result of value can ever be
reached in politics except through slow and gradual development,
the careful adaptations and nice modifications of growth. Noth-
ing may be done by leaps. More than that, each people, each
nation, must live upon the lines of its own experience. Nations
are no more capable of borrowing experience than individuals are.
The histories of other peoples may furnish us with light, but they
cannot furnish us with conditions of action. Every nation must
constantly keep in touch with its past ; it cannot run towards its
ends around sharp corners.
Summary. This, then, is the sum of ':he whole matter :
the end of government is the facilitation of the objects of society.
The rule of governmental action is necessary cooperation. The
method of political development is conservative adaptation, shap-
ing old habits into new ones, modifying old means to accomplish
new ends.
V.
LAW: ITS NATURE AND DEVELOPMENT.
What is Law ? Law is the will of the State concerning
its own organization and conduct and the civic conduct of those
under its authority. This will may be more or less formally ex-
pressed : it may speak either in custom or in specific enactment.
Law may, moreover, be the will either of a primitive family-
community such as we see in the earliest periods of history, or of
a highly organized, fully self-conscious State such as those of our
own day. But for the existence of Law there is needed in all
cases alike (1) a community capable of having a will of its own,
and (2) some clearly recognized body of rules to which that com-
munity has, whether by custom or enactment, given life, character,
and effectiveness. Law is that portion of the established thought
and habit which has gained distinct and formal recognition in the
shape of uniform rules backed by the authority and power of
Government. The nature of each State, therefore, will be reflected
in its law ; in its law, too, will appear the functions with which it
charges itself ; and in its law will it be possible to read its history.
The Development of Law : its Sources. Law thus follows
in its development, with slow, sometimes with uneven, but gener-
ally with quite certain steps, the evolution of the character, the
purposes, and the will of the organized community whose creation
it is. The sources whence it springs are as various as the means
by which a community can shape and express its will as a body
politic.
1. Custom. 1 The earliest source of Law is Custom, and
custom is formed no one can say definitely how, except that it
1 1 adopt here the classification usual in English writings on Jurisprudence.
See, e.g., T. E. Holland, Jurisprudence, pp. 48 et seq.
TO LAW : ITS NATURE AND DEVELOPMENT.
is shaped by the cooperative action of the whole community, and
not by any kingly or. legislative command. It is not formed
always in the same way; but it always rests upon the same
foundation, upon the general acceptance of a certain course of
action as best or most convenient. Whether custom originate in
the well-nigh accidental formation of certain habits of action or
in a conscious effort on the part of a community to adjust its
practices more perfectly to its social and political objects, it
becomes, when once it has been formed and accepted by the pub-
lic authority, a central part of Law. It is difficult, if not impos-
sible, to discover the exact point at which custom passes from
the early inchoate state in which it is merely tending to become
the express and determinate purpose of a community into the
later stage in which it becomes Law; but we can say with assur-
ance that it becomes Law only when it wins the support of a
definite authority within the community. It is not Law if men
feel free to depart from it.
Under the reign of customary law that state of things actually
did exist which modern law still finds it convenient to take for granted :
everybody knew what the law was. The Teutonic hundred-moots, for
example, the popular assemblies which regularly tried cases under the
early polity of our own ancestors, declared the law by the public voice ;
the people themselves determined what it was and how it should be
applied. Custom grew up in the habits of the people ; they consciously
or unconsciously originated it ; to them it was known and by them it was
declared.
2. Religion. In the earliest times Custom and Keli-
gion were almost indistinguishable; a people's customs bore on
every lineament the likeness of its religion. And in later stages
of development Religion was still a prolific source of Custom.
No primitive community contained any critic who could, even in
his secret thought, separate Law from Eeligion. All rules of life
bore for the antique mind the same sanction (page 15). There
were not in its conception rules moral and rules political : poli-
tics, morals, and religion were indistinguishable parts of one
great indivisible Law of Conduct. Eeligion and Politics very
soon, it is true, came to have different ministers. In name often,
if not always in fact, the priest was distinct from the magistrate.
LAW: ITS NATURE AND DEVELOPMENT. 71
But throughout a very long development, from the time of Greece
and Home, the magistrate either retained priestly functions or
was dominated by rules which the priest declared and of which
the priest was the custodian.
Thus the early law of Rome was little more than a body of
technical religious rules, a system of means for obtaining individual rights
through the proper carrying out of certain religious formulae ; and it
marked the beginning of the movement of Roman law towards a broad
and equitable system of justice when these rules of procedure were
changed from sacerdotal secrets into published law by the publication of
the Twelve Tables.
3. Adjudication. One of the busiest and one of the
most useful, because watchful, open-minded, and yet conserva-
tive, makers of Law under all systems has been the magistrate,
the Judge. It is he who in his decisions recognizes and adopts
Custom, and so gives it the decisive support of the public power;
it is he who shapes written enactments into suitability to indi-
vidual cases and thus gives them due flexibility and a free devel-
opment. He is the authoritative voice of the community in
giving specific application to its Law: and in doing this he ne-
cessarily becomes, because an interpreter, also a maker of Law.
Whether deliberately or unconsciously, in expounding and ap-
plying he moulds and expands the Law. It is his legitimate
function to read Law in the light of his own sober and consci-
entious judgment as to what is reasonable and just in custom,
what practicable, rational, or equitable in legislation.
It is this ' judge-made ' law which is to be found, and is there-
fore so diligently sought for, in the innumerable law Reports cited in our
courts. Except under extraordinary circumstances, our courts and those
of England will always follow decisions rendered in similar cases by
courts of equal jurisdiction in the same state. A fortiori do they follow
the decisions of the highest courts : by these they are in a sense bound.
In the courts of the continent of Europe, on the other hand, decisions are
listened to as important expressions of opinion, but not as conclusive
authority : are heard much as our own courts or those of England hear
the decisions of courts of other states acting under like laws or similar
circumstances. \
4. Equity. Equity too is judge-made Law ; but it is
made, not in interpretation of, but in addition to, the laws which
72 LAW : ITS NATURE AND DEVELOPMENT.
already exist. The most conspicuous types of such Law are the
decisions of the Roman Praetor and those of the English Chan-
cellor. These decisions were meant to give relief where existing
law afforded none. The Praetor declared, for instance, that he
would allow certain less formal processes than had hitherto been
permitted to secure rights of property or of contract, of marriage
or of control, etc. The English Chancellor, in like manner, as
keeper of the king's judicial conscience, supplied remedies in cases
for which the Common Law had no adequate processes, and thus
relieved suitors of hardships they might otherwise have suffered
from the fixity or excessive formality of the Common Law, and
enabled them in many things to obtain their substantial rights
without technical difficulty.
After the official decrees of the Praetors had been codified by
the Prsetor Salvius lulianus, in the time of the Emperor Hadrian, and
still more after they had been embodied in the Code of Justinian, the
Corpus Juris Civilis, the Prsetor 's ' equity ' became as rigid and deter-
minate as the law which it had been its function to mend and ameliorate.
In the same manner, our own state codes, many of which have fused
law and equity in the same courts and under common forms of procedure,
have given equity the sanction and consequently the fixity of written
law. The English Judicature Act, also, of 1873, merging, as it does,
the common-law and equity courts into a single homogeneous system,
shows at least that a strong tendency in the same direction exists in Eng-
land. The adjustments of Equity are less needed now that legislation is
constantly active in mending old and creating new law and, when neces-
sary, new procedure.
In the same case with Equity must be classed the numerous so-
called 'fictitious actions' which were the invention of the common-law
courts and which, by means of imaginary suitors or imaginary transac-
tions, duly recorded as if real, enabled things to be done and rights
acquired which would have been impossible under any genuine process
of the Common Law.
5. Scientific Discussion. The carefully formed opin-
ions of learned text-writers have often been accepted as deci-
sive of the Law : more often under the Eoman system, however,
than under our own, though even we have our Cokes, our
Blackston.es, our Storys, and our Kents, whom our courts hear
with the greatest possible respect. It is the proper function
of legal science to interpret the law, not piecemeal, as the
LAW: ITS NATURE AND DEVELOPMENT. 73
courts must, but in such way as to bring all its parts to their full
development as doctrine and to their complete adjustment as
members of a living system of thought and practice; to give the
law system, study the conditions and forms of its genesis and
development, and assist courts and legislatures alike in their
functions of adaptation and creation.
6. Legislation. That deliberate formulation of new
Law to which the name Legislation is given is, for us of the
modern time, the most familiar as well as the most prolific
source of Law. For us Legislation is the work of representa-
tive bodies almost exclusively; but representation is no part
of the essential character of the legislative act. Absolute mag-
istrates or kings have in all stages of history been, under one
system or another, makers of laws. Whether acting under the
sanction of custom or under the more artificial arrangements of
highly developed constitutions, father or praetor, king or archon
has been a lawgiver. So, too, the assemblies of free men which,
alike in Greece and in Rome, constituted the legislative authority
were not representative, but primary bodies, like the Lands:
gemeinden of the smaller Swiss cantons.
Representation came in with the Germans ; and with the
critical development of institutions which the modern world has
seen many new phases of Legislation have appeared. Modern
law has brought forth those great private corporations whose
bye-laws are produced by what may very fitly be called private
legislative action. We have, too, on the same model, chartered
governments, with legislatures acting under special grants of
law-making power. Legislation has had and is having a notable
development, and is now the almost exclusive means of the
formulation of new Law. Custom of the older sort, which gave
us the great Common Law, has been in large part superseded
by acts of legislation ; Religion stands apart, giving law only to
the conscience ; Adjudication is being more and more restricted
by codification ; Equity is being merged in the main body of the
Law by enactment ; Scientific Discussion now does hardly more
than collate cases : all means of formulating Law tend to be
swallowed up in the one great, deep, and broadening source,
Legislation.
74 LAW : ITS NATURE AND DEVELOPMENT.
Custom again. Custom at last enters again, with a
new aspect and a new method. After judges have become the
acknowledged and authoritative mouthpieces of Equity and of
the interpretative adaptation of customary or enacted Law ; after
scientific writers have been admitted to power in the systematic
elucidation and development of legal principles ; even after the
major part of all law-making has fallen to the deliberate action
of legislatures, given liberal commission to act for the commu-
nity, Custom still maintains a presiding and even an imperative
part in legal history. It is Custom, the silent and unconcerted
but none the less prevalent movement, that is, of the common
thought and action of a community, which recognizes changes of
circumstance which judges would not, without its sanction, feel,
or be, at liberty to regard in the application of old enactments,
and which legislators have failed to give effect to, by repeal or
new enactment. Laws become obsolete because silent but observ-
ant and imperative Custom makes evident the deadness of their
letter, the inapplicability of their provisions. Custom, too,
never ceases to build up practices legal in their character and yet
wholly outside formal Law, constructing even, in its action on
Congresses and Parliaments, great parts of great constitutions.
It constantly maintains the great forces of precedent and opinion
which daily work their will, under every form of government,
upon both the contents and the administration of Law. Custom
is Habit under another name ; and Habit in its growth, while
it continually adjusts itself to the standard fixed in formal
Law, also slowly compels formal Law to conform to its abid-
ing influences. Habit may be said to be the great Law within
' which laws spring up. Laws can extend but a very little way
beyond its limits. They may help it to gradual extensions
of its sphere and to slow modifications of its practices, but
they cannot force it abruptly or disregard it at all with
impunity.
The history of France since the Revolution affords a noteworthy
example of these principles in the field of constitutional law. There
we have witnessed this singular and instructive spectacle : a people
made democratic in thought by the operation of a speculative political
philosophy has adopted constitution after constitution created in the
LAW; ITS NATURE AND DEVELOPMENT. 75
exact image of that thought. But they had, to begin with, absolutely no
democratic habit, no democratic custom. Gradually that habit has
grown, fostered amidst the developments of local self-direction ; and
the democratic thought has penetrated, wearing the body of practice, its
only vehicle to such minds, to the rural populace. Constitutions and
custom have thus advanced to meet one another, constitutions compelled
to adopt precedent rather than doctrine as their basis, thought, practical
experience rather than the abstract conceptions of philosophy ; and habit
constrained to receive the suggestions of written law. Now, therefore, in
the language of one of her own writers, France has " a constitution the
most summary in its text" (leaving most room, that is, for adjustments),
"the most customary in its application, the most natural outcome of our
manners and of the force of circumstances" that she has yet possessed. 1
Institutions too theoretical in their basis to live at first, have nevertheless
furnished an atmosphere for the French mind and habit : that atmosphere
has affected the life of France, that life the atmosphere. The result
that has been reached is normal liberty, political vitality and vigor, civil
virility.
Typical Character of Roman and English Law. Roman
law and English law are peculiar among the legal systems of
western Europe for the freedom and individuality of their devel-
opment. Rome's jus civile was, indeed, deeply modified through
the influence of the jus gentium; it received its philosophy from
Greece, and took some color from a hundred sources ; and English
law, despite the isolation of its island home, received its jury
system and many another suggestion from the Continent, and has
been much, even if unconsciously, affected in its development by
the all-powerful law of Rome. But English and Roman law alike
have been much less touched and colored than other systems by
outside influences, and have presented to the world what may be
taken as a picture of the natural, the normal, untrammelled evo-
lution of law.
The Order of Legal Development. As tested by the his-
tory of these systems, the order in which I have placed the
Sources of Law is seen to be by no means a fixed order of histori-
cal sequence. Custom is, indeed, the earliest fountain of Law,
but Religion is a contemporary, an equally prolific, and in some
stages of national development an almost identical source; Ad-
judication comes almost as early as authority itself, and from a
1 Albert Sorel, Montesquieu (Am. trans.), pp. 200, 201.
76 LAW : ITS NATURE AND DEVELOPMENT.
very antique time goes hand in hand with Equity. Only Legis-
lation, the conscious and deliberate origination of Law, and Sci-
entific Discussion, the reasoned development of its principles,
await an advanced stage of growth in the body politic to assert
their influence in law-making. In E/ome, Custom was hardly
separable from Religion, and hid the knowledge of its principles
in the breasts of a privileged sacerdotal class ; among the English,
on the contrary, Custom was declared in folk-moot by the voice
of the people, as possibly it had been among the ancestors of
the Romans. In both Rome and England there was added to the
influence of the magistrate who adopted and expanded Custom
in his judgments the influence of the magistrate (Praetor or
Chancellor) who gave to Law the flexible principles and practices
of Equity. And in both, Legislation eventually became the only
source of Law.
' But in Eome Legislation grew up under circumstances
entirely Roman, to which English history can afford no parallel.
Rome gave a prominence to scientific discussion such as never
gladdened the hearts of philosophical lawyers in England. The
opinions of distinguished lawyers were given high, almost conclu-
sive, authority in the courts; and when the days of codification
came, great texts as well as great statutes and decrees were
embodied in the codes of the Empire. The legislation of the
popular assemblies, which Englishmen might very easily have
recognized, was superseded in the days of the Empire by impe-
rial edicts and imperial codes such as the history of English legis-
lation nowhere shows; and over the formulation of these codes
and edicts great jurists presided. The only thing in English
legal practice that affords a parallel to the influence of lawyers
in Rome is the cumulative authority of judicial opinions. That
extraordinary body of precedent, which has become as much a
part of the substance of English law as are the statutes of the
realm, may be considered the contribution of the legal profession
to the law of England.
The Forces Operative in the Development of Law. The
forces that create and develop law are thus seen to be the same
as those which are operative in national and political development.
LAW: ITS XATUKK AND 1 >KYKL< H'MKNT. 77
If that development bring forth monarchical forms of govern-
ment, if the circumstances amidst which a people's life is cast
eradicate habits of local self-rule and establish habits of submis-
sion to a single central authority set over a compacted state, that
central authority alone will formulate and give voice to Law.
If, on the other hand, the national development be so favorably
cast that habits of self-reliance and self-rule are fostered and con-
firmed among the people, along with an active jealousy of any too
great concentration of only partially responsible power, Law will
more naturally proceed, through one instrumentality or another,
from out the nation : vox legis, vox populi. But in the one case
hardly less than in the other Law will express, not the arbitrary,
self-originative will of the man or body of men by whom it is for-
mulated, but such rules as the body of the nation is prepared by
reason of its habits and fixed preferences to accept. The func-
tion of the framers of Law is a function of interpretation, of
formulation rather than of origination : no step that they can
take successfully can lie far apart from the lines along which
the national life has run. Law is the creation, not of indi-
viduals, but of the special needs, the special opportunities, the
special perils or misfortunes of communities. No ' law-maker '
may force upon a people Law which has not in some sense been
suggested to him by the circumstances or opinions of the nation
for whom he acts. Rulers, in all states alike, exercise the power
of the community, but cannot exercise any other. The commu-
nity may supinely acquiesce in the power arrogated to himself by
the magistrate, but it can in no case really make him independent
of itself.
Here again France furnishes our best illustration. We have
a vivid confirmation of the truths stated in such an event as
the establishment of the Second Empire. The French people
were not duped by Louis Xapoleon. The facts were simply these.
They were keenly conscious that they were making a failure of
the self-government whic i they were just then attempting; they
wanted order and settled rule in place of fear of revolution and
the certainty of turbulent politics ; and they took the simplest,
most straightforward and evident means of getting what they
78 LAW : ITS NATURE AND DEVELOPMENT.
wanted. The laws of Napoleon were in a very real sense their
own creation.
The Power of the Community must be behind Law. -
The law of some particular state may seem to be the command of
a minority only of those who compose the state : it may even in
form utter only the will of a single despot ; but in reality laws
which issue from the "arbitrary or despotic authority of the few
who occupy the central seats of the state can never be given full
effect unless in one form or another the power of the community
be behind them. Whether it be an active power organized to
move and make itself prevalent or a mere inert power lying pas-
sive as a vast immovable buttress to the great structure of abso-
lute authority, the power of the community must support law
or the law must be without effect. The bayonets of a minority
cannot long successfully seek out the persistent disobediences
of the majority. The majority must acquiesce or the law must
be null.
There can be no reasonable doubt that the power of Russia's
Czar, vast and arbitrary as it seemed, derived its strength from
the Russian people. It was not the Czar's personal power ; it
was his power as head of the national church, as semi-sacred
representative of the race and its historical development and
organization. Its roots run deep into the tenacious, nourishing
soil of immemorial habit. The Czar represented a history, not a
caprice. Temporary, fleeting despots, like the first Napoleon,
lead nations by the ears, playing to their love of glory, to their
sense of dignity and honor, to their ardor for achievement and
their desire for order.
Both a Mirror of Conceptions and an Active Force.
Looked at from an abstract point of view, Law is a body of prin-
ciples, and as such constitutes a mirror of the prevalent concep-
tions as to ethical standards and social relationships in the
communities in which it is accepted. But Law is also an active
force, an expression of will. It is not merely a body of opinion ;
it is also a body of practical rules in operation. It is opera-
tive in two ways. It exercises both an ethical and a physical
compulsion.
It involves (1), an Ought, in proportion as it is received as
LAW I ITS NATURE AND DEVELOPMENT. 79
just or expedient. It is a source of conviction and motive in
proportion as it is accepted as true. This ethical force is its prin-
cipal force, its force for the majority. It is daily influential in
moving men to do even what they conceive to be contrary to their
individual interests. And this even when it is unjust in parts,
provided it be deemed sound and just as a whole. (2) For the
minority, who do not yield to its moral force or feel its moral
compulsions, it involves a Must, and speaks harshly of the power
of the state. That power is not great enough to venture to say
' You must ' to a prevalent majority of any people. In cases of
conquest, it is true, like that of the Normans in England, an
actual physical compulsion may be operative for long periods to-
gether even against a numerical majority, and the law may seem
to possess an ethical force only for the minority. But generally
the compulsion is confined to the field of public law, in such
cases ; and there are majorities in affairs which are to be
reckoned, not by number, but by capacity.
Roman Law an Example. The law of Rome affords
in this respect an admirable example of the normal charac-
ter of law. It was the fundamental thought of Roman Law
that it was the will of the Roman people. The political lib-
erty of the Roman consisted in his membership of the state
and his consequent participation, either direct or indirect, in
the utterance of law. As an individual he was subordinated
to the will of the state ; but his own will as a free burgess
was a part of the state's will. He was an integral part of
the community, his own power found its realization in the
absolute potestas et majestas populi. This giant will of the
people, speaking through the organs of the state, constituted a
very absolute power, by which the individual was completely
dominated ; but individual rights were recognized in the equality
of the law, in its purpose to deal equally with high and low, with
strong and weak ; and this was the Roman recognition of indi-
vidual liberty.
The Power of Habit. Legislators, those who exercise
the authority of a community, build upon the habit of their so-
called * subjects.' If they be of the same race and sharers of the
80 LAW : ITS NATURE AND DEVELOPMENT.
same history as those whom they rule, their accommodation of
their acts to the national habit will be in large part unconscious :
for that habit runs in their own veins as well as in the veins of the
people. If they be invaders or usurpers, they avoid crossing the
prejudices or the long-abiding practices of the nation out of
caution or prudence. In any case their activity skims but the
surface, avoids the sullen depths of the popular life. They work
arbitrary decrees upon individuals, but they are balked of power
to turn about the life of the mass : that they can effect only by
slow and insidious measures which almost insensibly deflect the
habits of the people into channels which lead away from old into
new and different methods and purposes. The habit of the
nation is the material on which the legislator works ; and its
qualities constitute the limitations of his power. It is stubborn
material, and dangerous. If he venture to despise it, it forces
him to regard and humor it ; if he would put it to unaccustomed
uses, it balks him ; if he seek to force it, it will explode in his
hands and destroy him. The authority is not his, but only the
leadership.
Law's Utterance of National Character. There is no
universal law, but for each nation a law of its own, which bears
evident marks of having been developed along with the national
character, which mirrors the special life of the particular people
whose political and social judgments it embodies (page 75).
The despot may be grossly arbitrary ; he may violate every prin-
ciple of right in his application of the law to individuals ; he
may even suspend all justice in individual cases ; but the law,
the principles which he violates or follows at pleasure, he
takes from the people whom he governs, extracts from their
habit and history. What he changes is the application merely,
not the principles, of justice ; and he changes that application
only with reference to a comparatively small number of individ-
uals whom he specially picks out for his enmity or displeasure.
He cannot violently turn about the normal processes of the
national law.
Germanic Law. We have in Germanic law an example
of the influence of national character upon legal systems as con-
spicuous as that afforded by Roman law itself, and the example
LAW : ITS NATURE AND DEVELOPMENT. 81
is all the more instructive when put alongside of the Roman
because of the sharpness of the contrasts between Roman and
Germanic legal conceptions. Although so like the Romans in
practical political sagacity and common-sense legal capacity, the
Germans had very different conceptions as to the basis and
nature of law. Their law spoke no such exaltation of the public
power, and consequently no such intense realization of unity.
The individual German was, so to say, given play outside the
law ; his rights were not relative, but absolute, self-centred.
It was the object of the public polity rather to give effect to
individual worth and liberty than to build together a compact,
dominant community. German law, therefore, took no thought
for systematic equality, but did take careful thought to leave
room for the fullest possible assertion of that individuality which
must inevitably issue in inequality. It was a flexible frame-
work for the play of individual forces. It lacked the energy,
the united, triumphant strength of the Roman system ; but it
contained untold treasures of variety and of individual achieve-
ment. It, no less than Roman law, rested broadly upon national
character; and it was to supply in general European history
what the Roman system could not contribute. 1
Sovereignty: who gives Law? If, then, law be a
product of national character, if the power of the community
must be behind it to give it efficacy, and the habit of the com-
munity in it to give it reality, where is the seat of sovereignty ?
Whereabouts and in whom does sovereignty reside, and what
is Sovereignty ? These, manifestly, are questions of great scope
and complexity, and yet questions central to a right understand-
ing of the nature and genesis of law. It will be best to approach
our answers to them by way of an illustration.
In England, sovereignty is said to rest with the legis-
lative power: with Parliament acting with the approval of the
Crown, or, not to discard an honored legal fiction, with the Crown
acting with the assent of Parliament. Whatever an Act of Par-
liament prescribes is law, even though it contravene every prin-
1 What is here said of Germanic law and the Germans refers to the primi-
tive, not to the modern Germans. The present German laws and Germans
are all that those here spoken of were not.
82 LAW: ITS NATURE AND DEVELOPMENT.
ciple, constitutional or only of private right, recognized before
the passage of the Act as inviolable. Such is the theory. The
well-known fact is, that Parliament dare do nothing that will
even seem to contravene principles held to be sacred in the
sphere either of constitutional privilege or private right. Should
Parliament violate such principles, their action would be repu-
diated by the nation, their will, failing to become indeed law,
would pass immediately into the limbo of things repealed ; Par-
liament itself would be purged of its offending members. Parlia-
ment is master, can utter valid commands, only so far as it
interprets, or at least does not cross, the wishes of the people.
Whether or not it be possible to say with the approval of those
who insist upon maintaining the rules of a strict abstract logic
that the sovereignty of Parliament is limited de jure, that is, in
law, it is manifestly the main significant truth of the case that
parliamentary sovereignty is most imperatively limited de facto,
in fact. Its actual power is not a whit broader for having a free
field in law, so long as the field in which it really moves is fenced
high about by firm facts.
Sovereignty, therefore, as ideally conceived in legal theory,
nowhere actually exists. The sovereignty which does exist is
something much more vital, though, like most living things,
much less easily conceived. It is the will of an organized
independent community, whether that will speak in acquiescence
merely, or in active creation of the forces and conditions of poli-
tics. The kings or parliaments who serve as its vehicles utter
it, but they do not possess it. Sovereignty resides in the com-
munity ; but its organs, whether those organs be supreme mag-
istrates, busy legislatures, or subtile privileged classes, are as
various as the conditions of historical growth.
Certain Legal Conceptions Universal. The correspond-
ence of law with national character, its basis in national habit,
does not deprive it of all universal characteristics. Many com-
mon features it does wear among all civilized peoples. As the
Romans found it possible to put together, from the diversified
systems of law existing among the subject peoples of the Mediter-
ranean basin, a certain number of general maxims of justice out
LAW : ITS NATURE AND DEVELOPMENT. 83
of which to construct the foundations of their jus gentium, so may
jurists to-day discover in all systems of law alike certain common
moral judgments, a certain evidence of unity of thought regarding
the greater principles of equity. There is a common legal con-
science in mankind.
Thus, for example, the sacredness of human life; among
all Aryan nations at least, the sanctity of the nearer family
relationships ; in all systems at all developed, the plainer prin-
ciples of 'mine 'and ' thine'; the obligation of promises; many
obvious duties of man to man suggested by the universal moral
consciousness of the race, receive recognition under all systems
alike. Sometimes resemblances between systems the most widely
separated in time and space run even into ceremonial details,
such as the emblematic transfer of property, and into many items
of personal right and obligation.
Law and Ethics. It by no means follows, however,
that because law thus embodies the moral judgments of the
race on many points of personal relation and individual conduct,
it is to be considered a sort of positive, concrete Ethics, Ethics
crystallized into definite commands towards which the branch of
culture which we call ' Ethics ' stands related as theory to prac-
tice. Ethics concerns the whole walk and conversation of the
individual ; it touches the rectitude of each man's life, the truth
of his dealings with his own conscience, the whole substance of
character and conduct, righteousness both of act and of mental
habit. Law, on the other hand, concerns only man's life in
society. It not only confines itself to controlling the outward
acts of men ; it limits itself to those particular acts of man to
man which can be regulated by the public authority, which it has
proved practicable to regulate in accordance with uniform rulee
applicable to all alike and in an equal degree. It does not essay
to punish untruthfulness as such, it only annuls contracts ob-
tained by fraudulent misrepresentation and makes good such
pecuniary damage as the deceit may have entailed. It does not
censure ingratitude or any of the subtler forms of faithlessness,
it only denounces its penalties against open and tangible acts of
dishonesty. It does not assume to be the guardian of men's char-
84 LAW: ITS NATURE AND DEVELOPMENT.
acters, it only stands with a whip for those who give overt proof
of bad character in their dealings with their fellow-men. Its limi-
tations are thus limitations both of kind and of degree. It ad-
dresses itself to the regulation of outward conduct only : that is
its limitation of kind ; and it regulates outward conduct only so
far as workable and uniform rules can be found for its regulation :
that is its limitation of degree.
Mala Prohibita. Law thus plays the role neither of
conscience nor of Providence. More than this, it follows stand-
ards of policy only, not absolute standards of right and wrong.
Many things that are wrong, even within the sphere of social
conduct, it does not prohibit ; many things not wrong in them-
selves it does prohibit. It thus creates, as it were, a new class
of wrongs, relative to itself alone : mala prohibita, things wrong
because forbidden. In keeping the commands of the state re-
garding things fairly to be called morally indifferent in them-
selves men are guided by their legal conscience. Society rests
upon obedience to the laws : laws determine the rules of social
convenience as well as of social right and wrong ; and it is as
necessary for the perfecting of social relationships that the rules
of convenience be obeyed as it is that obedience be rendered to
those which touch more vital matters of conduct.
Thus it cannot be said to be inherently wrong for a man to
marry his deceased wife's sister ; but if the laws, seeking what
may be esteemed to be a purer order of family relationships,
forbid such a marriage, it becomes malum prohibitum : it is wrong
because illegal.
It would certainly not be wrong for a trustee to buy the trust
estate under his control if he did so in good faith and on terms
manifestly advantageous to the persons in whose interest he held
it ; but it is contrary to wise public policy that such purchases
should be allowed, because a trustee would have too many oppor-
tunities for unfair dealing in such transactions. The law will
under no circumstances hold the sale of a trust estate to the
trustee valid. Such purchases, however good the faith in which
they are made, are mala prohibita.
Or take, as another example, police regulations whose only
LAW : ITS NATUKE AND DEVELOPMENT. 85
object is to serve the convenience of society in crowded cities.
A street parade, with bands and banners and men in uniform is
quite harmless and is immensely pleasing to those who love the
glitter of epaulettes and brass buttons and the blare of trumpets ;
but police regulations must see to it that city streets are kept
clear for the ordinary daily movements of the busy city popula-
tion, and to parade without license is malum prohibitum.
In all civilized states law has long since abandoned attempts
to regulate conscience or opinion ; it would find it, too, both
fruitless and unwise to essay any regulation of conduct, however
reprehensible in itself, which did not issue in definite and
tangible acts of injury to others. But it does seek to command
the outward conduct of men in their palpable dealings with each
other in society. Law is the mirror of active political life. It
may be and is instructed by the ethical judgments of the com-
munity, but its own province is not distinctively ethical ; it may
regard religious principle, but it is not a code of religion. Ethics
has been called the science of the well-being of man, law the
science of his right civil conduct. Ethics concerns the develop-
ment of character ; religion, the development of man's relation
with God ; law, the development of men's relations to each other
in society. Ethics, says Mr. Sidgwick, "is connected with
politics so far as the well-being of any individual man is bound
up with the well-being of his society."
International Law. International Law may be described as
law in an incomplete state. It is law without a forceful sanction
such as exists for the ordinary law of the land. There is no
earthly power to which all nations are subject ; there is no power,
therefore, above the nations to enforce obedience to rules of con-
duct as between them, yet International Law is not lacking in
sanction altogether ; it rests upon those principles of right action,
of justice, and of consideration which have so universal an
acceptance in the moral judgment of men that they have been
styled the Laws of Nature. Back of it in the first instance is
the common public opinion of the world. When this public
opinion is flouted, and the principles and practices of inter-
national Law are disregarded, then the physical force of in-
86 LAW : ITS NATURE AND DEVELOPMENT.
dividual states or groups of states may be brought to bear upon
the law-breaker. International Law is the law of the inter-
national community of states ; its principles are those upon which
the successful life of that community depends. The society of
states is not yet fully organized and International Law is incom-
plete just to the extent that this society lacks organization ; its
courts, its judges, its legislatures are rudimentary and are want-
ing as yet in that definiteness of constitution and authority which
we find in individual states.
Early writers like Grotius and Vattel embodied it in distinct
statements of what they conceived to be the almost self-evident
principles of the Law of Nature. In process of time, the practice
of nations has been recorded in state papers and in learned
treatises by hosts of scholars ; principles of international action
have been agreed to in treaties by which states acting in pairs or
in groups have agreed to be bound in their relations with each
other, and both practice and agreements have found their way
into the statutes or established judicial precedents of enlightened
individual states. More and more international conventions have
come to recognize certain elements of right, of equity and comity
as settled, as always to be accepted in transactions between
states. The practice of concerted action by the states of the
world in formulating International Law is best exemplified in the
First and Second Hague Conferences of 1899 and 1907, where
much of the practice of International Law was formulated and
definite rules accepted by the great body of states as binding
upon them.
The formation of a " League of Nations " to bring pressure to
bear upon a state unmindful of its international obligations will
go far towards supplying the sanction of regulated force which
International Law has hitherto lacked.
These rules concern the conduct of war, diplomatic inter-
course, the rights of citizens of one country living under the
dominion of another, jurisdiction at sea, the rights and duties of
neutrals, etc. Extradition principles are settled almost always
by specific agreement between country and country, as are also
commercial arrangements, fishing rights, and all similar matters
LAW : ITS NATURE AND DEVELOPMENT. 87
not of universal bearing. But even in such matters example
added to example is turning nations in the direction of uniform
principles ; such, for instance, as that political offences shall not
be included among extraditable crimes, unless they involve
ordinary crimes of a very heinous nature, such as murder.
Laws of Nature and Laws of the State. The analogy
between political laws, the laws which speak the will of the state,
and natural laws, the laws which express the orderly succession
of events in nature, has often been dwelt upon, and is not without
instructive significance. In the one set of laws as in the other,
there is, it would seem, a uniform prescription as to the opera-
tion of the forces that make for life. The analogy is most in-
structive, however, where it fails: it is more instructive, that is,
to note the contrasts between the laws of nature and laws of the
state than to note such likeness as exists between them. The
contrasts rather than the resemblances serve to make evident the
real nature of political regulation. " Whenever we have made
out by careful and repeated observation," says Professor Huxley,
"that something is always the cause of a certain effect, or that
certain events always take place in the same order, we speak of
the truth thus discovered as a law of nature. Thus it is a law
of nature that anything heavy falls to the ground if it is unsup-
ported. . . . But the laws of nature are not the causes of the
order of nature, but only our way of stating as much as we have
made out of that order. Stones do not fall to the ground in con-
sequence of the law just stated, as people sometimes carelessly
say ; but the law is a way of asserting that which invariably hap-
pens when heavy bodies at the surface of the earth, stones among
the rest, are free to move."
Whatever analogies may exist between such generalized state-
ments of physical fact and the rules in accordance with which
men are constrained to act in organized civil society it may be
profitable for the curious carefully to inquire into. What it is
most profitable for the student of politics to observe is the
wide difference between the two, which Professor Huxley very
admirably states as follows : " Human law consists of com-
mands addressed to voluntary agents, which they may obey or
88 LAW : ITS NATURE AND DEVELOPMENT.
disobey ; and the law is not rendered null and void by being
broken. Natural laws, on the other hand, are not commands,
but assertions respecting the invariable order of nature ; and they
remain law only so long as they can be shown to express that
order. To speak of the violation or suspension of a law of nature
is an absurdity. All that the phrase can really mean is that,
under certain circumstances, the assertion contained in the law is
not true; and the just conclusion is, not that the order of nature
is interrupted, but that we have made a mistake in stating that
order. A true natural law is a universal rule, and, as such, ad-
mits of no exception." 1 In brief, human choice enters into the
law of the state, whereas from natural law that choice is alto-
gether excluded : it is dominated by fixed necessity. Human
choice, indeed, enters every part of political law to modify it. It
is the element of change ; and it has given to the growth of law
a variety, a variability, and an irregularity which no other power
could have imparted.
Limitations of Political Law. We have thus laid bare
to our view some of the most instructive characteristics of politi-
cal law. The laws of nature formulate effects invariably pro-
duced by forces of course adequate to produce them; but behind
political laws there is not always a force adequate to produce the
effects which they are designed to produce. The force, the sanc-
tion, as jurists say, which lies behind the laws of the state is the
organized armed power of the community : compulsion raises its
arm against the man who refuses to obey (pages 26, 78). But
the public power may sleep, may be inattentive to breaches of
law, may suffer itself to be bribed, may be outwitted or thwarted :
laws are not always ' enforced.' This element of weakness it is
which opens up to us one aspect at least of the nature of Law.
Law is no more efficient than the state whose will it utters. The
law of Turkey shares all the imperfections of the Turkish power ;
the laws of England bespeak in their enforcement the efficacy of
English government. Good laws are of no avail under a bad gov-
1 These passages are taken from Professor Huxley's Science Primer,
Introductory.
LAW : ITS NATURE AND DEVELOPMENT. 89
ernment ; a weak, decadent state may speak the highest purposes
in its statutes and yet do the worst things in its actual admin-
istration. Commonly, however, law embodies the real purposes
of the state, and its enforcement is a matter of administrative
capacity or of concerted power simply.
Public Law. The two great divisions under which law
may best be studied are these : (1) Public Law, (2) Private Law.
Public law is that which immediately concerns the existence,
the structure, the functions, and the methods of the state. Taken
in its full scope, it includes not only what we familiarly know
as constitutional law, but also what is known as administrative
law, as well as all civil procedure in the courts and all criminal
law. In brief, it is that portion of law which determines a
state's own character and its relations to its citizens.
Private Law. Private law, on the other hand, is that
portion of positive law which secures to the citizen his rights as
against the other citizens of the state. It seeks to effect justice
between individual and individual ; its sphere is the sphere of
individual right and duty.
It is to the Romans that we are indebted for a first partial
recognition of this important division in the province of Law,
though later times have given a different basis to this distinction.
I say 'indebted' because the distinction between public and
private law has the most immediate connections with individual
liberty. Without it, we have the state of affairs that existed in
Greece, where there was no sphere which was not the state's ;
and where the sphere of the state's relations to the individual
was as wide as the sphere of the law itself. Individual liberty
can exist only where it is recognized that there are rights which
the state does not create, but only secures.
Jurisprudence. Jurisprudence is a term of much lati-
tude, but when used strictly must be taken to mean the Science
of Law. The science of law is complete only when it has laid
bare both the nature and the genesis of law : the nature of law
must be obscure until its genesis and the genesis of the con-
ceptions upon which it is based have been explored ; and that
genesis is a matter, not of logical analysis, but of history. Many
90 LAW: ITS NATURE AND DEVELOPMENT.
writers upon jurisprudence, therefore, have insisted upon the
historical method of study as the only proper method. They
have sought in the history of society and of institutions to dis-
cover the birth and trace the development of jural conceptions,
the growths of practice which have expanded into the law of
property or of torts, the influences which have contributed to the
orderly regulation of man's conduct in society.
In the hands of another school of writers, however, jurispru-
dence has been narrowed to the dimensions of a science of law
in its modern aspects only. They seek to discover, by an analy-
sis of law in its present full development, the rights which
habitually receive legal recognition and the methods by which
states secure to their citizens their rights, and enforce upon them
their duties, by positive rules backed by the abundant sanction
of the public power. In their view, not only is the history of
law not jurisprudence, but, except to a very limited extent, it is
not even the material of jurisprudence. Its material is law as it
at present exists. The history of that law is only a convenient
light in which the real content and purpose of existing law may
be made plainer to the analyst. The conclusions of these writers
are subject to an evident limitation, therefore. Their analysis of
law, being based upon existing legal systems alone and taking
the fully developed law for granted, can be applied to law in the
earlier stages of society only by careful modification, only by a
more or less subtle and ingenious accommodation of the meaning
of its terms.
Historical jurisprudence alone, a science of law, that is,
constructed by means of the historical analysis of law and always
squaring its conclusions with the history of society, can serve
the objects of the student of politics. The processes of analytical
jurisprudence, however, having been conducted by minds of the
greatest subtlety and acuteness, serve a very useful purpose in
supplying a logical structure of thought touching full-grown
systems of law.
The Analytical Account of Law. In the thought of the
analytical school every law is a command, " an order issued by a
superior to an inferior." " Every positive law is ' set by a sover-
LAW: ITS NATURE AND DEVELOPMENT. 91
eign person, or sovereign body of persons, to a member or mem-
bers of the independent political society wherein that person or
body of persons is sovereign or superior/ " In its terms, mani-
festly, such an analysis applies only to times when the will of
the state is always spoken by a definite authority ; not with the
voice of custom, which proceeds no one knows whence ; not with
the voice of religion, which speaks to the conscience as well as
to the outward life, and whose sanctions are derived from the
unseen power of a supernatural being ; nor yet with the voice of
scientific discussion, whose authors have no authority except that
of clear reason ; but with the distinct accents of command, with
the voice of the judge and the legislator.
The Analytical Account of Sovereignty. The analytical
account of sovereignty is equally clear-cut and positive. Laws,
"being commands, emanate from a determinate source," from a
sovereign authority ; and analytical jurisprudence is very strict
and formal in its definition of sovereignty. A sovereign " is a
determinate person, or body of persons, to whom, the bulk of the
members of an organized community are in the habit of render-
ing obedience and who are themselves not in the habit of render-
ing obedience to any human superior." It follows, of course, that
no community which is not independent can have a law of its
own. The law of the more fully developed English colonies, for
example, though it is made by the enactment of their own parlia-
ments, is not law by virtue of such enactment, because those
parliaments are in the habit of being obedient to the authorities
in London and are not themselves sovereign. The sovereignty
which lies back of all law in the colonies is said to be the sov-
ereignty of the parliament of England.
It would seem to follow that our own federal authorities are
sovereign. They are a determinate body of persons to whom the
bulk of the nation is habitually obedient and who are themselves
obedient to no human superior. But then what of the authority
of the states in that great sphere of action which is altogether
and beyond dispute their own, which the federal authorities do
not and cannot enter, within which their own people are habit-
ually obedient to them, and in which they are not subject to any
92 LAW: ITS NATURE AND DEVELOPMENT.
earthly superior ? It has been the habit of all our earlier writers
and statesmen to say that with us sovereignty is divided. But
the abstract sovereignty of which the legal analyst speaks is held
to be indivisible : it must be whole. Analysis, therefore, is
driven to say that with us sovereignty rests in its entirety with
that not very determinate body of persons, the people of the
United States, the powers of sovereignty resting with the state
and federal authorities by delegation from the people.
The difficulty of applying the analytical account of sovereignty
to our own law is in part avoided if law be defined as " the com-
mand of an authorized public organ, acting within the sphere of
its competence. What organs are authorized, and what is the
sphere of their competence, is of course determined by the or-
ganic law of the state ; and this law is the direct command of the
sovereign." * The only difficulty left by this solution is that of
making room in our system for both a sovereign people of the
single state and a sovereign people of the Union.
Summary. Spoken first in the slow and general voice
of custom, Law speaks at last in the clear, the multifarious, the
active tongues of legislation. It grows with the growth of the
community. It cannot outrun the conscience of the community
and be real, it cannot outlast its judgments and retain its force.
It mirrors social advance. If it anticipate the development of
the public thought, it must wait until the common judgment and
conscience grow up to its standards before it can have life ; if it
lag behind the common judgment and conscience, it must become
obsolete, and will come to be more honored in the breach than in
the observance.
1 This definition I have taken the liberty of extracting from some very
valuable notes on this chapter kindly furnished me by Professor Monroe
Smith, who upon this subject speaks authoritatively.
LAW: ITS NATURE AND DEVELOPMENT. 93
SEVERAL REPRESENTATIVE AUTHORITIES.
.1 uxtin, John, Lectures on Jurisprudence, the Philosophy of Positive
Law, 2 vols.
Gray, J. C., The Nature and Sources of the Law. N. Y., 1909.
Heron, D. C., Introduction to the History of Jurisprudence. London,
1880.
II oil n ml, T. E., Elements of Jurisprudence, llth ed. N. Y., 1910.
Ihering, v., Geist des Romischen Rechts. 3 vols., Leipzig.
Jtllim-k; (Jeorg, Gesetz und Verordnung. Freiburg in B., 1887; Das
Recht des Modernen Staates. 2d ed. Berlin, 1905.
Maine, Sir H. S., Ancient Law, and Early History of Institutions,
Lectures XII., XIII.
Markby, Sir Wm., Elements of Law. Oxford (Clarendon Press), 1889-
Modern Legal Philosophy Series, Vols. 1-2, Boston.
Pollock, Sir Frederick, A First Book of Jurisprudence. London and
N. Y., 1896.
Robertson, E., Article * Law,' Encyclopaedia Britannica, 9th ed.
Salmond, J. W., Jurisprudence. London, 1902.
Taylor, Hannis, The Science of Jurisprudence. N. Y., 1908.
Willoughby, W. W., The Nature of the State. N. Y., 1896.
VI.
POLITY AND GOVERNMENT DURING
THE MIDDLE AGES.
Contact of the Teutonic Tribes with Rome. The Teutonic
tribes which, in the fifth and following centuries, threw them-
selves into the Western Roman Empire to possess it were not all
of them strangers to the polity which they overset. The Romans
had often invaded Germany, and, although as often thrust out,
had established a supremacy over the minds at least, if not over
the liberties, of the Germans. Those tribes which had lived
nearest the Rhine and the Danube, moreover, had long been in
more or less constant contact with the masters of the Mediter-
ranean and the western world, and had, of course, been deeply
affected by the example of Roman civilization. Teutons had,
besides, entered and, so to say, espoused the Roman world in
great numbers, in search of individual adventure or advantage,
long before the advent of the barbarians as armed and emigrant
hosts. Rome had drawn some of her finest legions from these
races which she could not subdue. Her armies were in the later
days of the Empire full of stalwart, fair-haired Germans. Even
her greater officers and officials were oftentimes of that blood.
Primitive Teutonic Institutions. When Franks and Goths
and Burgundians moved as militant races to the supplanting of
Roman dominion, they, nevertheless, took with them into western
Europe, torn as it was by Roman dissensions and sapped by
Roman decay, an individuality of their own. They had their
own contribution to make to the history of institutions. They
had lived under a system of government combining, though in
94
POLITY DURING THE MIDDLE AGES. 95
somewhat crude forms, tribal unity and individual independence.
Amongst them, as amongst other Aryan peoples, kinship consti-
tuted the basis of association and the primal sanction of authority;
and the family was the unit of government. Kinsmen, fellow-
tribesmen, were grouped in villages, and each village maintained
without question its privileges of self-government, legislating
upon its common affairs and administering its common property
in village meeting. Its lands were the property, not of indi-
viduals, but of the community ; but they were allotted in separate
parcels to the freemen of the community, upon would-be equit-
able principles, to be cultivated for private, not for communal,
profit. Chiefs there were who exercised magisterial powers, but
these chiefs were elected in village meeting. They did not deter-
mine the weightier questions of custom, in the administration of
justice: that was the province of the village meeting itself; and
such judicial authority as they did exercise was shared by
'assessors ' chosen from the whole body of their free fellow-
villagers.
Free, Unf ree, and Noble. Not all their fellow-villagers
were free. There were some who were excluded from political
privilege and who held their lands only as serfs of the freemen
of the community; and there were others, lower still in rank,
who were simple slaves. There were, again, on the other
hand, some who were more than free, who, for one reason or
another, had risen to a recognized nobility of station, to a posi-
tion of esteem, and to an estate of wealth above those of the rest
of the community. But nobility did not carry with it exceptional
political privilege : it only assured a consideration which put its
possessor in the way of winning the greater preferments of office
in the gift of the village meeting. The power of the noble de-
pended upon the franchises of his community rather than upon
any virtue in his own blood.
Intercommunal Government. It was not often that a
village stood apart in entire dissociation from all similar tribal
or family centres ; but when it did, the powers of its moot (meet-
ing) extended beyond the choice of magistrates, the management
of the communal property, and the administration of communal
justice. It also declared war and appointed leaders of the com-
96 POLITY AND GOVERNMENT
munal 'host. ' Commonly, however, these greater matters of wai
and of ' foreign relations ' were determined by assemblies repre-
senting more than one village. Communities sent out offshoots
which remained connected with them by federal bonds j or inde-
pendent communities drew together into leagues ; and it was the
grand folk-moot of the confederated communities which sum-
moned the 'host' and elected leaders, which sometimes even
chose the chiefs who were to preside over the administration of
the several villages.
Military Leadership : the Comitatus. The leaders selected
to head the 'host '. were generally men of tried powers who could
inspire confidence and kindle emulation in their followers; and
such men, though in all cases chosen to official leadership only
for a single campaign, never even in times of peace ceased to be,
potentially at least, the heads of military enterprise and daring
adventure. Not uncommonly they would break the monotony of
peace and dull inactivity by gathering about them a band of
volunteers and setting forth, spite of the peace enjoyed by their
tribe, to make fighting or find plunder somewhere for their own
sakes. About men of this stamp there gathered generally all
the young blades of the tribe who thirsted for excitement or
adventure, or who aspired to gain proficiency in arms. These
became the military household, the comitatuSj of their chosen
chieftain, his permanent, inseparable retinue, bound to him by
the closest ties of personal allegiance, sitting always at his table,
and at once defending his person and emulating his prowess in
battle ; a band who looked to him for their sustenance, their mili-
tary equipment, and their rewards for valor, but who rendered
him in return a gallant service which added much to his social
consideration and gave him rank among the most powerful of his
fellow-tribesmen.
Contrasts between the Teutonic System and the Roman.
These features of tribal confederation and personal supremacy,
though suggestive at many points of the primitive Koman state,
were in strong contrast with the Eoman polity as it existed at
the time of the invasions. They were not only rude and primitive
and characteristic every way of a very much less advanced stage
of civilization, but they also contained certain principles which
DURING THE MIDDLE AGES. 97
were in radical contradiction to conceptions obviously funda-
mental to Roman state life.
Koman Allegiance to the State. The central contrast
between the two systems may be roughly summed up in the
statement that the Teutonic was essentially personal, the Roman
essentially impersonal. Neither the Roman soldier nor the
Roman citizen knew anything of the personal allegiance which
was the chief amalgam of primitive German politics. His sub-
ordination was to the state, and that subordination was so com-
plete that he was practically merged in the state, possessing
no rights but those of a child of the body politic. His obli-
gation to obey the magistrate in the city or his commander in
the field lasted only so long as the magistrate's or command-
er's commission lasted. Allegiance had no connection with
the magistrate or the commander as a person: magistrate and
commander claimed allegiance only as representatives of the
state, its temporary embodiment. To them as the state, the citi-
zen or soldier owed the yielding of everything, even of life itself :
for as against the state the Roman had no private rights. While
he held office, therefore, and shared the imperium, magistrate or
commander was omnipotent ; his official conduct could be called
in question only after his term of office was at an end and he had
ceased to be the state's self. Of course much decay had come
into the heart of such principles ere the Empire was forced to
break before the barbarian ; but they never ceased to be central
to Roman political conception.
Teutonic Personal Allegiance. With the Teutons, on
the contrary, political association manifested an irresistible ten-
dency towards just the opposite principles. When they came to
their final triumph over the Empire they came ranked and asso-
ciated upon grounds of personal allegiance. In their old life
in Germany, as we have seen above, their relations to their
commanders did not cease at the close of a war sanctioned by the
community, though the commission of their leaders did expire
then. Many, and those the bravest and best, remained mem-
bers of their leaders' comitatus, bound to him by no public com-
mand or sanction at all, but only by his personal supremacy over
them. They even made themselves members of his household,
98 POLITY AND GOVERNMENT
depended upon the bounties of his favor, and constituted them-
selves a personal following of their chosen leader such as no
Roman but a fawning client would have deigned to belong to.
It was a polity of individualism which presented many striking
points of surprise to Roman observers. Individuals had under
such a system a freedom of origination and a separateness of
unofficial personal weight which to the Roman were altogether
singular and in large part repugnant.
Temporary Coexistence of the Two Systems. For long
after the Teuton had established his dominion over the Roman-
ized populations of Europe, Teutonic and Roman institutions
lived side by side, each set persistent for its own people. The
conquerors did not try to eradicate the old population or the
old laws of the Empire. They simply carried into the midst of
the Empire their own customs, which they kept for themselves,
without thrusting them upon their new subjects. They appro-
priated to their own uses large tracts of the conquered lands, and
established upon them such bodies of free landholders as they had
known and built their polity upon in their old seats, either cast-
ing out those who already occupied them or reducing the occupiers
to a servile condition; but much of the land they left untouched,
to be occupied as before. Of course Teutonic customs, being the
customs of the dominant race, more and more affected the older
Roman rights, even if only insensibly; and Roman principles of
right, belonging as they did to a much superior and much more
highly developed civilization, which the Teuton had already long
reverenced, must have had quite as great a modifying effect upon
the Teutonic customs, which now, so to say, lay alongside of
them. The Roman polity had entered into the whole habit of
the older provincials and still retained, despite the disorders
of the later days of the Empire, not a little of its old vigor and
potency. It had strongly affected the imaginations of the Ger-
mans when they had touched only its geographical borders, and
it did not fail in a certain measure to dominate them even now,
when it was at their feet. They made no attempt to stamp it
out. They, on the contrary, tolerated, respected, imitated it.
'Personal' Law. What looked like tolerance on the
part of the Teutons was in reality for the most part only a natural
DURING THE MIDDLE AGES. 99
outcome of certain fixed conceptions of the race. The hosts which
had poured into the Roman territories were much greater and
more various in their make-up than any the Teutonic peoples
had gathered in their communal life in the forests of Germany.
They represented tribes united : kindred tribes, indeed, but still
tribes only very loosely confederated at home, if united there
under any common government at all. These each had their own
law. Saliau Frank had one law and custom, Kipuarian Frank
another; Frank had one right and practice, Burgundian another;
and it was a principle everywhere observed among Teutons that,
whether joined with others in a common enterprise or not, each
man must be judged and given his right by his own native law,
according to the custom of his own people. Each had his ' per-
sonal ' privilege of blood and custom, must be adjudged by his
own ' personal ' law, the law of his own tribe or homeland. So
at any rate we have now come to phrase it; and we know that in
giving leave to the people of the Roman territories to keep their
law also, the conquerors were but extending to them a habit of
their own, alike in thought and practice.
Relative Influence of Roman and Teutonic Systems. So
far as any general description of this mixture of Roman and
Teutonic influences may be ventured, it may be said that the
Teutonic had their greatest weight on the side of political organi-
zation, the Roman on the side of the development of private
rights. The Teutons, of course, tried to reproduce in their new
settlements the communal life peculiar to their own native insti-
tutions; they endeavored to organize their own power, according
to the immemorial fashion of their own politics, on the basis of
a freehold tenure of the land and local self -administration, a
free division of the spoils on the principle of individual equality
among the freemen of the tribes. They had stamped out the
Roman state in the invaded territory ; Roman public law they had
of course displaced, destroyed. It was Roman conceptions as to
private relations that gradually modified their Teutonic system.
That system rested, as regarded its political features hardly
less than at all other points, upon the relations of individual
to individual, and as the example of the Roman practices, still
preserved by the conquered populations about them, modified
100 POLITY AND GOVERNMENT
these relations of individual to individual, great changes were
by consequence inevitably wrought in political organization as
well. Such changes were, however, not in the direction of a
reproduction of Eoman political method, but in the direction of
the creation of that singular public polity which we designate
as mediaeval.
Roman Influence upon Private Law. The Eoman influ-
ence thus told most directly and most powerfully through the
medium of Eoman private law. That law had developed too
complete and perfect a system, and was much too suitable to the
new conditions in the midst of which they found themselves, to
fail of influence amongst the new organizers. The Teutonic
peoples, leaders and followers alike, were prepared to admire and
heed Eoman civil arrangements. The leaders had in many cases
a fancy for seeming successors to the Eoman Emperor. They
were prompt, when their power was once established, to draw the
law which was to be ' personal ' to their Eoman subjects into a
crude but formal code, after the manner of Theodosius. King
Gundobad, of the Burgundians, had such a code put together out
of the older Eoman codices, the writings of Paulus and Gaius,
and the text-books and interpretations of the schools, so early as
the year 500 A.D., five years after he had given his own people a
similar statement of their own law. The new code was the "Lex
Romano, Burgundionum," the Roman law of the Burgundians, as
contradistinguished from their own Burgundian law; and its pro-
visions were chiefly for their conquered subjects, not for them-
selves. In the year 506 came the Lex Romana Visigothorum, the
Eoman code of the Visigoths, formulated at the command of
Alaric II. and generally known now as the Breviary of Alaric,
the best and most influential of the barbarian codes of Eoman
law. It was practically the only source of Eoman law known in
the south of France till the twelfth century. Germany and Eng-
land drew their knowledge of that law from it until the eleventh
century. In 511, or thereabouts, Theodoric the Great promul-
gated a like compilation of the Eoman law for his Ostrogothic
kingdom in Italy, a compilation which we know as the Edictum
Theodorici. It was no small evidence of Eoman influence that
these rulers sought to give their subjects written law in both
DURING THE MIDDLE AGES. 101
kinds ; and the fact that only priests were literate enough to
undertake the work of codification meant that Roman principles
would creep unawares even into the statements of native law;
for the polity and learning of the Church had its roots in the tra-
dition and law of Rome. ' Personal ' law, nevertheless, continued
to prevail. Even the greatest statesmen, like Charles the Great,
did not make use of their power to cut at the roots of local cus-
tom or personal right. Sometimes it was the plaintiff, sometimes
the defendant, who established his right to his own personal law
in a suit ; but in every case custom reigned where it could.
Roman Towns. It was in the towns that the law of
Rome had its strongholds. There it had a centred and lively
influence: and there it was long undisturbed by the conquerors.
It took the Teuton a long time to learn how to live in a town,
within limiting walls and amidst crowded houses. His native
habit called him to a freer life: the pent-up town was too rigid,
too conventional, too narrow a sphere for his restless energies.
He at first contented himself, therefore, with the mere formal
submission of the towns: it was long before he entered them to
stay and to take part in their life. Meanwhile not only Roman
private law, but also Roman municipal traditions, were preparing
the cities for the power and independence which they were to
claim and enjoy during the Middle Ages. They were to prove
Rome's most vital fragments. They nursed her law and repro-
duced her politics. Not Italy only, but the Rhone and Rhine
countries as well, were dotted over with these abiding places of
the old influences which had once dominated the world: and from
them those influences were eventually to issue forth again to fresh
triumphs.
The Fusion of the Two Systems. Gradually there was
brought about that fusion of German customs with Roman law
and conception which, after a long intermediate fermentation,
and in conjunction with certain institutions developed apart from
both was to produce the conditions of modern political life. Dur-
ing the Middle Ages government gradually worked its way out
from the individualism inherent in the habits of the Germanic
races back into an absolutism not unlike that of the Roman
Empire. The intermediate stage was Feudalism.
102 POLITY AND GOVERNMENT
Effects of Movements of Conquest upon Teutonic Institu-
tions. Feudalism was preceded, however, by modifications in
the Teutonic system which were not the result of their contact
with Romanized peoples so much as the direct effects of conquest.
The New Kingship. The migratory conquests of the
Teutons greatly emphasized for a time the principle of individu-
alism, the principle of personal allegiance. They advanced to
their new seats not as separate marauding bands, but as emigrant
nations. It was a movement of races, not of armies merely. All
the freemen of the tribes came, bringing with them their families,
their household goods, and their slaves, as having come to stay.
But they could not preserve, when on such an errand, the organi-
zation of times of settlement and peace. They had not come, in
fact, with nothing but their old and simple organization. They
came with established discipline and subordination, it would
seem, with kingship already in some measure recognized
amongst them, ready to be made permanent. They were forced
to elevate the commander of the host to a new kingship. As
confederated tribes in their old seats they had often chosen kings,
who typified in their official dignity and sanctity the unity of
tribal organization, who presided over the national councils, and
who by reason of their preferred position enjoyed a somewhat
greater state than their noble associates in the tribes. But these
early kings, like the Greek kings of the Homeric songs, were
scarcely more than patriarchal presidents, 'first among peers. 7
The later kings, in Gaul, in England, and in Spain, the kings
of the emigration, on the other hand, ruled as well as reigned.
They had first of all been the leaders who commanded the invad-
ing hosts, and who had met and routed the Eoman forces which
sought to withstand the stalwart immigrants ; and so long as con-
quests remained incomplete they continued in command to com-
plete them. Conquest being achieved, their authority was still
necessary to keep their people together in dominant organization.
It was only the logical and inevitable result that was reached,
therefore, when they became possessed of sovereign powers of a
sort such as German politics had never known before. Great as
was the almost immediate transformation of commanders into
kings, however, they were not yet kings such as later times were
DURING THE MIDDLE AGES. 103
to see in France, after feudalism should have worked its perfect
work.
The Modified Land Tenure. The invading peoples doubt-
less at first took possession of the conquered territory by a ten-
ure not radically different from that by which they had held
their older home fields, except as it was modified by the fact that
the conquered lands were already occupied by a native population,
whom it was not their policy altogether to dispossess, and whose
presence even as serfs would necessarily affect the system of the
new masters. Those who were suffered to retain their holdings
only exchanged a Roman overlordship for a German; but they
constituted a new class of citizens in the German polity, and
inevitably touched with Roman influences Teutonic customs of
tenure.
It was the circumstances of conquest, however, which
were the chief causes of modification. The conquered territory
was naturally disposed of, in large part at least, by the leaders
of conquest in accordance with military and strategic require-
ments. Such leaders, too, always get the lion's share of property
won by arms, as these lands had been; and, by their gifts, their
chief followers also are made specially rich in the new lands.
Thus a new bond of personal connection is created, and conditions
pregnant with profound social changes are established. It was
by means of such gifts and their influence that the leaders of
conquest raised up about them proprietors all but as powerful as
themselves, and so both cheated themselves of full kingship, and
robbed society of all chance of harmonious unity. Power fell
apart into fragments, into a vast number of petty lordships,
and the Feudal System was born.
The Feudal System. But the complex thing which we
call the Feudal System was built up by no single or simple
process. Feudalism was itself a process : the process by which
armed and emigrant tribes, settled upon conquered territories,
were compacted into states, and prepared for a new political
order which should subdue the fierce individualism of the Teuton
to a novel discipline of subordination and obedience. When the
system had been thoroughly wrought out society resembled an
army spread abroad and encamped, every freeman endowed with
104 POLITY AND GOVERNMENT
a portion of land indeed, for his own tillage, but holding it by
' military tenure, ' upon the condition that he would serve him
of whom he held it, his immediate overlord and commander,
whenever his call came to the field : that he would in all things,
with a soldier's fealty, prove himself his faithful follower. Be-
fore this migration and conquest and settlement in new lands
the duty of each Teutonic freeman to come into the field when
summoned had been only a personal duty, which fell upon him
when the summons came from the free council of his people : it
had had no connection with his title to his land. But under the
aew order of things it had become his duty as a tenant, and it was
a duty which he owed, not to the host or to the leader with whom
ae had voluntarily associated himself for some adventure of war,
but to him of whom he held his land. And every freeman held
his land thus of some one, save only the king himself. Military
society had taken root in the soil. The land supported an army
in which every man had a fixed place and function, failing which
he was cut off from his land. A society that might have fallen
to pieces, had not the unbridled independence of the Teuton been
in some way checked and disciplined, was in this way held
loosely together by a series of personal dependencies based upon
the tenure of land. A connected series of greater and lesser land-
owners, the less dependent upon the greater, and all at least
nominally dependent upon the king, the centre and titular head
of the hierarchy : such was the pattern of feudal society.
Genesis of the System. It is possible to distinguish in a
general way the several stages by which this singular order of
political life came into existence. It was many centuries in the
making, and forces almost without number had their effect in
creating it in its several parts ; but the main outlines of what
took place may be briefly stated. At first, no doubt, the Teu-
tonic conquerors took possession of the land they had overrun
like the rough freemen they were: every man, great or small,
got his share of the conquered territory, and the land was cov-
ered, as in their original homes, with a yeomanry slow to call
any man master or submit to any authority not of their own
making. Inevitably, however, the shares of land that fell to the
greater leaders of the invading hosts of freemen very greatly
DURING THE MIDDLE AGES. 105
exceeded those which fell to the ordinary soldier, and the king's
share was greatest of all. Those to whom the greater grants fell
could not use them themselves, but they could perpetuate their
personal power and importance by making gifts (benefices) out of
them to their immediate followers, gifts revocable at will and
given upon condition of continued allegiance and service. The
new kings, moreover, bound their immediate servants and agents
to themselves by a strict oath of homage, which rendered them
their men and vassals, and made of them as it were a permanent
comitatus. It was natural to reward such personal agents also
with benefices: and such a process in time bred an inevitable
association of ideas. It came to be expected that vassals should
receive gifts of lands from their lords. It also came to be taken
for granted that those who received such gifts should render
homage to those of whom they accepted them. And so land and
vassalage went at last together; and every man who had land
enough gave benefices out of it in order that he might have
bounden vassals.
The service rendered by a vassal was only such service
as a freeman might render and not be degraded. It had never
been degrading in the eyes of the Teutonic freeman to be of the
comitatus or personal following of a great leader. It did seem to
him degrading to pay money, to do any menial thing, to hold him-
self liable to any undefined or indefinable service : but military
service degraded no man, nor anything that went naturally with
it. Moreover, with the greater grants of land it became cus-
tomary, as the new order of things developed, to grant also a cer-
tain wholesale right of jurisdiction and government, a long list of
'Immunities' or exemptions from higher authority in all matters
not military, which in effect rendered a great estate a small
kingdom. Those who received the greater holdings received also
the right to be supreme lords within them : to make their own
military levies, to coin their own money, if they chose, to lay
taxes, and to hold their own independent courts of justice.
Although at first such holdings were theoretically revocable at
the will of the grantor, it naturally became more and more diffi-
cult to withdraw them. They inevitably became hereditary, and
great families throve upon them.
106 POLITY AND GOVERNMENT
The theory of the system was naturally opposed to the
principle of inheritance. Each fief (as a feudal land gift was
called) was held upon condition of military service, and no over-
lord or grantor could be sure that his vassal's son would be as
faithful or as capable as his father. Though the heir took the
estate, therefore, it became the practice for him to pay a price
for the privilege of succession. The principle of inheritance,
when once it crept in, was necessarily the principle of primo-
geniture : the fief and the responsibilities that went with it could
not be divided. To grant any portion of it to another, merely
for his use and service, moreover, was forbidden, except for a
price paid. The fief must be kept a unit. Vassals, nevertheless,
if they had land enough, made themselves masters in turn by
granting portions of their land to others, upon a military tenure
like their own, which rendered them more powerful without tak-
ing away from the obligations which they still owed to their own
overlord and seigneur. The king was the nominal overlord of
all ; and upon some he had direct claims of authority. For to
some he granted lands and immunities upon condition that they
should act as his officers and representatives in the maintenance
of his authority amongst the vassals about them. But the very
offices became hereditary; grants and sub-grants filled the country
with a long series of overlords and tenants; and the king's
authority grew very remote indeed. A man's first duty was to
his immediate overlord, and the king seemed very far away.
The variety was completed by the granting of great territories to
the Church; and then the Church feudalized its lands. "Monas-
teries and bishoprics parted with their land to fighting nobles on
the tenure of military service [to be rendered at the call of the
king], and received these persons as their vassals. 7 '
It was a long time before the small freeholders, come
from the loins of the original conquerors, were .drawn into the
network of this hierarchy. Generation after generation they
kept their independence and their separate ownership. But the
process of feudalism was in the end too strong for them. The
greater feudal lords grew to be too powerful to be safe neighbors ;
the feudal lawyers established it as a fundamental maxim of the
law that there should be no land without its lord or seigneur;
DURING THE MIDDLE AGES. 107
and the poorer freemen, their ranks thinned by war, their proper-
ties too small to carry the burdens of independence, and their
power to combine every year growing less, were fain to ' com-
mend ' themselves to the stronger owners near at hand : to give
up their lands, that is, into their keeping, and receive them back
again upon condition of vassalage. For the feudal overlord owed
protection and all that the word implied to his vassal. Without
an overlord, a man's only redress could be got in the distant
courts of the king. He had no protector at hand but himself.
He was outside the fixed order of society, and might any day be
compelled to yield to force. And so, by the two processes of
benefice and commendation the Feudal System was at last com-
pleted.
Local Differences in Feudal Development. There was
not, of course, exactly the same method of development every-
where. In England, under the Saxons, and afterwards under
their cousin Danes, the new polity seems to have been held
together more than elsewhere by that old cement of personal
allegiance, the relations of leader and comitatus (pages 96 and 97) ;
in France, and elsewhere on the continent, it was generated more
directly by territorial connections independent of leadership and
following. In the one case men were apt to own land and possess
power because of their personal relations with the king; in the
other, they were likely to stand in special personal relations to
the king because they owned land of which circumstances had
made him titular overlord. Speaking generally, so as to include
both France and England, it may. be said that the benefice was of
two kinds. The English benefices were most often estates granted
by the king to his personal following, to his comites, or to his
local officers and agents, or to his less independent adherents, on
condition that they should hold themselves ever ready to render
him full aid and service, and ever continue to adhere to him
with special fidelity. The French benefices were more generally
estates originally allodial (that is, held under no one, but by an
independent title), which had been surrendered to the king, or
to some other lord of the new hierarchy, to be received back again
as his gift, for the sake of the mutual obligations of faith and
support thus established. Nevertheless, it is not to be understood
108 POLITY AND GOVERNMENT
that benefices were exclusively of the one kind in England, and
exclusively of the other kind in France. In France such estates
were very often direct gifts from the king or another superior ;
and in England they were as often surrendered freeholds as
rewarding gifts. But each country had its predominant type of
the benefice. Its common mark everywhere was that it was a
landed estate : not an office or any other gift, but land held upon
conditions of fealty to a superior.
Commendation, on the other hand, at first at any rate,
had no necessary connection with land. Its predominant feature
was a personal relationship which was rather that of master and
man than that of landlord and tenant. It seems to have been
made necessary by the creation of benefices. As great properties
grew up about them, as they became encompassed by the great
network of connected estates woven out of the principle of the
benefice, small landholders found it necessary to avoid collision
with the growing power of their princely neighbors by throwing
themselves into the arms of that power, by hastening to conform
and make of their own holdings fiefs held of the lord of the
greatest contiguous manor; and as society fell thus into regular
gradations of personal allegiance based upon property, the free-
man who was without property and the native of the conquered
territory who found himself suffered to have liberty but not to
hold land by any such tenure as would enable him to become a
* beneficiary, 9 were both left without a place in the new social
order. Owing no definite service to the powerful persons about
them, they could claim no protection from them. They could
be oppressed without remedy. They were driven, therefore, to
'commend ' themselves to some lord who could afford them security
such security at least as the times permitted in return for
fealty. This was 'commendation.' It had, as I have said, nc
necessary connection with the land, though the small owner as
well as the landless person probably became his lord's 'man '
rather by commendation than by benefice. It became a univer-
sally recognized maxim of law that 'every man must have his
lord.' Whether through benefice or through commendation, he
must fall into a definite place in the minutely assorted and classi
fied society of feudalism.
DURING THE MIDDLE AGES. 109
Political Disintegration. The state was thus disinte-
grated. It no longer acted as a whole, but in semi-independent
parts. There was no longer any central authority which acted
directly upon all individuals alike throughout a common terri-
tory. The king controlled directly, as he had the power, only
the greater lords, who were in feudal theory his immediate vas-
sals; other men, lower down in the series, could be reached from
above only through their immediate masters. Authority filtered
down to the lower grades of society through the higher. It
was a system, not of general obedience to a common law, but
of personal obedience and subordination, founded upon land-
ownership.
Such, then, was the Feudal System. The king had no
immediate subjects except the greater barons and the vassals on
his own baronial estates, and the greater barons were obedient
subjects only when he had armed power sufficient to compel them
to obey. Their vassals served the king only when they them-
selves did, and because they did, arming themselves for the king,
as they would arm themselves against him, only as their lords
commanded. In brief, every baron was himself practically
sovereign of those holding under him. It was his decree that
sent them into the field; it was his power that defended them
against others who would have oppressed or plundered them;
and it was in his courts that justice was administered between
them. His strength and favor were their shield and title. Law
indeed grew up in the shape of custom ; but the customs of one
barony differed from those of another. Except in so far as the
priest and the lawyer revived, in their advice to the magnates
who consulted them, the principles of the Roman law, still
alive to the studies even of that time, no uniformity of practice
prepared a unified system of law for the realm. It was an
arrangement of governments within governments, a loosely con-
federated group of inharmonious petty kingdoms.
The Feudal Conception of Sovereignty. The most notable
feature of feudalism is that in its system sovereignty has become
identified with ownership. The rights exercised by the barons
were in many cases nothing less than sovereign. Not only did
they decide property titles by the custom of their baronies and
110 POLITY AND GOVERNMENT
private rights by laws determined in their own courts, they often
also coined money, they constantly levied tolls upon commerce,
and they habitually made war when they pleased upon rival neigh-
bors. They gathered about them, too, as the king gathered about
himself, an immediate following of knights, whom they endowed
with lands as, so to say, barons of these lesser kingdoms, the
greater baronies. They commanded this retinue and exercised
these sovereign powers, moreover, because of their relations as
owners to the lands and tenantry of their domains. Sovereignty,
in this petty parcelled kind, had become a private hereditary
possession, an item in family assets. Whoever should be able
to accumulate these territorial lordships into one really great
kingship would be owner, and, as owner, sovereign of the realm
(page 115).
Feudalism and the Towns. The towns, meantime, stood
out with not a little success against feudalization. Many a town
was, indeed, dominated by the threatening pile of some baronial
castle, built over against it on the strategic vantage ground of
hill-summit or river peninsula ; and all were constrained sooner
or later to yield at least nominal overlordship to some feudal
superior. They kept alive, if it were only in tradition, that true
conception of political authority which made of it, not a piece of
private property to be bartered or sold, but the organized, the
uttered will of a community.
The Guilds. Still, within the cities there early sprang
up a semi-feudal organization of society altogether their own.
The importance of 'a town rested, not upon the ownership of
lands, though many towns owned not a little land, but upon
wealth gained by trade and industry. The internal social organi-
zation of the towns, therefore, tended more and more to turn
upon the relations of labor. The famous guild system sprang
into existence. Every handicraftsman, every trader, like every
landowner and every freeman in the society outside the towns,
had to find his place in a sharply differentiated social classifi-
cation. Each occupation was controlled by its guild ; and that
guild was a close corporation, admitting to membership only
whom it chose. No one could enter save through the stringently
DURING THE MIDDLE AGES. Ill
guarded avenues of a limited and prescribed apprenticeship ; and
once in, the apprentice was bound by the rules of his order.
City government became representative of the authority of asso-
ciated guilds. No one was a citizen who was not within one of
the privileged associations. It is a reminiscence of this old order
of things that the building about which the city government of
London, as of many other antique towns, still centres is known
as the ' Guildhall. 7 Even the militia of the towns were train-
bands from the several guilds. The town, also, had created its
' estates,' its orders, as the country had done. This was its feudal
system.
The City Leagues. The greater trading towns nearer the
Baltic and along the Rhine in France and in Italy took advantage*
during the thirteenth century, of the opportunities for indepen-
dent action afforded by the piecemeal condition of feudal authority
to draw together into leagues, the better to pursue their own
objects ; and for a long time these leagues exercised the powers
of great states, making war and peace, levying custom, con-
cluding treaties and alliances. Their primary object was to
cure those disorders of the times which made the roads unsafe
and interfered with their trade. The greatest of these leagues
were the Hansa, more commonly known in English writings
as the Hanseatic (Hansa means trade-guild), and the Rhenish.
The former centred about the great cities of Lubeck and Ham-
burg, and at one time included ninety of the towns lying between
the Baltic and the Elbe. The latter had Worms and Mainz
as its leaders, and at one time or another had connections
with seventy towns, some of which stood as far away from
the Rhine as Bremen and Nuremberg, though the arteries of
trade which it was meant to protect and keep open lay chiefly
along the Rhine valley. Many great princes were constrained
to connect themselves with these leagues in the heyday of their
power. But trade alliances afforded too many occasions for
jealous discords, and the growth of vast territorial monarchies
too dangerous rivalries for the cities ; and their leagues were
eventually broken up.
Unifying Influences. Two unifying influences operated
more or less potently during the Middle Ages to counteract the
112 POLITY AND GOVERNMENT
disintegrating tendencies of the feudal system. These were the
Roman Catholic Church and the Holy Roman Empire. Both
the Church and the Empire may be said to have been shadows of
imperial Rome. They were, by intention at least, the temporal
and spiritual halves of the old empire of the Caesars.
The Roman Catholic Church had, historically, a real
connection with the veritable dominion of Rome. Before the
Empire had been shattered by the onset of Teutons and Turks,
Christianity had become its recognized official religion. The
Pope in Rome represented one of the great primacies which had
early grown up within the imperial Church : and this Church of
the West, sundered from the Church of the East by irreconcilable
differences of doctrine, showed an instinct for conquest which
seemed a direct heritage from the great pagan Rome of the olden
time. She mastered the new masters, the Teutons, and every-
where insinuated herself into the new political system which
developed under their hand. Not only had every castle its
chaplain, every city and country-side its priest, but the greater
ecclesiastics themselves became feudal lords, masters of baronies,
members alike of the civil and the religious hierarchies ; and
even monasteries owned vast estates which were parcelled out
upon a feudal tenure.
But for all it was so interwoven with the feudal system, the
Church retained its internal unity. The Pope's power did not
fall apart as did the king's. The priest acknowledged in all
things his allegiance to a universal kingdom, the spiritual king-
dom of the Church of Rome. The Church recognized no boun-
daries, whether of baronies or of states, as limits to her own
spiritual sovereignty. Her authority extended, she claimed, over
all kings of whatsoever grade, over all men of whatsoever rank
or estate. The silent, unarmed forces of her influence, therefore,
stood always on the side of an ideal unity. And they certainly
retarded disintegration. Her lesson was brotherhood and a com-
mon subjection ; and that lesson, though often neglected, was
never utterly lost sight of or forgotten. She kept alive, more-
over, in her canon law, much of the civil law of Rome j her laws
at any rate were not diverse, but always the same ; they reached
DURING THE MIDDLE AGES. 113
the people and the conceptions of the time through the adminis-
tration not only of her ecclesiastical courts, but also, indirectly
no doubt, through the judgments of the baronial courts of the
baron-bishops : and whatever tended to unify law tended to unify
politics. The ecclesiastical power was always on the side of any
good Catholic who proved himself capable of creating larger
wholes of political authority, larger areas of civil unity. By
precept and by example the Church was imperial.
The Holy Roman Empire. Under the direct descendants
of Chlodwig, the once vast dominions of the Franks fell asunder
in several pieces ; but Charles the Great (768-814) reunited and
even extended them. He brought together under his sword
much of the territory now included in Germany, Switzerland, Italy
(all save the southernmost part), France, and Belgium. And
neither any Teuton nor any successor of Teutons in western Eu-
rope ever gathered wide territories under his sway without dream-
ing of restoring the Roman Empire and himself ascending the
throne of the Caesars. From Charles the Great to the present
German Kaiser the spell of the Roman example has bound the
imagination of every European conqueror. Charles had this ambi-
tion clearly in his view, and circumstances peculiarly favored its
realization. At the same time that he reached the height of his
power, Rome reached the acme of her discontent with what she
considered the heresies of the Eastern See, and the political
disorders at Constantinople gave the Roman pontiff pretext for
casting finally loose from all Eastern connections. The Empress
Irene deposed her son and usurped his throne; the Italians
declared that no woman could succeed to the titles of the Caesars ;
and the Pope, arrogating to himself the prerogatives of king-
maker, crowned Charles the Great emperor of what later genera-
tions have known as the Holy Roman Empire, ' Holy ' because
created by the authority of mother Church.
Here was a real ' Western Empire ' ; the first had been only
an administrative half of the once undivided dominions of
the emperors. Charles gave to his empire real vitality while
he lived ; he, moreover, did what he could to hasten civil unity
by promulgating anew the Visigothic version of the Roman law
114 POLITY AND GOVERNMENT
(page 100) ; and, although his empire broke up upon his death,
an almost uninterrupted line of emperors, of one great feudal
house or another, carried the titles of Rome through the Middle
Ages to modern times, now and again backing them with real
power and always preserving for Germany a shadow at least of
unity in a time of real disintegration. Believing themselves,
besides, in the early times at any rate, the lineal and legitimate
successors of the Caesars, there was special reason why every
emperor should continue to build, so far as he had the oppor-
tunity, as Charles the Great had begun to build, on the law of
Rome as a foundation, never designedly, as Charles the Bald
declared, enacting anything repugnant to it. All who from time
to time drew to the side of the imperial power in the conflicts of
disordered ages also naturally affected the language and princi-
ples of the same system. The Empire was, therefore, not only
sometimes a silent witness and sometimes a great power for uni-
fication, but also always a steady influence on the side of a system
of law more advanced and unifying than that of feudalism.
Centralizing Forces : the Carolingians. The rise of the
family of Charles the Great into power illustrates the character
of the chief, indeed the only potent, centralizing forces of the
feudal time. Those forces lay in the ambition of great barons.
Under the descendants of Chlodwig (the Merowingians) the ter-
ritory of the Franks tended more and more to become permanently
divided into two distinct parts. There were often, it is true,
more parts than two : for it was the Frankish custom to divide
even a royal inheritance between all the sons of a deceased pos-
sessor. But, as it fell out in the long run, the most permanent
division was that between Neustria (the western half) and Aus-
trasia (the eastern). In both of these kingdoms the Merowingian
rulers soon degenerated into mere shadows of their imperative,
dominant ancestors; and they were presently displaced by a
powerful family of Austrasia, the family of Charles Martel.
Charles Martel was Mayor of the Palace under the Austrasian
branch of the royal family. The office of Mayor of the Palace,
though an office in the king's household, was, it would seem,
filled rather by dictation of the powerful lords of the kingdom
DURING THE MIDDLE AGES. 115
than by a free royal choice. It was filled, consequently, at any
rate in the times of which I am now speaking, by the leader of
the great territorial chiefs, by the leader, that is, of the king's
rivals in power. It had indeed become an hereditary office held
by the greatest of the baronial families. Charles Martel was a
soldier of genius: he handed his office on to his son and his
grandson: and they were men abler than he. His son, Pepin,
with the sanction of the Pope, whom he had greatly served,
became king of the Franks, in name as well as in reality, to the
final ousting of the old line of ' do-nothing ' monarchs ; and
Pepin's grandson was Charles the Great.
The Capets : Concentration of Feudal Power. In the
tenth century a similar change was wrought in France. The
descendants of Charles Martel (Carolingians) had in their turn
lost vigor and become unfit for power. They were displaced,
therefore, in the western half of their dominions (in Neustria)
by a family of warriors whom they had endowed first with the
county of Paris, and afterwards with the duchy of France, as at.
once a reward for their services in withstanding the incursions
of the Northmen and a stake in the threatened territory. The
duchy of France was only a comparatively small district about
Paris; but the vigor and capacity of the Capets, its dukes,
speedily made it one of the most important feudal properties in
the whole of the great territory to which it was eventually to
give its name. They became the chiefs of the baronial party,
and when discontent with the Carling kings culminated it was
they who became first 'kings of the barons,' and finally kings of
France. Refusing to degenerate, as the Merowingian and Caro-
lingian princes had degenerated, they continued to develop,
generation after generation, a kingdom destined one day to rank
with the greatest of Europe; and that by a process planned as if
meant to illustrate how best the feudal system might be used for
its own destruction. By every means, by war, by marriage, by
contract, by stratagem, by fraud, they drew all the greater feudal
sovereignties into their own possession, until at length, their
duchy of France and the kingdom of France were indeed identical;
until, having absorbed all scattered authorities, they had made
116 ROMAN LAW IN EUROPE.
sovereignty, once possessed privately in sundered pieces, again a
whole, but a whole which, by the strict logic of feudalism, was
their private estate; until they almost literally possessed the
land, and Louis XIV. could say with little exaggeration, 'L'&at
c'est moi.' They had gathered the fragments of the feudal system
into a single hand, and had made the state itself a feudal pos-
session, a family estate.
The Piecing together of Austria and Prussia. Later still
the same process was repeated in Prussia and in Austria. By
conquest, inheritance, forfeiture, marriage, contract, fraud,
powerful feudal families pieced together those great kingdoms,
to become in after times the bases of national organization. In
neither Prussia nor Austria did the process go so far as in
France, though Austria, under the house of Habsburg, became
possessor of the imperial throne of the Holy Roman Empire, and
Prussia, under the house of Hohenzollern, has become the central
and dominant state of a new German Empire.
THE DIFFUSION OF ROMAN LAW IN EUROPE.
From the fifth to the twelfth centuries Roman law
inhered in the confused civil methods of the times for the most
part as a mere unsystematized miscellany of rules applicable to
the descendants of the Roman provincials and observed largely
within the towns. As the old distinctions between Roman and
Teuton faded away, however, in the gradual mixture of the popu-
lations, these rules entered more and more into the general mass
of common custom. This process was in great part unconscious;
there was no scientific selection in the development.
The Barbaric Codes. It was not from mere tradition,
however, not simply from Roman law transmuted into unre-
corded provincial custom, that the knowledge of these centuries
concerning the civil law of the Empire was derived, but from
fragments of the Theodosian legislation and of the writings of
the jurists which had found embodiment in the Code of Alaric II.
(page 100), which is known to quotation as the Breviary (bre-
viarium Alaricianum). The West Goths themselves had not long
remained contented with that compend of the law. In the seventh
century there had been prepared in Spain a new Lex Visigothorum
ROMAN LAW IN EUROPE. 117
which contained a summary, not of Roman rules only, but of
Gothic custom as well, and which, superseding the earlier com-
pilation of Alaric, formed the basis for later codifications of
Spanish law. But the south of France, which had once owned
the dominion of the Visigoth, retained the Code of Alaric ; it was
transmitted thence to the north of France, to be handed on to
Germany and England ; and for all of these countries it continued
to be the chief, if not the only, source of Roman law until the
eleventh or twelfth century. Charles the Great, as I have said,
republished it, accepting it as the recognized manual of Roman
legal principle. Even Italy had had the continuity of her legal
tradition broken by barbarian invasion, especially by the inroad
of the raw Lombards, and had had to keep the fragments to-
gether as best she might amidst just such a confusion of ' per-
sonal ' laws as prevailed elsewhere in the once Roman world
(page 98).
Custom and Written Law in France. It was at this time
that the north and south of France came to be distinguished as
respectively the ' country of custom ' (pays de coutume) and the
'country of written law' (pays de droit tcrit). In the south,
which had been thoroughly Romanized for centuries, there was
the written law of Rome ; in the north, which had never been so
thoroughly Romanized, and which was now in its northern part
quite thoroughly Germanized, there reigned in unrestrained con-
fusion the Teutonic customs of the barbarian masters.
The Study of the Roman Law. But in the twelfth cen-
tury the law of Rome fell upon the good fortune of being sys-
tematically studied once more by competent scholars, and once
more cultivated by scientific lawyers. And not the Code of
Alaric, but the vastly more perfect Corpus Juris Civilis, as the
twelfth century called it, Justinian's (or, rather, Trebonian's)
great compilation, was the basis of the revived study. The new
cultivation of the law began, naturally enough, in the Italian
cities. There the movements of trade were quick and various ;
and there a various population was not only mixed of many ele-
ments but fused and united, by intermarriage no less than by
close social, political, and commercial intercourse. For the
quick, informal, multifarious operations of trade Teutonic law
118 ROMAN LAW IN EUROPE.
had made no more suitable provision than had the jus civile in
the old days at Rome : a jus gentium was needed such as the
Eoman jurisprudence stood ready to supply. < Personal ' law
could not obtain where elements were so fused and united by
common undertakings and interests as well as by an actual mix-
ture of bloods. " In Justinian's Digest the Italian jurists of the
twelfth century found a system of law that was adequate to the
needs of the new commerce ; " and great schools sprang promptly
into existence for its study and propagation. The first of these
was also to be the most famous, the University of Bologna, estab-
lished late in the eleventh century, and destined to become the
chief seat of the study of the Roman code. Pisa and other Italian
cities then took up the new pursuit. Presently the interest
had spread to France and to Spain, going in France first to
Montpellier and Paris, afterwards to Bourges, Orleans, and Tou-
louse, the old capital of the West Goths ; and in Spain creating
(A.D. 1254) the notable University of Salamanca. From Spain
and France, Holland caught the fashion, giving to Europe in the
seventeenth century the illustrious jurist Hugo G-rotius, who
created out of the great principles of equity discoverable in
Roman Law the elevated and influential science of International
Law. In England, too, the same studies began to be affected
almost immediately after the rise of the school of Bologna, and
are said to have been regularly pursued there down to the six-
teenth century.
This sudden spread and luxuriance of the study is impres-
sive evidence of a common preparation and need for it. The
cultivation of the Roman law in the schools may in some in-
stances indicate a clerical influence ; but the study was too general
and too spontaneous to be attributable mainly to this or to any
other single cause.
Influence of the Schools. The Italian schools of law
almost immediately drew to them students from all parts of
Europe, and, in time, " sent out masters and doctors by the hun-
dreds." Priests and laymen alike got their training in them.
" Returning to their homes, the civil doctors crowded the heredi-
tary expounders of local usage off the judicial bench. Under the
fostering care of kings and princes," interested to see a centralized
ROMAN LAW IN EUROPE. 119
power built up by their courts, there grew up everywhere bodies
of accomplished lawyers and a ' learned judiciary ' ; and " Europe
obtained a common commercial law in the Corpus Juris Civilis,
as it had obtained a common family law in the Corpus Juris
Canonici" the developed jurisprudence of the Church.
The materials upon which teachers and students alike worked in
the schools were not the pure sources of the Roman law, but a mixture of
Roman, canonical, and Lombard law which showed the influence of an
earlier cultivation of jurisprudence by learned men among the Lombards
in their school at Pa via.
Influenct of the Church. The Roman Church had early
effected a conquest of the Teutonic invaders, and the new masters
of Europe had left its organizations intact. "It cared for educa-
tion and dispensed charity. It drew into its domain the entire
control of the family relations. It undertook, partly in its own
interest, to enforce testaments," or wills, after the Roman man-
ner. The Teutonic peoples, held together by ties of consanguinity
and accustomed to communal rather than to individual ownership
in matters of property, had not admitted to their law conceptions
of free contract, individual ownership, and succession by will
such as the developed jurisprudence of Rome had given currency
to. But the will, the contract, and the principle of separate
ownership were indispensable to the Church if she was to build
up her properties by the gifts and devises of pious persons to
whom her priests were permitted to minister. " They were also
characteristic and essential elements in the civilization amid
which the Church had been reared to maturity." (Maine.) The
whole weight of the Church's power was thrown, therefore, in
favor of the adoption of these important doctrines and practices
out of the law of Rome. And she was able to make her great
influence tell in all the matters to which she gave her attention
because she " had brought over from the Roman into the mediaeval
world a well-developed governmental organization. She added
to this a complete set of courts, with appeal to Rome." (Smith.)
And her priests possessed the learning of the time ; were indis-
pensable as counsellors and administrators, no less than as clerks ;
were the compilers of codes, whether of Roman or of Teutonic
rules ; had in all things the ascendency of training and knowledge.
120 ROMAN LAW IN EUROPE.
The currency of the Latin language had also its influence
in spreading abroad the forces which were to bring in the Roman
law. It was everywhere in Europe the speech of commerce, of
learning, and of public business : the common repository and
vehicle of knowledge and of the forms of important transactions.
Entrance of Roman Law into the Legal Systems of Europe.
Of course this widespread interest in the study of Roman law
was not all speculative. The study and the practice of the law
acted and reacted on one another. Its rules were more and more
consciously and skilfully fitted into the growing law of the king-
doms which were emerging from the feudal system because it was
being adequately mastered and systematized at the universities ;
and it was being mastered and systematized at the universities
because it was being more and more called for in the actual ad-
ministration of justice. Its use and its cultivation went hand in
hand.
In France. Roman law came into use with much the
same pace with which the Capets advanced to complete power,
and triumphed with the perfecting of the centralization which
they effected. Louis IX. ordered the Roman law translated into
French ; established the right of the crown to hear appeals from
the feudal courts in all cases ; sent royal judges on circuit to
hear complaints of infringed rights ; and erected at Paris the
famous Parliament of Paris as the supreme tribunal of the realm.
The feudal lords of France were the nominal members of this
court, but trained jurists (legistes), appointed as experts to assist
them, became in practice its real members. Schooled in the
Roman law, they admitted its principles into all their decisions ;
and they gave to the king from the same source the maxim which
declared the will of the prince to be law. As the king's jurisdic-
tion grew, the principles of Roman jurisprudence gained wider
and wider acceptance and supremacy.
The Method by which Roman law crept in was always the
same : it was introduced, not by legislation, but by adjudication,
by the decision of cases in the royal courts. It was here that the
learning of the trained lawyers told, and the desire of the king
to see the single power of the throne magnified. The royal
ROMAN LAW IN EUROPE. 121
courts, as they were developed in the provinces, applied local
custom in their decisions, for the most part, only upon very con-
clusive proof of its existence and its definiteness, and in the
absence of definite and conclusive proof of a contrary custom
resorted always to the Roman as to a ' common ' law. The law
grew thus, and was made consistent, by judgment, by written
opinion, by royal ordinance ; and a French jurisprudence began
to make its appearance, working upon the various materials
which were to enter into the final law of the land.
And presently the Roman law came, so to say, from out
the nation to meet the royal system. Very early in Berri, Bour-
bonnais, and Auvergne, the central districts of France, the law
of Rome had been consciously adopted as the common law of
the land, to be appealed to in the absence of proof of any special
custom or enactment. Subsequently it came to be considered as
in some sort the supplementary common law of all France, for,
though never established as such in the north of France, it was
even there appealed to in doubtful cases as ' written reason/
The Code Napoleon, the last great codification of French law, has
been described as in great part a republication of the laws of
Justinian as those laws have been modified and fitted to new cir-
cumstances by the processes of French history.
Local Customs in France. It is important to observe
that the unifying, harmonizing influences exercised by the grow-
ing royal jurisdiction were, for a long time at any rate, influ-
ences which affected procedure much more than the internal,
essential elements of legal principle. The differentiation between
district and district which had taken place in the process of feu-
dalization had been of the sharpest, most decided character.
When the Capets first assumed the titles of kingship there were
duchies as great as France. The work of extending and consoli-
dating the kingdom consumed several centuries ; and, meanwhile,
each petty sovereignty was developing its own law apart. Much
of the territory which afterwards became part of France was,
during the same period, moreover, in foreign hands, held by
England or Burgundy. The kingdom as finally consolidated,
therefore, presented a very great variety of deeply rooted and
persistent local laws and customs. Normandy had one set of
122 ROMAN LAW IN EUROPE.
customs, Berri a very different set, Anjou a third, Brittany a
fourth ; and so throughout the once piecemeal country.
Unifying Influence of the Koyal Prerogative. The in-
fluence of the royal jurisdiction upon this heterogeneous mass of
differing laws was, as I have said, at first rather to unify and
systematize the procedure of the local courts, which administered
local law, than to effect changes in the local customs themselves.
Since appeals to the king's justice were possible in all cases, the
formal method of appeal tended to become the same everywhere ;
and the methods of the king's courts in dealing with appealed
cases more and more tended to set the fashion of procedure
throughout the loose system, though the royal judges continued
to decide appealed cases according to the law of the district from
which they were brought up.
By degrees, however, new ideas and principles, as well as
new modes of procedure and appeal, were infused into local
justice. The law and the legal practice of each district alike
more and more distinctly and consciously approximated to the
models of organization and to the standards of decision obtaining
in the king's courts. The territorial tribunals accepted the ser-
vices of lawyers trained in Roman principles and inclined towards
regal precedents ; and the local law officers of the crown were of
course everywhere ready to effect whatever was within reach of
their functions or example in the way of bringing local custom
around to the rules of universal acceptance to be found in Roman
law and regal decision. Independently, moreover, of the influ-
ence of the crown, the Roman law was entering the local courts,
becoming common law in Auvergne and Bourbonnais, as we have
seen, before it became the common law of France.
Through the Parliament of Paris the Roman law had, so
to say, a double door of entrance. The jurisdiction of that court
was both spiritual and temporal : so that both the Code of Jus^
tinian and the canons of the Church contributed their versions
of Roman judicial practice and tradition to its findings.
In the Code Napoleon, the final codification of French law
as it had emerged from the long processes of the Middle Ages,
we find a statement of the law which was in fact made possible
by the earlier labors of great French jurists, like the accomplished
ROMAN LAW IN EUROPE. 123
Pothier. In matters of inheritance, in the rules which govern
the family relations, and in the law of marriage the customs of
France find their place, though as if they had been digested and
formed anew under the influence of the Roman jurisprudence.
In the law of contract, the law of property, the rules of judicial
trial, and all questions of the legal burdens which may be placed
upon land, Roman law has had a chief place of influence. Every-
where, however, there are traces and elements of fusion. It is a
law written over with history and with the labors of trained
students of the law.
In Germany there was no central power such as that which
served to build together the legal systems of France and of Eng-
land. The feudal system had done its work more thoroughly
there than elsewhere : and Germany emerged from the Middle
Ages, not a nation, but a congeries of petty states. There was
a form of union among them, indeed, in the Holy Roman Empire,
and throughout all the changes of German history the imperial
influence had sought to shelter and to foster Roman law, the law
of empire and of princely rule. The imperial courts, the impe-
rial lawyers, the imperial party in Germany, were always admin-
istrators or advocates of its principles ; and when the house of
Habsburg came to the imperial throne, as when other powerful
emperors had reigned, there was no small potency in these influ-
ences. But the final reception of the Roman law was postponed
in Germany until the sixteenth century, and was due to other
forces than those associated with the royal power.
Germany's Reception of Roman Law. The reception of
the Roman law into the law of Germany was due to various cir-
cumstances, but not entirely to the poverty or imperfections of
German law. German law at some points may fairly be said to
have been superior to Roman law in its suitability to the needs
and conditions of the time. Neither was the law of Rome received
as naturally supplementary to German law and of a sort to effect
its further and more complete development'; for there were not
a few radical oppositions of principle between the two systems.
For example, Roman law was based upon the recognition of the
entire equality of persons, while German law ranked them in
orders, with differing values and privileges ; Roman law allowed
124 ROMAN LAW IN EUROPE.
the free alienation of land and set up the principle of absolute
individual ownership, while German law had at its root ideas of
communal and family ownership and put many restrictions upon
alienation. Moreover, there could be no doubt that the law of
feudal relationships had had as complete a development in Ger-
many as anywhere else in the European world ; and yet, along
with the Eoman law, which she took from the schools and com-
mentators of Italy, Germany took also the Italian Feudal Law,
to which the Italian students had given a similar systematic
formulation.
The Roman law was received in Germany largely because of
the feebleness and disintegration of the judicial system there ;
because the old popular courts, which administered only an un-
changing custom and tradition, inevitably decayed with the
growth of society ; because single judges trained to the law were
substituted, and the only law in which one could be trained was
the Roman law of the Italian schools. The introduction took
place, not because princes controlled the courts, but because
litigants insisted. They were dissatisfied with the administra-
tion of justice in the unlearned courts. They wanted a court,
a judge, learned in the law. " The single judge must be a learned
judge, by the same necessity by which the old popular court was
an unlearned court."
Throughout the Middle Ages the popular courts remained
the only vital courts in Germany ; when they first began to give
way their place was taken by courts that were no better, being
made up of some unlearned agent of the feudal lord of the dis-
trict, assisted by assessors as little trained for the function as
he. In France and in England a native jurisprudence grew up,
because the royal power was able to set up a system of courts,
to put trained officers into them, and to draw differing local cus-
toms to a common administration and development. But there
was no power capable of rendering the like service in Germany ;
the decay of the popular courts did not mean the substitution
of an indigenous learning. The single judges finally set up there
were learned, if trained at all to the law, in the Italian jurispru-
dence. Germans had long studied in Italy ; and the Roman law
of the Italian schools was taught from their foundation in the
ROMAN LAW IN EUROPE. 125
German universities. All theological students were obliged to
study the Roman and canonical law as part of their regular pro-
fessional training ; for it formed the basis of the administration
of the spiritual courts, which had so long stood alongside the
courts of ordinary law in every part of Europe.
The law that was received was not the Corpus Juris of Jus-
tinian, but the common law of Italy, founded upon the Roman,
the canon, and the Lombard law. " The Corpus Juris was terra
incognita to the German jurists of the period of the -reception."
They brought in, "not the Pandects, but the Usus modemus
Pandectarum of the Italian lawyers." The new law was not, of
course, accepted whole and in bulk. It entered, in Germany as
elsewhere, as l subsidiary ' law, not as the native law of the land.
It nevertheless received everywhere a decided preference in the
courts. While accepting Roman legal rules as prima fade con-
clusive of the rights of a suitor, they imposed upon those who
alleged established local usage in opposition to it the necessity of
furnishing conclusive proof of the existence and acceptance of such
usage as law. Roman law, in brief, they accepted on its own
authority, Germanic custom only on the authority of indubitable
circumstantial testimony.
The outcome was that, speaking most generally, the
Roman law prevailed in the field of procedure, in the field of
criminal law, in the field of contract, and in the field of the law
of inheritance ; while German law persisted in respect of the
law of real property, in respect of family law, and wherever law
was to be drawn on to the recognition of new relationships,
like those of association and incorporation, in a changing
society.
In England, a strong native jurisprudence kept the for-
eign law out. Always held off from the rest of Europe by the
sea, a separate system of law was made possible for her, no less
than an independent government. The royal power was able to
make of the favored island a compact kingdom : and men of the
masterful Plautagenet blood gave it a centralized administration
of justice such as no other European state was able to obtain
while yet it was in its early formative stage of growth. English
126 KOMAN LAW IN EUKOPE.
judges put together a consistent English law, and there was no
need for a foreign jurisprudence.
And yet the Roman law was not wholly excluded. The
Komans had governed Britain four hundred years, bending the
province to the purposes of their administration with their usual
thoroughness. We know that Papinian, the greatest of Rome's
jurists, himself administered the law in Britain, and we have
every reason to believe that its promulgation there was thorough,
its rootage full four hundred years deep. It can hardly be that
the Saxons wholly eradicated it. We know that many Roman
municipalities on the island survived all conquests : and we know
that the priests of the Church of Rome early took back to Eng-
lished Britain conceptions steeped in Roman jurisprudence. Bede
testifies that the Saxon laws were codified under the auspices of
the clergy and that Roman codification was the model. We have
seen that Roman law was studied in England almost as early as
in mediaeval Italy herself, the study being continued without
serious break for more than three centuries (page 117) ; and the
works of the earliest English legal text-writers, such as Glanvil,
Bracton, and the author of the Fleta, abound in tokens of a close
familiarity with the laws of the imperial codes, are full of their
very phraseology indeed. The so-called laws of Henry I. are
said by competent legal scholars to consist, to the extent of fully
one-half their content, of precepts borrowed from Rome. Through
the ecclesiastical courts, which down to the middle of the present
century administered upon all estates in England, and upon all
trusts ; through the Court of Chancery, whence has issued the
system of English equity, and which was presided over in its
formative period by the great ecclesiastics who were the first
chancellors, afterwards by great lawyers, such as Lord Hardwicke
and Lord Thurlow, deeply versed in the civil law of Rome and
apt to draw suggestion and even concrete rule from it; and
through the Admiralty Courts, always controlled by the rules of
the Civil Law, England has drawn directly or indirectly from
Roman sources, in supplement of her own indigenous customs ;
and not many portions of her law have escaped being in some
degree marked by the same influences that have moulded the law
of the rest of Europe. Her borrowings, nevertheless, have been
ROMAN LAW IN EUROPE. 127
of form and method rather than of substance, and the great bulk
of her law is her own.
RKPKKSKNTATIVK AUTHORITIES.
, ( Jcorge B., Civilization during the Middle Ages, New York, 1894.
AY///,/,,/-, II., Deutsche Rechtsgeschichte. 2 vols., 1887-1892.
A'/V/fv/, The Holy Roman Empire. New York, 1911.
f'/iurr/i. K. \V., The Beginning of the Middle Ages. (Series of Epochs
of Mod, m //As-/-//.) London, 1910.
t '//////>. A. M., History of the Roman Empire from the Death of Theo-
dosius the Great to the Coronation of Charles the Great, 395-800.
1875.
/>itrui/, Victor, Histoire du Moyen Age, depuis la chute de 1'Empire
d'Occident jusqu'au milieu du XV e Siecle. 1 vol. Paris. 8th ed.,
1 >:.'). Trans, by G. B. Adams, New York, 1891.
/,'/// rtnn, E., Introduction to the Study of the Middle Ages, Boston, 1889,
and Mediaeval Europe, Boston, 1894.
Freeman, E. A., Historical Essays. Series I.
, E., Decline and Fall of the Roman Empire. Smith's ed. New
York, 1880.
/, F., Lectures on the History of Civilization in France and in
Europe.
Hullo in, II., View of the State of Europe during the Middle Ages,
specially Chapter II., which contains what is possibly the best brief
account in English of the Feudal System.
Heeren, A. II. L., Manual of the History of the Political System of
Europe and Its Colonies. Oxford, 1834.
Kingsley, Chas., The Roman and the Teuton.
M Hi-Hill a if, T. B., Essay on Ranke's History of the Popes.
Mil man, H. H., History of Latin Christianity. 8 vols. New York.
Umun, Ch., Europe, 476-918, New York and London, 1893.
Ranke, L. <ron, History of the Popes.
Schroeder, R., Lehrbuch der deutschen Rechtsgeschichte. 3d ed., 1898.
Sheppard, J. G., The Fall of Rome and the Rise of the New Nationali-
ties. 1 vol. London and New York, 1861.
Concerning the introduction of Roman law into modern European legal
systems, see, besides authorities mentioned at end of Chapter II.
Jenks, Edward, Law and Politics in the Middle Ages, 2nd ed. London.
1913-1917.
128 ROMAN LAW IN EUROPE.
Sohm, Rudolf, Die deutsche Rechtsentwickelung und die Codifications-
frage, in Griinhut's Zeitschrift filr <I<is Prirat utxl (h'ft'ottHclie, Recht
der Gegenwart, I., 245-280.
Stein, Lorenz, Das Wesen der Reception und die Reception des griech-
ischen Rechts im romischen Recht, in Griinhut, I. 722 ff.
Stephen, Sir James, Lectures on the History of France, especially lectures
I.-V., inclusive.
Tomkins, F. J., and Jencken, H. D., Modern Roman Law.
Vinogradoff, P., Roman Law in Mediaeval Europe. London and New
York, 1909.
Waitz, Georg, Deutsche Verfassungsgeschichte, 8 vols. The classical
work on early Germanic institutions and the development of the
German constitution.
VII.
THE GOVERNMENT OF FRANCE.
The Growth of the French Monarchy. The full political
significance of the history of France can be appreciated only by
those who keep in mind the chief phenomena of the widening
monarchy, the successive steps by which the Dukes of France,
the capable Capets, extended their power and the name of their
duchy over the whole of the great territory which was to be in-
herited by Louis XIV. The course of French history is from
complex to simple. In the days of Hugh Capet 'France ' was the
name of only a single duchy centering in Paris, of but one of a
great number of feudal lordships equally great, equally vigorous,
equally wedded to independence. The duchy's advantage lay in
the fact that her dukes had been chosen for leadership and that
they were capable of leadership, rather than in the possession
of preponderant strength or superior resources. To the west of
her lay the solid mass of Normandy; to the north lay the terri-
tories of the Counts of Flanders and Vermandois, and to the east
the territory of the Count of Champagne ; southward lay the great
duchies of Burgundy and Aquitaine, beyond them the lands of
Toulouse; alongside of Normandy, Anjou and Brittany stretched
their independent length to the west. And these were only the
greater feudal sovereignties. Within and about them lay other
districts not a few with masters ready to assert privileges without
number in contradiction of all central rule. The early history
of France is the history of a duchy striving to become a kingdom.
'France' holds a good strategic position, and fortune has made
her dukes titular kings over their feudal neighbors, but still she
is in reality only one among many duchies.
By slow and steady steps, nevertheless, a work of unifica-
129
130 THE GOVERNMENT OF FRANCE.
tion is wrought out by the Capets. In every direction they stretch
out from their central duchy of France their hand of power and
of intrigue and draw the pieces of feudalized Neustria together
into a compact mass. The work is thoroughly done, moreover, at
almost every stage. Out of populations as heterogeneous as any in
Europe they construct a nation singularly homogeneous; out of
feudal lordships as strong, as numerous, as heady, and as stiffly
separate as any other equal territory could show, they construct
a single kingdom more centralized and compacted than any other
in Europe. The processes of these remarkable achievements give
to the history of the French monarchy its distinctive political
significance : the means which the Capets devised for solidifying,
and, after its solidification, for enlarging and effectuating their
power, furnish some of the most suggestive illustrative material
anywhere to be found for the general history of government.
Perfection of the Feudal System in France. The feudal
system worked its most perfect work in France. The opportuni-
ties of feudalism there were great. Neustria, the western, Gal-
lic half of the great Frankish kingdom, was early separated from
Austrasia, the eastern, Germanic half (pages 114-115), and its
separateness proved the cause of its disintegration. Burgundy,
Brittany, and Aquitaine sprang to the possession of unchecked
independent power round about it; the Normans thrust their
huge wedge of territory into it ; battle after battle between those
who contended for the possession of the pieces of the great em-
pire which Charles the Great had swept together first decimated
and finally quite annihilated the sturdy class of Frankish freemen
whose liberties had stood in the way of local feudal absolutism;
privilege grew in the hands of feudal lords while prerogative
declined in the hands of those who sought to be kings ; those
who possessed privilege built for themselves impregnable castles
behind whose walls they could securely retain it : and feudal-
ism had its heyday in France.
It is reckoned that in Hugh Capet's day the " free and noble pop-
ulation" of the country out of which modern France was to be made
numbered " about a million of souls, living on and taking their names
from about seventy thousand separate fiefs or properties : of these fiefs
about three thousand carried titles with them. Of these again, no less
THE GOVERNMENT OF FRANCE. 131
than a hundred, some reckon as many as a hundred and fifty, were
sovereign states, greater or smaller, whose lords could coin money, levy
taxes, make laws, administer their own justice." J Of these one hundred,
however, only some eight or ten were really powerful states.
Materials of the Monarchy. Such were the materials
out of which the Capets had to build up their monarchy. It was
their task to undo the work of feudalism. Nor were these the
only materials that they had to handle in the difficult under-
taking. There were other privileges besides those of the feudal
barons which it was necessary to destroy or subordinate before
they could see their power compact and undisputed.
Local Self-government. Notwithstanding the fact that
in most districts of the divided territory the power that ruled
him was brought close to every man's door in the person of his
feudal lord and master, there were many corners of the system
which sheltered vigorous local self-government. The period of
the greatest vitality of the feudal system was, indeed, the only
period of effectual local self-government that France has ever yet
known. The eventual supremacy of the Crown, which snatched
their power from the barons, also destroyed local self-government,
which the barons had in many cases suffered to grow; and neither
the Revolution nor any of the governments which have succeeded
the Revolution has yet restored it to complete life. Local liber-
ties were taking form and acquiring vigor during the very period
in which the monarchical power was making its way towards
supremacy; and it was by these local liberties that the kings
found themselves faced when their initial struggle with feudal-
ism was over. It was their final task to destroy them by per-
fecting centralized administrative organization.
Rural Communes. While feudalism was in its creative
period, while the forces were at work, that is, which were shap-
ing the relations of classes and of authorities to each other, it was
not uncommon for feudal lords to grant charters to the rural
communes lying within their demesnes. In and after the twelfth
century these charters became very numerous. They permitted
a separate organic structure to the communes, regulated the ad-
mission of persons to communal privileges, laid down rules for
1 G. W. Kitchin, History of France, Vol. I., p. 186.
132 THE GOVERNMENT OF FRANCE.
the administration of property in the commune, set forth feudal
rights and duties, prescribed the corvees, etc. "Everywhere a
general assembly of the inhabitants directly regulated affairs,"
delegating executive functions to communal officers, who acted
separately, each in the function with which he was specially
charged. These officers convoked the general assembly of the
people for every new decision that it became necessary to take
with reference to communal affairs. The principal affairs within
the jurisdiction of the assembly were, "the administration of
communal property, which in that period was very important,
police, and the collection of the taxes both royal and local." 1
In the administration of justice, also, the Middle Ages
witnessed in France not a few features of popular privilege. The
peasant as well as the nobleman had the right to be tried by his
peers, by persons of his own origin and station. In the courts
of the feudal barons the vassals were present to act as judges,
much as the freemen were present in the English county courts
(sees. 836, 942).
Liberties of Towns : the Roman Municipalities. The
privileges of self-direction granted to the rural communes, how-
ever, were privileges granted, so to say, inside vassalage: the
members of the communes were not freed from their constant
feudal duties. Many towns, on the contrary, acquired and main-
tained a substantial independence. When the earliest Frankish
kings failed in their efforts to establish a power in Gaul as strong
and as whole as the Roman power had been, and the Frankish
dominion fell apart into fragments whose only connection was a
nominal subordination to a central throne, there were others
besides the great landowners to avail themselves of the oppor-
tunity to set up independent sovereign powers of their own. The
Franks, as we have seen, had found many Roman cities in Gaul,
und, not at first taking kindly to town life, had simply conquered
them and then let them be (page 101). In these, consequently,
the old Roman organization had endured, freed from Roman dic-
tation. The Franks who entered them later took character from
them almost as much as they gave character to them. Germanic
principles of moot-government and individual freedom entered,
1 H. de Ferron, Institutions Municipales et Provinciales Comparees, p. 3-
THE GOVERNMENT OF FRANCE. 133
to a certain extent, like a new life-blood into the Roman forms,
and compact, spirited, aggressive, disciplined communities were
formed which were quick to lay hold of large privileges of self-
rule, and even to assume semi-baronial control of the lands lying
about them, in the days when independent powers were to be
had for the seizing. The organization which Roman influences
had bequeathed to these towns was oligarchical, Aristocratic : the
governing power rested with close corporations, with councils
(curias) which were cooptative, filling their own vacancies. But
forces presently appeared in them which worked effectually for
democracy. The Christian Church, as well as the barbarian
Teuton, took possession of Gaul : the greater towns became the
seats of bishops ; and the bishops threw their weight on the side
of the commons against both the counts outside the towns and the
oligarchs inside. Only so could the magnates of the Church es-
tablish themselves in real power. In most cases the ecclesiastics
and their restless allies, the commons, won in the contest for
supremacy, and democracy was established.
The Italian towns, with their 'consuls' and their other imitations of the
old Roman republican constitution, are perhaps the best examples of this
renaissance of democracy.
The Non-Roman Municipalities. These Roman towns,
however, were to be found for the most part only in the south
and along the Rhine. North of the Loire, as the Franks took
gradually to city life, there sprang up other towns, of Germanic
origin and character ; and these were not slow to agitate for grants
of special privileges from their baronial masters. In very large
numbers they obtained charters, charters, however, which were
to give them a connection with the feudal system about them
which the towns of the south, antedating feudalism, did not for
some time possess. They were given substantial privileges of
self-government, but they were not severed from baronial control.
They conducted their affairs, on the contrary, under charters
in which the relative (customary) rights of both seigneur and
burgher were definitely ascertained, by which seigneurial author-
ity as well as burgher privilege was fully recognized, and under
which, moreover, the authority of the seigneur was actively ex-
134 THE GOVERNMENT OF FRANCE.
V
ercised through the instrumentality of a Pr6vot, the lord's servant
and representative in city affairs.
This, the more secure form of municipal self-government,
because the form which was most naturally integrated with the
political system about it, a form, moreover, which very natu-
rally connected itself, mediately, with the supreme seigneurial
authority of the king, became in course of time the prevalent,
indeed the almost universal, type in France. The 'preVotal '
town is the normal town down to the end of the fifteenth century.
Not all of this development was accomplished peacefully
or by the complaisance of the barons. Many cities were driven
to defend their privileges against the baronage by force of
arms; some, unable to stand out unaided against feudal aggres-
sions, were preserved from discomfiture only by succor from the
king, whose interest it served to use the power of the townsmen
to check the insolent might of the feudal lords; others, again,
were repeatedly constrained to buy in hard cash from neighbor
barons a grudging tolerance for their modest immunities. The
kings profited very shrewdly by the liberties of the towns, draw-
ing the townspeople very closely about themselves in the struggles
of royal prerogative against baronial privilege. As supreme
lords in France, they assumed to make special grants of munici-
pal citizenship : they made frequent gifts of bourgeoisie to dis-
affected vassals of the barons, gifts so frequently made, indeed,
that there grew up a special class of royal townsmen, a special
bourgeoisie du roi.
The Towns and the Crusades. Not the least important
element in the growth of separate town privileges was the influence of
the crusades upon the power of the nobility. When the full fervor of
crusading was upon France, her feudal nobility were ready to give up
anything at home if by giving it up they might be enabled to go to the
holy wars, to the prosecution of which Mother Church was so warmly
urging them. Their great need was money; money the towns had; and
for money they bought privileges from departing crusaders. Very often,
too, their one-time lords never returned from Palestine never came
back to resume the powers so hastily and eagerly bartered away before
their departure. When they did return they returned impoverished, and
in no condition of fortune to compete with those who had husbanded
their resources at home. On every hand opportunities were made for
the perpetuation of town privileges.
THE GOVERNMENT OF FRANCE.
135
Municipal Privileges. The privileges extorted or bought
by the sturdy townspeople were, to speak in general terms, the
right to make all the laws which concerned only themselves, the
right to administer their own justice, the right to raise all taxes
(as well those demanded by king or baron as those which they
imposed upon themselves for their own purposes) in their own
way, and the right to discipline themselves with police of their
own appointing. Such villages as contrived to obtain separate
privileges could of course obtain none so extensive as these.
They often had to seek justice before baronial rather than before
their own tribunals; they could by no means always choose their
own way of paying unjust charges ; they had often to submit to
rough discipline at the hands of prince's retainers; oftentimes
the most they could secure for themselves was a right of self-
direction in petty matters in which no one else was immediately
interested.
The administrative functions exercised by the towns have been
thus summed up : the administration of communal property, the mainte-
nance of streets and roads, the construction of public edifices, the support
and direction of schools, and the assessment and collection of all taxes. 1
Forms of Town Government. The forms of self-govern-
ment in the towns varied infinitely in detail, according to place
and circumstance, but the general outline was almost everywhere
the same. Often there were two assemblies which took part in
the direction of municipal affairs, an Assembly of Notables and
a General Assembly of citizens. These two bodies did not stand
to each other in the relation of two houses of a single legislature;
they were separate not only, but had also distinct functions.
The popular body elected the magistrates ; the select body advised
the magistrates ; the one was a legislative, the other an executive,
council. More commonly, however, there was but one assembly,
the general assembly of citizens, which elected the magistrates,
exercised a critical supervision over them, and passed upon all
important municipal affairs. The magistracy generally consisted
of a mayor and aldermen who acted jointly as the executive of
the city (its corps de ville), the mayor in most cases being only
1 Ferron, p. 8.
136 THE GOVERNMENT OF FRANCE.
the president, never the ' chief executive/ of the corporation, and
mayor and aldermen alike being equal in rank and in responsi-
bility in exercising their corporate functions.
Decay or Destruction of Municipal Self-government. -
From this democratic model there were, of course, in almost all
cases, frequent departures, quite after the manner formulated by
Aristotle (page 31). Oligarchy and tyranny both crept in, time
and again ; nowhere did local liberties permanently preserve their
first vigor; everywhere real self-government sooner or later suc-
cumbed to adverse circumstances, crushed in very many cases by
the overwhelming weight of the royal power. Generally such
changes were wrought rather by stress of disaster from without
than because of degeneracy within : and in very few cases indeed
did local liberty die before the community which had sought to
maintain it had given proof of a capital capacity for self-govern-
ment. The independence of the cities died hard and has left
glorious memories behind it.
Pays d'Etats. Early times saw self-government in the
provinces also. Many a feudal province had had its own 'Es-
tates/ its own triple assembly, that is, of nobles, clergy, and
burghers, which met to discuss and in large part, no doubt, to
direct provincial affairs. The provinces of old France, thirty-six
in number, represented separate feudal entities, much as the
English counties did (sec. 836). The towns, on the other hand,
in the central and northern portions of France at least, repre-
sented nothing but grants of privilege, were nothing but com-
munities which had been given a special and exceptional place
in the feudal order. The assemblies of the provinces, accord-
ingly, were not primary or democratic like those of the towns,
but were made up by ' estates,' models for the States-General
which appeared in 1302 (page 139).
The provincial Estates were probably in their origin nothing else
than normal feudal councils, made up, as they were, of representatives
of all who possessed corporate or individual privileges, whose judgments
and advice feudal dukes and counts found it redound to their greater peace
and welfare to hear and heed.
In several of the provinces, as, notably, in Languedoc
and Brittany, these provincial Estates continued to meet and w
THE GOVERNMENT OF FRANCE. 137
exercise considerable functions down to the time of the Revolu-
tion. Such provinces came to be distinguished from the others
as pays d'6tats (provinces having Estates), and it is largely from
the privileges of their assemblies that we argue the general nature
of the powers possessed by those which had passed out of exis-
tence before history could catch a glimpse of them. We see the
Estates of the pays d'&ats clearly only after the royal power has
bound together all the provinces alike in a stringent system of
centralization; they sit only at the king's call; their resolutions
must fee taken in the presence of the king's provincial officers
and must await the regal sanction ; they live by the royal favoi
and must in all things yield to the royal will. Nevertheless their
privileges were still so substantial as to make the pays d'&ats the
envy of all the rest of France. They bought of the Crown the
right to collect the taxes demanded by the central government;
they retained to the last the right to tax themselves for the ex-
penses of local administration and to undertake and carry through
entirely without supervision the extensive improvements in roads
and watercourses to which the local patriotism bred by local self-
government inclined them. Restricted though their sphere was,
they moved freely within it, and gave to their provinces a vital-
ity and a prosperity such as the rest of France, administered, as
it was, exclusively from Paris, speedily and utterly lost.
Territorial Development of the Monarchy. The process
of the organic development of the monarchy which centred in the
duchy of France began with territorial expansion and consoli-
dation. For eight centuries that expansion and consolidation
went steadily on ; but its successful completion was assured be-
fore the extinction of the first, the direct, line of Capets in 1328.
Before that date Philip Augustus had wrung Normandy from
England and had added Vermandois, Auvergne, Touraine, Anjou,
Maine, and Poitou to the dominions of his Crown, and his succes-
sors had so well carried forward the work of expansion that before
the Valois branch came into the succession only Flanders, Bur-
gundy, and Brittany broke the solidity of the French power in
the north, and only Aquitaine, still England's fief, cut Franca
off from her wide territories in the southeast. It had been the
mission of the direct line of the Capets to lay broadly and irre-
138 THE GOVERNMENT OF FRANCE.
movably the foundations of French unity and nationality, and
they had accomplished that mission. They gave to their mon-
archy the momentum which was afterwards to carry it into full
supremacy over Brittany, Aquitaine, and Burgundy, over the
Rhone valley, and over the lands which separated her from the
Rhine.
The Crusades and the Monarchy. The monarchy, even more
than the towns (page 134), profited by the effects of the crusades on the
feudal nobility. So great was the loss of life among the nobles, so great
was their loss of fortune, that they fell an easy prey to the encroaching
monarchy. During the first crusades the French kings stayed at home
and reaped the advantages which the nobles lost ; during the last crusades,
the kings were strong enough themselves to leave home and indulge in the
holy warfare in the East, without too great apprehension as to what might
happen to the royal power in their absence.
Institutional Growth. Of course along with territorial
expansion there went institutional growth : and this growth in-
volved in large part the destruction of local liberties. The amal-
gamation of France into a single, veritable kingdom was vastly
more fatal to local self-government than the anarchy and confu-
sion of feudal times had been. The cities could cope with neigh-
bor lords; and during the period of contest between king and
barons they could count oftentimes upon assistance from the king :
his interests, like theirs, lay in the direction of checking baronial
power. But when the feudal lords were no longer to be feared,
the towns in their turn felt the jealousy of the king; and against
his overwhelming power, when once it was established, they
dared not raise their hands. The ancient provinces, too, had in
the earlier days found ways of bringing local lords into their
Estates, in which the right of the burghers to have a voice in the
government was recognized (sec. 368). But they could no more
resist the centralization determined upon by a king triumphant
over all feudal rivals than the towns could. In the end the pro-
vincial assemblies, where they managed to exist at all in the face
of the growing power of the Crown, were, like all other indepen-
dent authorities of the later time, sadly curtailed in privilege,
and at the last almost entirely lost heart and life.
The States-General. At one time, indeed, it seemed as
THE GOYKKNMKNT OF FRANCE. 139
if the nation, in being drawn close about the throne, was to be
given a life of its own in a national parliament. Philip the Fair
(1285-1314), bent upon making good his authority against the
interference of the Pope in certain matters, bethought himself
of calling representatives of the nation to his support. The
kings of France had already often taken the advice upon public
affairs of the baronage or of the clergy, each of which orders had
a corporate existence and organization of its own, and therefore
possessed means of influential advising: but Philip called in the
burghers of the towns also and constituted (1302) that States-
General (Etats-G6n6raux) in which for the first time in French
history that 'third estate ' of the Commons appears which in
later times was to thrust both clergy and nobles out of power and
itself rule supreme as 'the people.*
Character of the States-General. The first States-Gen-
eral, summoned by Philip the Fair, reminds one not a little of
the parliament called together in England in 1295 by Edward I.
(sees. 848, 850). Apparently France was about to have a parlia-
ment such as England's became, a representative body, speaking,
and at the end of every important contest bringing to pass, the
will of the nation. But for France this first promise was not ful-
filled. During three centuries, the fourteenth, fifteenth, and
sixteenth (1302-1614), it was the pleasure of the French monarch
to keep alive, at first by frequent, and later by occcasional sum-
mons, this assemblage of the three Estates. This was the period
during which feudal privileges were giving way before the royal
prerogative, and it was often convenient to have the formal sanc-
tion of the Estates at the back of acts of sovereignty on the part
of the Crown. But after the full establishment of the regal power
the countenance of the Estates was no longer needed, and was
no longer asked. The States-General never, moreover, even in
the period of their greatest activity, became a legislative au-
thority. For one thing, they had not the organization proper,
not to say necessary, for the exercise of power. The three Es-
tates, the Nobility, the Clergy, and the Commons (Tiers Etat),
deliberated apart from each other as separate bodies; and each
submitted its own list of grievances and suggestions to the king.
They acted often in harmony, but never in union j their only
140 THE GOVERNMENT OF FRANCE.
common meeting was the first of each session, when they all
three assembled in the same hall to hear a formal opening speech
From the throne. They never acquired the right to be consulted
with reference to that cardinal affair of politics, taxation; they
aever gained the right to sit independently of royal summons.
They were encouraged to submit what suggestions they chose to
the government concerning the administration of the kingdom ;
and, as a matter of fact, their counsels were often heeded by the
king. But they never got beyond advising : never won the right
to expect that their advice would be taken. Their sessions did,
however, so long as they continued, contribute to keep alive a
serviceable form of self-government which at least held the nation
within sight of substantial liberties; and which, above all, secured
national recognition for that 'third estate,' the people, whose
sturdiest members, the burghers of the towns, were real represen-
tatives of local political life.
Administrative Development. Of course along with the
territorial expansion of the monarchy by annexation, absorption,
and conquest there went also great administrative developments.
As the monarchy grew, the instrumentalities of government grew
along with it : possession and control advanced hand in hand.
Growth of the Central Administration. In the earlier
periods of the Capetian rule a Feudal Court and certain house-
hold officers constituted a sufficient machinery for the central
administration. There was a Chancellor, who was the king's
private secretary and keeper of both the public and the private
records of the court; a Chamberlain, who was superintendent of
the household; a Seneschal, who presided in the king's name
and stead in the Feudal Court, and who represented the king in
the direct administration of justice; a Great Butler, who was
manager of the royal property and revenues ; and a Constable, who
was commander of the forces. The Feudal Court, composed of
the chief feudatories of the Crown, exercised the functions of a
tribunal of justice in suits between tenants in capite, besides the
functions of a taxing body and of an administrative council.
The Council of State. So long as ' France ' was only a
duchy and the real territory of the Crown no wider than the im-
THE GOVERNMENT OF FRANCE. 141
mediate domain of the Capetian dukes, the weight of administra-
tion fell upon the officers of the household, and the Feudal Court
was of no continuous importance. But as France grew, the
household officers declined and the Feudal Court advanced in
power and importance. As the functions of the Court increased
and the Court became a directing Council, the Council more and
more tended to fall apart into committees, into distinct sec-
tions, having each its own particular part of the duties once
common to the whole body to perform. The earlier Councils
exercised without distinction functions political, judicial, and
financial, and their differentiation, though hurried forward by
monarchs like Louis IX., was not given definite completeness
until 1302 (the year of the first States-General) when, by an
ordinance of Philip the Fair, their political functions were
assigned to the body which was to remain the Council, their
judicial functions to a body which was to bear the ancient name
of parliament (and which we know as the Parliament of Paris),
their financial functions to a Chamber of Accounts. Alongside
of the Chamber of Accounts there sprang up a Chamber of
Subsidies which concerned itself with taxation. Into these
bodies, whose activity increased from year to year, the old offi-
cials of the household were speedily absorbed, the Great Butler,
for instance, becoming merely the president of the Chamber of
Accounts.
The Parliament of Paris. The judicial section of the Council
of State consisted at first like the other sections, like the whole Council
indeed, of feudatories of the Crown, as well as of administrative experts
gradually introduced. More and more, however, this chief tribunal tended
to become exclusively a body of technical officials, of trained jurists and
experienced lawyers, the law officers and advisers of the Crown.
Growth of Centralized Local Administration: Louis IX.
This expansion of the central organs of administration meant
that the royal government was entering more and more exten-
sively into the management of affairs in the provinces, that
local administration was being centralized. This extension of
centralized local administration may be said to have begun in
earnest under Louis IX. Louis IX. did more than any of his
predecessors to strengthen the grip of the monarchy upon its
142 THE GOVERNMENT OF FRANCE.
dominions by means of direct instrumentalities of government.
He was a man able to see justice and to do it, to fear God and yet
not fear the Church, to conquer men not less by uprightness of
character than by force of will and of arms ; and his character
established the monarchy in its power. By combined strength
and even-handedness he bore down all baronial opposition ; the
barons subjected to his will, he sent royal commissioners through-
out the realm to discover where things were going amiss and
where men needed that the king should interfere; he established
the right of appeal to his own courts, even from the courts of the
barons, thus making the Parliament of Paris the centre of the
judicial system of the country; he forced limitations of power
upon the feudal courts ; he forbade and in part prevented judicial
combats and private warfare. He drew the administration of the
law in France together into a centralized system by means of
royal Baillis and Pr6vdts, whom he subordinated to the Parliament
of Paris.
Steps of Centralization. It is not, of course, to be understood
that Louis' work was to any considerable extent a work of creation : it was
not, but rather a work of adaptation, expansion, systematization. The
system which he perfected had been slowly growing under his predecessors.
A bailli was, in the Middle Ages, a very common officer, representing
king or seigneur, as the case might be, administering justice in his name,
commanding his men-at-arms, managing the finances, caring, indeed, for
every detail of administration. At first, it is said, "all of judicial, finan-
cial, and military administration was in his hands." It was an old system
of royal baillis, set over districts known as bailliages (bailliwicks), that
Philip Augustus instituted (1190) and Louis IX. extended and regulated,
keeping an eye to it, the while, that the baillis should be made to feel their
dependence upon the Crown so constantly that they should per force re-
main officials and not dream of following the example of dukes and
counts and becoming independent feudal lords on their own accounts.
Personal Government : Louis XIV. Such measures naturally
tended to subordinate all local magnates to the king. By the policy of
Louis XIV. this tendency was completed : the whole of the nobility of
France were, so to say, merged in the person and court of the king.
Louis took care to have it understood that no man who remained upon
his estate, who did not dance constant attendance upon his majesty, the
king, at his court, to add to its brilliancy and servility, might expect any-
thing but disfavor and loss. He made of the great landed nobility a court
nobility, turning men from interest in their tenants and their estates to
THE GOVERNMENT OF FRANCE. 143
interest in court intrigue alone. He drew all men of rank and ambition
to himself, merged them in himself, and left nothing between the mon-
archy and the masses whereby the terrible impact of the great revolution
which was to come might be broken.
The Completed Centralization : the Intendant. Finally
came the completed centralization which followed the days of
Richelieu: the system whose central figure was the Intendant, a
direct appointee and agent of the king and absolute ruler within
the province; and whose lesser figures were the sub-delegates of
the Intendant, rulers in every district and commune. The rule of
these agents of the Grown almost totally extinguished the separate
privileges of the elected magistrates of the towns and of the other
units of local government. In many places, it is true, the people
were suffered still to elect their magistrates as before; but the
usurping activities of the Intendant and his subordinates speedily
left elected magistrates with nothing to do. In other cases elec-
tions ceased; the Crown sold the local offices as life estates to any
one who would buy them for cash.
The Province was a military, not a civil, administrative district.
The Provinces were grouped into Generalities, of which there were in al)
thirty-two, and it was over a Generality that each Intendant ruled. Ec-
clesiastical administration was served by still another distinct division into
Dioceses.
Judicial Centralization. The local tribunals of justice in
like manner had their business gradually stolen from them. The
principle of appeal established by Louis IX. at length worked its
perfect work. Every case in which any interest cared for from
Paris (and what interest was not?) was either actually or by pre-
tence involved was ' evoked ' to special courts set up by royal
commission. No detail was too insignificant to come within the
usurpations of the king's government.
The Royal Council and the Comptroller-General. The
Royal Council at Paris regulated, by 'orders in council, ' every
interest, great or small, in the whole kingdom. The Comptroller-
General, acting through the Intendants and their sub-delegates,
and through the royal tribunals, managed France. Everybody's
affairs were submitted to him, and through him to the Royal
Council; and everybody received suggestions from Paris touching
144 THE GOVERNMENT OF FRANCE.
his affairs. No labor of supervision was too overwhelming for
the central government to undertake. Interference in local affairs,
made progressively more and more systematic, more and more
minute and inquisitive, resulted, of course, in the complete
strangulation of local government. All vitality ran to the veins
of the central organism, and, except for the lingering and treas-
ured privileges of the pays d'ttats, and for here and there a per-
sistent form of town life, France lay in the pigeon-holes of a
bureau. Tabula rasa had been made of the historical elements of
local government.
The Spirit of the Administration. This busy supervision of
local and individual interests was always paternal in intent ; and the
intentions of the central power were never more benevolent than just
when the Revolution was beginning to draw on apace. "The royal gov-
ernment was generally willing in the latter half of the eighteenth century
to redress a given case of abuse, but it never felt itself strong enough, or
had leisure enough, to deal with the general source from which. the par-
ticular grievance sprang." l
The Revolution. This whole fabric of government went
for a moment to pieces in the storm of the Revolution. But the
revolutionists, when their stupendous work of destruction had
been accomplished, were under the same necessity to govern that
had rested upon the monarch whom they had dethroned and exe-
cuted ; and they very soon proved themselves unable to improve
much upon the old patterns of government. In denial of the in-
defeasible sovereignty of the king, they proclaimed, with huzzahs,
the absolute sovereignty of the people; but Assembly and Con-
vention could do no more than arrogate all power to themselves,
as the people's representatives, and seek to reign in the king's
stead through the king's old instrumentalities. They gave voice
to a new conception, but they could not devise a new frame of
administration. The result was confusion, Committees, the
Terror, and Napoleon.
The Reconstruction by Napoleon. The Revolution re-
moved all the foundations of French politics, but scarcely any of
the foundations of French administration. The interests of the
1 John Morley, Miscellanies, Vol. II. (last Macmillan edition), essay on
u Turgot," p. 138.
THE GOVERNMENT OF FRANCE. 145
royal administration had centred in the general government,
rather than in its local parts, in patronage, in the aggregate
national power and prosperity, in finance. The true interests
of republican government, on the other hand, centre in thorough
local development: republican work, properly done, ought to
tend to broaden and diversify administrative work by diversi-
fying political life and quickening self-directive administrative
agencies. But this the leaders of the Revolution neither saw nor
could do; and Napoleon, whom they created, of course made no
effort to serve republican development.
Napoleon simply reorganized despotism. In doing so,
however, he did scarcely more than carry into effect the principal
purposes of the Constituent Assembly. The legislation of that
Assembly had sought, not to shatter centralization, but to sim-
plify and systematize it; and it was this purpose that Napoleon
carried out. For the Convention and Assembly, as representa-
tives of the nation's sovereignty, he substituted himself; and
then he proceeded to give to centralization a perfected machinery.
The Convention and Assembly had endeavored to direct affairs
through Committees, Commissions, Councils, Directories,
through executive boards, in a word. For such instrumentalities
Napoleon substituted single officers as depositaries of the several
distinct functions of administration; though he was content to
associate with these officers advisory councils, whose advice they
might ask, but should take only on their own individual responsi-
bility. " 'To give advice is the province of several, to administer,
that of individuals,' says the maxim which he engraved on
the pediment of the administrative arrangements of France," to
remain there to the present day. The Constituent Assembly,
willing to obliterate the old Provinces of France, with their
memories of feudal privilege, and the Generalities, with their
ancient savor of absolutism, had redivided the country, as sym-
metrically as possible, into eighty-nine Departments; and it was
upon this territorial framework that Napoleon superimposed a
machinery of Prefects and sub-prefects, modelled, with simplifi-
cations and improvements of method, upon the system of Intend-
ants and delegates of the old regime. This he accomplished in
146 THE GOVERNMENT OF FRANCE.
that celebrated " Constitution of the Year VIII." which still lies
almost undisturbed at the foundation of French administration.
The Revolution had resulted in imparting to centralization what
it never had had before: namely, assured order and effective
system. *
Advances towards Liberal Institutions. Nevertheless,
the Revolution had asserted a new principle of rule, and every
change of government which has taken place in France since the
Revolution has pushed her, however violently, towards genuine
representative institutions and real republicanism. Louis XVIII.,
though he persisted in holding to the divine right of kings and in
retaining for himself and his ministers an exclusive right of in-
itiative in legislation, assented to the establishment of a parlia-
ment of two houses and conceded to it the responsibility of the
ministers. Louis Philippe abandoned the delusion of the 'divine
right,' acknowledged the sovereignty of the people, and shared
with the chambers the right of initiative in legislation. With
Napoleon III. came reaction and a return to a system like that
of the first Napoleon; but even Napoleon III. had consented to
return to the practice of ministerial responsibility before the
war with Germany swept him from his throne and gave birth to
the present Republic.
The Third Republic. Sedan having fallen (September 2),
and the Emperor having been taken prisoner, the imperial gov-
ernment went to pieces, and on Sunday the fourth of September,
1870, the leaders of uneasy Paris proclaimed the Third Republic,
Gambetta being their mouthpiece. A provisional government
was at once set up by the republican leaders, under the name of
the National Defence. The men who constituted it were fully
aware that they legally represented nobody but themselves, that
they had usurped power in the face of a national crisis and were
acting by sufferance, and it was their purpose to call together a
national assembly at once, an assembly chosen by universal suf-
frage, in order that the people's representatives might construct
1 Since the war between France and Germany in 1870-'!, the Depart-
ments of France have numbered only eighty-six, the loss of Alsace and Lor-
raine having subtracted three Departments. There is also the territory of
Belfort.
THE GOVERNMENT OF FRANCE. 147
in more formal fashion a government of their own. Immediate
preparations were accordingly made for an election. But the
rapid and fatal progress of the war prevented. Germany pressed
her victories to the utmost. It was not possible to hold an as-
sembly at all until the end had come and it had become necessary
to decide terms of submission and peace.
The National Assembly of 1871-1876. On the 8th of
February, 1871, a National Assembly was elected, and on the
13th of the same month it convened for the transaction of its
business at Bordeaux. It turned out not to be a republican body.
Of its seven hundred and sixty-eight members a majority were
found to be in favor of a monarchical form of government. Had
that majority been united, it could have undone the work of Gam-
betta and his colleagues and have set a prince once more upon
the throne of France. But it could not unite. Some, the 'Le-
gitimists,' wished to see the old house of Bourbon restored;
others were partisans of the house of Orleans ; a few were Im-
perialists and wanted the empire of the Bonapartes set up again.
The first business of the Assembly was easily disposed of, hu-
miliating though it was. Peace was concluded with Germany
upon her own terms, only Belfort being saved by the diplomacy
of Thiers. The matter of real difficulty was the establishment
and maintenance of a government. For the time being, and until
something better and more permanent could be agreed upon, the
name and the forms of the Republic were kept. M. GreVy, a
moderate Republican, was made President of the Assembly; M.
Thiers, a moderate Orleanist, was chosen 'Chief of the Executive
Power ' of the Republic (a title presently changed to President);
and the Assembly itself undertook to direct affairs, through the
President as its responsible agent.
A Balance of Parties. For five years the Assembly main-
tained its authority and hold upon affairs. It had been given no
formal commission at the elections what it should do. It had
been clearly enough understood, of course, that it was first of all
to come to terms of peace with Germany ; but no one knew what
the voters had expected it would do after that. It had neither
been commissioned to form a government nor to conduct one, and
yet it certainly had not been forbidden to do either. The Repul*
148 THE GOVERNMENT OF FRANCE.
licans, finding themselves in a minority, urged that the Assembly
had no authority to make a permanent constitution, and demanded
that it should be dissolved and the people asked to choose a new
assembly explicitly authorized to frame a government. The
monarchical majority, however, feared that they should not have
such another chance as the present to frame a government to their
own liking, and claimed that as a National Assembly elected
without instructions the existing body had practically received
sovereign powers from the electors and might do as it pleased,
watching, as prudent men should, the while, the temper of the
country. The real difficulty was to hit upon a practicable pro-
gramme, agreeable to all factions of the monarchists. The
interests of the factions proved in fact irreconcilable and it soon
became evident to conservative and observant men of every opin-
ion that the Republic must be left standing. Thiers declared
very frankly that he would have preferred a constitutional mon-
archy ; but he believed a republic to be the real preference of the
country, and he knew that to attempt the restoration of any one
of the royal houses would be in the highest degree dangerous and
revolutionary under the circumstances. "The Republic exists,"
he said; "it is the legal government of the country; to wish for
anything else would be a revolution." The monarchists had at
all events lost their opportunity by waiting ; opinion ran steadily
against them, and it was presently too late.
The Framing of the Constitution. The more statesman-
like and practical men amongst them saw at last very clearly that
they must frame a republican government or none at all ; but they
determined to do as little as possible towards making the consti-
tution they should frame definitive and difficult of alteration.
They would make the forms of the new government such that it
could at any rate be readily changed, and that without radical
amendment, into a constitutional monarchy. They gave it, ac-
cordingly, as simple and rudimentary a frame as possible, leav-
ing almost every detail, and even some of the main arrangements
of its administration, to be settled by ordinary legislation; and
they took care to make constitutional change as easy and informal
a matter as might be without risking immediate instability. For
fiour years they experimented with the government they had;
THE GOVERNMENT OF FRANCE. 149
defining the powers of the President and their own relations to
him more than once, as if tentatively, and so as it were testing
and shaping the arrangements to which they should ultimately
give permanency. About a month after its convening the As-
sembly removed from Bordeaux to Versailles. While the Com-
mune ruled Paris the leaders of the Assembly could of course
think of nothing but the measures necessary to establish order
and the authority of the government. When order had been re-
stored, it was still necessary to handle the finances and arrange
many disordered matters of administration. What with the diffi-
culties of governing the country and the even greater difficulty of
quieting its own factions, it proved impracticable for the Assem-
bly to enter upon the work of constitution-making before 1873.
The work was not completed before the closing months of 1875.
Meanwhile (August 31, 1871), by the same act which conferred
upon him his new title of President of the Republic, the Assembly had
defined its relations to Thiers, constituting him its responsible minister,
with the right to appoint the other executive officers of the government and
to address the Assembly upon all matters of public business, and giving
him a term of office which should last until it should have finished its own
business. In March, 1873, thinking him too dominant in its counsels, it
had sought to exclude the President from its debates, except upon extraor-
dinary occasions, and to put a responsible cabinet of ministers between
itself and the head of the government. Two months later it forced M.
Thiers to resign and elected Marshal MacMahon to exercise the office of
President in his stead, fixing his term at seven years and leaving the scope
of his authority and of his relations to the legislature to be determined by
the definitive constitutional laws it was about to frame. It had experi-
mented long enough at governing and at the making and modifying of
Executives, and was ready, as it no doubt saw the country was, for its
final task.
Scope and Character of the Constitutional and Organic
Laws of 1875. In framing the laws which were to give shape to
the new government the Assembly distinguished between those
which were to be 'constitutional ' and subject to change only by
special processes of amendment, and those which, though 'or-
ganic,' were to be left subject to change by the ordinary processes
of statutory enactment by the two Houses of the Legislature.
The 'constitutional ' laws, passed February 24th and 25th and July
150 THE GOVERNMENT OF FRANCE.
16th, 1875, respectively, dealt in the simplest possible manner
with the larger features of the new government's structure and
operation: the election and general powers of the President; the
division of the National Assembly into two houses, a Senate and
Chamber of Deputies ; the general powers and mutual relations of
the two Houses, the President's relation to them, and the general
rules which should control their assembling and adjournment.
Two 'organic' statutes, bearing date August 2nd and November
30th, 1875, respectively, provided for the election of Senators and
Deputies. The only radical amendment of the 'constitutional 7
laws since then effected was made in August, 1884, when almost
the whole of the constitutional law regarding the composition and
powers of the Senate was repealed, and replaced by an 'organic '
law (that is, an ordinary statute) which introduced a number of
important changes, and left the organization and authority of the
Senate henceforth open to the freest legislative alteration, likely
to be checked only by the circumstance that the Senate must itself
assent to the changes made. The 'organic' laws of 1875 with
regard to elections to the Chamber of Deputies have been several
times amended.
The Sovereignty of the Chambers. There can be no doubt
that the National Assembly had invested Marshal MacMahon
with the presidential power, upon the resignation of M. Thiers
in May, 1873, with a distinct purpose. MacMahon was at once a
popular and patriotic soldier and a partisan of monarchy. It was
hoped that he might keep the chief executive place of the nation
warm for some sovereign to be afterwards agreed upon and en-
throned, not necessarily by coup d'ttat: perhaps by a mere
modification of the constitutional laws with regard to the person
and powers of the head of the state. Sovereignty, nevertheless,
passed under the new constitution to the new National Assembly,
the Senate and Chamber of Deputies. The 'constitutional ' laws
of 1875 can be changed at will by the legislature which they called
into existence: changed by the simple substitution of action in
joint Assembly for the ordinary separate action in two houses.
The Senators and Deputies have but to unite in National Assem-
bly to become as sovereign as the Assembly which created them
(see page 134). They are, besides, the sole judges of their OWD
THE GOVKKNMKNT OF FRANCE. 151
constitutional powers. No courts restrain them. France, like
England, vests in her parliament a complete sovereignty of dis-
cretion as to its own acts.
The principal difference between the two cases is, that the English
Parliament may exercise all its powers in the same way, by the ordinary
procedure of enactment, whether it changes by the act a mere detail of
the common law or a chief arrangement of the constitution of the realm,
while the French chambers are put under limitations of procedure in
respect of every alteration of the fundamental law.
The constitutional arrangements thus effected have this
admirable difference from all other previous constitutions France
has had since the Revolution : they do not pretend to constitute
the whole body of her fundamental public law. They exclude
neither precedent nor growth. In practice even the precedents
of previous constitutions have been suffered to have a part in sup-
plementing them. So much of former constitutional usage as in
not incompatible with the laws and character of the Republic is
regarded as still in force. There has been no absolute break
with the past, but only a new construction on old foundations.
The Chamber of Deputies. It was the hope of the consti-
tution-makers of 1875 that the Senate would have equal weight
in affairs with the Chamber of Deputies ; but that hope has been
disappointed. Effective power has fallen from the first to the
popular chamber, and the Senate has been thrust into a secondary
role. Of the choice of members of the Chamber of Deputies, the
constitutional laws say no more than that they shall be elected
by universal suffrage. 'Organic' statute law has organized the
Chamber on the basis of one deputy to every one hundred thou-
sand inhabitants. Deputies must be at least twenty-five years of
age, and their term, unless the Chamber be sooner dissolved, is
four years. The eighty-six Departments into which the country
is divided are the basis of representation in the Chamber, as in
the Senate (page 153). To each Department is assigned a certain
number of deputies, according to its population; every Depart-
ment, however, whatever its population, being entitled to at least
three representatives. The deputies are elected, not 'at large'
for the whole Department, that is, on a general ticket, but by
districts, as members of our federal House of Representatives
152 THE GOVERNMENT OF FRANCE.
are chosen in the States. The Arrondissements serve as ' con-
gressional districts/ as we should call them, 1 and this method
of voting is accordingly known in France as scrutin d'arrondisse-
ment (ballot by arrondissement).
This was the original arrangement of 1875 ; but in 1885 the system of
voting for deputies in each Department on a general ticket, as we vote
for presidential electors in the States, was introduced, being called scrutin
de liste (ballot by list). It was adopted at the suggestion of Gambetta,
who thought that a system of general tickets would give his party a freer
sweep of popular majorities. In 1889, however, scrutin & arrondissement
was reestablished, because scrutin de liste had given too free a sweep to
the popular majorities of General Boulanger.
The principal colonies, too, are entitled to representation in
the Chamber. Algiers sends five deputies ; Cochin-China, Guade-
loupe, Guyana, India, Martinique, Reunion, and Senegal each
send one. In all, there are six hundred and two deputies. Elec-
tions to the Chamber do not take place at regular intervals and
on fixed dates named by statute, but must be ordered by decree
from the President of the Eepublic in each case. The law directs,
however, that the President must order an election within sixty
days, or, in case of a dissolution, within two months after the
expiration of a term of the Chamber ; and that the new Chamber
must come together within the ten days following the election.
At least twenty days must separate decree and day of election.
Election by Majority. The law governing the election of
Deputies provides against choice by plurality on the first ballot ; and the
result is unfortunate. If there are more than two candidates in an elec-
toral district (an arrondissement^ an election on the first ballot is possi-
ble only if one of the candidates receives an absolute majority of all the
votes cast not only, but also at least one-fourth as many votes as there
are registered voters in the district. If no one receives such a majority,
another vote must be taken two weeks later, and at this a plurality is
sufficient to elect. The result is, that the multiplication of parties, or
rather the multiplication of groups and factions within the larger party
lines, from which France naturally suffers overmuch, is directly encour-
aged. Rival groups are tempted to show their strength on the first ballot
1 Arrondissements having a population of more than one hundred thou-
sand people are divided into districts, called circonscriptions one for each
hundred thousand people or fraction thereof.
THE GOVERNMENT OF FRANCE. 153
in an election, for the purpose of winning a place or exchanging favor
for favor in the second. They lose nothing by failing in the first ; they
may gain concessions or he more regarded another time by showing a
little strength ; and rivalry is encouraged, instead of consolidation. France
cannot afford to foster factions.
The Senate. By an act of the National Assembly passed
August 14th, 1884, almost the whole of the constitutional law of
February 24th, 1875, relating to the organization of the Senate
and to the qualifications and election of senators was stripped of
its ' constitutional ' character and became an ordinary statute.
Four months later it was replaced by the act of December 9th,
1884. In all that respects its organization and in much that re-
spects its powers the Senate has become a merely statutory body.
So far as the ' constitutional ' laws are concerned, it might be con-
stituted by executive appointment or by lot. By statute it has
been made to consist of three hundred members chosen by ' elec-
toral colleges ' specially constituted for the purpose in the several
Departments and colonies, and the term of senatorship has been
fixed at nine years. 1 Forty years has been declared the minimum
age for senators. The electoral college for the choice of senators
is composed in each Department of the deputies from the Departs
ment, the members of the ' General Council ' of the Department
(page 169), and the members of the Councils of its several Arron-
dissements (page 171), together with delegates chosen in each
Commune by the Communal Council, varying in number according
to the numbers of the Communal Council. One-third of the
membership of the Senate is renewed every three years. In legal
powers the Senate is in all respects upon a footing of equality
with the Chamber of Deputies, except that money bills must
originate with the Chamber ; and though it has in practice been
conceded that the Senate may amend them, it has been doubted
whether it can of strict legal right add to money bills. In
political power, of course, the Chamber overshadows and domi-
nates the Senate.
1 Until 1884 the law provided that seventy-five of the senatorial seats
were to be filled by the choice of the Senate itself, and held for life. By
virtue of the constitutional change effected in 1884, all vacancies occurring
in these life-memberships are now filled by election in the Departments, as
other seats are, and for the usual term of nine years.
154 THE GOVERNMENT OF FRANCE.
Legislation determines from time to time how many senators shall
be elected by each Department. According to the present distribution
ten are returned by the city of Paris, which itself constitutes most of the
Department of the Seine. Other Departments vary in their representation
from two to eight. ' * The following elect one senator each : the Territory
of Belfort, the three Departments of Algeria, the four colonies, Marti-
nique, Guadeloupe, Reunion, French Indies." (Law of Dec. 9, 1884.)
In Case of Usurpation. In case the Chambers should be ille-
gally dissolved or hindered from assembling, the General Councils of the
Departments are to convene without delay in their respective places of
meeting and take the necessary steps for preserving order and quiet.
Each Council is to choose two delegates to join delegates from the other
Councils in assembling at the place whither the members of the legal gov-
ernment and the regular representatives of the people who have escaped
the tyranny have betaken themselves. The extraordinary assembly thus
brought together is authorized to constitute itself for business when half
the Departments shall be represented ; and it may take any steps that
may be necessary to maintain order, administer affairs, and establish the
independence of the regular Chambers. It is dissolved, ipso facto, so soon
as the regular Chambers can come together. If that be not possible, it is
to order a general election, within one month after its own assembling.
The National Assembly : its Functions. The Senate and
Chamber of Deputies meet together in joint session as a National
Assembly for two purposes : the revision of the Constitution and
the election of the President of the Republic. Since November,
1879, the Houses have met for the performance of their ordinary
legislative functions in Paris ; as a National Assembly they meet
in Versailles, apart from the exciting influences of the great capi-
tal, which has led so many assemblies captive. Whether met for
the election of the President or for the revision of the Constitu-
tion, the National Assembly must do the single thing which it
has convened to do and then at once adjourn. For the election
of the President there are clearly determined times and occa-
sions : whenever the office of President falls vacant, whether by
the death or resignation of the President or by the expiration of
his term.
Revision of Constitution. A revision of the Consti-
tution may take place whenever the two Houses are agreed that
revision is necessary. It has, thus far, been customary for the
Houses to consider separately beforehand not only the propriety
THE GOVERNMENT OF FRANCE. 155
of a revision, that standing constitutional rules require, but
also the particular points at which revision is necessary and
the lines on which it should proceed; and to know each other's
minds on those important heads before agreeing to a National
Assembly. Alike for the election of a President and for the
adoption of constitutional amendments an absolute majority vote
of the united Chambers suffices.
It might easily happen that the majority in one of the Houses
would be outvoted on joint ballot in National Assembly. If such were
likely to be the case, that majority could hardly be expected to con-
sent readily to a joint session. France has, not two, but many national
parties, and it is not always possible to effect the same combination of
factions in support of a measure in both the Houses. Cases must fre-
quently arise in which a joint vote of the Houses upon a particular measure
would carry with it defeat to the policy preferred in one of them. And
yet there is no legal obstacle to prevent the majority in a joint session
taking up and deciding questions not agreed upon beforehand. The only
guarantee is good faith.
The National Assembly is the most completely sovereign
body known to the Constitution, there being but one thing it
cannot do under existing law : it cannot sit as long as it pleases.
Its sessions must not exceed in length the duration of an ordi-
nary legislative session (five months). It is, indeed, forbidden,
besides, to consider the repeal of republican government; but it
could repeal the law which forbids it.
The officers of the Senate act as officers of the National Assembly.
They consist of a President, four Vice-Presidents, six Secretaries, and
three Quaestors, elected for one year. The Chamber of Deputies has the
same offices, with the addition of two more secretaryships.
The President of the Republic. The president, elected by
the joint ballot of the Chambers, is titular head of the Executive
of France. His term of office is seven years. He has the power
of appointing and removing all officers of the public service. He
has no veto on legislation, but he is authorized to demand a re-
consideration of any measure by the Houses. He can adjourn the
Chambers at any time (though not more than twice during the
same session) for any period not exceeding one month; he can
close a regular session of the Houses at his discretion after it has
continued five months, and an extra session when he pleases; and
156 THE GOVERNMENT OF FRANCE.
he can, with the consent of the Senate, dissolve the Chamber of
Deputies, even before the expiration of the five months of its
regular session. A dissolution of the Chamber of Deputies
puts an end also to the sessions, though not to the life, of the
Senate ; for it cannot act, except as a court, without the Chamber.
In the event of a dissolution, as has been said, the President
must order a new election to be held within two months there-
after, and the Houses must convene within ten days after the
election. " The President is responsible in case of high treason
only," says the constitutional law of February 25th, 1875 ; and,
in case of high treason the Chamber must impeach, the Senate
try, him. As a matter of fact, however, four Presidents of the
Republic have been forced or have chosen to resign.
The only limitation put by law upon the choice of the National
Assembly in electing a President of the Republic is, that no one
shall be chosen President who is a member of any family
which has occupied the throne of France. Members of these
families are also excluded from seats in either the Chamber or the
Senate.
Influence of President and Senate. The President and
Senate, it will be seen, are given a really very great power of
control over the Chamber of Deputies. It is within the choice of
the President to moderate the excesses of the Chamber by return-
ing bills to it for reconsideration, 1 or by adjourning it during a
period of too great excitement ; and it is within the choice of the
President and Senate acting together to appeal from its decisions
to the constituencies by a dissolution. The Senate, moreover,
has once and again been given so many members of real weight
of character and distinction of career that it would seem to have
been in a position to act in restraint of the Chamber with firmness
and success. But, though the National Assembly which elected
Thiers and MacMahon and put together the framework of the
constitution may have intended the new government to be in
some real sense a government by the President, it has in fact
never shown the President in any degree a master in affairs since
the days of MacMahon himself. MacMahon exercised the power
1 The President has no veto power and while the Chamber must recon-
sider bills thus returned to it, it may at once repass them without change.
THE GOVKKN.MKNT OF FRANCE. 157
of dissolution, with the approval of the Senate ; but the change
of Deputies only taught him the real character of the govern-
ment, as a government subject to the will of the Chamber. Year
by year the subordinate position of the Senate and the irregular
but always irresistible power of the Chamber have become more
and more obvious.
The Cabinet and the Council of Ministers. A Cabinet of
ministers constitutes a link between the President and the Cham-
bers : and the political functions of this Cabinet are amongst the
central features of government in France. Both the Cabinet and
the Council consist of the same persons ; but the Cabinet is a
political body exclusively and is presided over by the Premier,
while the Council has administrative functions and is presided
over by the President. The distinction illustrates pointedly the
double capacity of the ministers.
The Ministries. There are now fourteen ministers : the
Minister of Justice, rilling the office filled before the Revolution
by the Chancellor ; the Minister of Finance, who has taken the
place of the Comptroller-General of ante-revolutionary days
(page 143) ; the Minister of War, who acts as head of the adminis-
trative department created in the time of Mazarin (1644) ; the
Minister of Marine ; the Minister of Colonies ; the Minister
of Foreign Affairs (1644) ; the Minister of the Interior, an office
created by the Constituent Assembly in 1791, by a consolidation
of the pre-revolutionary offices of Comptroller-General and Minis-
ter of the Royal Household, except so far as the functions of
the Comptroller-General were financial and bestowed upon the
Minister of Finance; the Minister of Public Instruction (1848)
and the Fine Arts; the Minister of Public Works and Transporta-
tion; the Minister of Agriculture (an office created in 1812, but
afterwards abolished, to be revived in 1828-30) ; the Minister
of Trade and .Industry ; the Minister of Labor; the Minister of
Supplies, and the Minister of Munitions.
The Cabinet. As a Cabinet, the ministers represent the
Chambers. They are commonly chosen from amongst the mem-
bers of the Houses ; but, whether members or not, they have, as
ministers, the right to attend all sessions of the Chambers and to
158 THE GOVERNMENT OF FRANCE.
take a specially privileged part in debate. 1 The same right ex-
tends also to the Under-secretaries, who are, consequently, usually
members of the Chambers.
The Council of Ministers. As an administrative Council
the ministers are, in official rank at least, subordinate to the
President, who is the Chief Executive. The Council sits in his
presence and under his presidency. Its duty is to exercise a
general oversight of the administration of the laws, with a view
to giving unity of direction to affairs of state. In case of the
death, resignation, or incapacitation of the President of the Re-
public, the Council is to act in his stead until the National As-
sembly can meet and elect his successor. Its members are ex
officio members of the Council of State, the highest judicial tri-
bunal of the Republic for the determination of administrative
cases (page 174).
Relation of the Ministers to the President. The Council
of Ministers is a body recognized by law, the Cabinet is not : it
is only the ministers in consultation concerning matters affecting
their political responsibility : it is, aside from such meetings for
consultation, only a name representing their union in responsi-
bility. But the two names, Council and Cabinet, furnish con-
venient means for making plain the various relations of the
ministers to the President. As a Council they are, in a sense,
his creation ; as a Cabinet they are, in a sense, his masters. The
Executive Departments or Ministries over which they preside
are the creation, not of the Constitution or of statutes, but of the
President's decree. No decree of the President is valid, however,
unless countersigned by the minister whose department is affected.
Any such decree must, too, almost necessarily affect the budget,
and must in that way come within the control of the ministers
and the Chambers. The ministers are the President's appointees ;
but he must appoint ministers who are in agreement with the
majority in the Chambers, and they are responsible to the Cham-
bers alone for their conduct in office. The President is the head
of the administration ; but his salary is dependent upon the
1 A minister may speak at any time in the Chambers ; not even the
cloture (previous question) can exclude him. In 1888 the Minister of War
was without a seat in the Chamber.
THE GOVKKN.MENT OB^ FRANCE. 159
annual budget which tin- Minister of Kinan<v presents to the
Chambers : and the items of the budget are matter of agreement
between the ministers and the Chambers.
All these * buts ' are so many fingers pointing to the power of
the Cabinet over the President. The Ministers are in fact not his
representatives, but representatives of the Chambers. In this
capacity they control not the policy only, but also the patronage
of the government. Naturally the President's appointments,
needing, as they do in every case, the countersignature of a
minister, are in general the appointments of the ministers ; and
their appointments are too often bestowed according to their in-
terest in the Chambers, are too often used, in short, to be cast
as bait for votes.
The Patronage of Office, indeed, threatens to become
even more of a menace to good government in France than it has
been to good government in our own country under the federal
system of appointment. The number of offices in the gift of the
ministers in France is vastly greater than the number within the
gift of the President of the United States ; and the ministers'
need to please the Chambers by favors of any and all kinds is in-
comparably greater than our President's need to please Congress,
since they are dependent upon the good-will of the Chambers for
their tenure of office, while he is not dependent on Congress for his.
There have never yet been in France, however, any such whole-
sale removals from office upon the going out of one administra-
tion and the coming in of another as we have seen again and
again in this country ; because there has really been no radical
change of administration in France since the days of MacMahon.
In this country, as in England, there are two great national parties,
and the government is now in the hands of one and again in the
hands of the other. But in France a change of cabinet means
nothing more than a change from the leadership of one group to
the leadership of another.
For some years after the establishment of the present form of
government, the only real party opposed to the Republicans was
made up of persons known or suspected to be hostile to the very
form of government under which the country was living. The
people never gave it a majority in the Chamber and were never
160 THE GOVERNMENT OF FRANCE.
willing to intrust it with office. With the general acceptance of
the Republic this monarchical party has disappeared ; support of
the Republic has become unanimous. No well-defined issues
have divided the people or their representatives into two great
political parties ; at present eight parties are represented in the
Chamber of Deputies, ranging in number after the last election
from 136 to 26, with 18 Independents. Since no party has a
majority, a ministry must depend upon a bloc, or union of parties.
There is thus no strong bond of support behind any ministry, and
while ministries do not change with the disconcerting frequency
of the earlier yesKs of the Eepublic, their tenure is still far too in-
secure and short lived. Generally a new cabinet is composed in
part of men who held office also in the cabinet just thrown out.
It is a change only of chief figures. And so wholesale removals
from office do not take place.
Ministerial Responsibility. The responsibility of the
ministers to the Chambers is of law, and not simply of custom
as in England. Their tenure of office is dependent upon the
favor of the Houses. It would doubtless be so without law, for
no policy of theirs could succeed without legislative approval and
support, and it is French precedent as well as English for minis-
ters to resign when defeated. They resign because they will not
carry out measures of which they disapprove. In theory their
responsibility is to both Houses ; but, as a matter of fact, it is
almost wholly to the Chamber of Deputies. The votes of the
Senate alone seldom make or unmake Cabinets 1 ; that has come
to be recognized as the prerogative of the popular Chamber,
which is more directly representative of the nation.
Questions and Interpellations. The ministers may be
held closely to their responsibility at every turn of their policy
by means of various simple and effective forms of inquiry on the
part of the Chambers. First of all is the direct question. Any
member of either House may, after due notice given to the min-
ister concerned, ask any question as to affairs of state ; and an
answer is demanded, by custom at least, to every question which
1 On March 18, 1913 Briand proposed a vote of confidence in the Senate
on the question of proportional representation, and when it was not given,
the ministry resigned.
THE GOVERNMENT OF FRANCE. 161
can be answered publicly without detriment to the public interest.
Next to the direct question, which is a matter between the indi-
vidual questioner and the minister questioned, comes that broader
form of challenging the policy of the Cabinet, known in France
as the ' Interpellation. 1 The simple questioner must first get the
consent of the minister to hear his question ; an interpellation, on
the contrary, can be brought on without awaiting the acquiescence
of the minister. It is a special and formal challenge of the
policy or action of the Cabinet on some matter of the day, and is
commonly the occasion of a general debate. It usually results in
a vote expressive of confidence or want of confidence in the min-
isters, as the case may be. It is the question exalted into a
subject of formal discussion : it is the weightiest form of interro-
gating ministers : it makes them and all that they have done the
objects of set attack and defence. A third and still more formal
method of bringing administrative acts under the scrutiny of the
Chambers consists in the appointment of a Committee of Investi-
gation.
The power of interpellation has been so indiscriminately and unwisely
used in France as seriously to discredit her system of cabinet government.
Interpellation is unhesitatingly used to take the ministers by surprise
Deputies lie in wait to take them at a disadvantage. They are * inter-
pellated,' moreover, most often, not upon questions of first-rate impor-
tance or in any way representative of their policy, but upon trivial matters
of the moment. A sudden impulse upon a minor question of administra-
tion often determines the vote, and a cabinet goes out, it may be, as if
by a trick, not because its policy has been rejected or discredited, but
because a chance and temporary majority has been got together against it.
Yet the French regard the interpellation, despite its abuses, as the essence
of constitutional government and an indispensable element in securing
ministerial responsibility. The Chambers have sought within recent years
to lessen the evils of interpellation by restricting the opportunities for its
use. Under the present rules of both the Senate and the Chamber inter-
pellations can be made only on one day of the week. Demands for inter-
pellations are so numerous that few can be made in the time allotted, and
as each takes its turn in order, it has happened that interpellations have
been reached as long as a year and a half after they were made. The
Chamber is always mistress of its own order of the day and interpellations
regarding important matters may be heard at once or may be specially
set for an early day The number of interpellations is still so great as to
impose a terrible tax upon the time of both ministers and Chambers.
162 THE GOVERNMENT OF FRANCE.
Control during the War. The Senate and the Chamber have
exercised a wide degree of control over the government, not only with
respect to questions of internal affairs but also with respect to its diplo-
matic policy and the general direction of military affairs. During 1915
and the early months of 1916, important groups in the Chamber demanded
that interpellations upon diplomatic and military affairs should be dis-
cussed in secret session, but the government opposed this on the ground of
the serious consequences that might result from a discussion of these
matters, even in a secret session. The right of the Senate and Chamber
to control was not questioned, but the government thought it could be done
better by the great parliamentary committees on the army, finance, and
foreign affairs. Finally the government was compelled to yield and on
June 14-22, 1916, secret sessions were held for the first time in the history
of the Third Republic. Though a vote of confidence in the Briand
ministry was given, the Chamber resolved to appoint a special committee,
which, with the concurrence of the government, should exercise effective
control. But the Chamber was finally compelled to abandon the plan of a
special committee of control and on July 26, 1916, it delegated to the great
standing committees the powers necessary to exercise effective control. 1
The Course of Legislation. All propositions alike, whether
made by ministers or by private members, have to go to a special
committee for consideration before reaching a debate and vote by
the whole House ; but the propositions of private members must,
in the Senate, pass another test before they reach even a special
committee. They must go first to the ' Monthly Committee on
Parliamentary Initiative,' and it is only after hearing the report
of that Committee upon bills submitted to it that the Senate
determines whether particular measures shall be taken under
further consideration and advanced to the special-committee stage.
In the Chamber of Deputies every proposition of a private mem-
ber goes to the president of the Chamber who refers it to the
permanent committee within whose province it falls. A vote.
of emergency taken upon the introduction of a measure can, how-
ever, rescue a ministerial bill from all committee handling, and
a private member's bill from the delays of the Initiative Com-
mittee.
The Committees. 2 The committee organization of the
House is worthy of special remark. Every month during the
session, the members of the Senate are divided by lot into nine
1 Duguit, Manuel, pp. 452 ff. 2 Ibid., pp. 431 ff.
THE GOVERNMENT OF FRANCE. 163
bureaux. The business of these bureaux is not to consider bills
but to elect the committees to which bills are referred.
In the Chamber of Deputies since 1915, at the opening of a
new session eleven bureaux are chosen by lot and they proceed
at once to examine the certificates of election ; other bureaux
are chosen in the event the Chamber decides to establish a per-
manent or special committee, elected by the bureaux, in addition
to the great standing committees.
Until 1902 the committees of both Senate and Chamber of
Deputies were special and temporary : special in that they
were appointed to consider one or more definite points and they
could not consider anything else ; temporary, that is, they ceased
to exist so soon as the matter with which they were intrusted
was disposed of. Since 1902 the Chamber has adopted the
system of permanent or standing committees, chosen for a year,
among which all the business is distributed. In 1911 the Senate,
though holding in principle to the theory of special committees,
decided to establish a certain number of standing committees.
The number of these committees in the Chamber is nineteen and
in the Senate four. In the Senate they are chosen by the
bureaux, but in the Chamber a method is used which gives pro-
portional representation to the various political groups ; the
bureaux of the different groups report to the president a com-
plete list of their members and, after agreement among them-
selves, the list of candidates which they have determined in
accordance with the rule of proportion. This list is regarded as
having received the ratification of the Chamber unless fifty
deputies have opposed it by a declaration in writing delivered to
the president. In the event of opposition the Chamber proceeds
to a vote ; by the scrutin de liste. Each committee consists of
forty-four members and no deputy can serve on more than three
committees at the same time.
The very existence of committees and of the matter-of-course
reference of all measures to their consideration, means that the
Chamber insists upon examining and sifting all proposals for
itself, whether they have been introduced by the ministers or not.
It means, consequently, that the leadership of the ministers is
thus still further broken and embarrassed. The committees will
164 THE GOVERNMENT OF FRANCE.
always insist upon putting some touch at least of their own
handiwork upon the bills submitted to them; and even the
ministers may count upon seeing their proposals pulled about
and altered.
The Budget Committee. All financial matters are con-
sidered by special standing committees chosen for one year ; in
the Chamber of Deputies by a Budget Committee composed of
forty-four members, and in the Senate by a Finance Committee
composed of eighteen members j and these Committees, like other
standing committees, arrogate to themselves something like abso-
lute domination of the financial policy of the government, with
the result of robbing financial legislation of order and consistency,
and of sadly obscuring the responsibility of the ministers. Other
committees simply consider and report ; the Budget Committee
undertakes often radically to revise, sometimes altogether to
transform, ministerial proposals, originating when it was meant
only to control.
Government by the Chambers. Ministerial responsibility has
rapidly degenerated in France into government by the Chamber of Deputies.
Ministerial responsibility is compatible with ministerial leadership ; and
under a ministry really given leave to direct the course of public policy, the
Chambers judging and controlling but not directing, that policy might have
dignity, consistency, and strength. But in France the ministers have, more
and more as the years of the Republic have multiplied, been made to substi-
tute for originative leadership submissive obedience to the wishes, and even
to the whims, of the Chamber of Deputies. The extraordinary functions
which have been arbitrarily assumed by the Budget Committee simply mirror
the whole political situation in France.
The Administrative and Judicial Powers of the Executive.
It must not be supposed, because the life of a ministry is short
and its leadership in the houses uncertain, that it wholly lacks
power while it lasts. It inherits the traditional prerogatives of
the French Executive, and they are very great. The powers of
the President are the powers of the ministers. His power to
execute and administer the laws means, according to the imme-
morial practice in France, that he may freely interpret them to
meet circumstances and cover cases which the legislature did not
foresee or provide for. The laws are for the most part them-
selves without detailed provisions. They give the officers of
THE GOVERNMENT OF FRANCE. 165
state who are to execute them a principle by which to go rather
than a body of minute instructions. He may not disregard the
plain principles of the law, indeed, but he is not restrained by
detail ; and in shaping administrative arrangements, instructing
officials, and developing plans to meet the requirements of public
business the executive authority exercised by the ministers
through the President's decrees is in most cases wholly free from
the trammels of statute. The legality of administrative action,
moreover, is tested, when challenged, not by the ordinary courts
of law, in which private rights are determined and guarded, but
by special administrative tribunals in which the utmost latitude
of discretion on the part of officers of state is the principle chiefly
respected and enforced. The Executive inherits a very absolute
tradition of power.
The President's power to * dispose of the armed force ' of the nation has
been employed in such a way as almost to amount to a declaration of war,
in some of the aggressive colonial schemes into which French ministries
have allowed themselves to be drawn. There goes with the executive
power of appointment, too, an absolute power of removal from office, and
all the vast official machinery of a centralized state is under the hands of
the ministers to use almost as they will.
Departmental Functions. The main duties of most of the
Departments are sufficiently indicated by their names and illus-
trate the range of function assumed by the government in France
more conspicuously than they illustrate the form and spirit of
her political institutions. A mirror of the political life of France
is to be found in the organization of the Ministry of the Interior,
which is more largely concerned than any other Department with
the multifarious details of local government.
LOCAL GOVERNMENT.
France still preserves the administrative divisions created by
the Constituent Assembly in December, 1789. Instead of the
old system of ecclesiastical dioceses, military provinces, and ad-
ministrative ' generalities ' (page 143), with their complexities and
varieties of political regulation and local privilege, there is a
system, above all things simple and symmetrical, of Departments
166 THE QOVERNMENT OF PRANCE.
divided into Arrondissements, Arrondissements diyided into Can-
tons, and Cantons divided into Communes. Much the most signifi-
cant of these divisions is the Department : whether for military,
judicial, educational, or political administration, it is the impor-
tant, the persistent unit of organization ; arrondissement, canton
and commune are only divisions of the Department, not frac-
tions of France, but only fractions of her Departments. The
canton, indeed, is little more than an election district ; and the
arrondissement is only a fifth wheel in the administration of
the Department. The symmetry of local government is perfect
throughout. Everywhere the central government superintends
the local elective bodies ; and everywhere those bodies enjoy the
same privileges and are hedged in by the same limitations of
power.
The several parts of the system of local government in
France will thus be seen to rest, not upon any historical ground-
work, creating each a vital whole, with traditions of local self-
government handed down from an older time of freedom, but upon
a bureaucratic groundwork of system. France, therefore, in ap-
proaching confirmed democracy and complete self-government, is
building, not upon a basis of old habit, fixed firmly in the stiff
soil of want and prejudice, but upon a basis of new habit widely
separated from old wont, depending upon the shifting soil of new
developments of character, new aptitudes, new purposes. Her
new ways run across, not with, the grain of her historical nature.
Her self-government is a-making instead of resting upon some-
thing already made.
The Department: the Prefect. The central figure of
French administration is the Prefect, the legal successor of the
Intendant (page 143). He is the agent of the central government
in the Department. He is the recruiting officer of that district,
its treasurer, its superintendent of schools, 1 its chief of police, its
executive officer in all undertakings of importance, and the ap-
pointer of most of its subordinate officials. He fills a double
capacity: he is the agent and appointee of the central govern-
ment, and at the same time the agent of the local legislative
authorities. He is at once member and overseer of the General
1 He appoints and disciplines the teachers.
Till: liOVKlINMENT OF FIIANCK. 167
Council of his Department ; and he is necessarily its agent, inas-
much as he commands, as representative of the authorities in
Paris, all the instrumentalities through which its purposes must
be effected. A minister can veto any act of a Prefect, for he
is the representative of any minister who needs his executive aid
in the Department, but no minister can override him and act
by his own direct authority. Until he is dismissed the minister
must act through him.
When acting as the agent of the central authorities in carrying
out the provisions of general statutes or of general administrative
regulations the Prefect has, of course, no choice but to obey the
orders he receives from the ministers in Paris. But when he
acts in local matters, he may use his own discretion and can be
brought to book only by judicial process and upon complaint.
It is of great consequence, therefore, that his powers in the
field of local government are so many and so important. He
prepares the budget of the Department not only but also all the
other business upon which the General Council of the Department
(pages 168, 169) is expected to act. His initiative determines the
greater part of what that Council does ; and it can act only through
him in getting its resolutions carried into effect. His police
power extends beyond the organization and government of the
police of the Department to the, at any rate, indirect control of
the police organization and the police regulations of the Com-
munes, many of which are great cities, with elective officers of
their own (page 171). Every mayor's police appointments must
be confirmed by him, and he alone can remove police officials
from office in the Communes. ' Police ' affairs, in France, more-
over, cover not merely the preservation of order and the enforce-
ment of the law, but also such important matters as those, for
example, which concern the public health. In respect of some
matters of local management, too, the Prefect can act by direct
orders of his own, addressed to the officials of the Communes, as
if to his own immediate subordinates. He can in his discretion
suspend the mayor of a Commune from office for a month's time ;
he can suspend also the session of a communal council (page 173)
for a like period.
The Prefect may take part in the proceedings of the General
168 THE GOVERNMENT OF FRANCE.
Council of the Department at any time except when his accounts
are being considered.
Such is the legal position of the Prefect. His actual position
is somewhat different. The politics of the Eepublic, one of
whose tendencies has been to contribute by degrees to local self-
government, is making the Prefect more and more largely the
executive agent of the General Council of his Department. He
is appointed by the Minister of the Interior and is in law first of
all and chiefly the representative of the Interior. But the other
ministers also, as has been said, act through him in many things.
He frequently owes his appointment to the favorable influence
of the deputies and senators from his Department with the
Minister of the Interior, and he is kept, by his personal relations
with them, close to local influences. He is, consequently, not the
autocrat he was under Napoleon.
The General Council of the Department. The legislative
body of the Department is the General Council, which is made
up of representatives chosen, one from each canton, by universal
suffrage. Except during a session of the Chambers, the Presi-
dent of the Republic may at any time dissolve the General Council
of a Department for cause. The election of representatives to the
General Council, like the election of deputies, does not take place
upon days set by statute, but on days set by decree of the Presi-
dent. Councillors are elected for a term of six years, one-half of
the membership of the Council being renewed every three years.
In order that members of the General Council may be in fact
representatives of at least a respectable number of the voters of
the cantons, the law provides, as in the case of the election of
Deputies (page 153), that no one shall be elected on a first ballot
unless voted for on that ballot by an absolute majority in a poll
of at least one-fourth of the registered voters. Attention having
been called to the election by the failure of a first ballot, a plu-
rality will suffice to elect on a second. In case of a tie, the older
candidate is to be declared elected.
The membership of the Council varies in the several Depart-
ments, according to the number of cantons, from seventeen to
sixty-seven.
The Council of State is judge of the validity of elections to its
THE GOVERNMENT OF FRANCE. 169
membership, and a seat may be contested on the initiative
either of a member of the Council, the Prefect, or a constituent
of the member whose rights are in question, or a defeated
candidate.
There are two regular sessions of the General Council each
year. The duration of both is limited by law : for the lirst to
fifteen days, for the second to one month. Extra sessions of
eight days may be called by the President of the Republic or by
the Prefect at the written request of two-thirds of the members.
If the Council in any case outsit its legal term, it may be dis-
solved by the Prefect ; if it overstep its jurisdiction in any matter,
its acts may be annulled by a decree of -the President. Members
are liable to penalties for non-attendance or neglect of duty.
They are, however, on the other hand, paid nothing for their
services.
At the first regular session of the year the Council considers
general business ; at the second and longer session it discusses
the budget of the Department, presented by the Prefect, and
audits the accounts of the year. At either session it may require
from the Prefect or any other chief of the departmental service
full oral or, if it choose, written replies to all questions it may
have to ask with reference to the administration.
The supervisory and regulative powers of the General Council
are of considerable importance ; but its originating powers are
of the most restricted kind. It has the right to appropriate
certain moneys for the expenses of local government, but it has
not the right to tax for any purpose. The amount and the source
of the money it is to use are determined by the Chambers in
Paris. Even such narrowed acts of appropriation as it can pass
have to be confirmed by presidential decree. Its chief functions
are directory, not originative. It sees to the renting and main-
tenance of the buildings needed for its own use, for the use of the
Prefect and his subordinates, for the use of the public schools,
and for the use of the local courts ; it votes the pay of the police
(gendarmerie) of the Department ; provides for the cost of print-
ing the election lists ; supervises the administration of the roads,
railroads, and public works of the Department ; oversees the man-
agement of lunatic asylums and the relief of the poor. Most
170 THE GOVERNMENT OF FRANCE.
important of all, it apportions among the several arrondissements
the direct taxes annually voted by the Chambers.
The Departmental Commission. During the intervals
between its sessions, the General Council is represented in local
administration by a committee of its own members called the
Departmental Commission, which it elects to counsel and over-
see the Prefect. The powers of this Commission, however, are
merely advisory.
Central Control. The most noticeable feature of this
system is the tutelage in which local bodies and the individual
citizen himself are kept. Fines compel the members of the Gen-
eral Council to do their work, and then every step of that work
is liable to be revised by the central administration. Irregulari-
ties in the election of a member may be brought to the attention
of the General Council by the Prefect, as well as by its own
members or by petition from the constituency affected. If the
Council overstep the limits of its powers, it is checked by decree
of the President, and not by such a challenging of its acts in the
courts by the persons affected as, in English or American prac-
tice, strengthens liberty by making the individual alert to assert
the law on his own behalf, instead of trusting inertly to the gov-
ernment to keep all things in order. Even expression of opinion
on the part of the General Council is restricted. It may express
its views on any matter affecting local or general interests, f if
only it never express a wish which has a political character. 7
The Arrondissement is the electoral district for the Cham-
ber of Deputies, the members of the Chamber of Deputies being
elected, as we have seen, not ' at large, 7 for the whole Depart-
ment, but by Arrondissements, not by scrutin de liste, that is,
but by scrutin d' arrondissement (page 152). It also serves as a
judicial district and as the province of an arrondissemental
Council. Its chief administrative officer is a Sub-Prefect. The
Council of the Arrondissement (conseil d'arrondissement), elected
from the Cantons, like the General Council of the Department?
has no more important function than that of subdividing among
the communes the quota of taxes charged to the Arrondissement
by the General Council. For the rest, it merely gives advice to
administrative officers appointed by the ministers in Paris. Its
THE GOVERNMENT OF FRANCE. 171
decisions are largely controlled by the Prefect, and may be an-
nulled by the President of the Republic.
The Canton is the electoral district from which members
are chosen to the General Council and the Council of the Arron-
dissement ; it marks the jurisdiction of the Justice of the Peace ;
it is a muster district for the army, and serves as a territorial unit
of organization for registration and for the departmental care of
roads ; but it has no administrative organization of its own. It
is a mere region of convenient size for electoral and like purposes.
The Commune, unlike the Arrondissement and Canton, is
as vital an organism as the Department. All towns are Com-
munes; but there is, of course, a much larger number of rural
than of town Communes.
There are 36,229 Communes, most of which have less than
1500 inhabitants and many of which have less than 500. One
hundred and seventeen have more than 20,000. Every city of
France, except Paris and Lyons, is organized as a Commune.
Paris has its special form of administration, which differs from
that of all the other cities of France. It has no mayor, but its
chief administrative officials are two Prefects one, the Prefect
of the Department of the Seine, which embraces Paris and the
immediate environs, who exercises all the functions of a mayor
except those relating to police ; the other, the Prefect of police.
The Municipal Council is composed of eighty members, four from
each of the twenty Arrondissements" into which the city is
divided. Each Arrondissement has its own mayor, who is ap-
pointed by the central government.
The general rule of French administration is centralization, the
direct representation of the central authority, through appointed
officers, in every grade of local government, and the ultimate
dependence of all bodies and officers upon the ministers in Paris.
In one particular this rule is departed from in the Commune.
The chief executive officer of the Commune, the mayor, is elected,
not appointed. He is chosen by the Municipal Council from
among its own members and is given one or more assistants
elected in the same way.
Down to 1874 the mayors of the more populous Communes
were appointed by the authorities in Paris, the mayors of the
172 THE GOVERNMENT OF FRANCE.
smaller Communes by the Prefects. Between 1831 and 1852 the
choice of the appointing power was confined to the members of
the Municipal Councils ; between 1852 and 1874 the choice might
be made outside those bodies. From 1874 to 1882 the smaller
Communes elected their mayors, indirectly as now. Since 1882
all mayors have been elected.
The Communal Magistracy. The mayor and his assist-
ants do not constitute an executive board : the mayor's assistants
are not his colleagues. He is head of the communal government :
they have their duties assigned to them by him. The mayor is
responsible to the central administration and its departmental
representative, the Prefect. Once elected, he becomes the repre-
sentative of the Minister of the Interior. If he will not do the
things which the laws demand of him in this capacity, the Prefect
may delegate some one else to do. them, or even do them himself
instead. For cause, both the mayor and his assistants may be
suspended, by the Prefect for one month, by the Minister of the
Interior for three months, and all their acts are liable to be set
aside either by Prefect or Minister. They may even be removed
by the Executive.
In case of a removal it is the duty of the Municipal Council to
fill the vacancies, and to fill them with other men ; for removal
renders the mayor or his assistants ineligible for pne year.
One of the duties of the mayor is to appoint the police force and
other subordinate officers of the Commune ; but in Communes of
over forty thousand inhabitants the mayor's composition of the
police force must be ratified by decree of the President, and in
other Communes all his appointments must be confirmed by the
Prefect.
The Municipal Council. There is in every Commune a
Municipal Council (of from ten to thirty-six members, according
to the size of the Commune) which has, besides its privilege of
electing the mayor and his assistants, pretty much the same place
in the government of the Commune that the General Council has
in the government of the Department ; and, in the main, a like
dependence upon the approval of the central administration.
Unlike the General Council, the Municipal Council is liable to
be suspended for one month by the Prefect ; like the General
THE GOVERNMENT OF FRANCE. 173
Council, it may be dissolved by decree of the President passed
in the Council of Ministers. It holds four regular sessions each
year, one of which it devotes to the consideration of the munici-
pal budget, which is presented by the mayor. Its financial ses-
sion may continue six weeks ; none of its other sessions may last
more than fourteen days. The mayor acts as its president, ex-
cept when his own accounts are under consideration.
Neither the Municipal Council nor the Council of the Arron-
dissement is judge of the validity of the elections of its members.
Contested election cases are heard by the Prefectural Council.
Until 1831 the Municipal Council was chosen by the Prefect
from a list of qualified persons made up in the Commune. Be-
tween 1831 and 1848 its members were elected by a restricted
suffrage. Since 1848 they have been elected by universal suffrage.
In case of a dissolution of the Municipal Council, its place may
be taken, for the oversight of current necessary matters, by a
delegation of from three to seven members appointed by the Presi-
dent of the Republic to act till another election can be had. This
delegation cannot, however, take upon itself more than the merely
directory powers of the Council.
Administrative Courts : the Council of State. So thorough
is the differentiation of functions in France that actions at law
arising out of the conduct of administration are instituted, not in
the regular law courts connected with the Ministry of Justice,
but in special administrative courts connected with the Ministry
of the Interior. French thought, inherited from days of un-
bounded royal prerogative, makes sharp separation between
Public Law, which concerns the action of the government, and
Private Law, which concerns the relations of individuals to one
another. The ordinary courts will determine the rights of an
individual when they concern the action of another individual ;
but the special courts of the administration must determine the
questions involved in any challenge of official action, in any
challenge of the public power. (Comp. page 166.) The highest
of these courts is the Council of State, which is composed of the
ministers, and of various high administrative officers of the per-
manent service. It is the court of last resort on administrative
questions. It is also charged with the duty of giving advice to
174 THE GOVERNMENT OF FRANCE.
the Chambers or to the government on all questions affecting ad-
ministration that may be referred to it.
The Prefectural Council. Below the Council of State
are the Prefectural Council, a Court of Revision, a Superior
Council of Public Instruction, and a Court of Audit. These are
not subordinate to each other : each is directly subordinate to the
Council of State. The Prefectural Council is directly associated
with the Prefect and is the most important of them. It has,
amongst other weighty functions, that of determining the validity
of elections to the Council of the Arrondissement and to the
Municipal Council. For the rest, it has jurisdiction over all ad-
ministrative questions, and over all conflicts between administra-
tive authority and private rights. Its processes of trial and
adjudication are briefer and less expensive than those of the
ordinary law courts. In almost all cases an appeal lies to the
Council of State.
The Prefect is the legal representative of the government in cases
brought before the Prefectural Council ; but that court is not at all under
his dominance. It is composed of permanent judges, one of whom, at
least, is usually of long administrative experience. Its members are
appointed, and, for cause, are removable, by the central administration.
THE ADMINISTRATION OF JUSTICE.
Ordinary Courts of Justice. The supreme court of France
is the Cassation Court (the Court, that is, of reversals or appeals)
which sits at Paris. Next below it in rank are twenty-six Courts
of Appeal, the jurisdiction of each of which extends over several
Departments. These hear cases brought up from the courts of
first instance which sit in the capital towns of the arrondisse-
ments. These last consider cases from the Justices of the Peace,
who hold court for the adjudication of small cases in the cantons.
By decree of the President, passed in the Council of Ministers,
the Senate may be constituted a special court for the considera-
tion of questions seeming to involve the safety of the state ; and
such questions may be removed by the same authority from the
ordinary courts.
The appointment of all judges rests with the President, or,
rather, with the Minister of Justice ; and the tenure of the
THK GOVERNMENT OF FRANCE. 175
judicial office, except in the case of Justices of the Peace, is
during good behavior. In the case of Justices of the Peace,
the President has power to remove.
Jury Courts. In France, the ordinary civil courts are
without juries ; the judges decide all questions of fact as well
as all questions of law. There are, however, special jury courts
(cours d'assises) constituted four times a year in each Department
for the trial of crimes, and of political and press offences ; and
in these the jury is sole judge of the guilt or innocence of the
accused ; the judges determine the punishment.
Tribunal of Conflicts. Between the two sets of courts,
the administrative and the ordinary, there stands a Tribunal of
Conflicts, whose province it is to determine to which jurisdiction,
the administrative or the. ordinary, any case belongs whose proper
destination, or forum, is in dispute. This Tribunal consists of the
Minister of Justice as president, of three State Councillors
chosen by their colleagues, and of three members of the Cassation
Court selected, in like manner, by their fellow-judges, besides
two members chosen by those already mentioned.
SOME REPRESENTATIVE AUTHORITIES.
Aucoc, Conferences sur I'administration et le droit administratif, 3d ed.,
Paris, 1885.
/iu.ttunl I I'M* tuny, Les Parlements de France.
I !< a alien, Leroy, Administration locale en France et en Angleterre.
]l< rtln'IcHif/, II., Traite e"le"mentaire de droit administratif, 8th ed., Paris,
1916.
Block; Dictionnaire de Tadministration fran9aise, Paris, 1887, and subse-
quent annual supplements.
/:n,H,<}/, J. E. C., France, 2 vols., London and N. Y., 1898.
Borgeaud, Charles, Adoption and Amendment of Constitutions in Europe
and America. Trans, from the French by C. D. Hazen and J. M.
Vincent, N. Y., 1895.
Boutmy, llJmile, Studies in Constitutional Law: France England
United States. Trans, from the French by E. M. Dicey, London,
1891.
Boze'rian, Etude sur la revision de la constitution.
Bracq, J. C., France under the Republic, N. Y., 1910.
BrismutJ, J., History of French Private Law, Boston, 1912.
176 THE GOVERNMENT OF FRANCE.
Burgess, J. W., Political Science and Constitutional Law, 2 vols., Boston,
1891.
Cheruel, Dictionnaire historique des Institutions, Moaurs, et Coutumes
de la France, 2 vols., 6th ed., Paris, 1884.
Cubertin, Pierre de, The Evolution of France, under the Third Republic,
N. Y., 1897.
Currier, C. F. A., Constitutional and Organic Laws of France, 1875-'89,
Philadelphia (Am. Acad. Pol. Sci.), 1893.
Demombynes, Les Constitutions Europeennes, 2 vols., Paris, 1883. Vol. II.,
p. 1 et seq.
Dickinson, Reginald, Summary of the Constitution and Procedure of
Foreign Parliaments, 2d ed.
Ducrocq, Cours de droit administratif, 2 vols., Paris, 1881.
Duguit, L., Manuel de droit constitutionnel, 3d ed., Paris, 1918, and
Traite de droit constitutionnel. Paris, 1911.
Dupriez, L., Les Ministres dans les principaux Pays d'Europe et d'Ame-
rique, 2 vols., Paris, 1892.
Edwards, M. Betham, France To-Day, 2 vols., London, 1892-'94.
Esmein, A., Elements du droit constitutionnel, 6th ed., Paris, 1914.
Perron, H. de, Institutions municipales et provinciales compares, Paris,
1884.
Gazzi, L., LTnterpellation k 1'assemblee nationale. Marseilles, 1909.
Goodnow, Frank J., Comparative Administrative Law, 2 vols., N. Y.,
1893.
Haas, C. P. M., Administration de la France, 4 vols., 2d ed., Paris, 1861.
Hanotaux, Gabriel, Contemporary France, 4 vols., N. Y., 1903-'09.
Jeze, G., Les principes gene"raux du droit administratif, Paris, 1904.
Kitchin, G. W., History of France, 3 vols., Oxford, 1881-'85.
Laferriere, E., Traite de la Juridiction administrative et des recours con-
tentieux, 2 vols., Paris, 1887.
Lebon, Andre", Franzosisches Verf assungsrecht, Tubingen, 1909 ; Modern
France {Story of the Nations Series), London and N. Y., 1896 ; and
(with P. Pelet) France As It Is, London, 1888.
Lowell, A. Lawrence, Governments and Parties in Continental Europe,
2 vols., Boston, 1896.
Munro, W. B., The Government of European Cities, N. Y., 1909.
Naquet, A., The French Electoral System, N. A. Rev., vol. 155.
Ogg, F. A., The Governments of Europe, N. Y., 1913.
Pierre, Eugene, Traite" de droit politique, electoral et parlementaire,
Paris.
Poincare, Raymond, How France is Governed. Eng. Trans., London
and N. Y., 1913.
THE GOVKKNMKNT <>F FKANCE. 177
Scherer, Edmond, La Democratic et la France.
Shaw, Albert, Municipal Government in Continental Europe, N. Y., 1895.
Stephen, Sir James, Lectures on the History of France, 2 vols., 3d ed.,
London, 1857.
Tocqueville, Alexis de, L'Ancien Regime et la Revolution, and Recollec-
tions (Trans. London, 1896).
I 'illrneuve, M. de la Bigne de, filaments de Droit constitutionnel f ran^ais,
Paris, 1892.
VIII.
THE GOVERNMENT OF GREAT BRITAIN.
I. CENTRAL GOVERNMENT.
Origin of the English Constitution. The history of gov-
ernment in England begins with the primitive politics of the
Teutonic races. Those great race movements of the fifth cen-
tury which put the Frank into the Roman's place in Gaul put
the Angles and Saxons in the place of the Roman in Britain.
The first Teutons who made a permanent settlement in Britain
(A.D. 449) did not find the Roman there; the imperial legions
had been withdrawn from the island almost forty years before
(A.D. 410) to serve the Empire in her contest with invading
hosts nearer home. But the new-comers from the lowlands
about the Elbe and the Weser found there many splendid and
impressive monuments of the civilization which everywhere
kept company with Roman dominion. What effect these evi-
dences of the displaced system of Rome may have had upon
the rough seamen who made the new conquest, or how much of
Roman influence may have remained with the people of Britain
to be handed on, in faint reproduction, to future masters of the
island, it is impossible to say. Certainly, however, there was
nothing of Rome's handiwork in the forms of government which
the Teutons established at the basis of English politics. Those
forms were their own. They were reproductions, as nearly as the
conditions of conquest would permit, of the institutions which
the Romans had seen in use among their redoubtable foes beyond
the Rhine before ever the Empire had suffered serious inroad.
Primitive Teutonic Institutions. These institutions had
none of the national character which they were in the course of
178
THE GOVERNMENT OF GREAT BRITAIN. 1 T ( .
time to acquire. They illustrated the well-known historical se-
quence, in which local tribal government always precedes central
national government. Men governed themselves as families and
small communities before they were governed as nations. For
the Germans of that early time the village was the centre of
political life ; national organization they at first scarcely knew
except for purposes of war ; kingship among them was honorary
and typical rather than real. The freemen of each little com-
munity in times of peace directed their own affairs with quite
absolute freedom in village meeting. Even in war each freeman
had a vote in the distribution of booty and could set his own im-
perative individuality as a more or less effectual check upon the
wilfulness of his commander (pages 94-98). A very fierce
democratic temper seems to have ruled in the politics of that
rough primitive time. And it is not at all likely that this temper
was a whit abated among the hardy pirates, as tempestuous as
the northern waters which they braved, who founded new tribal
kingdoms in Britain in the fifth century.
Institutional Changes effected by Conquest. Concerted,
organized movements for conquest did the same thing for the
Angles and Saxons that they did for the Franks (page 102) :
they made real kingship necessary as an abiding basis for national
organization. The military leader was of necessity constituted
permanent king, the same cohesion being needed to follow up
and enjoy conquest that had been needed to effect it. But the
new kingdoms were at first quite small, small as the island
was, it held many such, and the internal organization of the
tribes was probably not deeply affected by the fact that a throne
had been set up. The people gathered, as was their long-time
wont, into more or less compact but always small communities,
round about the homesteads and villages the Romans had built ;
enjoying their lands according to some system of ownership
which left the chief pastures and the principal water supply
open to use by all and reserved only the arable land to separate
use by individuals. Justice and government still proceeded, as
of old, at first hand, from the meeting of village freemen.
The Hundred-moot and the Folk-moot. But there was,
besides, a wider organization, possessing features which possibly
180 THE GOVERNMENT OF GREAT BRITAIN.
had not been quite so fully and symmetrically developed and
integrated in earlier practice. Communities were combined into
'hundreds,' and it was a combination of 'hundreds/ doubtless,
that constituted the little kingdoms of the first periods of Saxon
dominion, some of which at any rate became the ' shires ' or
counties of the later times when all England was united under
one rule. The ' hundred,' like the smaller units of the system,
the several villages or communities, had its ' moot ' or meeting,
composed of the priest, the reeve, and four men from each
township within its limits. The principal functions of this
hundred-moot were "those of a court: for the hundred was dis-
tinctively a judicial rather than an administrative district. Above
the hundred-moot, at the top of the primitive system, was the
general folk-moot, a general assembly of the freemen, playing
the same part as tribal or national council that Tacitus had
seen similar assemblies play in Germany in the first century.
English Kingdom and English County. When the Eng-
lish kingdoms were many, each, probably, had its general council,
which sat under the presidency of the king, and which advised
with him concerning the common interests with some at least of
the old authoritativeness which its conclusions had possessed be-
fore the new kingship had been created. When England had
been made a single kingdom, in the later days when the Norman
conquest was drawing near, these divisions of the land, these
kingdoms which had once had independent political life, sank to
the role of counties, and their folk-moots, which had once been
national assemblies, became mere shire-moots, mere county courts,
presided over by the sheriff as representative of the king, the
bishop as representative of mother Church, and the ealdorman as
representative of the tribe, and composed of the landowners of
the shire, the reeve, priest, and four men from each township,
twelve representatives from each hundred, and all officials.
The Witenagemot. National authority, meantime, had
passed, so far as it had passed to any assembly, to an assembly of
another kind, to a great council called the Witenagemot, or Assem-
bly of the Wise. We have no certain knowledge of the exact
character of this famous national body ; but we are probably
warranted in concluding that it was formed more or less closely
THE GOVERNMENT OF GREAT BRITAIN. 181
upon the model of the assemblies which it had supplanted. The
national councils of the smaller kingdoms of the earlier time,
which had now shrunk into mere shire courts, handed on their
functions of general counsel, and in theory also, it may be, their
organization, to the Witenagemot. Possibly it was within the
right of every freeman to attend and vote in this great meeting
of the nation ; but as a matter of fact, its membership was limited,
apparently from the first, to the chief men of the shires and of
i the royal household. To it came the sheriffs, the ealdormen, the
bishops, and the chief officers and thegns about the king's person.
When the king wished a veritable national council he would
sometimes summon the moots of all the shires to meet him in
grand Mycel-gem6t at some central point in the kingdom and de-
clare their assent to his laws. This he did to spare himself the
trouble of taking his laws to each shire moot in turn, as it had
once been the king's custom to do.
Powers of the Witenagemot. The powers of the Witen-
agemot were very great indeed, in theory always, perhaps at
first in practice also. To it belonged the old popular prerogative
of electing, or upon occasion deposing, the king. It gave or with-
held its consent to grants of the public land. It was the supreme
court of the kingdom, for both civil and criminal cases. It
shared with the king the lawmaking and appointing power, and
joined him in the imposition of taxes. As the king grew in power
and influence, the cooperation of the Witenagemot in judgment
and legislation became more and more a matter of form only ;
but always there were two or three yearly meetings of the body,
and its action, though in most things merely formal and perfunc-
tory, was yet a necessary and, symbolically, a valuable form,
preserving, as it did, the memory, if no more, of the nation's
freedom.
The Norman Feudalization. With the Norman conquest
came profound changes in the government of England. The chief
officers of the shire became royal officers merely, the ecclesiasti-
cal authority being set apart to itself, and the ealdorman being
shut out from all administrative functions. The land William
confiscated in vast quantities, in the ruthless thoroughness of his
conquest, because of the stubborn resistance of its English own-
182 THE GOVERNMENT OF GREAT BRITAIN.
ers, and granted away in new estates to Normans or to submis-
sive Englishmen, to be held in feudal subjection to himself.
The feudal system, so familiar to the historian of the Continent,
with its separated baronial jurisdictions and its personal depend-
encies of vassal upon lord and of lord upon overlord, was per-
fected in England also. Township courts in most places gave
way to baronial courts ; hundred-moots lost their one-time impor-
tance ; and all judicial power that did not pass into the hands of
feudal lords tended to pass to the court of the sheriff, the king's
lieutenant in the shire. Still William kept the barons under ; he
did not suffer their power to become threatening to his own, but
kept them always dependent upon himself for the continued exer-
cise of their privileges.
The Great Council of the Norman Kings. More impor-
tant still, he preserved, with modifications to suit his change of
system, the national assembly of the Saxon polity. He claimed
to come to the throne by natural right and legal succession, not
by conquest, and he sought to continue, so far as might be, the
constitution under which he claimed succession. He sought and
obtained formal election to the throne, as nearly as possible in
accordance with the ancient forms; and, his throne secure, he
endeavored to rule within the sanction of ancient custom. He
maintained the Witenagemot. But its character greatly changed
under his hands. Revolt hardened his rule, to the exclusion
of the old national element from the central assembly of the
realm. As the new organization of the country assumed a feu-
dal character of the Norman type, that new character became
mirrored in the composition of the royal council. The Mycel-
gemdt merged in the Great Council (magnum or commune con-
cilium) of the king's tenants-in-chief. To it came at first, besides
the earls, the barons, and the knights, who either in fact or in
feudal theory held their lands of the king, the archbishops also,
the bishops, and the abbots ; subsequently, however, even these
ecclesiastical members were admitted only as barons, as holding
land of the king and so members of the feudal hierarchy. In
theory, it would seem, every landowner was entitled to claim a
seat in this Council ; it was meant to hold the place of a national
assembly which could speak for the governing classes ; but in
THE GOVERNMENT OF GREAT BRITAIN. 183
fact only the greater barons and churchmen as a rule attended,
and ' tenure by barony ' became at length the only valid title to
membership. The development of the Great Council of the
Norman kings is the central subject of early English constitu-
tional history ; for from it may be said to have sprung the whole
effective organization of the present government of England. Out
of it, directly or indirectly, by one process or another, have been
evolved Parliament, the Cabinet, and the courts of law.
The Feudal System in England. England was not feudalized
by the Normans. Feudalization had grown there under Saxon and Dane
as elsewhere under Frank and Goth. Society in England, as on the
Continent, had divided into ranks ot nobles, freemen, and slaves bound
together by personal fealty and the principles of land ownership. What
the Norman did was to give new directions to the indigenous growth of
feudalism. The system had not gone to such lengths of disintegration
in England as it afterwards went on the Continent, and William the
Conqueror's first care when compacting his power in the island was to
subordinate all feudal elements permanently to the Crown. He saw to
it, by the unhesitating use of his great power, that no baron should be
able to cope with the king without wide combination with other barons,
such as watchful kings could probably always prevent ; and he dulled
the edge of hostile feeling by giving to the greater barons of the kingdom
a function of weight in the management of affairs by bringing them into
peaceful and legitimate combination in the Great Council, which he called
together three times every year, and whose advice he never refused at
least to hear. The Council retained, formally at any rate, the right to
choose the king, and all laws were declared to be enacted by and with its
advice and consent.
Character of English Institutional Growth. It has been
noted as a leading characteristic of the constitutional history of
England that her political institutions have been incessantly in
process of development, a singular continuity marking the whole
of the transition from her most ancient to her present forms of
government. It is not a history of breaks or of new establish-
ments, or of successive new creations of instrumentalities of
legislation and administration : all the way through it is a his-
tory of almost insensible change, of slow modification, and of
unforced, almost of unconscious, development. Very great con-
trasts appear between the character of her government in one
age and its character in another age distant one or more ceix
184 THE GOVERNMENT OF GREAT BRITAIN.
turies from the first; but it is very difficult to perceive any
alteration at all when comparison is made from generation to
generation. Almost no changes can be given exact dates : each
took place ' about ' such and such a year, or in this or that long
reign. The whole process, therefore, is one which may be out-
lined in brief epitome : its stages are long, its features large, its
details unessential to clearness.
The Course of Development. In briefest summary the
facts are these : the Great (or National) Council itself became the
Parliament of the realm ; those of its members, as originally con-
stituted, who were state officers and chief officials of the court
became a Permanent royal Council, out of which, in course of
time grew the more modern Privy Council and at length the Cab-
inet ; and whose members of the Permanent Council whose duties
were financial and judicial gradually drew apart from the rest for
the exercise of their functions, their work being finally divided
among them according to its nature, and the several bodies into
which they thus fell apart becoming, in the end, the courts of
Exchequer, of Chancery, and of common law.
The Permanent Council. The body of state and court
officers whom the king kept always about him as his ' Ordinary '
or Permanent Council were originally all of them members of the
Great Council and seem at first to have acted as a sort of " com-
mittee, or inner circle," of that greater body. The Great Council
met but three times in the year ; its organization was not perma-
nent ; its membership varied, both numerically and personally,
from year to year. The officers of the permanent service, on the
other hand, were always within easy reach of consultation ; they
were in a certain sense picked men out of the larger body of the
national Council ; it was natural that they should be consulted
by the king and that their advice, given in their collective ca-
pacity as a smaller council, should carry with it the weight of
their connection with the more authoritative- Great Council. As
a matter of fact at any rate, they acquired powers almost coinci-
dent with those of the national body itself. Their powers came,
indeed, to possess an importance superior even to those of the
more august assembly, being exercised as they were, not inter-
mittently or occasionally, but continuously ; not with a mere out-
THE GOVERNMENT OF GREAT BRITAIN. 185
side acquaintance with the posture of affairs, but with an inside
intimacy of knowledge.
Composition of Permanent Council. Under the Nor-
man kings the membership of the Permanent Council consisted,
usually, of the two archbishops (of Canterbury and of York), the
Justiciar, the Treasurer, the Chancellor, the Steward, the Mar-
shall, the Chamberlain, and the Butler, with the occasional addi-
tion of other officials, such as the king's Sergeant, and of such
bishops and barons as the sovereign saw fit from time to time to
summon. There was, however, no fixed rule as to its composition.
Possibly every baron, as a member of the Great Council, could, if
he had so chosen, have attended the sittings of this section of the
Great Council also, which, while the Great Council was not in
session, masqueraded as its deputy and proxy. Practically, it
would seem always, as a rule, to have lain within the king's
choice to constitute it how he would.
The Powers of the Permanent Council were enormous :
were as large as those of the king himself, who constituted it
his administrative, judicial, and legislative agent. Its " work
was to counsel and assist the king in the execution of every
power of the crown which was not exercised through the ma-
chinery of the common law " ; l and " the king could do nearly
every act in his Permanent Council of great men which he could
perform when surrounded by a larger number of his nobles ;
except impose taxes on those nobles themselves." 2 But the Per-
manent Council very early ceased to act as a whole in the dis-
charge of all its functions alike. Itself a committee, it presently,
in its turn, began to Split up into committees.
The Law Courts. Men specially learned in the law were
brought into its membership, the later kings not hesitating, when
the needs of the service demanded, to introduce commoners,
as the Council drifted away from even its nominal connection with
the Great Council ; and to these the financial and judicial func-
tions of the Crown were more and more exclusively entrusted.
(Compare page 141.) It was not long before (a) a separate Court
of Exchequer, which was at first charged principally with the
1 Stubbs, Constitutional History of England, Vol. III., p. 252.
2 A. V. Dicey, The Privy Council, p. ii.
186 THE GOVERNMENT OF GREAT BRITAIN.
audit of finance accounts, had been permanently assigned its
special ' barons ' as Justices, and had acquired jurisdiction over
all cases in which the king was directly concerned ; (6) another
special bench of judges received, as a Court of Common Pleas,
jurisdiction over all civil cases between subject and subject; (c)
still another came to figure as a supreme court, or Court of King's
Bench, which always accompanied the sovereign wherever he
went, which was in theory presided over by the king himself, and
which was empowered to supervise local justice and itself control
all cases not specially set apart for the hearing of other courts ; and
(d) the Chancellor, who had once been merely president, in the
king's absence, of the Permanent Council when it heard appeals
in its judicial capacity, absorbed to himself, in his Court of
Chancery, the whole of that so-called ' equitable ' function of the
Crown by virtue of which the king granted relief to suitors for
whose cases the common law provided no adequate process. The
Chancellorship was thus put in the way of attaining to its later-
day partial ascendency over the ' courts of law.' This process of
the differentiation and development of the courts began in the early
years of the twelfth century and may be said to have been com-
pleted by the middle of the fourteenth.
Parliament. Meantime the national body, the Great
Council, from which the Permanent Council and courts had been
derived, had had its own expansions and changes of form and had
taken on a new character of the utmost significance. Not greatly
altered in its composition during the century which followed the
Norman conquest, the Great Council was profoundly affected by
the outcome of Magna Charta (A.D. 1215) and the momentous
constitutional struggles which followed it. It was then that the
principle of representation was first introduced into the constitu-
tion of Parliament and that commoners as well as nobles were
given seats in the national assembly. The archbishops, bishops,
and abbots attended as of course, as always before, and the earls
and greater barons held themselves equally entitled to be sum-
moned always by special personal summons ; but the lesser barons,
who formerly had been called to the Council, not by personal
summons, but only by a general summons addressed to them,
along with all tenants-in-chief, through the sheriffs of the counties,
THE GOVERNMENT OF GREAT BRITAIN. 187
had given over attending because of the expense and inconven-
ience of the privilege, tand were accordingly no longer called.
Their place was filled by representation. Writs addressed to the
sheriffs commanded the election of representatives of the lower
clergy and, more important still, of representatives (knights) of
the shires and (burgesses) of the towns. The Parliament which
Edward I. summoned in 1295 contained all these elements and es-
tablished the type for the composition of all future Parliaments.
In the fourteenth clause of Magna Charta John was made to
promise that, besides summoning the archbishops, bishops, abbots, earls,
and greater barons severally, by special personal letters, he would sum-
mon all lesser barons also by a general summons, through the sheriffs and
bailiffs. But this general summons failed of the desired effect.
Representatives from the towns were summoned first in 1266 by
Earl Simon of Montfort, who knew that he could count upon the support
of the commons of England in his contest with the king, Henry III., and
who called burgesses to the Parliament which he constituted during the
brief period of his supremacy in order to give open proof of that support.
Edward I. followed Montfort's example in 1296, not because he was de-
liberately minded to form a truly representative assembly as a wise step
in constitutional development, but because he wanted money and knew
that taxes would be most readily paid if voted by an assembly represent-
ing all classes.
Representatives from the shires (knights) had often been called
to Parliament before 1265. Step by step, first one element of the nation
and then another had been introduced into Parliament: first the lesset
barons, by general summons, only, however, to drop out again, then
the gentry of the shires by election in the counties, finally the burghers
of the towns by similar election in county court.
Genesis of the Two Houses. Such a body as the Parlia-
ment summoned by Edward was, however, too conglomerate, too
little homogeneous to hold together. It did not long act as a single
assembly ; but presently fell apart into two ' houses/ Had the
lower clergy continued to claim representation, there might and
probably would have been three houses instead of two. But,
instead of setting up a separate house in the civil Parliament, the
clergy drew apart for the creation of an entirely distinct body,
which, under the name of 'Convocation/ was to constitute a
separate ecclesiastical parliament, devoting itself exclusively to
the government of the Church. Their share in the management
188 THE GOVERNMENT OF GREAT BRITAIN.
of temporal affairs they left altogether to the ( spiritual lords/ the
few greater magnates of the Church who retained their places in
the national council, and to such lay representatives as the clergy
could assist in electing to the lower house.
There were left, therefore, in Parliament two main
elements, lords and commoners. The lords, to whom the arch-
bishops, bishops, and abbots adhered by immemorial wont, formed
a house to themselves, the House of Lords. The commoners
from the towns, who were soon joined by the middle order of
gentry, the knights of the shires, who were neither great lords
summoned by personal summons nor yet commoners, formed the
other house, the House of Commons. These changes also were
completed by the middle of the fourteenth century. Parliament
was by that time, outwardly, just what it is now.
The Privy Council. The Great Council and its direct
heir, Parliament, were not a little jealous of the enormous powers
wielded by the preferred counsellors of the king whom he main-
tained in permanent relations of confidence with himself, and
through whom he suffered to be exercised some of the greatest
of the royal prerogatives. Especially did the arrangement seem
obnoxious when the vitality of the Permanent Council passed
to a still smaller < Privy ' Council. This body was to the Per-
manent Council what the Permanent Council had been to the
Great Council. It was still another " inner circle." It emerged
during the reign of Henry VI. (1422-1461). The Permanent
Council had become too large and unwieldy for the continuance
of its intimate relations with the sovereign ; it could no longer
be used as a whole for purposes of private advice and resolution ;
and the king separated from the f ordinary ' councillors certain
selected men whom he constituted his Privy Council, binding
them to himself by special oaths of fidelity and secrecy. From
that moment the Permanent Council was virtually superseded, and
the Privy Council became the chief administrative and govern-
ing body of the realm.
The Privy Council assumes Judicial Powers. Many of
the judicial prerogatives which really belonged to the king when
sitting in his Great Council, or Parliament, had been claimed for
the king's Permanent Council: hence the distinct law courts
THE GOVERNMENT OF GREAT BRITAIN. 189
which were developed from its midst (sec. 847) ; and the same
rights of exercising the powers of a court which had been
assumed by the Permanent Council were in the later time arro-
gated to itself by the Permanent Council's proxy, the Privy
Council. Out of it came, in course of time, the well-remembered
Council of the North, the hated Star Chamber, and the odious
High Commission Court, which were not abolished until 1641,
when that great revolution had fairly set in, which was to crush
arbitrary executive power forever in England, and to usher in the
complete supremacy of Parliament.
Origin of the Cabinet. Meanwhile, long before the parlia-
mentary wars had come to a head, the same causes that had
produced the Permanent and Privy Councils had again asserted
their strength and produced the Cabinet, still a -third " inner
circle," this time of the Privy Council ; a small body selected for
special confidence by the king from the general body of his
counsellors, and^meetiug him, not in the larger council chamber,
but in a ' cabinet/ or smaller room, apart. The Privy Council
had, in its turn, become "too large for despatch and secrecy.
The rank of Privy Councillor was often bestowed as an honorary
distinction on persons to whom nothing was confided, and whose
opinion was never asked. The Sovereign, on the most important
occasions, resorted for advice to a small knot of leading ministers.
The advantages and disadvantages of this course were early
pointed out by Bacon, with his usual judgment and sagacity ; but
it was not till after the Restoration that the interior Council
began to attract general notice. During many years old-fashioned
politicians continued to regard the Cabinet as an unconstitutional
and dangerous board. Nevertheless, it constantly became more
and more important. It at length drew to itself the chief execu-
tive power, and has now been regarded during several generations
as an essential part of our polity. Yet, strange to say, it still
continues to be altogether unknown to the law. The names of
the noblemen and gentlemen who compose it are never officially
announced to the public ; no record is kept of its meetings and
resolutions; nor has its existence ever been recognized by any
Act of Parliament." l
1 Macaulay, History of England, Vol, I., pp. 197, 198 (Harper's ed., 1849).
190 THE GOVERNMENT OF GREAT BRITAIN.
The Development of the Cabinet. The Cabinet first comes
distinctly into public view as a preferred candidate for the highest
executive place in the reign of Charles II. It is now the central
body of the English Constitution. The steps by which it ap-
proached its present position are thus summarized by a distin-
guished English writer :
" (1) First we find the Cabinet appearing in the shape of a
small, informal, irregular Camarilla, selected at the pleasure of
the Sovereign from the larger body of the Privy Council, con-
sulted by and privately advising the Crown, but with no power
to take any resolutions of State, or perform any act of government
without the assent of the Privy Council, and not as yet even
commonly known by its present name. This was its condition
anterior to the reign of Charles I.
" (2) Then succeeds a second period, during which this Coun-
cil of advice obtains its distinctive title of Cabinet, but without
acquiring any recognized status, or permanently displacing the
Privy Council from its position of de facto as well as de jure the
only authoritative body of advisers of the Crown. (Keign of
Charles I. and Charles II., the latter of whom governed during
a part of his reign by means of a Cabinet, and towards its close
through a l reconstructed ' Privy Council.)
" (3) A third period, commencing with the formation by
William III." of a ministry representing, not several parties,
as often before, but the party predominant in the state, "the
first ministry approaching the modern type. The Cabinet,
though still remaining, as it remains to this day, unknown to
the Constitution," had " now become de facto, though not de jure,
the real and sole supreme consultative council and executive au-
thority in the State." It was " still, however, regarded with
jealousy, and the full realization of the modern theory of minis-
terial responsibility, by the admission of its members to a seat in
Parliament," was " only by degrees effected.
" (4) Finally, towards the close of the eighteenth century, the
political conception of the Cabinet as a body, necessarily con-
sisting (a) of members of the Legislature (b) of the same politi-
cal views, and chosen from the party possessing a majority in
the House of Commons j (c) prosecuting a concerted policy ; (cT)
THE GOVERNMENT OF GREAT BRITAIN. 191
under a common responsibility to be signified by collective resig
nation in the event of parliamentary censure; and (e) acknow
ledging a common subordination to one chief minister, took
definitive shape in our modern theory of the Constitution, and
so remains to the present day." ]
Parliament and the Ministers. The principles concern-
ing the composition of the modern Cabinets which are stated in
this last paragraph of Mr. TrailPs summary may be said to have
been slowly developed out of the once changeful relations between
Parliament and the ministers of the Crown. As I have said (page
188), the national council very early developed a profound jeal-
ousy of the power and influence of the small and private council
of state and court officials which the king associated with himself
in the exercise of his great prerogatives. By every means it
sought to control the ministers. Abandoning very soon, as revo-
lutionary, all efforts to hold the king himself personally respon-
sible for executive acts, Parliament early accepted the theory that
the king could do no wrong ; that breaches of law and of right
committed by the government were committed always, so the
theory ran, by the vicious advice of the king's personal advisers;
they could do wrong (here the theory shaded off into fact), and
they should be held responsible for all the wrong done. So early
as the close of the twelfth century the Great Council deposed Wil-
liam Longchamp, Justiciar and Chancellor of Richard I., for abuse
of power. During the fourteenth century Parliament claimed and
once or twice exercised the right to appoint ministers and judges ;
it beheaded Edward II. 's Treasurer and imprisoned his Chancel-
lor for their part in Edward's illegal acts ; and at the close of the
century (1386) it impeached Michael de la Pole, Richard II.'s
minister, notwithstanding the fact that he was able to plead the
king's direct commands in justification of what he had done. In
the seventeenth century a new ground of impeachment was added.
From that time out, ministers were held responsible, by the se-
vere processes of trial by Parliament for high crimes and mis-
demeanors, not only for illegal, but also for bad advice to the
Crown, for gross mistakes of policy as well as for overt breaches
of law and of constitutional rights.
H. D. Traill, Central Government (English Citizen Series), pp. 23-26.
192 THE GOVERNMENT OF GREAT BRITAIN.
Disappearance of Impeachment. The Act of Settlement
and the policy of William and Mary inaugurated, however, the
final period of Parliament's supremacy. Parliament's preferences
began to be regarded habitually in the choice of ministers, and
impeachment, consequently, began gradually to fall into disuse.
Its place was taken by parliamentary votes, finally by votes of
the House of Commons alone. Ministers who cannot command a
majority in the House of Commons for the measures which they
propose resign, and Parliament has its own way concerning the
conduct of the government.
The Executive. The Executive, under the English sys-
tem, so far as it may be described at once briefly and correctly,
may be said to consist, therefore, of the Sovereign and a Cabinet
of ministers appointed with the Sovereign's formal consent. All
real authority is with the Cabinet; though the ministers are, in
law, only the Sovereign's advisers, and the government is con-
ducted in the Sovereign's name. The true place of the Sovereign
in the system is that of an honored and influential hereditary
councillor, to whose advice an exalted title and a constant famili-
arity with the greater affairs of state lend a peculiar weight.
The king l is in fact, though of course not in legal theory, a
permanent minister, differing from the other ministers chiefly
in not being responsible to Parliament for his acts, and on that
account less powerful than they.
The Sovereign is not a member of the Cabinet because George I.
could not speak English. Until the accession of George I. the king always
attended Cabinet councils; George did not do so because he could not
either understand or be understood in the discussions of the ministers.
Since his time, therefore, the Sovereign has not sat with the Cabinet. A
similar example of the interesting ease with which men of our race establish
and observe precedents is to be found in the practice on the part of Presi-
dents of the United States of sending written messages to Congress.
Washington and John Adams addressed Congress in person on public
affairs ; but Jefferson, the third President, was not an easy speaker, and
preferred to send a written message. Subsequent Presidents followed his
example as of course. Hence a sacred rule of constitutional action! 1
1 A rule which President Wilson, himself, was the first President to violate.
He has never sent a written message to the Congress, but has always ad-
dressed it in person.
THE GOVERNMENT OF GREAT BRITAIN. 193
Position of the Cabinet. The Cabinet consists of the
principal ministers of state and has reached its present position
of power in the government because of its responsibility to
Parliament. The chief interest of English constitutional his-
tory centres in the struggle of Parliament to establish its
supremacy over all other authorities in the conduct of the gov-
ernment; that struggle issued in the last century in the com-
plete triumph of Parliament; it has reached its farthest logical
consequence in 1911 in the concentration of parliamentary
authority in the popular house of Parliament, the House of
Commons. Parliament always claimed the right to direct in
the name of the people, of the nation ; that was the solid basis
of all its pretensions ; and so soon as reforms in the composition
of the House of Commons had made it truly representative of
the people, the House of Lords, which represents the hereditary,
not the representative, principle, necessarily lost some part of its
political authority. It is constantly recruited, by the creation of
peerages, from all classes of successful men, scientists, manufac-
turers, lawyers, diplomatists, journalists, poets ; but it is recruited
by appointment, not by election ; its votes are not controlled by
the electorate ; and precedence in affairs has fallen to the people's
chamber.
Appointment of the Cabinet Ministers The responsi-
bility of the ministers to Parliament constitutes their strength
because it makes them, the agents of Parliament : and the agents
ot a sovereign authority virtually share its sovereignty. The
king appoints only such ministers as have the confidence of the
House of Commons; and he does it in this way: he sends for
the recognized leader of the political party which has the major-
ity in the House of Commons and asks him to form a Cabinet.
If this leader thinks that his party will approve of his assuming
such a responsibility, he accepts the commission, and, usually
after due consultation with other prominent members of his
party, gives to the Sovereign a list of the men whom he recom-
mends for appointment to the chief offices 'of state. These the
Sovereign appoints and commissions as of course. They are
always men chosen from among the members of both houses of
Parliament, and generally because they have proved there their
194 THE GOVERNMENT OF GREAT BRITAIN.
ability to lead. They have, so to say, chosen themselves by a
career of steady success in the debates of the Houses : they have
come to the front by their own efforts, by force of their own abil-
ity, and usually represent tried parliamentary capacity. Such
capacity is necessary for their success as ministers ; for, after they
have entered "the Cabinet, they constitute, in effect, a committee
of the majority of the House of Commons, commissioned to lead
Parliament in debate and legislation, to keep it, and, through
it, the country at large, informed concerning all important
affairs of state which can prudently be made public, and to carry
out in the conduct of the government the policy approved of by
the representatives of the people.
Composition of the Cabinet. The Cabinet does not con-
sist invariably of the same number of ministers. Until 1916
eleven officials always have had seats in it; namely, the First
Lord of the Treasury, the Lord Chancellor, the Lord President of
the Council, the Lord Privy Seal, the Chancellor of the Exchequer,
the five Secretaries of State (for Home Affairs, for Foreign
Affairs, for the Colonies, for India, and for War) , and the First
Lord of the Admiralty. To these were generally added from
three to six others, according to circumstances : often, for in-
stance, the President of the Board of Trade, generally of late the
Chief Secretary for Ireland, frequently the President of the Local
Government Board. The general rule which governed these
additions was, that every interest which was likely to be promi-
nent in the debates and proceedings of the House of Commons
ought to have a Cabinet minister to speak for it and to offer to
the House responsible advice. When Mr. Lloyd George became
Prime Minister in December, 1916, he formed a War Cabinet of
five members, expanded to six in 1917 with an occasional
seventh, but did not include any of the principal Secretaries
of State. Three members of the War Cabinet are ministers
1 without Portfolio.' The word l Ministry ' is of wider meaning
than the word 'Cabinet.' The * Ministry 7 consists of all those
executive officers who have seats in Parliament. These are the
1 political ' officers, who are expected to resign their offices when
the Cabinet is defeated in the Commons. But not all of them
are members of the Cabinet. The Coalition Cabinet of Mr.
THE GOVERNMENT OF GREAT BRITAIN. 195
Asquith in 1916 consisted of twenty-three persons ; but besides
these there are some forty-five non-Cabinet ministers in Parlia-
ment. (Compare p. 202.)
No member of the House of Commons may accept office with-
out the approval of his constituents. Upon receiving an appoint-
ment as minister he must resign his seat in the House and seek
reelection, as representative plus minister. 1 The whole matter is
merely formal, however, in most cases. The opposite party do
not usually, under such circumstances, contest the seat a second
time, and the minister is reflected without opposition.
The custom of the Sovereign's selecting only the chief minister
and intrusting him with the formation of a ministry also, as well
as the Sovereign's absence from Cabinet meetings, originated with
George L, who did not know enough of English public men to
choose all the ministers, and so left the choice to Walpole.
This method of forming a ministry is the outcome of Par-
liament's efforts to hold the king's ministers to a strict responsi-
bility to itself. None but members of their own party would suit
the majority in Parliament as ministers ; and since the ministers
have to explain and excuse their policy to the Houses it is best
that they should be members of the Houses with the full privi-
leges of the floor. Only by such an arrangement could the full
harmony desired between Parliament and the ministers be main-
tained : by face to face intercourse.
Ministerial Responsibility. If the ministers are defeated
on any important measure in the House of Commons, or if any
vote of censure is passed upon them in that House, they must
resign, such is the command of precedent, and another min-
istry must be formed which is in accord with the new majority.
The ministers must resign together because the best form of
responsibility for their conduct of the government can be secured
only when their measures are taken in concert, and the House of
Commons would be cheated of all real control of them if they
could, upon each utterance of its condemnation of an executive
act, or upon each rejection by it of a measure proposed or sup.
ported by them, ' throw overboard ' only those of their number
whose departments were most particularly affected by the vote,
1 This requirement has been waived by acts of Parliament during the war.
196 THE GOVERNMENT OF GREAT BRITAIN.
and so keep substantially the- same body of men in office. If
a defeated or censured ministry think that the House of Com.
mons in its adverse vote has not really spoken the opinion of
the constituencies, they can advise the Sovereign to dissolve the
House and order a new election ; that advice must be taken by
the Sovereign ; and the ministers stand or fall according to the
disposition of the new House towards them.
It should be added that exceptional cases do sometimes arise
in which responsibility for an objectionable course of action can
be so plainly and directly fixed upon a particular minister, who
has acted, it may be, without the concurrence, possibly without
the knowledge, of his colleagues, that his separate dismissal
from office is recognized as the only proper remedy. A notable
instance of this sort arose in England in 1851, when Lord Palm-
erston, then foreign secretary, was dismissed from office for
adding to various other acts of too great independence an un_
authorized expression of approval of the coup d'6tat of Louis
Napoleon in France.
Legal Status of the Cabinet The peculiar historical
origin of the Cabinet appears in a statement of its position before
the law. As we have seen (page 189), it is not a body recognized
by law : its existence, like the existence of not a few other politi-
cal institutions in England, is only customary. The particular
ministers who form the Cabinet have the legal right to be the
exclusive advisers of the Crown, that is, the sole executive
power, only by virtue of their membership of the Privy Coun-
cil. They must all be sworn into the membership of that body
before they can act as confidential servants of the Sovereign.
The Privy Council itself, however (as a whole, that is), has not
been asked for political advice for two centuries. It takes no
part whatever in the function which certain ministers exercise by
virtue of belonging to it ; it is not responsible for the advice they
give ; and it cannot in any way control that advice. Membership
of the Privy Council, moreover, is for life. The leaders of the
minority in the Commons, having themselves once been minis-
ters, are still members of the Council and have still the same
legal right to advise the Crown.
THE GOVERNMENT OF GREAT BRITAIN. 197
Initiative of the Cabinet in Legislation. Having inher-
ited the right of initiative in legislation which once belonged to
the Crown, the Cabinet shape and direct the business of the
Houses. Most of the time of Parliament is occupied by the con-
sideration of measures which they have prepared and introduced ;
at every step in the procedure of the Houses it is the duty of the
ministers to guide and facilitate business.
The Prime Minister. ' Consistency in policy and vigor in
administration' on the part of the Cabinet are obtained by its
organization under the authority of one ' First ' Minister. This
Prime Minister generally holds the office of First Lord of the
Treasury, though it is within his choice to hold another, if he will.
It is not the office which gives him primacy in the Cabinet, but
his recognized weight as leader of his party. The leader chosen
by the Sovereign to form the ministry stands at its head when
formed. He usually chooses to occupy the office of First Lord of
the Treasury because the official duties of that place are nominal
only and leave him free to exercise his important functions as
leader of the party in power. The Prime Minister, though
' unknown to the constitution,' has been given indirect recogni-
tion by a Royal Proclamation of December 2, 1905, giving him
1 place and precedence ' above all his colleagues except the Lord
Chancellor and next after the Archbishop of York. Recognition
by statute fixing the order of precedence of public dignitaries
followed in 1906.
The Departments of Administration. So much for the re-
lations of the Cabinet to the Sovereign and to Parliament. When
we turn to view it in its administrative and governing capacity as
the English Executive, we see the ministers as heads of depart-
ments, as in other governments. But the departments of the
central government in England are by no means susceptible of
brief and simple description as are those of other countries, which
have been given their present forms by logical and self-consistent
written constitutions, or by the systematizing initiative of absolute
monarchs. They hide a thousand intricacies born of that com-
posite development so characteristic of English institutions.
The Five Great ' Offices ; of State. Not attempting detail,
however, it is possible to give a tolerably clear outline of the cen-
198 THE GOVERNMENT OF GREAT BRITAIN.
tral administration of the kingdom in comparatively few words.
The Treasury I shall describe in a separate paragraph. The
Home Office has a great variety of duties : it superintends the
constabulary ; oversees, to a limited extent, the local magistracy
and the administration of prisons ; advises the Sovereign with
reference to the granting of pardons ; and is the instrument of
Parliament in carrying out numerous statutes regulating the hours
and conditions of labor in mines and factories. The Foreign
Office describes itself. So do also, sufficiently, the Colonial Office,
the War Office, and the India Office.
These five great ' Offices ' are all, historically considered, in a
certain sense offshoots from a single office, that of the king's
Principal Secretary of State. By one of the usual processes of
English constitutional development, an officer bearing this title
very early came into existence as one of the most trusted min-
isters of the Crown. At first only a specially confided-in servant
of the Sovereign, employed in all sorts of confidential missions,
he gradually assumed a more regular official place and began to
absorb various important functions. At length it became neces-
sary to double him and to have two Principal Secretaries of State,
two men theoretically sharing one and the same office, and alter-
nates of each other. At last he has, for the sake of convenience,
been quintupled.
There are five Principal Secretaries of State, all, in theory,
holding the same office, and each, in theory, legally authorized
to perform the functions of any or all of the others ; but in
fact, of course, keeping each to a distinct department. There
is a Principal Secretary of State for the Home Department,
a Principal Secretary of State for Foreign Affairs, a Principal
Secretary of State for the Colonies, a Principal Secretary of State
for War, and a Principal Secretary of State for India. It is an
interesting and characteristic case of evolution.
The Admiralty, the Board of Trade, and the Local Govern-
ment Board, The Admiralty is the naval office. It is presided
over by a Commission of six, consisting of a chairman, entitled
First Lord of the Admiralty, and five Junior Lords. The Board
THE GOVI:KNMI:NT OF GREAT BRITAIN. 199
of Trade is, in form, a committee of the Privy Council. It is
reconstituted at the opening of each reign by an order in Coun-
cil. It consists, nominally, of " a President and certain ex ojficio
members, including the First Lord of the Treasury, the Chan-
cellor of the Exchequer, the Principal Secretaries of State, the
Speaker of the House of Commons, and the Archbishop of Can-
terbury." l But it has long since lost all vital connection with
the Privy Council and all the forms even of board action. Its
President is now practically itself. Its duties and privileges are
both extensive and important. It advises the other departments
concerning all commercial matters, and is the statistical bureau of
the kingdom ; it exercises the state oversight of railways, inspects
passenger steamers and merchant vessels, examines and commis-
sions masters and mates for the merchant marine, administers the
statutes concerning harbors, lighthouses, and pilotage, provides
standard weights and measures, superintends the coinage, and
supervises the Post Office. The Local Government Board, which
is also in form a committee of the Privy Council, has also in
reality none of the characteristics either of a committee or of a
board. It is a separate and quite independent department, under
the control of a President. Its other, nominal, members, the
Lord President of the Council, the five Principal Secretaries of
State, the Lord Privy Seal, and the Chancellor of the Exchequer,
in reality take no part in its management. It is, in effect, the
English department of the Interior. It is charged with super-
vising the administration, by the local authorities of the kingdom,
" of the laws relating to the public health, the relief of the poor,
and local government " ; old age pensions ; roads ; duties more
important to the daily good government of the country than those
of any other department. It also specially examines and reports
upon e^ery private bill affecting private interests.
The Board of Agriculture. In 1889 still another depart-
ment was set up which was to be in form a Board but in fact in
charge of a single minister, its President. Since 1883 there had
been a Committee of the Privy Council charged with the special
i Traill, pp. 126, 127.
200 THE GOVERNMENT OF GREAT BRITAIN.
superintendence of the agricultural interests of the kingdom ; in
1889 it was given a more definite organization and larger powers,
under the name of The Board of Agriculture, a Board to consist
nominally of the Lord President of the Council, the five Principal
Secretaries of State, the First Commissioner of the Treasury, the
Chancellor of the Exchequer, the Chancellor of the Duchy of Lan-
caster, and the Secretary for Scotland ; but really to be under the
direction of none of these gentlemen, but of its own independent
President.
The duties of the Board embrace, besides the collection and
publication of all information likely to be serviceable to the
agricultural interest and the conduct and encouragement of in-
quiries and investigations touching agricultural processes and con-
ditions and concerning the culture of forests, the inspection and
subvention of schools in which instruction is given in such sub-
jects, the duties hitherto attaching to the offices of the Land
Commissioners and of the Commissioners of Works and Public
Buildings, the enforcement of the acts concerning contagious
diseases among animals, and a miscellany of duties of like
kinds.
The Post Office is in England a subdivision of the Board of
Trade. At its head is a Postmaster General. It controls, besides
the usual business of a post-office department, the telegraph and
telephone system of the country, which is owned by the govern-
ment ; and it has also under its direction a useful postal savings-
bank system.
The war has made necessary the creation of a number of new
ministerial posts, the most important of which are the Minister
of Munitions of War, with Mr. Lloyd George as the first to hold
the position, for the control and production of arms and ammuni-
tion of every sort ; the Minister of Blockade ; the Shipping Con-
troller ; the Food Controller ; the President of the Air Board, and
the Minister of Reconstruction.
The Treasury. The history of this department, which
may be reckoned the most important, may serve as another typi-
cal example of English departmental evolution. Originally the
chief financial minister of the Crown was the Lord High Treas-
urer, with whom was associated at an early date a Chancellor of
THE GOVERNMENT OF GREAT BRITAIN. 201
the Exchequer. But in the reign of George I. the great office of
Lord High Treasurer was, in English phrase, put permanently
{ into commission ' : its duties, that is, were intrusted to a board
instead of to a single individual. This board was known as the
"Lords Commissioners for executing the office of Lord High
Treasurer," and consisted of a First Lord of the Treasury, the
Chancellor of the Exchequer, and three others known as Junior
Lords.
Evolution speedily set in, as in other similar English boards.
That is, the board ceased to act as a board. Its functions be-
came concentrated in the hands of the Chancellor of the Ex-
chequer; the First Lordship, occupied almost invariably since
1762 by the Prime Minister, gradually lost all connection, except
that of honorary chairmanship, with the Treasury Commission,
its occupant giving all his energies to his political functions
(page 197) ; and the Junior Lords were left none but parliamen-
tary duties.
The Chancellor of the Exchequer, therefore, is the working
head of the Treasury Department, and as such plays one of the
most conspicuous and important roles in the government of the
country. He controls the revenue and expenditure of the state,
submitting to Parliament, in the form of an annual 'budget/
careful comparisons of the sums needed for the public service and
of the sums that may be expected to accrue from existing or pos-
sible sources of revenue, together with proposals to extend or
curtail taxation, according as there is prospect of a deficit or of a
surplus under existing arrangements.
The Estimates. The various departments make up their
own estimates ; but those are subjected to a careful examination
by the Chancellor of the Exchequer, and with him rests the pre-
rogative of revising them where they may seem to admit of or to
require revision. Thus changes in the clerical forces of the de-
partments or redistributions of their work among sub-departments,
etc., cannot, if they involve additional expense, be made without
express approval by the Treasury.
Mr. Gladstone twice, with characteristic energy, held, when
Prime Minister, both the office of the First Lord of the Treasury
and the office of Chancellor of the Exchequer, thus in effect once
202 THE GOVERNMENT OF GREAT BRITAIN.
more bringing the First Lord iuto vital connection with his
nominal department.
Administrative Departments of the Privy Council.
Though superseded as advisory council to the Crown by the Cabi-
net and deprived of all actual executive control by the virtual
erection of its several boards into independent departments, the
Privy Council still has one or two vital parts. Chief among
these is The Education Department, which consists of the Lord
President of the Council, as nominal chief, a Vice-President as
working chief, and certain ex officio members, among them the
Chancellor of the Exchequer and the Secretary of State for Home
Affairs, and which is charged with the administration of the pub-
lic educational system of the country. This committee preserves
in a rather more than formal way its collegiate character. The
important judicial duties of the Privy Council I shall speak of
in another connection (page 219).
The Lord Privy Seal exercises no important functions ex-
cept those of keeping the great Seal of State and affixing it to
such public documents as need its formal attestation ; but the
office is a ' Cabinet office. 7 The lightness of its duties leaves its
incumbent the freer for his Cabinet functions of counsel. It is a
berth for elderly men of intellectual and political weight who
cannot or will not undertake onerous official duties.
The Chancellor of the Duchy of Lancaster holds an office
whose duties (entirely legal and local) have all been delegated by
longstanding custom to a Vice-Chancellor ; but eminent politicians
are brought into the Cabinet through this sinecure Chancellor-
ship in order that they may give the ministry the benefit of their
advice and countenance.
Political Under Secretaries. There are often associated
with the principal ministers of state certain 'political' Under
Secretaries, whose function is one of very considerable impor-
tance. A political Under Secretary is one who goes in or out of
office with his party, not having a place in the Cabinet but shar-
ing its fortunes in the Commons. He is parliamentary spokes-
man for his chief. If the foreign minister, for instance, or any
other member of the Cabinet, the affairs of whose department
may be expected to call forth frequent comment or question in
THE GOVERNMENT OF GREAT BRITAIN. 203
the lower House, be a member of the House of Lords, he is repre-
sented in the Commons by an Under Secretary, who there speaks
as the minister's proxy. The representation of the ministers in
both Houses is thus secured. (Compare page 194.)
Administration of Scotland and Ireland. The affairs of
Scotland are cared for through the agency of a Lord Advocate
for Scotland, who is the legal adviser of the government concern-
ing Scotch interests, and a Secretary for Scotland who is the in-
termediary between the Scotch members of Parliament and the
ministry, and the official spokesman of the ministers regarding
Scotch business in the House of Commons. Officially the Lord
Advocate ranks as a subordinate of the Secretary of State for
Home Affairs.
The Irish executive is, formally at least, separate from the
English, being vested in a Lord Lieutenant and a Privy Council ;
but in fact it is completely controlled by the English Cabinet
though the Chief Secretary to the Lord Lieutenant, who is always
a member of the House of Commons and, when Irish affairs are
specially prominent, a member of the Cabinet also; and who,
though in titular rank a subordinate of the Lord Lieutenant, is,
by virtue of his relations to the Cabinet and to Parliament, in
effect his master.
For many years the agitation for Home Rule had been carried
on but without success till the accession to power of the Liberals
in 1906 and again in 1910.
A Home Rule Act for Ireland was passed by the House of
Commons in the three consecutive sessions of 1912-13, 1913, and
1914, but was rejected by the House of Lords. Under the pro-
visions of the Parliament Act it accordingly became a statute, but
before it could be put into operation the war began and a Sus-
pensory Act was passed postponing the time for putting it into
operation for twelve months, or, if the war were not then
ended, to such further time as should be fixed by the King in
Council.
The Home Rule Act provided that the executive power, vested
in the King, should be exercised by a Lord Lieutenant, acting for
the King, through the Irish Ministers, heads of the Irish De-
partments.
204 THE GOVERNMENT OF GREAT BRITAIN.
The legislative authority is in an Irish Parliament, consisting
of the King and two Houses a Senate and a House of Commons.
This Parliament has authority to " make laws for the peace, order,
and good government of Ireland " subject to the plenary authority
of the Parliament of the United Kingdom and to certain special
limitations.
All money bills shall originate in the Commons and may not
be rejected or amended by the Senate. The Senate is to be
composed of forty members, those of the first Parliament to
be nominated by the Imperial Cabinet and thereafter to be elected
by the four Irish provinces, by proportional representation for a
period of five years and not to be affected by dissolution. The
House of Commons will consist of 164 members, elected by the
present Parliamentary electors. In constituencies returning
three or more members the principle of proportional representa-
tion will be applied. The duration of a House of Commons is
five years, but it may be sooner dissolved by the Lord Lieutenant
under circumstances similar to those that would lead to a disso-
lution of the House of Commons at Westminster.
In case of conflict between the Senate and the Commons, a bill
sent up to the Senate for a second time in the following session
and again rejected, is to be submitted to a joint session of the
two Houses and if adopted by a majority of those present and
voting, it shall become a law.
Irish representation in the House of Commons at Westminster
is fixed at 42. When the financial arrangements between Ireland
and the United Kingdom has been reached, additional members
may be summoned from the Irish House of Commons in such
numbers as will make the representation of Ireland equivalent to
that of Great Britain on the basis of population. These members
so summoned shall be deemed members of the House of Com-
mons at Westminster for the purposes of revision of the financial
arrangements.
The Lord Chancellor, the only regular member of the
Cabinet whose duties I have not yet indicated, is a judicial and
legislative officer. His functions will be mentioned in another
connection (page 219).
THE GOVERNMENT OF GREAT BRITAIN. 205
The Cabinet as Executive. It would be a great mistake
to suppose that, because the Cabinet is in reality a committee of
the House of Commons, drawing all its authority from the confi-
dence reposed in it by that chamber, it is a mere committee, pos-
sessing no separate importance as the executive body of the
kingdom. In a sense the ministers have inherited the ancient
prerogatives of the Crown; and Parliament is, in a very sensible
degree, dependent upon them for the efficacy of the part it is to
play in governing. Almost all important legislation waits for
their initiative, and the whole business of the Houses to a great
extent depends upon them for its progress. They can make
treaties, of whatever importance, with foreign countries; they
can shape the policy of the mother country towards her colonies;
they can take what serious steps they please with reference to
the government of India, can place troops and naval forces at
pleasure, can make a score of momentous moves of policy towards
the English dependencies and towards foreign countries, in the
field, that is, of many of the largest interests of the Empire,
which may commit the country to the gravest courses of action;
and all without any previous consultation with Parliament,
whom they serve. The House of Commons, in brief, can punish
but cannot prevent them.
Parliament: I. the House of Commons; its Original Char-
acter. " The Parliament of the nineteenth century is, in ordi-
nary speech, the House of Commons. When a minister consults
Parliament he consults the House of Commons ; when the Queen
dissolves Parliament she dissolves the House of Commons. A
new Parliament is merely a new House of Commons." 1 Such
has been the evolution of English politics. But the processes
which worked out this result were almost five centuries long.
During a very long period, Parliament's first and formative
period, the Commons held a position of distinct and natural
subordination to the Lords, lay and spiritual; the great constitu-
tional roles were played by the king and baronage. The com-
moners in Parliament represented the towns, and spoke, for the
most part, at first, only concerning the taxes they would give.
1 Spencer Walpole, The Electorate and the Legislature (English Citizen
Series), p. 48.
206 THE GOVERNMENT OF GREAT BRITAIN.
When the house of Parliament called the House of Commons
first assumed a distinct separate existence, about the middle of
the fourteenth century (page 187), it was by no means a homo-
geneous body. It held both the knights of the shires and the
burgesses of the towns ; and it was a very long time before the
knights forgot the doubt which had at first been felt as to which
house they should sit with, Lords or Commons. They were men
of consideration in their counties; the only thing in common
between them and the men from the towns was that election, and
not hereditary possessions or rank, was the ground of their pres-
ence in Parliament. Long use, however, finally obscured such
differences between the two groups of members in the lower
House; their interests were soon felt to be common interests,
because the chief questions they had a real voice in deciding were
questions of taxation, which touched all alike.
Historical Contrasts between County and Borough Repre-
sentatives. The main object of the Crown in making the Com-
mons as representative as possible would seem to have been to
bring the whole nation, as nearly as might be, into cooperation
in support of tbe king's government : and at first the lower House
was a truly representative body. The knights of the shires were
elected " in the county court, by the common assent of the whole
country " ; the burgesses of the towns were chosen by the borough
freemen, a body numerous or limited according to the charter of
each individual town, but generally sufficiently broad to include
the better class of citizens. It was the decay of the towns and
the narrowing of their franchises which made the Commons
of the closing decades of the last century and the first decades of
our own the scandalously subservient, unrepresentative Commons
which drove the American colonies into revolt. So early as the
reign of Henry VI., in the first half, that is, of the fifteenth cen-
tury, the franchise was limited in the counties to freeholders
whose landed property was of an annual value of forty shillings,
and forty shilling freeholders were then men 4>f means ; 1 but this
franchise remained unchanged until the parliamentary reforms of
1 Forty shillings, it is estimated, were equivalent at that time in pur-
chasing value to eighty pounds at present ($400). See f E. T. Rogers,
Economic Interpretation of History, p. 32.
THE GOVKKNMKXT OF GREAT BRITAIN. 207
the present century, and tended steadily, with the advancing
wealth of the country and the relative decrease in the value of
the shilling, to become more inclusive and more liberal. The
borough franchise, on the contrary, went all the time steadily
from bad to worse. It became more and more restricted, and the
towns which sent representatives to Parliament became, partly
by reason of their own decay, partly by reason of the growth and
new distribution of population in the kingdom, less and less fitted
or entitled to represent urban England. New boroughs had been
given representatives from time to time; but all efforts to redis-
tribute representation had virtually ceased before the dawn of
the period of that great increase of population and that immense
development of wealth and industry which has made modern
England what it is. The towns which returned members to the
House of Commons were mostly in the southern counties where
the old centres of population had been. Gradually they had lost
importance as the weight of the nation shifted to the central and
western counties and Liverpool, Manchester, and Birmingham
grew up, and not their importance only, but their inhabitants
as well. Some fell into ruins and merged in neighboring proper-
ties, whose owners pocketed both them and their parliamentary
franchise; others, which did not so literally decay, became
equally subject to the influence of neighbor magnates upon whom
the voters felt more or less dependent; and at last the majority
of seats in the Commons were virtually owned by the landed
classes represented in the House of Lords.
The House of Commons consisted in 1801 of 658 members, and
of these 425 are said to have been returned u on the nomination or on
the recommendation of 252 patrons." It is said, also, that "309 out
of the 513 members belonging to England and Wales owed their elec-
tion to the nomination either of the Treasury or of 162 powerful indi-
viduals." i
Geographical Relations of Boroughs and Counties. Borough
populations had no part in the election of county members. The counties
represented in Parliament were rural areas, exclusive of the towns. Thus
the county of Derby was, for the purposes of parliamentary representation,
the county of Derby minus its boroughs.
1 Walpoie, p. 55.
208 THE GOVERNMENT OF GREAT BRITAIN.
Parliamentary Eef orm. It was to remedy this condition
that the reforms since the beginning of the nineteenth century
were undertaken. Those reforms have made the House of Com-
mons truly representative and national : and in making it national
have made it dominant. In 1832 a wholesale redistribution of
seats was accomplished, and a complete reformation of the fran-
chise. The decayed towns were deprived of their members, and
the new centres of population were accorded adequate repre-
sentation. The right to vote in the countries was extended from
those who owned freeholds to those who held property on lease
and bhose who held copyhold estates, 1 and to tenants whose hold-
ings were of the clear annual value of fifty pounds. The borough
franchise was put upon the uniform basis of householders whose
houses were worth not less than ten pounds a year. This was
putting representation into the hands of the middle, well-to-do
classes ; and with them it remained until 1867. In 1867 another
redistribution of seats was effected, which increased the number
of Scotch members from fifty-four to sixty and made other impor-
tant readjustments of representation. The franchise was at the
same time very greatly widened. In the boroughs all house-
holders and every lodger whose lodgings cost him ten pounds
annually were given the right to vote ; and in the counties, be-
sides every forty shilling freeholder, every copyholder and lease-
holder whose holding was of the annual value of five pounds, and
every householder whose rent was not less than twelve pounds
a year. Thus representation stood for almost twenty years.
Finally, in 1884, the qualifications for voters in the counties were
made the same as the qualifications fixed for borough electors by
the law of 1867, and over two millions and a half of voters were
thus added to the active citizenship of the country.
In 1885 another great Redistribution Act was passed, which
merged eighty-one English, two Scotch, and twenty-two Irish
boroughs in the counties in which they lie, for purposes of repre-
sentation ; gave additional members to fourteen English, three
1 Copyhold estates are estates held by the custom of the manor in which
they lie, a custom once evidenced by a * copy ' of the rolls of the Manor
Court.
THE GOVERNMENT OF GREAT BRITAIN. 209
Scotch, and two Irish boroughs ; and created thirty-three new
urban constituencies. The greater towns which returned several
members were cut up into single-member districts, and a like ar-
rangement was effected in the counties, which were divided into
electoral districts to each of which a single representative was
assigned. 1 These changes were accompanied by an increase of
twelve in the total number of members. Through the redistribu-
tion of seats in 1832 and 1867 the number had remained 658 ; in
1885 it was raised to 670.
Parliamentary Franchise. The last and most far-reach-
ing extension of the suffrage, through the Representation of the
People Act of 1918, swept away all special qualifications existing
at the time of its passage. Neither owners, lodgers, nor freemen
are to be registered as such and the principle of woman suffrage
has received wide recognition. Universal suffrage for men and
women has been largely achieved.
By this Act the franchise was extended to all male subjects
of full age, not subject to any legal incapacity, who have resided
in a constituency for a period of six months terminable either on
July 15th or January 15th in any year. This period is reduced
to one month for discharged soldiers. Men who have the resi-
dential qualification and are also occupiers as owners or tenants
of land on premises of the yearly value of not less than 10,
are entitled to a second vote, provided the land or premises be
used for the purposes of a business, trade, or profession and that
the qualification is not in the same constituency as that in which
they have their residence.
All men of full age and not under any legal incapacity who
have received a degree (other than an honorary degree) from a
University and all women thirty years of age who would be
entitled to vote for a University if she were a man are entitled to
vote for the University or group of Universities formed under
the Act. This vote may be in addition to the residential vote,
but no person may have more than two votes. Women of thirty
years of age and not subject to any legal incapacity, who are
1 This was establishing what the French, as we have seen (page 222),
would call scrutin d" 1 arrondissement.
210 THE GOVERNMENT OF GREAT BRITAIN.
entitled to be local government electors, in respect of the occupa-
tion, as owners or tenants, of land or premises of the value of
5 per annum or of a dwelling house, and women whose husbands
are electors in a local government area for lands or premises of
the value of 5 per annum or of a dwelling house, have received
the franchise. It is estimated that the vote has thereby been
extended to six million women and that the total number of
electors under the new Act will be doubled.
A new redistribution of seats, based on one member for every
70,000 people, was also included, with a special act for Ireland,
so that the new House of Commons will be composed, of 707
members. In the new House of Commons England will have
492 members, Wales 36, Scotland 74, and Ireland 105, 372 sitting
for counties, 320 for boroughs, and 15 for universities. All elec-
tions will be held on the same day; the cost of elections is
cheapened and registration is simplified and put in charge of a
responsible public official in every constituency.
Election and Term of the Commons. Members of the
House of Commons are elected, by secret ballot, for a term of
five years. 1 Any male citizen is eligible for election except
priests and deacons of the Church of England, ministers of the
Church of Scotland, Roman Catholic priests, and sheriffs and
other returning officers, and except, also, English and Scotch
peers. Irish peers not elected to the Lords are eligible and have
often sat in the House. 2 The persons thus excepted, all save
the peers, at least, can neither sit nor vote.
As a matter of fact no House of Commons previous to the
present one has ever lived its full term. A dissolution, for the
purpose of a fresh appeal to the constituencies, has always cut
it off before its statutory time. The average duration of Parlia-
ments has been less than four years. The longest Parliament of
the nineteenth century (elected in 1820) lived six years, one
month, and twelve days. The present Parliament has prolonged
its own life to avoid a general election during the war and has
been in existence since 1911.
1 Until 1911 the term was seven years.
2 Lord Palmerston, for example, was an Irish peer.
THE GOVERNMENT OF GREAT BRITAIN. 211
There is no property qualification for election to the House
now, as there was formally ; and the members receive 400 a
year for their services.
Summons, Electoral Writ, Prorogation. No standing
statutes govern the time for electing Parliaments. Parliament
assembles upon summons from the Crown (which, like all other
acts of the Sovereign, now really emanates from the ministers) ;
and the time for electing members is set by writs addressed
to the sheriffs and the mayors. Parliament is also * pro-
rogued' (adjourned for the session) by the Sovereign (that is,
the Cabinet) ; and assembles again, after recess, by special
summons.
The summons for a new Parliament must be issued at least
thirty-five days before the day set for its assembling; the
summons to a prorogued Parliament at least fourteen days before-
hand. It is now the invariable custom to assemble Parliament
once every year about the middle of February, and to keep it in
session from that time till about the middle of August.
If a seat fall vacant during a session, a writ is issued for an
election to fill it upon motion of the House itself ; if a vacancy
occur during a recess, the writ is issued at the instance of the
Speaker of the House.
Since 1867 the duration of Parliament has not been liable to
be affected by a demise of the Crown ; before 1695 Parliament
died with the monarch. In that year it was enacted that Parlia-
ment should last for six months after the demise of the Crown,
if not sooner dissolved by the new Sovereign. Parliament, it is
now provided, must assemble immediately upon the death of the
Sovereign. If the Sovereign's death take place after a dissolu-
tion and before the day fixed for the convening of the new Par-
liament, the old Parliament is to come together for six months,
if necessary, but for no longer term.
Organization of the House. The Commons elect their
own Speaker (Spokesman) ; their clerk and sergeant-at-arms are
appointed by the Crown. The business of the House is, as we
have seen (page 197), quite absolutely under the direction of its
great committee, the Cabinet. Certain days of the week are set
212 THE GOVERNMENT OF GREAT BRITAIN.
apart by the rules for the consideration of measures introduced
by private members, but most of the time of the House is devoted
to ' government bills. 7 1 The majority put themselves in the hands
of their party leaders, the ministers, and the great contests of
the session are between the minority on one side of the chamber
and the ministerial party, or majority, on the other side.
Down the centre of the hall in which the House sits runs a
very broad aisle. The Speaker's seat stands, upon an elevated
place, at the farther end of this aisle, and below it are the seats
and tables of the clerks and a great table stretching some distance
down the aisle, for the reception of the Sergeant's mace and
various books, petition boxes, and papers. The benches on either
side of the aisle face each other. Those which rise, in tiers, to
the Speaker's right are occupied by the majority, the Cabinet
ministers, their leaders, sitting on the front bench by the great
table. This front bench is accordingly called the ' Treasury
Bench,' the Treasury being the leading Cabinet office. On the
benches which rise to the Speaker's left sit the minority, their
leaders also (the ' leaders of the Opposition,' the minority
being expected, generally with reason, to be opposed to all minis-
terial proposals) on the front bench by the table, and so directly
facing the ministers, only the table intervening.
The House of Lords: its Composition. The House
of Lords consisted on April 4th, 1918, of six hundred and fifteen
English hereditary peers (Dukes, Marquises, Earls, Viscounts,
Barons) ; the two archbishops and twenty-four bishops, holding
their seats by virtue of their offices ; sixteen Scottish representa-
tive peers, elected by the whole body of Scottish peers to sit for
the term of Parliament ; twenty-seven Irish peers, elected by
the peers of Ireland to sit for life 2 ; and seven judicial members
known as Lords of Appeal in Ordinary (pages 216, 218, 219),
sitting as life-peers only, by virtue of their office.
1 Due to the war, the Government now possesses the whole time of the
House except an hour allowed to members for general discussion on the
motion for adjournment at each sitting.
2 Earl Curzon of Kedleston, the 28th Irish Representative Peer, is also a
peer of the United Kingdom,
THE GOVERNMENT OF GREAT BRITAIN. 213
There is no necessary limitation to the number of hereditary
English peers. Peers can be created at will by the Crown (that
is, by the ministry), and their creation is in fact frequent. Two
hundred and thirty-one peers have been created since 1900. The
number of Scottish and Irish peers is limited by statute.
The House of Lords is summoned to its sessions when the
House of Commons is, and the two must always be summoned
together.
Function of the House of Lords in Legislation. The
House of Lords was until 1911, in legal theory, coequal in all
respects with the House of Commons ; but, in fact, its authority
was politically very inferior. By the Parliament Act of 1911,
this actual inferiority was given statutory recognition and the
House of Lords became thereby a subordinate legislative
chamber.
In the elections of 1906 the Liberals won an overwhelming
victory and under the leadership of Lloyd George as Chancellor
of the Exchequer radical changes in the system of taxation were
proposed in the Finance Bill of 1909. When this Bill went to
the Lords, it was rejected though the practice had been so long
observed as to be regarded as one of the conventions of the con-
stitution that the Lords must accept the financial legislation
passed by the Commons. The House was dissolved and an appeal
to the people was taken, with the result that the Liberals were
returned to power but with a reduced majority. The Finance
Bill was reintroduced and successfully passed. But the Liberals
were determined that the powers of the Lords should be limited
and a series of resolutions were introduced and passed in the
Commons to the effect (1) that the House of Lords should by
law be deprived of the power of rejecting or amending a money
bill ; (2) that the power of the Lords to veto other bills should
be limited by law; and (3) that the duration of a parliament
should be limited to a maximum period of five years. The House
of Lords itself took up the question of its own reform and various
proposals were introduced, looking, however, rather to a change
in the method of constituting that body rather than to a change
in. its powers. These resolutions adopted by the Lords recog-
214 THE GOVERNMENT OF GREAT BRITAIN.
nized the right of the Commons with respect to money bills of a
purely financial character; provided a plan for determining
whether or not a bill was of this character by a committee of the
two Houses in which the Speaker of the House of Commons
should have the deciding vote ; that with respect to other bills
about which the Houses might differ in two successive sessions
with an interval of not less than a year, the matter should be
settled at a joint sitting of the two Houses unless it referred to
a matter of grave importance, in which case it should be sub-
mitted to the people by referendum ; and that the hereditary
principle should not be the sole basis of membership in the
Lords.
A fresh appeal to the people was taken in December, 1910,
and again the Liberals were returned to power and the Parliament
Bill was reintroduced without change and passed with only minor
amendment. The Commons claimed that the people had ap-
proved of the Bill at the general election, and when it went to
the Lords and was there amended, the ministry let it be known
that it would accept no compromise and that the Bill would be
passed if enough new peers must be created to secure a majority.
Faced with this threat the Lords yielded and the Bill was passed
as approved by the House. Thus ended one of the most momen-
tous struggles in English constitutional history, and as a result the
House of Commons is practically supreme. The Lords have
retained only a right of criticism and a suspensive veto.
The Parliament Act of 1911. Both houses had accepted
the principle of reforming the House of Lords by substituting a
popular for the hereditary basis, and this principle was declared
in the preamble to the Act, but as yet no steps have been taken
to put such a reform into operation. The Lords remain an heredi-
tary body but with greatly restricted powers.
In the first place the power of the Lords over Money Bills
has been entirely taken away. 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 has been so sent up, the Bill shall, unless the
THE GOVERNMENT OF GREAT BRITAIN. 215
House of Commons direct to the contrary, be presented to his
Majesty and become an Act of Parliament on the royal assent
being signified, notwithstanding that the House of Lords has
not consented to the Bill. The decision as to what is a Money
Bill under the terms of the Act rests with the Speaker of the
House of Commons, who shall indorse thereon his certificate to
that effect.
In the second place if any Public Bill other than a Money Bill,
or a Bill containing any provisions to extend 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 is rejected by the Lords in each of those
sessions, the Bill shall, unless the House of Commons directs to
the contrary, be presented to his Majesty and shall become an
Act of Parliament on receiving the Royal Assent, notwithstand-
ing that the House of Lords has not consented to the Bill. A
period of two years must elapse between the date of the second
reading of the Bill in the first of the three successive sessions of
the House of Commons and its passage in the third session. The
Speaker shall likewise put his certificate upon Bills of this char-
acter to the effect that all the provisions of the Parliament Act
have been complied with.
The certificate of the Speaker shall in both cases be conclusive
and shall not be questioned in any court of law. By this Act
the time fixed for the maximum duration of Parliament was five
years.
The House of Lords as a Supreme Court. The House of
Lords is still, however, in fact as well as in form, the supreme
court of appeal in England, though it has long since ceased to
exercise its judicial functions (inherited from the Great Council
of Xorman times) as a body. Those functions are now always
exercised by the Lord Chancellor, who is ex ojficio president of
the House of Lords, and four Lords of Appeal in Ordinary, who
are learned judges appointed as life peers, specially to perform
this duty. These special * Law Lords ' are assisted from time to
time by other lords who have served as judges of the higher
courts or who are specially learned in the law.
216 THE GOVERNMENT OF GREAT BRITAIN.
Legislation, therefore, is controlled by the House of Com-
mons, the interpretation of the law by the judicial members
of the House of Lords. The House of Lords has a limited share
with the popular chamber in the right of law-making, but cannot
assert that right further than to cause delay. The Sovereign has
theoretically the right to negative legislation ; but the Sovereign
is in the hands of the ministers, and the ministers are in the
hands of the Commons ; and legislation is never negatived.
The Constitution of England consists of law and precedent.
She has great documents like Magna Charta at the foundation
of her institutions ; but Magna Charta was only a royal ordi-
nance. She has great laws like the Bill of Rights at the centre
of her political system; but the Bill of Rights was only an
act of Parliament. She has no written constitution, and Par-
liament may, in theory, change the whole structure and principle
of her institutions by mere Bill. But in fact Parliament dare
not go faster than public opinion : and public opinion in England
is steadily and powerfully conservative.
The Courts of Law. The Administration of justice has
always been greatly centralized in England. From a very early
day judges of the king's court have 'gone on circuit,' holding
their assizes (sittings) in various parts of the country, in order
to save suitors the vexation and expense of haling their adver-
saries always before the courts in London. But these circuit
judges travelled from place to place under special commissions
from the central authorities of the state, and had no permanent
connections with the counties in which their assizes were held :
they came out from London, were controlled from London, and,
their circuit work done, returned to London. It was, moreover,
generally only the three courts of Common Law (the Court of
King's Bench, the Court of Common Pleas, and the Court of
Exchequer) that sent their judges on circuit; the great, over-
shadowing Court of Chancery, which arrogated so wide a juris-
diction to itself, drew all its suitors to its own chambers in West-
minster.
The only thing lacking to perfect the centralization was a
greater uniformity of organization and a less haphazard dis-
TNI: <;<>VI:I;NMI-:XT OF GREAT BRITAIN. 217
tribution of jurisdiction among the various courts. This lack
was supplied by a great Judicature Act passed in 1873. By that
Act (which went into force on the 1st November, 1875), and
subsequent additional legislation extending to 1879, the courts
of law, which had grown, as we have seen (page 185), out of that
once single body, the ancient Permanent Council of the Norman
and Plantagenet kings, were at last reintegrated, made up to-
gether into a coordinated whole.
Judicial Reform : the Reorganization of 1873-1879. These
measures of reorganization and unification had been preceded, in
1846, by a certain degree of decentralization. Certain so-called
County Courts were than created, which are local, not peripatetic
Westminster, tribunals, and which have to a considerable extent
absorbed the assize business, though their function, theoretically,
is only to assist, not to supplant, the assizes. Now, therefore, the
general outlines of the judicial system are these. The general
courts of the kingdom are combined under the name, Supreme
Court of Judicature. This court is divided into two parts, which
are really two quite distinct courts : namely, the High Court of
Justice and the Court of Appeal ; while over both, as the court of
last resort, still stands the House of Lords. The High Court
of Justice acts in three divisions, a Chancery Division, a King's
Bench Division, and a Probate, Divorce, and Admiralty Division ;
and these three divisions constitute the ordinary courts of law,
inheriting the jurisdictions suggested by their names. From
them an appeal lies to the Court of Appeal ; from the Court of
Appeal to the House of Lords. The County Courts stand related
to the system as the Assizes do.
" The Chancery Division has five judges besides its presi-
dent, the Chancellor ; the Queen's Bench Division has fifteen
judges, of whom one, the Lord Chief Justice, is its president;
the Probate, Divorce, and Admiralty Division has but two judges,
of whom one presides over the other." This arrangement into
divisions is a mere matter of convenience ; no very strict dis-
tinctions as to jurisdiction are preserved ; and any changes that
the judges think desirable may be made by an Order in Council.
Thus an Exchequer Division and a Common Pleas division, which
218 THE GOVERNMENT OF GREAT BRITAIN.
at first existed, in preservation of the old lines of organization,
were abolished by such an Order in December, 1880. The
judges assigned to the various Divisions do not necessarily or
often sit together. Cases are generally heard before only one
judge ; so that the High Court may be said to have the effec-
tive capacity of twenty-three courts, its total number of
judges being twenty-three. Only when hearing appeals from
inferior tribunals, or discharging some other function differ-
ent from the ordinary trial of cases, must two or more judges
sit together.
The Court of Appeals may hear appeals on questions both
of law and of fact. It consists of the Master of Eolls and five
Lords Justices, who may be said to constitute a permanent and
separate bench, and of the presidents of the three Divisions of
the High Court, who may be called its occasional members.
Since 1891 Ex-Chancellors are ex ojficio members, though they do
not ordinarily sit. Three judges are necessary to exercise its
powers, and, in practice, its six permanent members divide the
work, holding the court in two independent sections.
The House of Lords may sit, when acting as a court, when
Parliament is not in session, after a prorogation, that is, or even
after a dissolution : for the House of Lords when sitting as a court
is like its legislative self only in its modes of procedure. In all
other respects it is totally unlike the body which obeys the House
of Commons in law-making. It is constituted always, as a court,
of the Lord Chancellor and at least two of the Lords of Appeal in
Ordinary of whom I have spoken (page 212) ; only sometimes are
there added to these a third Lord of Appeal in Ordinary, an ex-
Lord Chancellor, or one or more of such judges or ex-judges of
the higher courts as may have found their way to peerages.
Other members of the House never attend; or, attending,
never vote.
A Judicial Committee of the Privy Council, of which also
the Lord Chancellor is a member, and which now consists mainly
of the same Lords of Appeal in Ordinary who act in judicial
matters as the House of Lords, constitutes a court of last resort
THE GOVERNMENT OF GREAT BRITAIN. 219
for India, the Colonies, the Channel Islands, and the Isle of Man,
as well as, within certain limits, as a court of appeal from the
Probate, Divorce, and Admiralty Division of the High Court of
Justice.
The Lord Chancellor is the most notable officer in the whole
system. He is president of the House of Lords, of the Court of
Appeal, of the High Court of Justice, and of the Chancery Divi-
sion of the High Court, and he is a member of the Judicial Com-
mittee of the Privy Council ; and he actually sits in all of these
except the High Court, in the House of Lords and the Privy
Council always, in the Court of Appeal often. More singular
still, he is the political officer of the law : he is a member always
of the Cabinet, and, like the other members, belongs to a party,
and goes in or out of office according to the favor of the House of
Commons, exercising while in office, in some sense, the functions
of a Minister of Civil Justice. 1
Civil Cases are heard either by judges of the High Court
in London, by judges of that court sitting on circuit in the various
'assize towns' of the county, of which there is always at least one
for each county, or by the County Courts created in 1846, which
differ from the old county courts, long since decayed and now de-
prived of all judicial functions, both in their organization and in
their duties. They consist, not of the sheriff and all the freemen of
the shire, but of single judges, holding their offices during good
behavior, assisted by permanent ministerial officers, and exercising
their jurisdiction not over counties but in districts much smaller
than the counties. They are called county courts only by way of
preserving an ancient and respected name.
The County Courts have jurisdiction in all cases of debt or dam-
age where the sum claimed does not exceed 50, and in certain equity cases
where not more than 500 is involved, except that cases of slander, libel,
seduction, and breach of promise to marry, as well as all matrimonial cases,
are withheld from them. At least, such is their jurisdiction in rough out-
line. A full account "would involve many details ; for it has been thq
tendency of all recent judicial legislation in England to give more and more
i Maitland, p. 68.
220 THE GOVERNMENT OF GREAT BRITAIN.
business, even of the more important kind, to these Courts. Their normal
importance may be judged from the fact, stated by Mr. Maitland, that
"most of the contentious litigation in England is about smaller sums
than" 50.
A judge of the High Court may send down to a county court, upon
the application of either party, cases of contract in which the sum claimed
does not exceed 100. Any case, however small the pecuniary claim in-
volved, may be removed from the county to the High Court if the judge of
the county court will certify that important principles of law are likely to
arise in it, or if the High Court or any judge thereof deems it desirable
that it should be removed. Appeals from a county court to the High
Court are forbidden in most cases in which less than 20 is involved.
The county court system rests upon the basis of a division of the
country into fifty-six circuits. All but one or two of these include several
* districts ' the districts numbering about 500. Each district has its own
separate court, with its own offices, registrar, etc. ; but the judges are ap-
pointed for the circuits, one for each circuit. They are appointed by
the Lord Chancellor from barristers of seven years' standing. 1
Juries are falling more and more into disuse in England in civil
cases. In all the more important causes, outside the Chancery Division,
whose rule of action, like that of the old Chancery Court, is ' no jury,' a
jury may be impanelled at the desire of either party ; but many litigants
now prefer to do without, especially in the County Courts, where both
the facts and the law are in a large majority of the cases passed upon by
the judge alone, without the assistance of the jury of five which might
in these courts be summoned in all cases of above 20 value.
Criminal Cases are tried either before the county Justices
of the Peace, who are unpaid officers appointed by the Chancellor
upon the recommendation of the Lords Lieutenant of the Coun-
ties ; before borough Justices, who are paid judges much like
all others ; or before judges of the High Court on circuit. The
jurisdiction of the Justices may be said to include all but the
gravest offences, all but those, namely, which are punishable by
death or by penal servitude, and except, also, perjury, forgery,
bribery, and libel. There are many Justices for each county,
there being no legal limit to their number; and they exercise
their more important functions at general Quarter Sessions, at
general sessions, that is, held four times yearly. The criminal
assizes of the High Court also are held four times a year. All
1 The various Acts affecting the County Courts were amended and consoli-
dated by the County Courts Act, 1888.
THE GOVERNMENT OF GREAT BRITAIN. 221
criminal cases, except those of the pettiest character, such aa
police cases, are tried before juries.
" About one-half of the criminal trials," it is stated, 1 " take place
at county sessions, about one-fourth at borough sessions, the rest at Assizes
or the Central Criminal Court," the great criminal court of London.
Quarter and Petty Sessions. For the exercise of all their
more important judicial functions the Justices meet quarterly, in Quarter
Sessions ; but for minor duties in which it is not necessary for more than
two Justices to join, there are numerous Petty Sessions held at various
points in the counties. Each county is divided by its Quarter Sessions
into petty sessional districts, and every neighborhood is given thus its own
court of Petty Sessions, from which in almost all cases an appeal lies to
Quarter Sessions. Thus the important function of licensing (page 233) is
exercised by Petty Sessions, subject to appeal to the whole bench of
Justices.
The Justices of the Peace were, as we shall see more particu-
larly in another connection (pages 226-227), the general governmental
authorities of the counties until the reform of local government effected
in 1888, exercising functions of the most various, multifarious, and influ-
ential sort. They are generally country gentlemen of high standing in
their counties, and serve, as already stated, without pay. They are
appointed, practically, for life. The 'Commission of the Peace,' the
commissioning, that is, of Justices of the Peace, originated in the four-
teenth century, and has had a long history of interesting development.
Considering the somewhat autocratic nature of the office of Justice, it
has been, on the whole, exercised with great wisdom and public spirit,
and during most periods with extraordinary moderation, industry, and
effectiveness.
The duties which Americans associate with the office of Justice of
the Peace are exercised in England, not by the bench of Justices sitting in
Quarter Sessions, they then constitute, as we have seen, a criminal court
of very extensive jurisdiction, but by the Justices singly, sitting either
formally or informally. A single Justice may conduct the preliminary
examination of a person charged with crime, and may commit for trial if
reasonable ground of suspicion be proved. A single Justice can also issue
search warrants to the constabulary for the detection of crime, etc.
Police. The police force, or, in more English phrase,
the constabulary, of the kingdom is overseen from London by the
Home Office, which makes all general rules as to discipline, pay,
etc., appoints royal inspectors, and determines, under the Treas-
ury, the amount of state aid to be given to the support of the
i Maitland, p. 86.
222 THE GOVERNMENT OF GREAT BRITAIN.
forces ; but all the actual administration of the system is under-
taken by the local authorities. In the Counties a joint Com-
mittee of Quarter Sessions and the County Council appoint the
Chief Constable, who appoints and governs the force with powers
of summary dismissal and punishment, but who acts in all things
subject to the governing control of the Committee (page 235). In
those towns which undertake to maintain a force distinct from
that of the County the Head Constable is chosen by the town
authorities and the direction of the force is superintended by a
' Watch Committee ; of the Town Council. London, which em-
ploys, it is stated, one-third of the entire police force of the
kingdom, has been given a special, exceptional system of its own.
The city police are governed by a Commissioner and two Assist-
ant Commissioners who are appointed by the Home Secretary and
serve directly under his authority.
The police throughout the country are given something like mili-
tary drill and training, the organization being made as perfect, the training
as thorough, and the discipline as effective as possible. Ex-army officers
are preferred for the office of Chief Constable.
II. LOCAL GOVERNMENT.
Complex Character of Local Government in England.
The subject of local government in England is one of extreme
complexity and, therefore, for my present purpose of brief de-
scription, one of extreme difficulty. So perfectly unsystematic,
indeed, are the provisions of English law in this field that most
of the writers who have undertaken to expound them, even to
English readers, have seemed to derive a certain zest from the
despairful nature of their task, a sort of forlorn -hope enthusi-
asm. The institutions of local government in England have
grown piece by piece as other English institutions have, and not
according to any complete or logical plan of statutory construc-
tion. They are patch-work, not symmetrical net-work, and the
patches are of all sizes, shapes, and materials.
"For almost every new administrative function," complains one
writer on the subject, *' the Legislature has provided a new area contain-
ing a new constituency, who by a new method of election choose candi-
THE GOVERNMENT OF GREAT BRITAIN. 223
dates who satisfy a new qualification, to sit upon a new board, during a
new term, to levy a new rate [tax], and to spend a good deal of the new
revenues in paying new officers and erecting new buildings." l
It has been the habit of English legislators, instead of
perfecting, enlarging, or adapting old machinery, to create all
sorts of new pieces of machinery with little or no regard to their
fitness to be combined with the old or with each other. The
Local Government Act of 1888 represents the first deliberate at-
tempt at systematization ; but even that Act did not effect system,
and itself introduced additional elements of confusion by first
adopting another Act (the Municipal Corporations Act of 1882)
as its basis and then excepting particular provisions of that Act
and itself substituting others in respect, not of all, but of some
of the local administrative bodies meant to be governed by it.
The supplementary legislation of 1894 introduced some further
elements of consistent system; but did not after all very much
simplify existing methods. It would seem as logical a plan of
description as any, therefore, to discuss the older divisions and
instrumentalities first and then treat afterwards of more recent
legislative creations as of modifications, of however haphazard a
kind, of these.
General Characterization. In general terms, then, it
may be said, that throughout almost the whole of English history,
only the very earliest periods excepted, counties and towns have
been the principal units of local government; that the parishes
into which the counties have been time out of mind divided,
though at one time of very great importance as administrative
centres, were in course of time in great part swallowed up by
feudal jurisdictions, and now retain only a certain minor part in
the function, once exclusively their own, of caring for the poor;
and that this ancient framework of counties, towns, and parishes
has, of late years, been extensively overlaid and in large part
obscured : (a) by the combination (1834) of parishes into ' Unions 7
made up quite irrespective of county boundaries and charged not
only with the immemorial parish duty of maintaining the poor but
often with sanitary regulation also and school superintendence,
1 Local Administration (Imperial Parliament Series), by Wm. Rathbone^
Albert Pell, and F. C. Montague, p. 14.
224 THE GOVERNMENT OF GREAT BRITAIN.
and generally with a miscellany of other functions; (6) by the
creation of new districts for the care of highways; (c) by new
varieties of town and semi-town government; and (d) by the sub-
division of the counties (1889) into new administrative 'districts/
charged with general administrative functions. The only dis-
tinction persistent enough to serve as a basis for any classifica-
tion of the areas and functions of the. local administration thus
constructed is the distinction between Rural Administration and
Urban Administration, a distinction now in part destroyed by
the Act of 1888; and of these two divisions of administration
almost the only general remark which it seems safe to venture
is, that Rural Administration has hitherto rested much more
broadly than does Urban on old historical foundations.
The County: its Historical Rootage. For the County,
with its influential Justices of the Peace and its wide adminis-
trative activities, is still the vital centre of rural government in
England; and the Counties are in a sense older than the kingdom
itself. Many of them, as we have seen (page 180), represent in
their areas, though of course no longer in the nature of their
government, separate Saxon kingdoms of the Heptarchy times.
When they were united under a single throne they retained (it
would appear) their one-time king and his descendants in the
elder male line as their eoldormen. They retained also their old
general council, in which eoldorman and bishop presided, though
there was added presently to these presidents of the older order
of things another official, of the new order, the king's officer, the
Sheriff. To this council went up, as was of old the wont, the
priest, the reeve, and four select men from every township,
together with the customary delegates from the 'hundreds/
Of course the Counties no longer retain these antique
forms of government; scarcely a vestige of them now remains.
But the old forms gave way to the forms of the present by no
sudden or violent changes, and some of the organs of county gov-
ernment now in existence could adduce plausible proof of their
descent from the manly, vigorous, self-centred Saxon institutions
of the ancient time.
Early Evolution of the County Organs. In Norman
times the eoldorman's office languished in the shadow of the Sher-
THE GOVERNMENT OF GREAT BRITAIN. 225
iff's great authority. The spiritual and temporal courts were
separated, too, and the bishop withdrew in large measure from
official participation in local political functions. The County
Court became practically the Sheriff's Court; its suitors the free-
holders. Its functions were, however, still considerable: it chose
the officers who assessed the taxes; it was the medium of the
Sheriff's military administration; and it was still the principal
source of justice. But its duties were not slow to decay. As a
Court it was speedily handed over to the king's itinerant justices,
who held their assizes in it and heard all important cases, all
'pleas of the Crown.' Its financial functions became more and
more exclusively the personal functions of the Sheriffs, who were
commonly great barons, who managed in some instances for a
little while to make their office hereditary, and who contrived
oftentimes to line their own pockets with the proceeds of the
taxes: for great barons who were sheriffs were sometimes also
officials of the Exchequer, and as such audited their own accounts.
The local courts at last became merely the instruments of the
Sheriffs and of the royal judges.
Decline of the Sheriff's Powers. It was the overbearing
power of the Sheriffs, thus developed, that led to the great
changes which were to produce the county government of our own
day. The interests alike of the Court and of the people became
enlisted against them. The first step towards displacing them
was taken wlien the royal justices were sent on circuit. Next,
in 1170, under Henry II. 's capable direction, the great baronial
sheriffs were tried for malfeasance in office, and, though influen-
tial enough to escape formal conviction, were not influential
enough to retain their offices. They were dismissed, and re-
placed by Exchequer officials directly dependent upon the Crown.
In 1194, in the next reign, it was arranged that certain 'custo-
dians of pleas of the Crown ' should be elected in the counties, to
the further ousting of the Sheriffs from their old-time judicial
prerogatives. Then came Magna Charta (1215) and forbade all
participation by Sheriffs in the administration of the king's jus-
tice. Finally the tenure of the office of Sheriff, which was by that
time little more than the chief place in the militia of the county
and the chief ministerial office in connection with the admiiiistra-
226 THE GOVERNMENT OF GREAT BRITAIN.
tion of justice, was limited to one year. The pulling down of
the old system was complete; fresh construction had already
become necessary.
Justices of the Peace. The reconstruction was effected
through the appointment of ' Justices of the Peace. ' The expe-
dient of ' custodians of pleas of the Crown ' (custodes placitorum
coronce) elected in County Court, as substitutes for the Sheriff in
the exercise of sundry important functions of local justice, had
proved unsatisfactory. They, too, like the Sheriffs, were curtly
forbidden by Magna Charta to hold any pleas of the Crown ; and
they speedily became only the coroners we know ('crowners '
Shakspere's grave-digger in Hamlet very appropriately calls
them), whose chief function it is to conduct the preliminary in-
vestigation concerning every case of sudden death from an un-
known cause. Better success attended the experiment of Justices
of the Peace. At first 'Conservators ' of the peace merely, these
officers became, by a statute passed in 1360, in the reign of Ed-
ward III., justices also, intrusted with a certain jurisdiction over
criminal cases, to the supplanting of the Sheriff in the last of his
judicial functions, his right, namely, to pass judgment in his
tourn or petty court on police cases, to apply the discipline of
enforced order to small offences against the public peace.
Henceforth, as it turned out, the process of providing
ways of local government was simple enough, as legislators chose
to conduct it. It consisted simply in charging the Justices of
the Peace with the doing of everything that was necessary to be
done. Slowly, piece by piece, their duties and prerogatives were
added to, till the Justices had become immeasurably the most
important functionaries of local government, combining in their
comprehensive official characters almost every judicial and ad-
ministrative power not exercised from London. Not till the
passage of the Local Government Act of 1888 were they relegated
to their older and more characteristic judicial functions, and their
administrative and financial powers transferred to another body,
the newly created County Council.
Functions of Justices of the Peace prior to Recent Reforms.
The Justice of the Peace has been very happily described as having
been under the old system " the state's man of all work." His multifari-
THE GOVERNMENT OF GREAT BRITAIN. 227
ous duties brought him into the service (a) of the Privy Council, under
whose Veterinary Department he participated in the administration of
the Acts relating to contagious cattle diseases ; (6) of the Home Office,
under which he acted in governing the county constabulary, in conduct-
ing the administration of lunatic asylums, and in visiting prisons ; (c) of
the Board of Trade, under whose general supervision he provided and
tested weights and measures, constructed and repaired bridges, and over-
saw highway authorities ; and (d) of the Local Government Board, under
whose superintendence he appointed parish overseers of the poor, exer-
cised, on appeal, a revisory power over the poor-rates, and took a certain
part in sanitary regulation. The Justices, besides, formerly levied the
county tax, or 'rate,' out of which the expenses of county business were
defrayed ; issued licenses for the sale of intoxicating drinks (as they still
do), fjor the storage of gunpowder and petroleum, and for other under-
takings required by law to be licensed ; divided the counties into highway,
polling, and coroner's districts ; issued orders for the removal of paupers
to their legal places of settlement ; fulfilled a thousand and one adminis-
trative functions too various to classify, too subordinate to need enumera-
tion, now that most of them have been transferred to the Councils. The
trial of criminal cases, together with the performance of the various func-
tions attendant upon such a jurisdiction, always constituted, of course,
one of the weightiest duties of their office, and is now its chief and almost
only duty.
"Long ago," laughs Mr. Maitland, speaking before the passage
of the Act of 1888, " long ago lawyers abandoned all hope of describing
the duties of a justice in any methodic fashion, and the alphabet has
become the only possible connecting thread. A Justice must have some-
thing to do with 'Railroads, Rape, Rates, Recognizances, Records, and
Recreation Grounds ' ; with ' Perjury, Petroleum, Piracy, and Play-
houses '; with 'Disorderly Houses, Dissenters, Dogs, and Drainage.'" 1
Character and Repute of the Office of Justice. The office
of Justice of the Peace is representative in the same sense, not an un-
important sense, in which the unreformed parliaments of the early part
of the century were representative at any rate of the county populations.
The Justices are appointed from among the more considerable gentry of
the counties, and represent in a very substantial way the permanent
interests of the predominantly rural communities over whose justice they
preside. An interesting proof of their virtually representative character
appears in the popularity of their office during the greater part of its
history. Amidst all the extensions of the franchise, all the remaking of
representative institutions which this century has witnessed in England,
the Justiceship of the Peace remained all the while practically untouched,
because on all hands greatly respected, until the evident need to introduce
1 Justice and Police, p. 84.
228 THE GOVERNMENT OF GREAT BRITAIN.
system into local government, and the apparent desirability of systematic
ing it in accordance with the whole policy of recent reforms in England
by extending the principle of popular representation by election to county
government, as it had been already extended to administration in the
lesser areas, led to the substitution of County Councils for the Justices
as the county authority in financial and administrative affairs.
The Lord Lieutenant. In the reign of Mary a 'Lord
Lieutenant ' took the place of the Sheriff in the County as head
of the militia, becoming the chief representative of the Crown in
the County, and subsequently the keeper of the county records
(Custos JRotulorum). The Sheriff, since the completion of this
change, has been a merely administrative officer, executing the
judgments of the courts, and presiding over parliamentary elec-
tions. The command of the militia remained with the Lords
Lieutenant until 1871, when it was vested in the Crown,
that is assumed by the central administration. (Compare pages
220-221.)
The Reform of 1888. The reform of local administration
proposed by the ministry of Lord Salisbury, in the spring of 1888,
although not venturing so far as it would be necessary to go to
introduce order and symmetry into a patch-work system, sug-
gested some decided steps in the direction of simplification and
coordination. The confusions of the existing arrangements were
many and most serious. England was divided into counties,
boroughs, urban sanitary districts, rural sanitary districts, poor-
law parishes, poor-law unions, highway parishes, and school dis-
tricts; and these areas had been superimposed upon one another
with an astonishing disregard of consistent system, without
either geographical or administrative coordination. The confu-
sions to be remedied, therefore, consisted (a) of the overlapping
of the various areas of local government, the smaller areas not
being in all cases subdivisions of the larger, but defined almost
wholly without regard to the boundaries of any other areas; (6)
of a consequent lack of coordination and subordination among
local authorities, fruitful of the waste of money and the loss of
efficiency always resulting from confusions and duplications of
organization; (c) of varieties of time, method, and franchise in
the choice of local officials; and (d) of an infinite complexity
THE G0\ KKNMKNT OF GREAT BRITAIN. 229
in the arrangements regarding local taxation, the sums needed
for the various purposes of local government (for the poor, for
example, for the repair of highways, for county outlays, etc.)
being separately assessed and separately collected, at great ex-
pense and at the cost of a great deal of vexation to the tax-
payer.
The ministry at first proposed to remedy this confusion,
at least in part, by largely centering administration, outside the
greater towns, in two areas, the County and the District. The
system of poor-relief, through parishes and unions, was to be left
untouched, but a beginning was to be made in unification by
making the Counties and Districts the controlling organs of local
government; provision was to be made for extensive readjust-
ments of boundaries so that the smaller rural areas might be
brought into proper relation and subordination to the larger by
making them in all cases at least subdivisions of counties ; both
County and District were to have representative councils pre-
sumably fitted ultimately to assume the whole taxing function;
and the franchise by which these bodies were to be elected was
to be assimilated to the simplest and broadest used in local and
parliamentary elections.
Only a portion of this reform, however, it turned out,
could be got through Parliament. The provisions relating to the
formation of Districts were left out, and only the county was
reorganized. The larger boroughs were given county privileges;
the smaller were brought into new and closer relations with the
reconstructed county governments. London, too, was given a
county organization. The integration of the smaller areas of
rural administration with the new county system was not accom-
plished till 1894.
Administrative Counties and County Boroughs. The Act,
as passed, coordinated Counties with what were thenceforth to
be called 'county boroughs.' Every borough of not less than
fifty thousand inhabitants at the time the Act was passed, or
which was, before the passage of the Act, treated as a county (in all,
sixty-one boroughs), was constituted a 'county borough,' and was
formally put alongside the county in rank and privileges. This
did not mean that these boroughs were to be given a county or-
230 THE GOVERNMENT OF GREAT BRITAE*.
ganization. Paradoxically enough, it meant just the opposite,
that the counties were to be given an organization closely resem-
bling that already possessed by the boroughs. The nomen-
clature of the Act would be more correct, though possibly less
convenient, had it called the counties 'borough counties ' instead
of calling some of the boroughs 'county boroughs.' The measure
has been very appropriately described as an Act to apply the
Municipal Corporations Act of 1882, whose main provisions date
back as far as 1835 (page 240), to county government, with cer-
tain relatively unimportant modifications.
The counties designated by the Act are dubbed ' administrative
counties,' because they are not in all cases the historical counties of the
map. In several instances counties are separated into parts for the pur-
poses of the reorganization. Thus the East Riding of Yorkshire consti-
tutes one 'administrative county,' the North Riding another, and the
West Riding a third ; Suffolk and Sussex also have each an East and
West division ; Lincoln falls apart into three administrative counties, etc.
All boroughs of less than 50,000 inhabitants not treated as counties are more
or less incorporated with the counties in which they lie. (See page 242.)
The County Councils: their Constitution. In pursuance
of the purpose of assimilating county to borough organization,
the counties are given representative governing assemblies com-
posed of councillors and aldermen, presided over by a chairman
whose position and functions reproduce those of the borough
mayors, and possessing as their outfit of powers almost all the
miscellany of administrative functions hitherto belonging to the
Justices of the Peace. There is not, it should be observed, a
Council and a Board of Aldermen, as in American cities, but a
single body known as the Council and composed of two classes of
members, the one class known as Aldermen, the other as Coun-
cillors. These two classes differ from each other, not in power
or in function, but only in number, term, and mode of election.
The Councillors are directly elected by the qualified voters of the
County and hold office for a term of three years; the Aldermen
are one-third as many as the Councillors in number, are elected
by the Councillors, either from their own number or from the
qualified voters outside, and hold office for six years, one-half of
their number, however, retiring every three years, in rotation.
THE GOVERNMENT OF GREAT BRITAIN. 231
This single-chambered Council of Aldermen and Councillors elects
its own chairman, to serve for one year, and pays him such com-
pensation as it deems sufficient. During his year of service the
chairman exercises the usual presidential, but no independent
executive, powers, and is authorized to act as a Justice of the
Peace, along with the rest of the ' Commission ' of the County.
Any one may be elected a councillor who is entitled to vote in parlia-
mentary elections and is the owner of property held by freehold, copyhold,
leasehold or other tenure within the area ; and in the counties, though
not in the boroughs, peers owning property in the county and "clerks in
holy orders and other ministers of religion " may be chosen to the Council.
The number of councillors and the number of aldermen in each
County Council (for the latter number is always one-third of the former)
was fixed in the first instance by an order of the Local Government Board,
and is in some cases very large. Thus Lancashire has a Council (alder-
men, of course, included) of 140 members, the West Riding of Yorkshire
a council of 120, Devon a council of 104. Rutland, whose Council is the
smallest, has 28. The average is probably about 75. For the election of
councillors the county, including such boroughs as are not ' county bor-
oughs,' is divided into electoral districts, one councillor being chosen from
each district. The number of these districts having been determined by
the order of the Local Government Board, their area and disposition were
fixed in the first instance by Quarter Sessions, or, within the non-county
boroughs needing division, by the borough Council, due regard being had
to relative population and to a fair division of representation between rural
and urban populations. The number of councillors and the boundaries
of electoral districts may be changed by order of the Local Government
Board upon the recommendation of the Council of a borough or county.
Local Government Franchise. In England, Wales, and
Ireland the franchise for all local government areas has, by the
Representation of the People Act of 1918, been extended to all men
and women of full age not subject to any legal incapacity who are
jointly or severally occupiers as owners or tenants of any land or
premises in a local government area, if they have so occupied for
six months ending either on the 15th of January or the 15th of
July. Tenant includes lodgers in unfurnished quarters. In
Scotland the local government franchise is enjoyed by men and
women of full age who are owners or occupiers of lands and
heritages of 10 yearly value ; or inhabitant occupiers of dwelling
232 THE GOVERNMENT OF GREAT BRITAIN.
houses ; or occupiers of unfurnished lodgings of the yearly value
of 10 ; or service occupiers. Everywhere in the United King-
dom the wife of a qualified local government elector enjoys the
franchise if she is thirty years old.
Powers of the County Councils. The Council of each
County is a body corporate and as such may have a common seal,
hold property, make by-laws, etc. Its by-laws, however, unless
they concern nuisances, are subject to approval by the Secretary
of State [the Home Secretary], and may be annulled by an order
in Council.
(1) The Council holds and administers all county property, and
may purchase or lease lands or buildings for county uses ;
(2) With it rests the duty of maintaining, managing, and, when
necessary, enlarging, the pauper lunatic asylums of the county,
and of establishing and maintaining, or contributing to, reforma-
tory and industrial schools ; by the Education Act of 1902 it was
given extensive authority over education.
(3) It is charged with maintaining county bridges, and all main
roads in every part not specially reserved by urban authorities for
their own management because lying within their own limits ;
and it may declare any road a main road which seems to serve as
such, and which has been put in thorough repair, before being
accepted by the county, by the local highway authorities ;
(4) It administers the statutes affecting the contagious diseases
of animals, destructive insects, fish preservation, weights and
measures, etc.;
(5) It appoints, pays, and may remove the county Treasurer,
the county coroner, the public surveyor, the county analyst, and
all other officers paid out of the county rates, except the clerk
of the Peace and the clerks of the Justices, including the medi-
cal health officers, though these latter functionaries report, not to
the Council (the Council receives only a copy of their report), but
to the Local Government Board, and the only power of the Council
in the premises is to address to the Board, independently and of
their own motion, representations as to the enforcement of the
Public Health Acts where such representations seem necessary ;
(6) It determines the fees of the coroner and controls the
division of the county into coroners' districts;
THE GOVKUN.MKNT OF GREAT BRITAIN. 33
(7) It divides the county into polling districts also for parlia-
mentary elections, appoints voting places, and supervises the
registration of voters ;
(8) It sees to the registering of places of worship, of the rules
of scientific societies, of charitable gifts, etc.
It is obviously impossible to classify or make any generalized
statement of this miscellany of powers : they must be enumerated or not
stated at all. They are for the most part, though not altogether, the
administrative powers formerly intrusted to the Justices of the Peace.
The Licensing Function, being semi-judicial, is left in most
cases with the Justices of the Peace ; but the County Council is
assigned the granting of licenses to music and dancing halls, to
houses which are to be devoted to the public performance of stage
plays, and for the keeping of explosives.
Oddly enough, the County Council is, by another section of the
Act of 1888, authorized to delegate its powers of licensing in the case of
playhouses and in the case of explosives back to the Justices again, acting
in petty sessions. The same section also permits a similar delegation to the
Justices of the powers exercised by the Council under the Act touching
contagious cattle diseases.
The Financial Powers of the Council are extensive and
important. The Council takes the place of the Justices in deter-
mining, assessing, and levying the county, police, and hundred
rates, in disbursing the funds so raised, and in preparing or revis-
ing the basis or standard for the county rates ; though in this last
matter it acts subject to appeal to Quarter Sessions. It may
borrow money, "on the security of the county fund," for the
purpose of consolidating the county debt, purchasing property for
the county, or undertaking permanent public works, provided it
first obtain the consent of the Local Government Board to the
raising of the loan. That Board gives or withholds its consent
only after a local inquiry, and, in case it assents, fixes the period
within which the loan must be repaid, being itself limited in this
last particular by a provision of law that the period must never
exceed thirty years.
If the debt of the county already exceed ten per cent, of the
annual ratable value of the ratable property of the county, or if the pro-
posed loan would raise it above that amount, a loan can be sanctioned
234 THE GOVERNMENT OF GREAT BRITAIN.
only by a provisional order of the Board, an order, that is, which
becomes valid only upon receiving the formal sanction of Parliament also,
given by public Act. A county may issue stock, under certain limita-
tions, if the consent of the Local Government Board be obtained.
Additional Powers. The Act of 1888 provides that any other
powers which have been conferred upon the authorities of particular locali-
ties by special Act, and which are similar in character to those already
vested in the County Councils, may be transferred to the proper County
Councils by provisional order of the Local Government Board ; and also
that a similar provisional order of that Board may confer upon a County
Council any powers, arising within the County, which are now exercised
by the Privy Council, a Secretary of State, the Board of Trade, the Local
Government Board itself, or any other government department, provided
they be powers conferred by statute and the consent of the department
concerned be first secured.
The County Budget. At the beginning of every local
financial year (April 1st) an estimate of the receipts and expendi-
tures of the year is submitted to the Council, and upon the basis
of this, the Council makes estimate of the sums to be needed,
and fixes the rates accordingly. The Council's estimate is made
for two six-month periods, and is subject to revision for the
second six-month period, provided the experience of the first
prove it necessary either to increase or decrease the amounts to
be raised.
Returns of the actual receipts and expenditures of each
financial year are also made to the Local Government Board, in
such form and with such particulars as the Board directs ; and
full abstracts of these returns are annually laid before both
Houses of Parliament. The county accounts are, moreover,
periodically audited by district auditors appointed by the Local
Government Board. The accounts of the county Treasurer are
audited by the Council.
Local rates are assessed exclusively upon real estate, and,
until the passage of the Local Government Act of 1888, it was
the habit of Parliament to make annual ' grants in aid of the
rates' from the national purse, with the idea of paying out of
moneys raised largely upon personal property some part of the
expense of local administration. The Act of 1888 substitutes
another arrangement. It provides that all moneys collected from
THE GOVERNMENT OF GREAT BRITAIN. 235
certain licenses (a long list of them, from liquor licenses to licenses
for male servants and guns), together with four-fifths of one-half
of the proceeds of the probate duty, shall be distributed among
the counties from the imperial treasury, under the direction of
the Local Government Board, for the purpose of defraying cer-
tain specified, county expenses, notably for the education of pau-
pers and the support of pauper lunatics.
The Police Powers, long exercised by the Justices of the
Peace, are now exercised by a joint committee of Quarter Ses-
sions and the County Council. This committee is made up, in
equal parts, of Justices and members of the Council; elects its
own chairman, if necessary (because of a tie vote) by lot; and
acts, when appointed, not as exercising delegated authority, but
as an independent body. The term of the committeemen is, how-
ever, determined by the bodies which choose them.
The Parish. Parishes there have been in England ever
since the Christian church was established there ; but the Parish
which now figures in English local government inherits nothing
but its name intact from those first years of the national history.
The church, in its first work of organization, used the smallest
units of the state for the smallest divisions of its own system :
it made the township its parish; and presently the priest was
always to be seen going up with the reeve and the four men of the
township to the hundred and the county courts. Only where the
population was most numerous did it prove necessary to make
the parish smaller than the township; only where it was least
numerous did it seem expedient to make the parish larger than
the township. Generally the two were geographically coin-
cident. During much the greater part of English history, too,
citizenship and church membership were inseparable. The
vestry, therefore, which was the assembly of church-mem-
bers which elected the church-wardens and regulated the
temporalities of the local church, was exactly the same body
of persons that, when not acting upon church affairs, consti-
tuted the township meeting. It was the village moot 'in its
ecclesiastical aspect.' And when the township privileges were,
by feudalization, swallowed up in the manorial rights of the
baronage, the vestry was all that remained of the old organiza-
236 THE GOVERNMENT OF GREAT BRITAIN.
tion of self-government; for the court, or civil assembly, of the
township was superseded by the baron's manorial court. But
the church was not absorbed ; the vestry remained, and whatever
scraps of civil function escaped the too inclusive sweep of the
grants of jurisdiction to the barons the people were fain to enjoy
as vestrymen.
The Poor-law Parish. It was in this way that it fell
out that the township, when acting in matters strictly non-
ecclesiastical, came to call itself the parish, and that it became
necessary to distinguish the 'civil parish ' from the 'ecclesiasti-
cal parish. ' The vestry came at last to elect, not church-wardens
only, but way-wardens also, and assessors ; and in the sixteenth
century (1535, reign of Henry VIII.) the church-wardens were
charged with the relief of the poor. We are thus brought within
easy sight of the parish of to-day. The legislation of the present
century, which has been busy about so many things, has not
failed to readjust the parish and in most cases, as altered by
statute to suit the conveniences of political administration, " the
modern civil parish coincides neither with the ancient civil par-
ish, nor with the ecclesiastical parish " ; but old parochial asso-
ciations still survive, and many of the ancient parochial duties
connected with the support of the poor. Until 1894 the parochial
authority was still the ancient vestry, reduced almost to a mini-
mum of powers, indeed, but not yet taken from its seat of con-
trol. In 1894 Parliament completed the reorganization of local
government begun in 1888 : vestries were relegated, at any rate
in all rural districts, to the exercise of ecclesiastical functions
alone; and the parishes, with a new democratic organization,
became once more the vital units of local self-government.
The Reform of 1894. All the legislation attempted in
England during the present century with regard to local govern-
ment, whether its object was first construction or reform, has
carefully observed the difference between 'rural* and 'urban'
areas; and the law of 1894 is no exception to the rule; The
parishes which lie within the limits of boroughs or within the
limits of those more thickly settled areas which, though without
borough organization, are yet distinguished by the law as 'urban '
in their means of local government (page 239), are not directly
THE GOVERNMENT OF GREAT BRITAIN. 237
affected by the Act. But the organization and action of the rural
parishes are revolutionized. They are made self-governing com-
munes, with a very notable list of powers and privileges.
Every rural parish, great or small, has now its primary
assembly, its parish meeting, of which every person of legal age
in the parish, man or woman, is a member who is a qualified local
government elector. In parishes which have less than three
hundred inhabitants the parish meeting is the actual governing
body, unless the County Council sees fit, with the consent of the
parish electors, to set up a parish council ; but in parishes which
have a population of more than three hundred a parish council of
from five to fifteen members, the County Council determines
the number in each case, is given charge of affairs, and the
parish meeting exercises only the functions of electing councillors,
consenting to the larger sorts of loans, and voting upon the adop-
tion and operation of certain statutes, known as the ' adoptive
acts,' which Parliament has left it to them to adopt and act upon
or not as they please. These are the statutes with regard to
street lighting and watching, the establishment of baths and
wash-houses, the undertaking of certain public improvements,
the foundation of public libraries, and like matters. Women,
whether married or single, are eligible for election to the parish
councils, and even to the chairmanship of those bodies." The term
of a, parish council is three years.
Parishes which are governed by a parish meeting only, without a
council, usually appoint one or more executive committees for the actual
work of administration ; and, if they accept the ' adoptive ' acts men-
tioned in the last paragraph, they elect commissioners to carry them into
execution ; but in very many cases the County Councils have given these
small parishes councils, and where there are councils they are the execu-
tive agents of the parish in practically every sort of business.
The chairman of a parish council is ex officio a Justice of the Peace
for the county in which he resides ; and this feature of the law has, ID
view of the very large number of parishes in every county, radically
changed the character of the commission of the peace. Any one maj
be a parish councillor, and any one may be a chairman of a pari$J\
238 THE GOVERNMENT OF GREAT BRITAIN.
council who can be a member of a parish meeting (page 237), and a seat
on the county bench of Justices is consequently no longer by any means
the exclusive possession of country gentlemen.
The parish councillors are elected in parish meeting, by a mere
show of hands, unless a formal poll be demanded. No elector, what-
ever his property or interest, can cast more than one vote in any one
parish ; but those who have the requisite property qualification in more
than one parish can be registered, and can vote in every parish in which
they can prove the possession of the requisite amount of property. Mar-
ried women cannot qualify, however, upon the same property upon which
their husbands have qualified.
Parochial Powers. The parish councils (or the parish
meetings, as the case may be) exercise a miscellany of powers
variously distributed, until 1894, amongst vestries, church-war-
dens, overseers of the poor, and commissioners of various sorts
and functions. A parish council is a body corporate, and as
such owns and manages the property of the parish. It may ac-
quire property by gift or purchase, not merely for the erection
of parochial buildings and other directly parochial uses, but also
for the establishment and maintenance of recreation grounds, and
for the purpose of making allotments at a fixed rental to such
residents of the parish as may wish to acquire holdings. It has
control of the water supply of the parish, and is the local sani-
tary authority; it can acquire, maintain, or change public rights
of way; it maintains the highways and the enclosed burial
grounds of the parish ; and it provides for the prevention and ex-
tinguishment of fires. It fixes the local assessment and tax rate,
on appeal ; prepares the parish register ; and appoints the over-
seers and assistant overseers of the. poor, who assess the poor rates
and make out the jury lists and the lists of parliamentary and
county voters. The right to appoint the overseers was taken
over from the Justices of the Peace.
Supervision. The County Councils are given supervisory charge
of the new system of parish government. They group or divide the par-
ishes for action under the law, in their discretion ; they may create or dis-
solve parish councils in the smaller parishes ; they determine the number
of members in e&chparish council; supervise the action of the parish coun-
cils in the matter of loans and land allotments ; regulate in some degree
the custody and preservation of the parish books and documents ; and in
many other ways stand superintendent over their exercise of powers.
THE GOVERNMENT OF GREAT BSITAIN. 239
Urban parishes are for the most part unaffected by the Act of
1894, and still act in civil as well as in church matters through their ves-
tries, as* of old.
The Rural District. Before 1894 the rural parishes
were grouped in poor-law Unions, governed, in sundry other
matters as well as in the care of the poor, by a Board of Guar-
dians. Various Highway Boards, too, Burial Boards, Bath Com-
missioners, Library Commissioners, and Public Improvement
Boards, acted for the parishes singly or in groups in the several
special matters committed to their direction. The Act of 1894
substituted ' Rural Districts ' for the Unions, gave to each Dis-
trict an administrative Council, and united in the hands of that
Council the various local functions hitherto dispersed and sepa-
rated. The District Council is elected for a term of three years
(as the Board of Guardians was), and is charged with the general
oversight and conduct of all business affecting the common inter-
ests of the parishes embraced within this District in matters of
local government. It takes the place of the old Board of Guar-
dians in the administration of the poor law, and is the general
highway, sanitary, and administrative body of the District. Its
members are elected by the parishes in parish meeting, and any
one may be chosen who is a parochial elector in one of the par-
ishes of the District, or who has resided in the District for a
twelvemonth preceding the election. The chairman of a District
Council, like the chairman of a parish council, is ex officio a Jus-
tice of the Peace for the county.
The Urban District. The urban parishes, outside incor-
porated boroughs, are also grouped into Districts, each with its
administrative Council, and to these Councils are assigned much
the same powers as those which are exercised by the Councils of
the rural Districts, except that they do not constitute the poor-
law authority of the District. That is still, in the urban Dis-
tricts, a distinct and separate Board of Guardians, selected for the
purpose. The Local Government Board may, in its discretion,
confer upon Urban District Councils, by order, any or all of
the powers of rural parish councils, however, and so render
them the most important administrative authorities for then
area.
240 THE GOVERNMENT OF GREAT BRITAIN.
Women are eligible to serve upon District Councils as well as
upon parish councils, and are eligible also to be chosen chairmen ; though
a woman, if chairman, is not entitled to act as a Justice of the* Peace.
The County Councils have a certain very considerable supervisory
power over both Rural and Urban District Councils, fixing or altering the
number of Councillors, hearing appeals from the parishes against their
action or default, etc.
Municipal Corporations. The constitution of those Eng-
lish towns which have fully developed municipal organizations
rests upon the Municipal Corporations Act of 1835 and its vari-
ous amendments, as codified in an Act of 1882 of the same name.
This latter Act is, in its turn, in some degree altered by the Local
Government Act of 1888. If the inhabitants of any place wish
to have it incorporated as a municipality, they must address a
petition to that effect to the Privy Council. Notice of such a
petition must be sent to the Council of the county in which the
place is situate and also to the Local Government Board. The
Privy Council will appoint a committee to consider the petition,
who will visit the place from which the petition comes and there
see and hear for themselves the arguments pro and con. All
representations made upon the subject by either the County
Council or the Local Government Board must also be considered.
Generally there is considerable local opposition either to such a
petition being offered or to its being granted when offered ; for the govern-
ment of the place is usually already in the hands of numerous local author-
ities of one kind or another who do not relish the idea of being extin-
guished ; and there are always, besides, persons who do not care to take
part in bearing the additional expenses of a more elaborate organization.
If the petition be granted, the Privy Council issues a
charter of incorporation to the place, arranging for the extinction
of competing local authorities, setting the limits of the new
municipality, determining the number of its councillors, and
often even marking out its division into wards.
Once incorporated, the town takes its constitution ready-
made from the Act under whose sanction it petitioned for incor-
poration. That Act provides that the borough shall be governed
by a mayor, aldermen, and councillors. The councillors hold
office for a term of three years, one-third of their number going
THE GOVERNMENT OF GREAT BRITAIN. 241
out, in rotation, every year. There are always added to the
councillors one-third as many aldermen elected by the coun-
cillors for a term of six years, one-half of their number retir-
ing from office every three years, by rotation. The mayor is
elected by the Council, by the aldermen and councillors,
that is, who constitute but a single body, holds office for
one year only, and, unlike the councillors and aldermen, receives
a salary.
Judicial Status of Boroughs. Whatever powers are
not specifically granted to a municipality remain with previously
constituted authorities. The Municipal Corporations Act does
not provide for the exercise of judicial powers by the authorities
of a borough by virtue of their separate incorporation. Unless
additional special provision is made to the contrary, a munici-
pality remains, for the purposes of justice, a part of the county.
By petition, however, it may obtain an additional ' commission of
the peace ' for itself, or even an independent Court of Quarter
Sessions.
Either, then, (a) a borough contents itself in judicial matters
with the jurisdiction of the county Justices ; or (6) it obtains
the appointment of additional Justices of its own, who are, how-
ever, strictly, members of the county commission and can hold
no separate Court of Quarter Sessions ; or (c) it acquires the
privilege of having Quarter Sessions of its own.
In the latter case a professional lawyer is appointed by the
Crown, under the title of Recorder, to whom is given the power
of two Justices acting together and the exclusive right to hold
Quarter Sessions, who is made, as it were, a multiple Justice of
the Peace.
Boroughs which have a separate commission of the peace are
known as " counties of towns " ; those which have independent
Quarter Sessions as " quarter sessions boroughs." Every mayor
is ex officio Justice of the Peace, and continues to enjoy that office
for one year after the expiration of his term as mayor. This is
true even when his borough has no separate commission of the
peace,
242 THE GOVERNMENT OF GREAT BRITAIN.
County Boroughs. In every borough the mayor, alder*
men, and councillors, who sit together as a single body, constitute
the 'Council' of the corporation; and the powers of the Council,
if the borough be a 'County Borough/ are very broad indeed.
Since the passage of the Local Government Act of 1888, it is
necessary to distinguish, in the matter of powers, several classes
of boroughs. 'County Boroughs ' stand apart from the counties
in which they lie, for all purposes of local government, as com-
pletely as the several counties stand apart from each other. Ex-
cept in the single matter of the management of their police force,
they may not even arrange with the county authorities for merg-
ing borough with county affairs. Their Councils may be said, in
general terms, to have, within the limits of the borough, all the
powers once belonging to the county Justices except those strictly
judicial in their nature, all the sanitary powers of urban sanitary
authorities, and powers of school administration, all regulative
and administrative functions except those of the poor-law Unions
into which urban parishes are still grouped. In the case of these
' county boroughs/ all powers conferred upon counties are powers
conferred upon them also.
If the Council of any borough or of a county make representation
to the Local Government Board that it is desirable to constitute a borough
which has come to have a population of not less than fifty thousand a
' county borough,' the Board shall, unless there be some special reason to
the contrary, hold a local inquiry and provide for the gift of county status
to the borough or not as they think best. If they order the borough con-
stituted a 'county borough,' the order is provisional merely, and must be
confirmed by Parliament.
Other Boroughs. Boroughs which have not been put in
the same rank with counties and given full privileges of self-ad-
ministration as 'county boroughs,' fall into three classes in respect
of their governmental relations to the counties in which they lie :
(1) Those which have their own Quarter Sessions and whose
population is ten thousand or more. These constitute for several
purposes of local government parts of the counties in which they
are situate. The main roads which pass through them are cared
for by the county authorities, unless within twelve months after
the date at which the Act of 1888 went into operation (or after
THE GOVERNMENT OF GREAT BRITAIN. 243
the date at which any road was declared a 'main road ') the
urban authorities specially reserved the right to maintain them
separately. They contribute to the county funds for the pay-
ment of the costs of the assizes and judicial sessions held in them.
They send members, too, to the County Council. Their repre-
sentatives, however, cannot vote in the County Council on ques-
tions affecting expenditures to which the parishes of the borough
do not contribute by assessment to the county rates. Beyond
the few matters thus mentioned, they are as independent and
as self-sufficient in their organization and powers as the 'county
boroughs ' themselves.
(2) Boroughs which have separate Quarter Sessions but whose
population numbers less than ten thousand. These are made by
the Act of 1888 to yield to the Councils of the counties in which
they lie the powers once exercised by their own Councils or Jus-
tices in respect of the maintenance and management of pauper
lunatic asylums, their control of coroners, their appointment of
analysts, their part in the maintenance and management of re-
formatory and industrial schools, and in the administration of the
Acts relating to fish conservation, explosives, and highways and
locomotives.
(3) Boroughs which have not a separate court of Quarter Ses-
sions and whose population is under ten thousand are for all
police purposes parts of the counties in which they are situate,
and have, since 1888, been, for all save a few of the more exclu-
sively local matters of self-direction, merged in the counties, in
whose Councils they are, of course, like all other parts of the
counties, represented.
Every borough has its own paid Clerk and Treasurer, who are
appointed by the Council and hold office during its pleasure, besides
"such other officers as have usually been appointed in the borough, or as
the Council think necessary." If a borough have its own Quarter Ses-
sions, it has also, as incident to that Court, its own Clerk of the Peace and
its own Coroner.
The Financial Powers of a municipal Council are in all cases
strictly limited as regards the borrowing of money. "In each instance,
when a loan is required by a municipal corporation, the controlling au-
thority [the Local Government Board] is to be applied to for its consent.
A local inquiry, after due notice, is then held, and if the loan is approved,
244 THE GOVERNMENT OF GREAT BRITAIN.
a term of years over which the repayment is to extend is fixed by the
central authority." l The same powers are exercised by the Local Gov-
ernment Board with regard to the larger loans of parish and district Coun-
cils also.
"The accounts of most local authorities are now audited by the
Local Government Board, but boroughs are exempt from this jurisdiction.
The audit is conducted by three borough auditors, two elected by the
burgesses, called elective auditors, one appointed by the mayor, called the
mayor's auditor." 2
Boroughs and Urban Districts. The difference between
boroughs and urban districts is not at all a difference of size,
boroughs range from a few hundred to half a million inhabitants
and urban districts" from a few hundred to a hundred thousand ; 2
it has hitherto been a difference, apparently, of local preference,
rather, and of legal convenience. The boundaries of a borough,
when once fixed by a charter of incorporation, could, until the
passage of the Act of 1888, be altered only by a special Act of
Parliament : it was much easier to apply to the Local Govern-
ment Board, which could of its own authority create what was
then known as an Urban Sanitary District. A S towns already
incorporated grew, therefore, the added portions became inde-
pendently incorporated as Urban Sanitary Districts, and thus
the town was pieced out. One writer was able to say, in 1882,
"Nowhere, from one end of England to the other, do we find
an instance (Nottingham alone excepted) of a large borough
which is municipally self-contained, and consequently self-gov-
erning." 3
In the Local Government Act of 1888 it was provided that the
boundaries of a borough might be altered by provisional order of the
Local Government Board, upon the address of the borough Council.
This order, being provisional, must receive the sanction of Parliament,
and is made only after local inquiry. The proceedings, therefore, for
changing the boundaries of a borough were still left much more elaborate
and difficult than the free action of the Local Government Board with
reference to urban districts.
Central Control of Urban Authorities. Full municipal cor-
porations look partly (in the matter of sanitary regulation, for example,)
iBunce, Golden Club Essays, 1882, p. 283; title, "Municipal Boroughs
wad Urban Districts." 2 Chalmers, p. 87. 8 Bunce, p. 298.
THE GOVERNMENT OF GREAT BRITAIN. 245
to the Local Government Board as a central authority exercising powers
of supervision, partly (in the management of the constabulary, for in-
stance,) to the Home Office, and partly (if seaports) to the Board of
Trade. Urban Districts, however, have but a single central authority set
over them, the Local Government Board.
London. The metropolis was, until the passage of the
Act of 1888, the unsolved problem, the unregenerate monster,
of local government in England. The vast aggregation of houses
and population known by the world as ' London/ spreading its
unwieldy bulk over parts of the three counties of Middlesex,
Surrey, and Kent, consisted of the City of London, a small cor-
poration at its centre confined within almost forgotten boundaries,
still possessing and belligerently defending mediaeval privileges
and following mediaeval types of organization and procedure, and,
round about this ancient City as a nucleus, a congeries of hundreds
of old parishes and new urban districts made from time to time
to meet the needs of newly grown portions of the inorganic mass.
This heterogeneous body of mediaeval trade guilds, vestries, and
sanitary authorities had been in some sort bound together since
1855 by a Metropolitan Board of Works which exercised certain
powers over the whole area outside the * City.'
The Local Government Act of 1888 made of the metrop-
olis, not a 'county borough/ but a county, the 'Administra-
tive County of London ' - with its own Lord Lieutenant, Sheriff,
and Commission of the Peace, as well as its own Council. Its
numerous parishes were left to act, as formerly, under their sev-
eral vestries ; and the Act of 1894 gave to those vestries the
same constitution and substantially the same powers that are
elsewhere in the kingdom possessed by the Urban District Coun-
cils (page 239). The London Government Act of 1899 still further
consolidated and coordinated the administration by creating
twenty-eight metropolitan boroughs, each with its own mayor,
aldermen, and councillors, with specially defined powers, which,
in the matter of finance, are considerably limited. The 'City 7
is still left to occupy its separate place in the great metropolitan
county as a quarter sessions borough not enjoying separate county
privileges, with some limitations special to its case.
246 THE GOVERNMENT OF GREAT BRITAIN.
The number of councillors in the London County Council is
fixed at twice the number of members returned to Parliament at
the time of the passage of the Act of 1888 by the various con-
stituencies of the metropolitan area. The councillors, thus, number
118. The Council of the Metropolis is put upon an exceptional
footing with regard to its quota of aldermen. The aldermen are
to be one-sixth, instead of one-third, as many as the councillors.
The total membership of the London Council is, therefore, 137.
Central Control. The plan of central control in Eng-
land is manifestly quite indigenous. The central government is
not present in local administration in the person of any superin-
tending official like the French Prefect (pages 167, 168, 170), or
any dominant board like the ' Administration ' of the Prussian
Government District (pages 480-481). There has, indeed, been
developing in England a marked tendency to bring local author-
ities more and more under the supervision in important matters
of the government departments in London, a tendency which
has led to the concentration, since 1871, in the hands of the Local
Government Board of various powers once scattered among such
authorities as the Home Office, the Privy Council, etc. But this
tendency, which is towards control, has not been towards cen-
tralization. It has, so far, not gone beyond making the ad-
vice of the central authority always accessible by local officers
or bodies, and its consent necessary to certain classes of local
undertakings. The central government has not itself often
assumed powers of origination or initiative in local affairs. Even
where the Local Government Board is given completest power
the choice of the officers who are to put its regulations into force
is generally left with the ratepayers in the districts concerned.
Thus the authority of the Board over the Guardians of the Poor
is complete ; but the Guardians are elected in the parishes. Its
authority in sanitary matters makes its directions imperative as
to the execution of the Public Health Acts ; but in many cases
the local health officers are appointees of the local bodies. The
by-laws enacted by the county authorities, unless they affect
nuisances, may be annulled by an order in Council ; in the matter
of borrowing money, too, local authorities are narrowly bound by
the action of the Local Government Board ; and its assent to
THE GOVERNMENT OF GREAT BRITAIN. 247
propositions to raise loans is sejdom given without very thorough
inquiry and without good reason shown. But all these are func-
tions of system, so to say, rather than of centralization. Coordi-
nation in methods of poor-relief is sought, that relief being given
under national statutes, and the cooperation of central with local
judgment in financial matters, local debts constituting a very
proper subdivision of national finance. But the spirit in which
the control is exercised, as well as the absence of permanent
officials representing the central authority in local government,
and even of permanent instrumentalities for the administration of
financial advice, bespeak a system of cooperation and advice rather
than of centralization.
Local Government in Scotland. An Act of 1889 ex-
tended to Scotland a system of county government substantially
the same as that created for England by the Act of 1888 ; and the
Act of 1894 put parish councils like those of England into the
place formerly held by parochial Boards, and erected a separate
Local Government Board for Scotland, of which the Secretary for
Scotland was made President.
THE GOVERNMENT OF THE ENGLISH COLONIES.
English Colonial Expansion. Doubtless the most sig-
nificant and momentous fact of modern history is the wide diffu-
sion of the English race, the sweep of its commerce, the dominance
of its institutions, its imperial control of the destinies of half
the globe. When, by reason of the closing of the old doors of
the East by the Turk and the consequent turning about of Europe
to face the Atlantic instead of the Mediterranean, England was
put at the front instead of at the back of the nations of the Con-
tinent, a profound revolution was prepared in the politics of the
world. England soon defeated Holland and Spain and Portugal,
her rivals for the control of the Atlantic and its new continents ;
and steadily, step by step, she has taken possession of almost
every new land worth the having in whatever quarter of the
globe. With her conquests and her settlers have "gone also her
institutions, until now her people everywhere stand for types of
free men, her institutions for models of free government
248 THE GOVERNMENT OF GREAT BRITAIN.
English Colonial Policy. It was only by slow degrees,
however, that England learned the right policy towards her colo-
nies. She began, as Borne did, by regarding her possessions as
estates, to be farmed for her own selfish benefit. Nothing less
than the loss of America sufficed to teach her how short-sighted
such a policy was. But, unlike Rome, she was fortunate enough
to lose the best part of her possessions without being herself
overwhelmed ; and even after the loss of America time and op-
portunity offered for the building up of another colonial empire
scarcely less great.
Towards her present colonies her policy is most liberal ; for
the England of the present day is a very different England from
that which drove America into rebellion. Even the notable
lesson emphasized in the loss of America would not have sufficed
to bring England to her senses touching her true interests in the
colonies, had she not herself speedily thereafter been brought by
other causes to a change of heart. The movements of opinion
which stirred her to religious revival, to prison reform, to en-
lightened charity, to the reform of parliamentary representation,
to a general social and political regeneration, stirred her also, no
doubt, to vouchsafe to her colonists full rights as Englishmen.
Lord Durham in Canada. The turning point was
reached in 1837, when a rebellion broke out in Lower Canada.
Lower Canada was French Canada. Its government, like the
governments of the American states south of it in their own
colonial times, consisted of an Executive, a Legislative Council
nominated by the Crown, and a legislative chamber elected by
the colonists. The colonists had been exasperated by just such
arbitrariness and lack of sympathy on the part of the Governor
and his Council, and just such efforts to make the salaries and
the maintenance of the judicial officers of the colony independent
of the appropriations voted by the popular assembly, as had
hastened the separation of the United States from England ; and
at last rebellion had been made to speak the demands of the colo-
nists for constitutional reform. The rebellion was put down, but
the defeated colonists were not treated as they would have been
in 1776. A royal commissioner was sent out to- them from the
mother country to redress their grievances by liberal measures of
THE GOVERNMENT OF GREAT BRITAIN. 249
concession and reform. This commissioner was Lord Durham.
He spoiled his mission by well-meant but arbitrary conduct which
was misunderstood at home, and he was recalled ; but his report
upon the condition of Canada and the measures necessary for
her pacification may justly be called the fountain head of all that
England has since done for the betterment of government in her
colonies. Lord Durham recommended nothing less than complete
self-government, with interference from England in nothing but
questions immediately and evidently affecting imperial interests.
1847 saw independent responsible self-government completely es-
tablished in Canada, and subsequent years have seen it extended
to all the British colonies capable of self-direction.
The Self-governing Colonies. The English colonies, as
at present organized, may be roughly classified in two groups as
(a) Self -governing and (6) Crown colonies. The self-governing
colonies are five in number ; namely, Canada, Newfoundland,
the Commonwealth of Australia, the Union of South Africa,
and New Zealand. In all of these there is practically complete
independence of legislation in all matters not directly touching
imperial interests : and in all there is full responsible govern-
ment, government, that is, through ministers responsible to
representatives of the people for their policy and for all executive
acts, because chosen from and representing the majority in the
popular chamber. In Tasmania, and the Commonwealth of
Australia, both branches of the legislature are elected ; in the
others the upper chamber is nominated by the Executive save in
the Union of South Africa, where it is partly appointed and
partly elected. But the origin of the upper chamber does not
affect the full responsibility of the ministers or the practically
complete self-direction of the colony.
The Government of Canada. In 1840 Parliament pro-
vided by Act for the union of Upper and Lower Canada (now the
provinces of Ontario and Quebec) upon a basis suggested by Lord
Durham's report ; but the legislative union of these two provinces,
the one English, the other almost wholly French, was ill-advised
and proved provisional only. Although an Act of 1854 granted
to the united colonies a government as nearly as might be mod-
elled upon the government of England herself, no satisfactory
250 THE GOVERNMENT OF GREAT BRITAIN,
basis of self-government was reached until, by the ' British North
America Act ' of 1867, the colonies were at once separated and re-
integrated by means of a federal constitution. That Act is the
present constitution of the ' Dominion of Canada.' Under that
constitution the nine provinces now comprised within the Do-
minion, namely, Ontario, Quebec, Nova Scotia, New Brunswick,
Manitoba, British Columbia, Prince Edward Island, Alberta, and
Saskatchewan, have each a separate parliament and administra-
tion. In each a Lieutenant-Governor presides ; in each, as in the
Dominion itself, there is a ministry responsible for its policy and
executive acts to a parliament fully equipped for self-direction in
local affairs.
The provisions of the British North America Act were drafted
in Canada and accepted by the Parliament in England without
alteration. In the division of powers which they make between
the government of the Dominion and the governments of the
several provinces, they differ very radically in character from
the provisions of our own federal constitution. Our constitution
grants certain specified powers to the general government and
reserves the rest to the states ; the British North America Act,
on the contrary, grants certain specified powers to the provinces
and reserves all others to the government of the Dominion.
Among the powers thus reserved to the federal government is
that of enacting all criminal laws.
In all the provinces except Quebec and Nova Scotia the legis-
lature consists of but a single house.
The government of the Dominion is for the most part a very
faithful reproduction of the government of the mother country.
The Crown is represented by the Governor-General, who acts
in the administration of the colony as the Crown acts in the
administration of the kingdom, through responsible ministers,
and whose veto upon legislation is never used, though bills about
whose bearing upon imperial policy there were serious doubts
have been reserved for the approval of the king in Council (that
is, of the ministry of the day in England). 1 The ' Cabinet' is a
body unknown to the written constitution, but it comprises those
1 Only one such bill has been refused the Koyal assent.
THE GOVERNMENT OF GKEAT BRITAIN. 251
members of the Privy Council who are also members of Parlia-
ment who for the time being represent the views and policies of
the majority in the popular house of the legislature, leading that
house in legislation, and in all its functions following the prece-
dents of responsible cabinet government established in England.
The legislature consists of two houses, the Senate and the House
of Commons. The Senate consists of ninety-six members nomi-
nated for life by the Governor-General, that is, in effect,
appointed by the Dominion ministers ; for in the composition of
the Senate, as in the creation of peers at home, the advice of the
ministers is decisive. 1 Each Senator must be at least thirty
years of age, must reside in the province for which he is ap-
pointed, and must possess therein property, real or personal, to
the value of four thousand dollars. The House of Commons
consists of two hundred and twenty-one members elected from
the several provinces, for a term of five years, upon the basis of
one representative for every 22,688 inhabitants, it being under-
stood, however, that Quebec shall never have less than sixty-five
members.
The eighteen ministers composing the cabinet are, the Prime
Minister and President of the Council, Secretary of State, Min-
ister of Trade and Commerce, Ministers of Justice, Marine and
Fisheries, Railways and Canals, Militia and Defence, Finance,
Agriculture, Public Works, Interior, Labor, Customs, Inland
Revenue, Solicitor-General, Postmaster-General, and two min-
isters without portfolios.
The distribution of representation in the Dominion House of
Commons is at present as follows : Ontario has 92 members,
Quebec 65, Nova Scotia 20, New Brunswick 14, Manitoba 7,
British Columbia 6, Prince Edward Island 5, and the North West
Territories 4. The representatives are elected by a franchise
based upon a small property qualification.
The Parliament of the Dominion may be dissolved by the Gov-
ernor-General upon the advice of the ministers, and a new Election
1 The power is reserved to the sovereign, upon recommendation of the
Governor-General, to direct that four or eight members be added to the
Senate from the four divisions of Canada equally, but this power has never
been exercised.
252 THE GOVERNMENT OF GREAT BRITAIN.
held, as in England, when an appeal to the constituencies is
deemed necessary or desirable.
THE COMMONWEALTH OF AUSTRALIA.
History of Federation. The early settlements in Aus-
tralia, treated as little more than convict stations, were ruled by the
Governor as he pleased, but as early as 1823 the need for a legis-
lative body in New South Wales was met by vesting this function
in an appointed Council. In 1842 the principle of representation
was introduced into the Council, though one-third of its number
remained appointive, and in 1850 two houses were substituted
for the single Council and responsible government was introduced
at the same time. As the other colonies in Australia grew in popu-
lation, representative institutions and responsible government
were introduced, the last colony to complete the process being
Western Australia in 1890. The six colonies, New South Wales,
Victoria, South Australia, Tasmania, Queensland, and Western
Australia, were all in possession of substantially identical forms
of government, consisting of a Governor appointed by the Crown
and advised by a Council, composed in part by the ministers of
the day, and of a dual legislative body, the Parliament, to which
the ministers were responsible. The constitutions of all the
colonies were originally framed in the colonies, and subsequently
enacted, with amendments, by the Parliament at Westminster.
Trade and the customs formed from the beginning a strong in-
centive toward federation, and in 1873 the Imperial Parliament
removed the legal bars which had made a Customs Union im-
possible, yet the divergent economic interests and tariff policies
of the colonies stood in the way. The Federal Council of
Australasia Act, passed by Parliament in 1885, created a Council
with limited powers to deal with certain common interests in the
South Pacific. There was no executive or judicial power created
by the Act, and the Council lacked the power to raise revenue or
expend money. Membership in the Council was optional. Yet
the Council legislated with respect to a number of matters, and
continued in existence till 1899.
The sentiment in favor of federation had been steadily gaining,
THE GOVKKNMKNT OF GREAT BRITAIN. 253
and in 1887 the question of defence added its weight when, at the
Imperial Conference at London, Australia as a whole agreed to
furnish an annual subsidy of 226,000 towards the expense of a
separate squadron on the Australian station. Conferences were
held in 1890 and 1891, in which resolutions were passed laying
down the basis on which federation should take place ; but it was
not until 1897 that a convention assembled at Adelaide to frame
a federal constitution. The proposed constitution was then sub-
mitted to the legislatures of the colonies, and after consideration
by them, the convention reassembled at Sydney to consider the
changes which had been suggested.
The larger colonies demanded that greater consideration should
be given to population, and the smaller colonies sought to preserve
their autonomy. The position and mode of election of the Senate
was the source of the greatest difference of opinion, but finally a
draft was agreed upon which, when submitted to the colonies,
failed of ratification. Subsequently compromises were made to
meet the objections, chiefly of New South Wales, and five colo-
nies accepted the proposed constitution by popular vote. It was
then forwarded to the Imperial Parliament for enactment.
Western Australia, which had held aloof, asked for the right
to join the federation, and in 1900 Parliament passed the
Commonwealth of Australia Act. By proclamation the date
of the establishment of the Commonwealth was fixed as January
1, 1901.
The Constitution. The Constitution is an Act of the Im-
perial Parliament, and is in legal theory subject to change by that
body whenever it chooses, though in practice it is not probable that
any changes would be made which were contrary to the wishes of
the Commonwealth. The Commonwealth differs from Canada in
its fundamentals ; in the latter the provinces are far less inde-
pendent of the Dominion government than are the states of the
Commonwealth; as provinces they have no participation or
representation in the central government whereas in the former
the separate character of the states finds representation in the
Senate, as in the case of the United States. Moreover, the
powers of the Commonwealth are delegated, while in Canada it is
the government of the Dominion which possesses the reservoir of
254 THE GOVERNMENT OF GREAT BRITAIN.
powers, and the provinces have only those powers which have
been granted to them. In Canada the lieutenant-governors of
the provinces are appointed by the Governor-General, in Aus-
tralia the governors of the states are appointed by the Crown.
In short, Australia is far more of a federal state than is
Canada.
The Executive. The Executive of the Commonwealth
is vested in a Governor-General, appointed by the King, and his
power extends to the maintenance of the Constitution and the
laws of the Commonwealth, but inasmuch as responsible gov-
ernment exists in the Commonwealth as it had existed and still
exists in the individual states, the real executive power is vested
in the ministry, which is responsible to Parliament. The min-
istry constitute the Governor-General's Executive Council, whose
advice he must accept. The following ministries have been estab-
lished in the Commonwealth : External Affairs, Attorney-General,
Home Affairs, Treasury, Trade and Customs, Defence, and the
Postmaster-General. There have also been ministers without
portfolio.
Instability of Ministries. Both in the Commonwealth and
in the individual states changes of ministries have been frequent,
due to the absence of questions on which parties could divide on
party lines. The Labor party is the only one which is effec-
tively organized. There is a conspicuous absence of loyalty to
party leaders, and as a result ministries are weak and easily
overthrown. In the states the small size of the Parliament
makes government more difficult, since the absence of a mem-
ber or two in a small House may result in the overthrow of a
government.
The Parliament. The Parliament of the Commonwealth
is composed of a Senate and a House of Representatives. Until
Parliament shall otherwise provide, the Senate is composed of
six senators from each of the original states, directly chosen by
the people of each state. The number of senators may be in-
creased or diminished, but the number of senators from each of
the original states may not be less than six, and the equality of
their representation must be maintained. The term of senators
is six years, and one-half retire every three years. A senator
THE GOVERNMENT OF GREAT BRITAIN. 255
must be twenty-one years of age, a native-born or naturalized
citizen, and if the latter, he must have been a citizen at least five
years ; he must be entitled to vote at the election of members of
the House of Representatives and have been for three years a
resident of the Commonwealth ; also he must not be under cer-
tain legal disabilities.
The membership of the House of Representatives is seventy-
five, of whom 27 are from New South Wales, 22 from Victoria,
9 from Queensland, 7 from South Australia, and 5 each from
Western Australia and Tasmania. The term of members is three
years, unless sooner terminated by dissolution.
The powers of Parliament are fixed by the Constitution, and
extend in general to all powers affecting the common interests
of all the states. Except with respect to finance bills, the Senate
and the House have equal power over legislation. All bills for
raising revenue or appropriating money must originate in the
House and cannot be amended by the Senate, but such bills may
be returned to the House by message with the request for the
omission or amendment of any items. The House may or may not
accept the suggestions, as it sees fit. With respect to other legis-
lation, if the Senate does not accept a bill which has passed the
House, and if the House after an interval of three months, whether
in the same session or the next, shall again pass the measure, the
Governor-General may dissolve both the Senate and the House
simultaneously ; if after the dissolution the bill is again passed
by the House and fails to pass the Senate, the Governor-General
may convene a joint session of the two Houses, and if the bill is
passed by a majority of the total membership of both Houses in
joint session, it shall be taken as having been approved by Par-
liament and shall go to the Governor-General for the King's
assent.
The Powers of the Colonial Courts. The action of the
courts in the colonies on certain questions furnishes an instructive
counterpart to the constitutional functions of our own courts.
The colonial governments are conducted under written constitu-
tions as our own governments are, though their constitutions
are imperial statutes, while ours are drafted by conventions and
adopted by a vote of the people. And colonial courts exercise the
256 THE GOVERNMENT OF GUEAT BRITAIN.
same power of constitutional interpretation that belongs to our
own courts and that has often been carelessly assumed to be a
peculiar prerogative of theirs. They test acts of legislation by
the grants of power under which they are enacted, an appeal
lying from them to the Judicial Committee of the Privy Council
in England, which serves as a general supreme court for the
colonies.
The Union of South Africa. Before the Boer War the
two English colonies in South Africa, the Cape of Good Hope
and Natal, both enjoyed responsible government, and the Cape
Colony was one of the few English colonies in which both houses
of the legislature were elected. The terms of surrender of the
Boer forces in the field provided that representative institutions
should be granted to the conquered colonies of the Transvaal
and the Orange River, and that at the earliest possible moment
they should be given self-government of the usual colonial type.
Upon the accession to power, in 1906, of the Liberal ministry
under Sir Henry Campbell-Bannerman, the time was thought
ripe for carrying out these terms, and so full ministerial responsi-
bility for the general government of these two colonies was es-
tablished by letters patent, in the Transvaal in December, 1906,
and the Orange River Colony in June, 1907.
These four English colonies in South Africa, so lately enemies,
were faced with certain common interests and problems, which,
despite race antagonisms and some conflicting interests, proved
strong enough to draw them together into a union. Most press-
ing of all the problems and one still awaiting a solution is
that of the native races, the menace that South Africa might
become a black man's country. Singly the colonies might have
found their resources insufficient to meet a great native uprising,
but united they are in large measure relieved from that fear.
Railways and tariffs were other matters demanding common com-
trol and uniform action if the prosperity of all the colonies was
to be fostered. Discrimination of one colony against the other
created a strong incentive to union. A customs union of the
four colonies and of Rhodesia, together with the territories
under the administration of the High Commissioner for South
Africa, had been formed in 1903 and was renewed in 1906. An
THE GOVERNMENT OF GREAT BRITAIN. 257
Intercolonial Council for the administration of the railways of
the Transvaal and the Orange River Colony was inaugurated in
1902, so that the colonies were not without some experience of
the habit and advantage of common action. The real stimulus to
union came after the granting of self-government to the Trans-
vaal and the Orange River Colony, at the conference of May,
1908, for the revision of customs and railway rates. Delegates
from the several colonies were selected upon the authorization of
the four colonial governments, who took up in convention the
discussion of a basis of unification of South Africa. The work of
this convention was done in secret, the members well knowing
that a public discussion of the delicate questions with which it
was confronted would prove fatal to any hope of union. The
results of the convention's labors were submitted to the Parlia-
ments of the colonies and in Natal to a referendum and after
ratification delegates were appointed by the Parliaments to pro-
ceed to England and secure the enactment by Parliament of the
proposed plan of union. This was done, and the Union of South
Africa Act was passed in 1909, and the Union itself was inaugu-
rated on May 31, 1910.
Plan of the Union. The Union of South Africa differs
fundamentally from the federal arrangements of Canada and
Australia. In them are present the characteristic features of
federalism the supremacy of the constitution, the distribution
of the powers of government among bodies of limited and co-
ordinate authority, and the authority of the courts to interpret
the constitution. Not one of these features is present in the
Union of South Africa ; the Parliament, not the constitution, is
supreme ; power is not divided among coordinate authorities with
limited functions, but rests ultimately in the Parliament; the
courts have not the right to interpret the constitution by declar-
ing a law unconstitutional, but their function will be identical
with that of the courts in England. In short, the supremacy of
the Parliament within the Union has been secured in much the
same way, though not to the same extent as the Parliament of
the mother country it is subject always to the ultimate author-
ity of the latter, and with respect to certain provisions of the
constitution of the Union its power is qualified.
258 THE GOVERNMENT OF GREAT BRITAIN.
As in Canada and Australia, the constitution of the Union is
an Act of Parliament which legally may be changed by a Parlia-
mentary Act, though in practice any change without the consent
of the Union would be bitterly opposed as in the like case in
Canada and Australia.
This supremacy of the Parliament of the Union has been gen-
erally approved "in South Africa because of the belief in the
need for a strong central government to meet the grave questions
confronting it An interesting feature accompanying the con-
summation of union in South Africa was the abolition of the
previous governmental institutions of the colonies, and the insti-
tution by the Union of South Africa Act of a new frame work, of
government within each colony.
The Executive. The executive power is vested in the
King and may be exercised by the King in person, or by a
Governor-General as his representative, who shall be appointed
by the King and hold office at his pleasure. Subject to the pro-
visions of the Act, the Governor-General shall exercise such
powers and functions as may be assigned him by the King. The
salary of the Governor-General is fixed at ten thousand pounds,
and shall not be altered during his continuance in office.
Executive Council. The Governor-General is to be
advised by an Executive Council, the members of which shall be
appointed and summoned by him, and shall hold office during his
pleasure. The real executive power is vested in the Governor-
General in Council, which means the Governor-General acting
with the advice of the Executive Council.
The Ministers. Tke number of ministers is by the Act
set at ten, who are appointed by the Governor-General, hold office
at his pleasure, are members of the Executive Council, and who
administer the departments of state. No minister shall hold
office for a longer period than three months, unless he is or
becomes a member of either House of Parliament. The minis-
tries established are those of Agriculture, Interior, Mines and
Defence, Native Affairs, Education, Finance, Lands, Public
Works, Posts and Telegraphs, Railways and Harbors, Justice^
and Commerce and Industries. A minister has the right to sit
THE GOVERNMENT OF GREAT BRITAIN. 259
and speak in both Houses, but may vote only in the one of which
he is a member.
All powers, authorities, and functions which had previously
been exercised by the executive authorities of the separate col-
onies were conferred upon the Governor-General in Council, unless
otherwise provided by the Act. The seat of the executive gov-
ernment was located at Pretoria. 1
The Parliament. The legislative power of the Union
was vested in a Parliament, consisting of the King, a Senate, and
a House of Assembly. The Governor-General may appoint such
times as he sees fit for holding the sessions of Parliament, and he
may prorogue Parliament and may dissolve both Houses simul-
taneously, or the House of Assembly alone. But the Senate may
not be dissolved within a period of ten years after the estab-
lishment of the Union, and no dissolution of the Senate shall
affect Senators nominated by the Governor-General in Council.
Parliament shall meet at least once a year.
The Senate. For ten years after the establishment of
the Union the Senate shall be composed of eight Senators' nomi-
nated by the Governor-General in Council, and for each province
eight Senators shall be elected. Half of the Senators appointed
by the Governor-General shall be selected on the ground of their
thorough acquaintance with the reasonable wants and wishes of
the colored races of South Africa. The elected Senators were
chosen before the date of union by the two Houses of the Par-
liament of each colony, sitting together as one body on the prin-
ciple of proportional representation with a single transferable
vote, and presided over by the Speaker of the Legislative Assem-
bly. The term of Senators is ten years, and vacancies among
the appointed Senators shall be filled by the Governor-General in
Council, and among the elected Senators by the Provincial Coun-
cil of the Province from which such Senator had been chosen.
Parliament may provide for the manner in which the Senate
1 The local rivalries of the colonies led to the unique arrangement of locat-
ing the three departments of government in three different places the
executive in Pretoria, the legislative in Cape 'Town and the judicial in
Bloemfontein.
260 THE GOVERNMENT OF GREAT BRITAIN.
shall be constituted after the expiration of ten years, but until
otherwise determined, the provisions respecting appointed Sena-
tors shall continue in force ; the elected Senators shall be chosen
by the Provincial Council and the House of Assembly in each
Province, and shall hold office for ten years unless the Senate be
sooner dissolved.
Qualifications of Senators. A Senator must be not less
than thirty years of age, must be qualified to be registered as a
voter for the election of members of the House of Assembly of
one of the provinces, must have resided for five years within the
limits of the Union at the time when he is elected or appointed,
must be a British subject of European descent, and in the case of
an elected Senator must be the registered owner of immovable
property within the Union of the value of not less than five
hundred pounds over and above any special mortgages thereon.
House of Assembly. Membership in the House of
Assembly rests upon election by the voters of the Union, and
members were allotted to the provinces as follows : Cape of
Good Hope, 51; Natal, 17; Transvaal, 36; Orange Free State,
17. The number is subject to increase upon the basis of the
census taken every five years beginning in 1911, until it reaches
one hundred and fifty, but until that number is reached, or until
a period of ten years has elapsed after the establishment of the
Union, the number of representatives of any of the four original
provinces may not be decreased. Thereafter, however, the rep-
resentation shall be based upon the European male adults. Qual-
ifications of electors shall be determined by Parliament, with the
exception that no law shall disqualify any person in the province
of the Cape of G-ood Hope, qualified by its laws, by reason of
race or color only, unless the bill be passed by both Houses of
Parliament sitting together and be agreed to by not less than
two-thirds of the total number of members of both Houses, and
no registered voter shall be removed from the register solely by
reason of race or color. These exceptions were for the protec-
tion of the black voters of the Cape Colony.
The qualifications for members of the House of Assembly are
the same as those for the Senate, except for the age and property
requirements.
THE GOVERNMENT <>F (JKKAT HIM TAIN. 261
The House of Assembly shall, unless sooner dissolved by the
Governor-General, continue for five years from the date of first
meeting, but no longer.
Powers of Parliament. Parliament has the supreme
legislative authority for the Union, and it is its duty to make
laws for the peace, order, and good government of the Union.
The two Houses do not, however, stand upon an equal footing
in the matter of legislation. All bills appropriating money or
raising revenue must originate in the House of Assembly, and
may not be amended so far as they are for the services of the
government, and may not increase any proposed burden or
charges upon the people. The House may not appropriate
money unless such appropriation has been recommended by
message from the Governor-General in the same session.
If the Senate fails to pass any bill passed by the House and
if the bill is passed by the House in the next session, the Gov-
ernor-General may during that session convene a joint session
of the two Houses, and -the bill, if passed by a majority of the
Houses in joint session, shall become a law. In the case of
money bills the Governor-General may convene the joint sitting
during the same session.
Bills must be presented to the Governor-General, who may
declare that he assents in the King's name, or that he withholds
assent, or that he reserves the bill for the signification of the
King's assent. Bills touching the House of Assembly, abolish-
ing provincial councils, or abridging the powers conferred by the
Act of Union upon provincial councils, must be reserved.
The King may within one year disallow any bill to which
the Governor-General has given assent, and bills reserved for the
King's pleasure shall have no force unless within a year the
Governor-General shall make known to each of the Houses or by
proclamation that the King's assent has been given.
The Provinces. The executive power in each of the
provinces is in the hands of an administrator, appointed by the
Governor-General in council, who shall hold office for five years
and who shall not be removed except by the Governor-General
for cause assigned. The legislative power in the provinces is
vested in an elective council which meets annually and shall con-
262 THE GOVERNMENT OF GREAT BRITAIN.
tinue for three years from the date of its first meeting. The
administrator may prorogue but may not dissolve the council.
Each provincial council chooses an executive committee of four
members, from among its members or otherwise, who, together
with the administrator, shall carry on the administration of pro-
vincial affairs. The powers of the provincial council are defined
by the Act of Union, and may be said broadly to deal with the
local affairs of the province, and any ordinance made by a pro-
vincial council shall have effect as long and as far only as it is not
repugnant to any Act of Parliament.
The Crown Colonies. All those colonies which have
not responsible self-government are classed as Crown colonies,
colonies more or less completely directed by the Colonial Office
in London. They range in organization all the way from mere
military administrations, such as have been established in St.
Helena and Gibraltar, through those which, like Trinidad and
the Straits Settlements, have both a nominated Executive and a
nominated Legislative Council, and those like Jamaica, whose
nominated Executive is associated with a Legislative Council in
part elected, to those like the Bahamas and Bermuda, in which
the Councils are altogether elected, but which have no respon-
sible ministry.
Powers of Colonial Governors. It is interesting to have
the testimony of one of the most capable and eminent of English
colonial administrators as to the relative desirability of the post
of governor in a colony in which he is governor indeed, with no
ministers empowered to force their advice upon him, and in a
colony where he must play the unobtrusive part of constitutional
monarch. Lord Elgin says with great confidence, in his Letters,
that his position as governor of Canada was a position of greater
official power than his position, previously held, as governor of
Jamaica. He declares his unhesitating belief that there is " more
room for the exercise of influence on the part of the governor "
in such a colony as Canada, where he must keep in the back-
ground, and scrupulously heed his ministers, than under any other
arrangement that ever was before devised, although his influence
there is of course " wholly moral an influence of suasion, sym-
pathy, and moderation, which softens the temper while it ele-
THE GOVERNMENT OF GREAT BRITAIN. 263
vates the aims of local politics." 1 This is but another way
of stating the unquestionable truth that it is easier, as well
as wiser, to govern with the consent and cooperation of the
governed than without it, easier to rule as a friend than as
a master.
India. India stands in matters of government, as in so
many other respects, entirely apart from the rest of the British
Empire. 2 It is governed, through the instrumentality of its
Governor-General and his Council, directly from London by a
member of the Cabinet, the Secretary of State for India. The
Secretary of State is assisted by a Council of ten or more mem-
bers appointed by the Crown from among persons who have
resided or served in India. Acting under the Secretary of State
and his Council in London, there is the Governor-General of
India, who is also assisted by a Council of from five to six mem-
bers, appointed by the Crown, a Council which is first of all
administrative, but which, when ree'nforced by additional members
nominated by the Governor-General or elected under the Indian
Councils Act of 1909, has also the functions of a legislative
council.
The work of the Governor-General's Council is divided among
ten departments, one of which, that of foreign affairs, is generally
kept in the hands of the Governor-General himself. These de-
partments do not constitute a ministry ; they are regarded simply
as committees of the Council.
The sessions of the legislative council are held always in public.
The number of members is 68, of whom 36 are official and 32
are non-official, which secures to the government the control of
the action of the council. Special provision is made for repre-
sentation of the Mohammedan part of the population. The legis-
lative council makes laws, subject to some restrictions, for all
persons in British India, for all British subjects in native states,
and for all native Indian subjects in any part of the world.
Not all of India is directly administered by the English
government. There are numerous native states which act with
1 Letters and Journals of Lord Elgin, ed. by Theodore Walrond, London,
1872, p. 126.
2 The Government of India Act, 1915, as amended by a like Act in 1916.
264 THE GOVERNMENT OF GREAT BRITAIN.
substantial independence in local affairs, though under English
overlordship and control. Such part of the vast territory as
is administered directly by English officials is divided into
fifteen provinces, of which the chief in importance are under
governors who are appointed by the Crown and are assisted,
as the Governor-General is, by two councils, administrative and
legislative. Lieutenant-Governors, appointed by the Governor-
General, and assisted by similar councils, preside over the
provinces next in importance. The Commissioners or agents
of the other provinces, who are also appointed by the Governor-
General, also have their councils. In all provincial legislative
councils the majority is elected.
There has been a growing demand in India for a larger partici-
pation on the part of Indians in the government of India, and,
among a few, a feeling of nationality.
In 1885 there was held the first Indian national Congress, and
in the succeeding Congresses there has been a considerable agita-
tion in favor of throwing off British rule and of establishing a
national Indian state. The nationalists are Hindus, and the in-
terests of the Moslem part of the population were not cared for
by their program. In 1906 the All-India Moslem League was
founded on the basis of complete loyalty to the Crown.
The war has produced profound changes in the situation. The
princes have contributed largely of men and money to aid in its
prosecution, and thousands of Indians have been organized into
labor units for work in various parts of the world.
The Government of India Act of 1915 confers a larger partici-
pation in affairs of the government upon native Indians, and
Indians may now become officers in the British army. India also
is represented in the Imperial War Conference.
The policy of the present British government toward India was
stated by the Secretary of State for India in the House of Com-
mons on August 20, 1917, as follows : " The policy of His Maj-
esty's government ... is that of the increasing association of
Indians in every branch of the administration, and the gradual
development of self-governing institutions, with a view to the
progressive realization of responsible government in India as an
integral part of the British Empire."
THE GOVERNMENT OP GREAT BRITAIN. 265
Greater Britain. Greater Britain, the world of English
colonies, differs very materially from Greater Greece, the wide-
spread Hellas of the ancient world. Hellas was disintegrate:
the Greeks carried with them, as of course, Greek institutions,
but only to allow those institutions wide differentiation. In no
way did Greek settlement signify race integration or a national
nexus of rule. Englishmen, on the contrary, in English colonies,
maintain a homogeneity and integration both of race and of in-
stitutions which have drawn the four parts of the world together
under common influences, if they have not compacted them for
a common destiny. Throughout Europe reformers have copied
English political arrangements ; the colonists have not copied
them, they have extended and are perpetuating and perfecting
them.
Imperial Unity or Federation. For the past fifteen
years there has been much discussion of the future relations of
the Dominions to the mother country and the means by which
they might be drawn closer together. The Dominions felt a grow-
ing desire to participate actively in the decision of questions
affecting imperial interests, particularly in view of the contribu-
tions they were making to the Imperial defence, but nothing
beyond Colonial and Imperial Conferences had been achieved.
At the outbreak of the war the Dominions responded instantly to
the need of the mother country, and their efforts in the war have
been worthy of the best traditions of Englishmen. The war has
shown them their need of defence by the United Kingdom, and
the latter has received with gratitude the assistance so loyally
given.
On the part of the United Kingdom there has been practical
acknowledgment of the need to draw the mother country and the
Dominions into closer relations and a participation by the latter
in the decisions affecting Imperial questions. A War Conference
was summoned in 1917 to which the Premiers of the Dominions
were invited, and all sent representatives with the exception of
Australia. In 1916 the visiting Premiers had been asked to sit
at special meetings of the general Cabinet Council, but in 1917
Lloyd George went further and took the Premiers into the inner
War Cabinet of five members which he had constituted upon
266 THE GOVERNMENT OF GREAT BRITAIN.
assuming the position of Prime Minister. It was decided to hold
meetings annually, or oftener if need be, " to discuss foreign
affairs and other subjects of Imperial policy." The Imperial
Cabinet for the future should consist of the Prime Minister of
the United Kingdom and such of his colleagues as dealt specially
with Imperial affairs, the Prime Minister of each of the Domin-
ions or a special representative clothed with equal authority, and
a representative of the Indian people appointed by the govern-
ment of India.
What shape the closer relation between the United Kingdom
and the Dominions should take was left for determination after
the War.
REPRESENTATIVE AUTHORITIES.
Anson, Wm. R., The Law and Custom of the Constitution, 3 vols.,
4th ed., Oxford, 1907-1909.
Bagehot, Walter, The English Constitution, London, 1867; N.Y.,
1882.
Bourinot, John G., Federal Government in Canada (Johns Hopkins
Univ. Studies in Historical and Political Science), Baltimore,
1889 ; and Parliamentary Procedure and Practice in the Dominion
of Canada, 4th ed., Toronto, 1916.
Boutmy, Emile, The English Constitution, trans, out of the French by
Isabel M. Eaden and Studies in Constitutional Law, trans, by
E. M. Dicey. Both, London, 1891.
Brand, R. H., The Union of South Africa, Oxford, 1909.
Burgess, J. W., Political Science and Constitutional Law, 2 vols.,
Boston, 1890.
Cameron, E. R., The Canadian Constitution, Winnipeg, 1915.
Clark, W. Inglis, Australian Constitutional Law, Melbourne, 1901.
Clement, The Law of the Canadian Constitution, 3d ed., Toronto, 1916.
Golden Club Essays, 1 882 : Local Government and Taxation in the
United Kingdom.- London.
Dicey, A. V., The Privy Council, London, 1887 ; and The Law of the
Constitution, 8th ed., London, 1915.
Dilke, Sir C. W., Problems of Greater Britain, London, 1890.
Dupriez, L., Les Ministres dans les principaux Pays d'Europe et d'Ame"-
rique, 2 vols., Paris, 1892.
Egerton and Grant, Canadian Constitutional Development, London,
1907.
Egerton, Confederations and Unions.
THE GOVERNMENT OF GREAT BRITAIN. 266 a
English Citizen Series : II. D. Traill, Central Government.
M. D. Chalmers, Local Government.
F. W. Maitland, Justice and Police.
S. Walpole, The Electorate and the Legislature.
T. W. Fowle, The Poor Law.
Gneist, R., History of the English Constitution, 2 vols., N.Y., 1886 ;
Student's History of the English Parliament, N.Y., 1887; Self-
government, Communalverfassung und Verwaltungsgerichte, 3d
ed., Berlin, 1871 ; Das Englische Verwaltungsrecht der Gegenwart
in Vergleichung mit dem deutschen Verwaltungswesen, 3d ed.,
2 vols., 1883-1884.
Goodnow, F. J., Comparative Administrative Law, 2 vols., New York,
1893.
Hallam, H., Constitutional History of England, 2 vols., N.Y., 1880.
II, nm, \V. E., The Government of England, 2d ed., London, 1887.
llbert, Courtenay, Parliament, N.Y., 1911.
Imperial Parliament Series: Local Administration, by \V. Rathbone,
A. Pell and F. C. Montague, London, 1885.
K< ith, A. B., Responsible Government in the Dominions, 3 vols., Oxford,
1912 ; and Imperial Unity and the Dominions, Oxford, 1916.
Lefroy, A. H. F., Canada's Federal System, Toronto, 1913.
Low, Sydney, The Government of England, Rev. ed., London, 1914.
Lowell, A. L., The Government of England.
Macy, Jesse, The English Constitution, London and N.Y., 1907.
/, Sir T. E., Constitutional History of England, 3 vols., N.Y., 1912.
ij C. H., The High Court of Parliament, Yale University Press,
1910.
Moore, W. H., The Constitution of the Commonwealth of Australia,
London, 1902.
Mnnro, J. E. C., The Constitution of Canada, Cambridge University
Press, 1889.
Mnnro, W. B., The Government of European Cities, N.Y., 1909.
Ogg, F. A., The Governments of Europe, N.Y., 1913.
Quick and Garran, Constitution of the Commonwealth of Australia.
Redlick and Hirst, Local Government in England, 3 vols., London, 1903.
Riddell, W. R., The Constitution of Canada in its History and Practical
Working, Yale University Press, 1917.
Shaw, Albert, Municipal Government in Great Britain, N.Y., 1895.
Stubbs, William, Constitutional History of England, 3 vols., Oxford,
1883.
Taswell-Langmead, L., English Constitutional History, London and
Boston, 3d ed., 1886.
I
266 b THE GOVERNMENT OF GREAT BRITAIN.
Taylor, Hannis, The Origin and Growth of the English Constitution,
2 vols., Boston, 1889 and 1898.
Todd, Alpheus, Parliamentary Government in England, new ed., Lon-
don and N.Y., 1888-1889 ; and Parliamentary Government in the
British Colonies, 2d ed., London, 1894.
Local Government Reforms :
Baker, Charles E., The Local Government Act, 1888, with Notes and
Index, London, 1888.
Jenks, Edward, An Outline of English Local Government, London,
1894.
Ryde, Walter C., TheXocal Government Act, 1894, London, 1894.
X.
THE GOVERNMENT OF THE UNITED STATES.
The English Occupation of America. The political in-
stitutions of the United States are in the main the political insti-
tutions of England, transplanted by English colonists to a new
soil and worked out through a fresh development to new and
characteristic forms. Though they now show so large an ad-
mixture of foreign blood,- the main stock of the people of the
United States is still of British extraction. For several genera-
tions the settlements of New England and the South contained
scarcely any other element. In the North, in what is now
Canada, and at the mouth of the Mississippi, there were French
settlements ; in Florida there were colonists from Spain ; the
Dutch had settled upon the Hudson and held the great port at
its mouth; and the Swedes had established themselves on the
Delaware: all along the coast there was rivalry between the
western nations of Europe for the possession of the new conti-
nent. But by steady and for the most part easy steps of aggres-
sion the English extended their domain and won the best regions
of the great coast. New England, Virginia, and the Carolinas
were never seriously disputed against them; and, these once
securely taken possession of, the intervening foreigner was
soon thrust out: so that the English power had presently a
compact and centered mass which could not be dislodged, and
whose ultimate expansion over the whole continent it proved im-
possible to stay. England was not long in widening her colo-
nial borders. The French power was crushed out in the North,
the Spanish power was limited in the South, and the colonies had
only to become free to develop energy more than sufficient to
267
268 THE GOVERNMENT OF THE UNITED STATES.
make all the most competed-for portions of the continent thor-
oughly English, thoroughly Anglo-American.
Adaptation of English Institutions. This growth of the
English power in America involved a corresponding expansion of
English institutions. As America became English, English institu'
tions in the colonies became American. They adapted themselves
to the new conditions and the new conveniences of political life
in separate colonies, colonies struggling at first, then expanding,
at last triumphing ; and without losing their English character
gained an American form and flavor. Some institutions set up in
New England the men who formed Plymouth had doubtless
learned to know and to like while they were exiles in Holland ;
but they brought nothing with them that was not suitable to
English habit.
It would be misleading to say that the English planted
states in America. They planted small isolated settlements, and
these settlements grew in their own way to be states. The slow
process was from local, through state, to national organization.
And not everywhere among the English on the new continent was
the form of local government at first adopted the same : there was
no invariable pattern, but everywhere, on the contrary, a sponta-
neous adjustment of political means to place and circumstance.
By all the settlements alike English precedent was followed, but
not the same English precedent. Each colony, with the true Eng-
lish sagacity of practical habit, borrowed.what was best suited to
its own situation, and originated what it could not borrow. New
England had one system, Virginia another, New Jersey and Penn-
sylvania still a third, compounded after a sort of the other two.
The New England Colonies. In New England the centre
of government was always the town, with its church and school-
house and its neighborly cluster of houses gathered about these.
The soil on the coast where the first settlers established themselves
was shallow and slow to yield returns even to hard and assiduous
toil ; the climate was rigorous, with its long winters and bleak
coast winds ; every circumstance invited to close settlement and
trade, to the intimate relationships of commerce and the advent-
ures of sea-faring rather than to the wide-spreading settlements
characteristic of an agricultural population.
THE GOVERNMENT OF THE UNITED STATES. 269
The first New Euglanders, moreover, were most of them
religious refugees. They had left the Old World to escape the
Old World's persecutions and in order to find independence of
worship ; they were establishing a church as well as a community ;
they acted as organized congregations ; their life was both spiritu-
ally and temporally organic. Close geographical association,
therefore, such as was virtually forced upon them by the con-
ditions of livelihood by which they found themselves constrained,
accorded well with their higher social purposes. The church
could be made, by such association, the vital nerve-centre of their
union : the minister was the ruling head of the community, and
church membership was in several of the settlements recognized
as identical with citizenship.
The Separate Towns. The several parts of the New
England coast were settled by independent groups of settlers.
There was the Plymouth colony at Plymouth, aiid altogether
distinct from it, the Massachusetts Bay colony at Salem and
Charlestown and Boston. To the south of these, founded by
men dissatisfied with the Massachusetts government, were Ports-
mouth, Newport, and Providence, in what is now Rhode Island.
On the Connecticut river other wanderers from Massachusetts
built Hartford and Windsor and Wethersfield. Saybrook, at the
mouth of the Connecticut river, was settled direct from England ;
so also was the colony of New Haven, on the coast of Long Island
Sound west of the Connecticut. From year to year the planting
of towns went diligently on : almost every town became the pro-
lific mother of towns, which either sprang up close about it and
retained a sort of dependence upon it, or, planted at a distance,
ventured upon an entirely separate life in the wilderness.
Union of the Towns. Gradually the towns of each
of the general regions mentioned drew together into the colonies
known to later times, the colonies which were to form the Union.
Plymouth merged in Massachusetts ; Portsmouth, Newport, and
Providence became but parts of Rhode Island ; New Haven was
joined to Connecticut. But at first these larger colonies were
scarcely more than town leagues. It sometimes happened that
each town retained unaltered its separate organization and its vir-
270 THE GOVERNMENT OF THE UNITED STATES.
tual independence in the regulation of its own local affairs. In
Rhode Island, particularly, their jealousy of each other and their
reluctance to expose themselves to anything like a loss of perfect
autonomy long kept the common government which they most of
the time maintained at a balance between union and dissolution.
In the other New England colonies the same influences manifested
themselves, though in a less degree. The town system which
everywhere prevailed was by its nature an extremely decentralized
form' of government : government, so to say, came to a separate
head in each locality : and the chief vitality was in the self-gov-
erning units of each group rather than in the bonds which con-
nected them with each other.
Forms of Town Government. The form of town govern-
ment was everywhere such as it was quite natural that Englishmen
should have set up. The names of the town officers were borrowed
from the borough governments at home, and their duties were, as
nearly as circumstances permitted, the same as the duties of the
officers whose names they bore. The New England town was, at
the same time, in many of its most important and characteristic
features, rather a reversion to older types of government than a
transplanted cutting of the towns which the settlers had left
behind them in the England of the seventeenth century. There
was in it none of the elaborated class privilege that narrowed the
town governments of the England of that time. All the towns-
men met in town-meeting and there elected their officers : those
officers were responsible to them and always rendered careful
account of their actions to the body which elected them. Gen-
erally the most important of these officers were called Selectmen,
men selected by the town-meeting to carry on the necessary
public business of the community, and these Selectmen stood in
the closest relations of counsel and responsibility to the town-
meeting. In the earliest times the franchise was restricted, in
Massachusetts and New Haven at least, to those who were church
members, and many were excluded by this rule from participation
in the government ; but even under such circumstances there was
real and effective self-government. The towns lacked neither
vitality nor energy, for they did not lack liberty. In the late
days when great cities grew up, the simple township system had
THE GOVERNMENT OF THE UNITED STATES. 271
to be abandoned in part; as the colonies expanded, too, they
gained in energy and vitality as wholes, and their component
parts, the towns, fell by degrees to a place of less exclusive im-
portance in colonial affairs ; but this basis of the township was
never lost and has remained to the present day the foundation of
local government in New England.
Colonial Organization. As the towns came together
into the groupings which constituted the later colonies other areas
of government naturally came into use. Townships were, for
judicial purposes, combined into counties, and by various other
means of organization a new nexus was given to the several parts
of the now extended state. From the first the colonists had their
'general courts,' their central legislative assemblies representa-
tive of the freemen. To these assemblies went delegates from
the several towns comprised in the colony. As the colonies grew,
their growth but strengthened their assemblies: it was in the
common ruling function of these that the union of the several
parts of each colony was made real and lasting.
The sheriffs of the counties of colonial Massachusetts were ap-
pointed by the Governor. The development of the county organization
brought into existence, too, Justices of the Peace who met in Quarter Ses-
sions, afterwards called * General Sessions,' and who were the general
county authority quite after the fashion of the mother country. 1
The Southern Colonies. To this picture of the political
institutions of colonial New England political and social organi-
zation in the Southern colonies offered many broad contrasts.
The settlers in Virginia were not religious refugees : they had
come out for a separate adventure in political, or rather in social,
organization, but not for a separate venture in religion ; and the
coast they happened upon, instead of being rugged and bleak, was
low and fertile, with a kindly climate, deep rivers, broad stretches
of inviting country, and a generous readiness to yield its fruits in
their season. They had been sent out by a Company (the < Vir-
ginia Company ' it was called) in England, to which the Virginia
territory had been granted by the Crown, and they had no thought
1 See Town and County Government in the English Colonies of North
America, by Edward Channing, Johns Hopkins University Studies in His-
torical and Political Science, 2d Series, pp. 40-42.
272 THE GOVERNMENT OF THE UNITED STATES.
but to live under the governors whom the Company had placed
over them. They founded Jamestown some hundred miles
above the mouth of the James river ; but Jamestown was in no
way like the New England towns, and it soon became evident
that town life was not to be the characteristic habit of the colony.
The rich soil invited to agriculture, the numerous rivers, full and
deep, stood ready to serve as natural highways, and as the popu-
lation of the colony increased it spread far and wide along the
courses of the rivers.
Contrasts of Character. There was much more, besides
soil and climate and the differing conditions of settlement, that
made the Southern colonies unlike the colonies of New England.
The New Englanders came for the most part out of the town and
village population of the mother country : out of a very distinctly
marked middle class with common motives and ideals : the
more distinctly marked because most of them had had the same
experiences and were of the same way of thinking in matters of
religion. They naturally drew together for the sort of life they
had left behind them over sea. The settlers of the Southern
colonies, on the contrary, came from no single class and had no
common habit, except the general habit of the English race.
They had been taken by fortune, as if at haphazard, out of the
general mass of Englishmen at home, some gentle, some common,
some bred to comfort, some not, all bent upon an independent
life and carrying in their purpose the general ideals of their race.
Prominent among these ideals, no doubt, was this, that a gentle-
man must live with space of good acres about him, a lord of the
soil. The life of the Southern colonists was not more English
than that of the New Englanders ; but it was much more of the
general pattern of English life, and more likely to keep near the
models set up by English gentlemen outside the towns. There
came a time, too, when Virginia received a strong infusion of
Cavalier blood, and men came to her quiet lands who had the
air and habit of courts, the ambitions of men of caste and estate ;
not a little of the color of English country life went out of them
into all the ways of the broad tide- water properties ; and the
genial air told kindly upon the new fashions. Virginia grew
more than ever like rural England ; arid followed the new ways
THE GOVERNMENT OF THE UNITED STATES. 273
until the Scots-Irish came into the valley, to add another quality
and the spice of variety. Alike in the North and in the South,
climate, soil, and every natural quality of the region chosen
fitted the instinct of the settlers. Both lived after their kind.
Expansion without Separation. There would appear to
have been no idea of organic separation in this southern process of
expansion, as there was so often in the spreadings of the New Eng-
land colonists. Great plantations indeed grew up with an almost
entirely separate life of their own, with their own wharves on the
river fronts and their own direct trade with the outer world by
vessels which came and went between them and England, or be-
tween them and the trading colonies to the north ; but all this
took place without any idea of organic political separateness.
This diffused agricultural population, thus living its own life on
the great rural properties which steadily multiplied in all direc-
tions, still consciously formed a single colony, living at first
under the general government of the Company which had sent
out the first settlers, and afterwards, when the Company had
been deprived of its charter and possessions, under the authority
of royal governors. Its parts hung loosely together, it is true,
but they did not threaten to fall apart : the plan was expansion,
not segregation.
Southern Colonial Society. The characteristics of the
society formed under such circumstances were of course very
marked. Slaves were early introduced into the colony, and
served well to aid and quicken the development of the planta-
tion system. A great gap speedily showed itself between the
owners of estates and the laboring classes. Where slavery ex-
ists manual toil must be considered slavish and all the ideas on
which aristocracy are founded must find easy and spontaneous
rootage. Great contrasts of condition soon appeared, such as
the more democratic trading communities of New England were,
not to know until the rise of the modern industrial organization ;
and the governing power rested with the powerful, propertied
classes.
Government of Colonial Virginia. The government of
colonial Virginia bore, in all its broader features, much the same
character as the rural government of England. Organization
274 THE GOVEKNMENT OF THE UNITED STATES.
effected through a machinery of wide counties, instead of by
means of compacted townships. There was at the head of each
county, under this first order of things, a Lieutenant whose duties
corresponded roughly with those of the Lords Lieutenant in Eng-
land. The other important executive officer of the county, too,
in Virginia as in England, was the Sheriff. The Lieutenant was
appointed by the Governor, was chief of the military (militia)
organization of the county, and, by virtue of his membership
in the Governor's Council, exercised certain judicial functions
in the county. The Sheriff also was appointed by the Gov-
ernor, upon the nomination of the Justices of the county. His
duties an English sheriff would have regarded as quite normal.
And added to these officers there was, as in England, a ' com mis-
sion of the peace,' a body of justices or commissioners authorized
to hold county court for the hearing of all ordinary cases not of
grave import; authorized to levy the county taxes, to appoint
surveyors of highways, to divide the county into precincts ;
empowered to act as the general administrative authority of
the county in the management of all matters not otherwise as-
signed. The Episcopal church had the same official recognition
in Virginia as in England and contributed the same machinery,
the machinery of the vestry, to local government. Even
the division of the ' hundred' was recognized, so close was the
outline likeness between the institutions of the mother country
and those of her crude child in the west. The system was un-
democratic, of course, as was its model : " the dominant idea,"
as Mr. Ingle says, " was gradation of power from the Governor
downward, not upward from the people.' 71 The Justices, like
the other officers of the county, were appointed by the Governor,
and held only during his pleasure : the whole system rested upon
a frank centralization. But still there was liberty. There was
strong local feeling and individual pride to counteract the sub-
serviency of the officers: those officers showed a more or less
self-respecting independence in their administration; and at
least the spirit of English self-government was kept alive.
1 Local Institutions in Virginia, by Edward Ingle, Johns Hopkins Uni-
\ersity Studies in Historical and Political Science, 3d Series, p. 97 (con
tinuous, p. 199).
THE GOVERNMENT OF THE UNITED STATES. 275
Virginia's Colonial Assembly. The vital centre of the
political life of the colony was her representative assembly. So
early as 1619, only twelve years after the foundation of the colony
(1607), the Virginia Company, then still in control, had called
together in the colony, through its governor, an assembly repre-
senting the several plantations then existing, which were in this
way treated as independent corporations entitled to a represent-
ative voice in colonial affairs. Later years saw the Assembly
developed upon the basis of a representation by towns, hundreds,
and plantations : and even after the governors sent out by the
Company had been supplanted by royal governors this represent-
ative body, this House of Burgesses, as it came to be styled,
continued to exist, and to wax strong in control. It was some
time before the area of the colony justified that broader division
into counties which was so characteristic of later days, and which
changed very radically the system of representation. The
1 towns ' and ' plantations ' of the early days seem to have been
known, at any rate for purposes of representation, as l boroughs/
and the representative house got its name, ' House of Burgesses/
before county representation grew up. The first Assembly, that
of 1619, sat in joint session with the Governor and his Council,
but the more fully developed assembly of later times sat apart
as a distinct and independent body. It was this elective repre-
sentation in the government of the colony which made and kept
Virginia a vital political unit, with a real organic life and feeling.
The Constitutions of the other Southern Colonies corre-
sponded in the main with the constitution of Virginia. They,
too, had the county system and the general representation in a
central assembly, combined with governors and councils ap-
pointed by the Crown. All save Maryland. Her constitution
differed from the others mainly in this, that in place of the king
stood a ' proprietor/ to whom the fullest prerogatives of govern-
ment had been granted.
The Middle Colonies had a mixed population. New
York had been New Netherland, and the Delaware had been
first settled by the Swedes and then conquered by the Dutch.
When the territory which was to comprise New York, New
Jersey, Delaware, and Pennsylvania fell into the hands of the
276 THE GOVERNMENT OF THE UNITED STATES.
English the foreign element was not displaced but merely domi-
nated; and to a large extent it kept its local peculiarities of
institution. For the rest, the English settlers of the region
followed no uniform or characteristic method of organization.
The middle colonies, though possessed of a rich soil, had also
fine seaports which invited to commerce; their climate was
neither so harsh as that of New England, nor so mild and be-
guiling as that of the southern colonies. Their people were of
all sorts and origins. They built towns and traded, like the
people of New England ; they also spread abroad over the fertile
country and farmed, like the people of Virginia. They did these
things, moreover, without developing either the town system of
New England or the plantation system of Virginia. Townships
they had, but counties also; they were simple and democratic,
like the New Englanders, and yet they were agricultural also,
like the Virginians : in occupation and political organization, as
well as in geographical situation, they were midway between
their neighbors to the north and south.
The Charters : Massachusetts. The political relations
of the colonies to the mother country during the various develop-
ments of which I have spoken were as various as their separate
histories. The three New England colonies, Massachusetts,
Rhode Island, and Connecticut, possessed charters from the
king which virtually authorized them to conduct their own
governments without direct interference on the part of the
Administration at home. During the first years of English
settlement on the American coast it had been the practice of
the government in England to grant territory on the new
continent to companies like the Virginia Company of which I
have spoken, grants which carried with them the right of
governing the new settlements subject only to a general super-
vision on the part 'of the home authorities. The colony of
Massachusetts Bay was established under such an arrangement :
a Company, to which special privileges of settlement and govern-
ment had been granted, sent out colonists who founded Salem
and Boston ; but the history of this Company was very different
from the history of the Virginia Company. The Virginia Com-
pany tried to manage their colony from London, where the
THE GOVERNMENT OF THE UNITED STATES. 277
members of the Company, who were active liberals and therefore
not very active courtiers, presently got into trouble with the
government and had both their charter and their colony taken
away from them. The Massachusetts Company, on the other
hand, itself came to America, and, almost unobserved by the
powers in London, erected something very like a separate state
on the new continent. Its charter was received in 1629 ; in 1630
it emigrated, governor, directors, charter, and all, to America,
bringing a numerous body of settlers, founded Salem, Boston,
and Cambridge, and put quietly into operation the complete
machinery of government which it had brought with it. It
created not a little stir in official circles in England when it was
discovered that the Company which had been given rights of
settlement on the New England coast had left the country and
was building a flourishing set of independent towns on its terri-
tories; but small colonies at a great distance could not long
retain the attention of busy politicians in London, and nothing
was done then to destroy the bold arrangement. Fatal collision
with the home government could not, however, it turned out, be
permanently, or even long avoided by the aggressive, self-willed
rulers of the Massachusetts Company. Many of the laws which
they passed did not please the Crown, particularly those which
set up an exclusive religion and tolerated no other ; they would
not change their laws at the Crown's bidding ; and, though the
evil day was postponed, it came at last. In 1684 the contest
between Crown and colony came to a head, and the charter of
the Massachusetts Company was annulled. Before a change
could be effected in the government, indeed, the king, Charles II.,
died, and at the end of the troublous reign of James II. the
colonists quietly resumed their charter privileges; but in 1692
the government of William and Mary was ready to deal with
them, and a new form of colonial organization was forced upon
them. They were compelled to take a governor from the king ;
the royal governor appointed the judicial officers of the colony
and controlled its military forces ; and, although the colonists
retained their assembly and through that assembly chose the
governor's council, the old charter privileges were permanently
lost.
278 THE GOVERNMENT OF THE UNITED STATES.
The Connecticut Charter. Rhode Island and Connecti-
cut were smaller and more fortunate. The town of Saybrook,
at the mouth of the Connecticut river, had been founded under
a charter granted to two English noblemen, and consisted, there*
fore, of immigrants direct from England; but Saybrook did not
grow rapidly and proved a comparative failure. The successful
and dominant settlement on the Connecticut .was that which was
founded higher up the river at Hartford, by men from Massa-
chusetts who had neither charter nor any other legal rights, but
who had simply come, settled, and made a written constitution
for themselves. New Haven, westward of the river on the
shore of the sound, had been established by a band of English
immigrants equally without charter rights, but equally ready
and able to construct a frame of government for themselves.
Some thirty years after their settlement, the leaders of the
'Connecticut colony,' up the' river, which meantime had become
an extended cluster of towns, decided that it was time to obtain
a charter. Accordingly they sent their governor, Winthrop, to
England to procure one. He was entirely successful, much more
successful than was pleasant to the settlers of the New Haven
district ; for he had obtained a grant which included their lands
and colony and which thus forced them to become a part t>f
' Connecticut.' Saybrook had already been absorbed. The
charter gave the colonists substantially the same rights of self-
government that they had had under their own written constitu-
tion, adopted upon their first settlement ; it was, in other words,
just such a charter as Massachusetts then enjoyed. And, unlike
Massachusetts, Connecticut kept her charter, kept it not only
through colonial times to the Revolution, but made it at the
Revolution her state constitution, and was content to live under
it until 1818. Her shrewdness, her acts of timely concession,
and her inoffensive size enabled her to turn away from herself
each successive danger of forfeiture.
Rhode Island's Charter. Rhode Island was similarly
protected by fortune and sagacious management. Roger Wil-
liams, the energetic leader of settlement in that region, obtained
a charter from Parliament in 1644, which was confirmed in 1654)
and replaced by a new charter, from Charles II., in 1663, the yeai
THE GOVERNMENT OF THE UNITED STATES. 279
after Connecticut obtained its legal privileges through the instru-
mentality of Winthrop. As New Haven and Connecticut were
joined ^>y Winthrop's charter, so were the towns of the Rhode
Island country united by the charters obtained by Williams,
under the style ' Rhode Island and Providence Plantations/ a
title which is still the full official name of the state. The charter
of 1663 was retained by the people of Rhode Island even longer
than the people of Connecticut retained theirs. It was not radi-
cally changed until 1842.
Proprietary Governments. The governments of almost
all the other colonies were at first ( proprietary ' ; those of Mary-
land, Pennsylvania, and Delaware remained proprietary until the
Revolution. Maryland was granted to the Calverts, Lords Balti-
more; Pennsylvania and Delaware were both included in the
grant to William Penn ; New York was bestowed upon James,
Duke of York, upon whose ascension of the throne, as James II.,
it became an immediate province of the Crown; New Jersey,
originally a part of New York, was first bestowed by the Duke
of York on Lord John Berkeley and Sir John Carteret, was after-
wards divided, then sold in part, and finally surrendered to the
Crown (1702) ; the Caroliuas and Georgia in the same way, given
at first to proprietors, passed very soon into the hands of the
royal government. New Hampshire, after several attempts to
unite with Massachusetts, fell quietly into the status of a royal
colony, without having had either a charter or even any regularly
ordered proprietary stage of existence.
Government under proprietors meant simply government
by governors and councils appointed by the proprietors, with in
all cases a right on the part of the people to exercise a substantial
control over the government through representative assemblies.
The private proprietors, like the great public proprietor, the
Crown, granted charters to their colonies. The charter which
Penn bestowed upon Pennsylvania is distinguished as one of the
best-conceived and most liberal charters of the time; and under
it his colony certainly enjoyed as good government as most of the
colonies could secure.
Direct Government by the Crown, which came in turn to
every colony except Rhode Island, Connecticut, Pennsylvania, and
280 THE GOVERNMENT OF THE UNITED STATES.
Delaware, involved the appointment of governors by the Crown,
and also, everywhere except in Massachusetts, the appointment
of the governor's council. It generally involved also the depend-
ence of the colonial judiciary, and in general of the whole admin-
istrative machinery of government, upon the royal will ; but it,
nevertheless, did not exclude the colonists from substantial powers
of self-government. Everywhere legislators disciplined governors
with the effective whip of the money power, and everywhere the
people grew accustomed to esteem the management of their own
affairs, especially the control of their own taxes, matter-of-course
privilege, just as much the inalienable right of Englishmen in
America as of Englishmen in England.
Development of the Assemblies. It was, indeed, as a
matter of course rather than as a matter of definite legal right
that the powers of the colonial assemblies waxed greater and
greater from year to year. Parliament would have been wise to
continue the policy of neglect which had been the opportunity
of the colonies in the development of their constitutional liberties.
Left to themselves, they quickly showed what race they were of.
As Burke said, in their justification, they "had formed within them-
selves, either by royal instruction or royal charter, assemblies so exceed-
ingly resembling a parliament, in all their forms, functions, and powers,
that it was impossible thjsy should not imbibe some opinion of a simi-
lar authority. At the first designation of these assemblies, they were
probably not intended for anything more (nor perhaps did they think
themselves much higher) than the municipal corporations within this
island, to which some at present love to compare them. But nothing in
progression can rest on its original plan. . . . Therefore, as the colonies
prospered and increased to a numerous and mighty people, spreading over
a very great tract of the globe, it was natural that they should attribute
to assemblies so respectable in their formal constitution some part of the
dignity of the great nations which they represented. No longer tied
to by-laws, these assemblies made acts of all sorts and in all cases
whatsoever. They levied money, not for parochial purposes, but upon
regular grants to the Crown, following all the rules and principles of a
parliament, to which they approached every day more and more nearly.
. . . Things could not be otherwise ; and English colonies must be had
on these terms, or not had at all. In the meantime neither party felt
any inconvenience from this double legislature [the parliament of Eng-
land, that is, and a colonial legislature], to which they had been formed
by imperceptible habits, and old custom, the great support of all the gov-
THE GOVERNMENT OF THE UNITED STATES. 281
ernments in the world. Though these two legislatures were sometimes
found perhaps performing the very same functions, they did not very
grossly or systematically clash. ... A regular revenue, by the authority
of Parliament, for the support of civil and military establishments, seems
not to have been thought of until the colonies were too proud to submit,
too strong to be forced, too enlightened not to see all the consequences
which must arise from such a system." l
In such, assertions of a right of parliamentary self-gov-
ernment it might be expected that the charter colonies would be
most forward; but, as a matter of fact, such was not the case.
Massachusetts was ever, indeed, very stubbornly and heroically
attached to her liberties, but the royal colony of Virginia was not
a whit behind her. The assemblies of the royal colonies, no less
than those of the charter governments, early, and as if by an
instinct and habit common to the race, developed a consciousness
and practice of local sovereignty, which comported well enough,
indeed, with a perfect loyalty, long-suffering in respect of Navi-
gation Acts and all like attempts of the mother country to regu-
late their place in the politics and commerce of the outside world,
but which was from the first prompt to resent and resist all
dictation as to the strictly interior affairs of the settlements.
And the same was true of the proprietary colonies, also. Mary-
land assumed the same privileges that Virginia insisted upon, and
even Pennsylvania, with its population compounded of English,
Dutch, and Swedes, manifested not a little of the same spirit of
independent self-direction.
Development of Constitutional Liberty in the Colonies.
There was, therefore, a comparatively uniform development of
constitutional liberty throughout the colonies. Everywhere the
same general causes were operative. The settlement and develop-
ment of a new country gave to the elective governing bodies of
the colonies a wide and various duty of legislative regulation;
the newness of the country created everywhere substantially the
same new conditions of social relationship; everywhere, and
more and more as the years went on, there was a very general
participation in communal and colonial affairs by the mass of
1 "Letter to the Sheriffs of Bristol," Works (ed. Boston, 1880), Vol. II.,
pp. 232, 233.
282 THE GOVERNMENT OF THE UNITED STATES.
the people most interested : arid democratic institutions brought
in their train equality of law and a widespread consciousness of
community of interest. Each colony grew, the while, more and
more vividly conscious of its separate political personality in its
relations with the other colonies and with the ruling powers in
England.
Political Sympathy of the Colonies. The substantial
identity of institutional development in the several colonies
appears in nothing more clearly or conclusively than in their
close and spontaneous alliance against England at the Revolution.
Despite very considerable outward differences of social condition
and many apparent divergencies of interest as between colony
and colony, they one and all wanted the same revolution. Almost
without hesitation they ran together to cooperate by the same
means for the same ends. They did not so much make a common
cause as have a common cause from the first. The real concrete
case of revolution, it happened, was made up between England
and Massachusetts. To the politicians in the mother country it
seemed possible to divide the colonies on grounds of self-interest.
Apparently colonies so utterly different in every outward aspect,
so strongly contrasted in actual economic condition as Massachu-
setts and Virginia, could easily be played off against one another.
But we now know how little foundation of fact such a view had.
Boston's trade was offered to Salem, her commercial rival, as a
bait to catch Salein's acquiescence in the stringent Boston Port
Bill which shut Boston off from all trade ; but Salem would not
have it. What was to prevent similar treatment of herself in the
future ? More striking still, distant Virginia sounded the call
to revolution in behalf of Massachusetts. The contest was
political, she clearly perceived, not economical, a contest of
principle, not a contest for any temporary interest or momentary
advantage. From the point of view of politics Massachusetts'
quarrel was Virginia's also. Virginia spoke at once, therefore,
and as a leader, for combination, for a joint resistance to the
aggressions of the home government, and at length for inde-
pendence and a perpetual union between the colonies. For the
shortest possible time did the struggle remain local ; almost
immediately it became ' continental.'
THE GOVERNMENT OF THE UNITED STATES. 283
American as compared with English Constitutional Devel-
opment. There was in this development of self-government in
America a certain very close resemblance to the development of
self-government in England; but there were also other points
of very strong and obvious contrast between the institutional
histories of the two countries. Both in England and in America
the process of institutional growth was in the same direction.
It began with small, hardy, deep-rooted local institutions, with
small self-directing communities, and widened from these to
national institutions which bound the constituent communities
together in a strong and lasting central union. England began
with her village communities and her judicial ' hundreds/ with
the primitive communal institutions of the Teutonic folk ; these
were first gathered to a head in the petty kingdoms of the days
of the Saxon Heptarchy ; another step, and these one-time petty
kingdoms were merely the counties of a wider union, and
England was ready for the amalgamation of the Norman rule,
for the growth of her parliaments and her nationality. In
like manner, the United States began with isolated settlements
upon a long coast, settlements separate, self-contained, self-
regulative; these in time merged in numerous petty colonial
states; and finally these colonial states fitted themselves to-
gether into a national union.
Process of Growth in America Federation, in England
Consolidation. But the means of integration were in the two
cases quite diverse. American integration has been federal;
English, absorptive, incorporative. The earlier stages of federa-
tion did not appear in the Southern colonies ; because there the
unity of the first settlement was generally not broken; the
Virginia of the Revolution was but an expansion of the James-
town settlement; growth by agricultural development was not
disintegration like growth by town establishment. But in New
England the process was federative from the first, finding its most
perfect type, probably, in Rhode Island, whose town atoms drew
so slowly and reluctantly together and so long stoutly resisted
the idea that they had in any sense been absorbed or subordinated
under the operation of the charters of < Rhode Island and Provi-
dence Plantations/ What was at first mere confederation
284 THE GOVERNMENT OF THE UNITED STATES.
between these smallest units, however, by degrees became virtual
coalescence, and the absorbed towns finally formed but subordi-
nate parts in the new and larger colonial units which drew
together in the Continental Congresses. Between these larger
units, these full-grown colonial states, union was from the first
distinctly federative, matter of concession and contract. They
were united in entirely voluntary association, as the Saxon
kingdoms were not.
Conscious Development of Institutions in America. -
Throughout their development the colonies presented a marked
contrast to English development in this, that the formulation
of their institutions was conscious and deliberate. The royal
colonies, like the proprietary and the charter colonies, exercised
their rights of self-government under written grants of privilege
from the Crown : their institutions grew within the area of
written constituent law ; from the first they had definite written
' constitutions ' wherein the general fabric of their governments
was outlined. Constitution by written law, therefore, became
very early one of the matter-of-course habits of colonial thought
and action. When they cast off their allegiance to Great Britain
their self-constitution as independent political bodies took the
shape of a recasting of their colonial constitutions simply. Rhode
Island and Connecticut, as we have seen, did not even find it
necessary to change their charters in any important particular :
they already chose their own governors and officials as well as
made their own laws. The other colonies, with little more
trouble, found adequate means of self-government in changes
which involved hardly more than substituting the authority of
the people for the authority of the English Crown. But the
charter, the written constituent law, was retained : the new gov-
ernments had their charters which emanated from the people, as
the old governments had had theirs given by the king. Popular
conventions took the place of the Privy Council. The colonists
were not inventing written constitutions ; they were simply con-
tinuing their former habitual constitutional life.
English Law and Precedent. Whatever the form of
colonial institutions, however, their substance and content were
thoroughly English. In a sense, indeed, even the forms of colo-
THE GOVERNMENT OF THE UNITED STATES. 285
nial constituent law may be said to have been English, since it
was English practice which originated the idea and habit of giv-
ing written grants of privilege to distant colonies. The colonial
law of Canada and Australia stands to-day in much the same
relation to the law of the mother country that the law of the
American colonies bore to the law which created them (page 255).
Within the constitutions of the colonial and revolutionary time,
at any rate, English law and precedent were closely followed.
The English common law has gone with Englishmen to the ends
of the world. The English communities in America were but pro-
jected parts of the greater English community at home ; the laws of
private and personal relationship which obtained in England were
recognized and administered also in the colonies ; and when, at
the time of the Revolution, the colonists developed out of their
charters the constitutions under which they were to live as inde-
pendent commonwealths their first care was to adopt this common
law under which they had always acted. Important modifications
were made, it is true, in the law thus adopted. It was purged
of all class privilege, of all church prerogative, of all things in-
compatible with the simple democratic society of ttfe new world ;
but no real break was made with the principles of English legal
precedent and practice.
Quite as naturally and quite as completely was English
practice adhered to in the public law of the colonies and of the
independent commonwealths into which they grew. The re-
lations of the colonial legislatures with the colonial governors
were substantially the relations of King and Parliament repro-
duced on a small scale, but with scarcely less earnestness and
spirit. In all respects, except that of the erection of a responsible
ministry representing and shielding the executive, the relations
of the people to their governments suggest English precedent.
The powers of the executive were, in small, the powers of the
Crown. The courts were constituted as the English courts were,
and followed the same rules of procedure. The English in
America, being men of the same practical political race as Eng-
lishmen in England, struck out not a few lines of development of
their own in suiting their institutions to the daily needs of a new
civilization and to novel conditions of social organization ; Ameri-
286 THE GOVERNMENT OF THE UNITED STATES.
can politics were not long in acquiring in many respects a charac-
ter peculiarly their own. But the manner of development was
English throughout : there was nowhere any turning of sharp
corners: there was nowhere any break of continuity. To the
present day our institutions rest upon foundations as old as the
Teutonic peoples.
Union : Preliminary Steps. How much of political
precedent that was their own the colonists had developed ap-
peared most distinctly when they came to put the timbers of
their Union together in the days succeeding the Revolution. The
colonies cannot be said to have framed any federative constituent
law until 1777, when the Articles of Confederation were drawn
up. Before that time they had cooperated without any determi-
nate law of cooperation, acting rather upon the suggestions of
international procedure than upon any clear recognition of corpo-
rate combination. Preparations for union there had been, and
signs of its coming; but no more. For a period of forty years
following the year 1643 the New England colonies had held
together in a loose confederation against the Indians; in 1754
colonial delegates who had met at Albany for conference with
representatives of the Six Nations discussed a premature plan of
union ; in 1765 delegates from nine of the colonies met at New
York and uttered in behalf of all English Americans that protest
against taxation by Parliament which gave the key-note to the
revolutionary movement that followed ; and in 1774 sat the first
of the series of ' Continental Congresses' with which began
American union. But in none of these steps was there any
creation of organic union: that was to be the result of slow
processes, and was to be effected only by the formulation of an
entirely new body of law.
Separateness of the Colonial Governments. It is very
important, if a just view is to be formed of the processes by which the
Union was constructed, to realize the complete separateness of the gov-
ernments of the colonies. They all held substantially the same general
relation to the English authorities ; they had a common duty as towards
the distant country from which they had all come out j but they were not
connected with each other by any bonds of government on this side the
sea. Each of the colonies had its separate executive officials, legislature,
THE GOVERNMENT OF THE UNITED STATES. 287
and courts, which had no connection whatever with the officers, legisla-
tures, and courts of any other colony. Their cooperation from time to
time in meeting dangers which threatened them all alike was natural and
spontaneous, but it was intermittent; it rested upon mere temporary
necessity and had no basis of interior organic law. The colonists had
many grounds of sympathy. Besides possessing the same blood and the
same language, they entertained the same ideas about political justice ;
their dangers, whether proceeding from aggressions on the part of the
French and Indians which threatened their lives, or from aggressions
by Parliament which threatened their liberties, were common dangers :
they were one and all equally interested in the successful development
and liberal government of the new country with which they had identified
themselves. But the motive of their endeavors was always the preserva-
tion of their internal and separate self-government ; their liberties were
historically coincident with their separate organization and rights as dis-
tinct governments. It was only by a slow and hard experience of the
fatal consequences of any other course that the colonies were brought to
subordinate themselves to a central authority which could go further than
mere conference and command them. They saw from the first the neces-
sity for cooperation, but they did not see from the first the absolute
necessity for union. Very slowly, considering the swift influences of
revolution amidst which they worked, and very reluctantly, considering
the evident dangers of separation which daily looked them in the face,
did they construct the union which was to deprive them of the fulness
of their loved independence.
The Confederation. It was not until 1781 that a founda-
tion of distinct written law was put beneath the practice of union ;
it was not till 1789 that the law of the union was made organic.
In 1781 the Articles of Confederation were finally adopted which
had been proposed by the Continental Congress of 1777. But
those Articles gave no real integration to the confederated states:
they were from the first a rope of sand which could bind no one.
They did little more than legitimate the Continental Congress.
Under them the powers of the Confederation were to be exercised
by its Congress ; its only executive or judicial organs were to be
mere committees or agencies of the Congress; and it was in fact
to have no real use for executive parts, for it was to have no
executive rights. Its function was to be advice, not command.
It hung upon the will of the states, being permitted no effective
will of its own. The Articles were in effect scarcely more than
an international convention.
288 THE GOVERNMENT OF THE UNITED STATES.
The Articles of Confederation formally vested the exercise
of federal functions in a Congress just such as the Continental Con-
gresses had been, a Congress, that is, consisting of delegates from the
several states, and in whose decisions the states were to have an abso-
lutely equal voice. No state, it was arranged, should have her vote in
the Congress unless represented by at least two delegates, and no state,
on the other hand, was to be entitled to send more than seven delegates ;
whether she sent two or seven, however, her vote was to be a single vote,
upon which her delegates were to agree. The government thus consti-
tuted was officially known as " The United States in Congress assembled."
For the exercise of representative functions it was very liberally and com-
pletely equipped. To it the independence of the several states in dealing
with foreign powers was entirely subordinated. It alone was to conduct
international correspondence and sanction international agreements; it
was to control the army and navy of the Confederation ; it was to preside
over federal finances, doing all the borrowing and all the spending that
might be necessary for the purposes of the common government ; it was
to determine the value of current coin and the standards of weights and
measures ; it was to be arbitrator in disputes between the states ; in brief,
it was to be the single and dominant authority for all the graver common
interests of the constituent states: its representative position was emi-
nent and complete.
Weakness of the Confederation. But it was given abso-
lutely no executive power, and was therefore helpless and contemptible.
It could take no important resolution without the difficult concurrence
of nine states, a concurrence made all the more difficult by the fact that
the removal of the pressure of the war with England very greatly abated
the interest of the states in the functions of the central Congress, and led
some of them to fail again and again to send any delegates to its sessions.
Its chief executive agency was a committee of its members represent-
ing all the states (hence called the "Committee of States") and bound
by the same hard rule of obtaining the concurrence of nine of its thir-
teen members to every important executive step. Above all, its only
power to govern was a power to advise. It could ask the states for
money, but it could not compel them to give it ; it could ask them for
troops, but could not force them to heed the requisition ; it could make
treaties, but must trust the states to fulfil them ; it could contract debts,
but must rely upon the states to pay them. It was a body richly enough
endowed with prerogatives, but not at all endowed with powers. "The
United States in Congress assembled" formed a mere consultative and
advisory board.
Need of a Better Union- It was the fatal executive
impotency of the Confederation which led to the formation of the
THE GOVERNMENT OF THE UNITED STATES. 289
present stronger and more complete government. The old Con-
tinental Congresses had sufficed, after a fashion, to keep the
colonies together so long as the pressure of the war continued.
Throughout that war there had been, despite much indifference
now and again on the part of some of the colonies to their duty,
and of not a little positive dereliction of plain obligations, a
remarkable degree of energy and unity of action among the con-
federated colonists. But when the pressure of the war was
removed there was an ominous access of indifference, an ill-
boding decrease of respect for plighted faith between the states.
Signs fast multiplied both of the individual weakness of the
states and of the growth of threatening jealousies between them.
A war of tariffs began between neighbor states on the seaboard,
notably between New York and New Jersey and between Vir-
ginia and Maryland. In Massachusetts there flared out, by
reason of the poverty engendered by the war, a rebellion of
debtors under Daniel Shays which it was for a moment feared
the state authorities might find it impossible to cope with. It
speedily became evident that, both for the sake of internal order
and of interstate peace and goodwill, a real central government
was needed. Central consultation would not suffice ; there must
be central government. The Confederation, therefore, was no
real advance upon the old Continental Congresses. Before a
single decade had passed over the new government with its fair-
spoken Articles a new union had been erected and the real his-
tory of the United States begun.
The Constitution : Colonial Precedents. The present
Constitution erects a very different government. It is the charter
of a federal state, which has a commanding law and an indepen-
dent power of its own, whose Constitution and law are the supreme
law of the land. The Convention which framed the new Constitu-
tion met in Philadelphia in May, 1787, and fused together over
the slow fires of prolonged debate the elements of English and
colonial precedent which were to constitute the government of
the United States. In the debates of that Convention during
that memorable summer are to be read the particulars of the
translation of English precedent into American practice made
during the formative colonial period. Through the instrumen-
290 THE GOVERNMENT OF THE UNITED STATES.
tality of the able men who composed that extraordinary as-
sembly, the government of the United States was fitted out
with the full experience of the colonies and of the revolu-
tionary states. 1 It was arranged that the legislature of the new
federal government should consist of two houses, not in direct
imitation of the English system, whose House of Lords we
did not have the materials for reproducing, but in conformity
with an almost universal example set by the states. A single
state furnished the precedent in accordance with which a real
difference of character was given to the two houses. The lower
house of the Connecticut legislature was constituted by an equal
representation of the towns of the state, while her upper house,
composed of the governor, lieutenant-governor, and twelve ' as-
sistants/ represented her people at large : and Connecticut's
example showed the Convention a convenient way of compro-
mise by which they could reconcile the two parties within it
which were contending, the one for an equal representation of
the states in Congress after the absolute manner of the Confed-
eration, the other for a proportional representation of the people.
The Senate, it was agreed, should represent the states equally,
the House of Representatives the people proportionally. The
names Senate and House of Representatives were to be found
already in use by several of the states. The single Executive,
the President, was an obvious copy of the state governors, many
of whom at that time bore the name of president ; his veto power
was to be found formulated ready to hand in the constitution of
New York ; a method of impeachment was already prepared in
the constitutions of half a dozen states. Several states had also
the office of Vice-President. With a fine insight into the real
character of the government which they were constructing, the
Convention provided that its judiciary should be placed, not
under the President or the houses, but alongside of them, upon
1 In describing the work of the Convention I follow here Professor Alex-
ander Johnston's admirable exposition given in the New Princeton Review
for September, 1887, under the title "The First Century of the Constitu-
tion." A convenient brief survey of the chief features of the state consti*
tutions at the time of the formation of the present government of the UnioD
may be found in Hildreth, Vol. III., Chap. XUV.
THE GOVERNMENT OF THE UNITED STATES. 291
a footing of perfect equality with them. A similar arrangement
obtained under the state constitutions. The function of constitu-
tional interpretation was nowhere explicitly conferred, but existed
in the nature of the case. It, necessarily as old as written char-
ters and constitutions, was an inevitable corollary to their funda-
mental proposition of a gift of limited powers. Written constitu-
ent law is by its very nature a law higher than any statute the
legislature acting under it can enact, and by that law, as by an
invariable standard, must the courts test all acts of legislation. 1
The colonial courts had once and again upon this principle
questioned the validity of colonial legislation, and the Supreme
Court of the United States had long had a prototype in the
Judicial Committee of the Privy Council, whose function it
was to hear appeals from the colonies, and whose practice it
had been to pronounce against all laws incompatible with the
royal charters (pages 219, 255).*
When they came to equip Congress with powers, the Con-
vention adopted the plan of careful enumeration. They set out the
acts of government which were to be permitted to the legislature
of the new government in a distinctly cast list of eighteen items.
Even in doing this, however, they may be said to have been simply
recording the experience of the Confederation. They were giving
Congress the powers for lack of which the Congress of the Con-
federation had proved helpless and ridiculous. It was only when
they came to construct the machinery for the election of the Presi-
dent that they left the field of American experience and English
example and devised an arrangement which was so original that
it was destined to break down almost as soon as it was put in
operation.
It is an instructive fact that the work of the Convention was a
work of selection, not a work of creation, and that the success of
their work was not a success of invention, always most dangerous
in government, but a success of judgment, of selective wisdom,
of practical sagacity, the only sort of success in politics which
can ever be made permanent.
1 See A. V. Dicey, The Law of the Constitution, Chap. Ill ; and J. Bryce,
The American Commonwealth, Chap. XXIII.
2 See Brinton Coxe, Judicial Power and Unconstitutional Legislation.
292 THE GOVERNMENT OF THE UNITED STATES.
Character of the New Government. It is one of the dis-
tinguishing characteristics of the English race whose political
habit has been transmitted to us through the sagacious generation
by whom this government was erected that they have never felt
themselves bound by the logic of laws, but only by a practical
understanding of them based upon slow precedent. For this race
the law under which they live is at any particular time what it is
then understood to be; and this understanding of it is compounded
of the circumstances of the time. Absolute theories of legal
consequence they have never cared to follow out to their con-
clusions. Their laws have always been used as parts of the
practical running machinery of their politics, parts to be fitted
from time to time, by interpretation, to existing opinion and social
condition.
Character of the Government Changes with Opinion.
It requires a steady, clear-viewed, thoroughly informed historical
sense, therefore, to determine what was at any given time the
real character of our political institutions. To us of the present
day it seems that the Constitution framed in 1787 gave birth in
1789 to a national government such as that which now constitutes
an indestructible bond of union for the states ; but the men of that
time would certainly have laughed at any such idea, and for the
English race, as I have said, every law is what those who admin-
ister it think that it is. The men of 1789 meant to form "a more
perfect union " than that which had existed under the Confedera-
tion : they saw that for the colonies there must be union or disin-
tegration ; they thought union needful and they meant to have it
in any necessary degree. But they had no special love for the
union which they set about consummating, and they meant to
have as little of it as possible, as little as might be compatible
with wise providence. in respect of the welfare of the new-fledged
states. They were even more afraid of having too strong a cen-
tral government than of having one which was too weak, and they
accepted the new constitution offered them by the Convention of
1787 because convinced of the truth of the arguments urged by its
friends to the effect that the union would be federal merely and
would involve no real sacrifice of individuality or autonomy on
the part of the states.
THK (inVKKNMENT OF THE UNITED STATES. 293
Early Sentiment towards the Union. It is astonishing
to us of this generation to learn how much both of hostility and
of indifference was felt for the new government, which we see to
have been the salvation of the country. Even those who helped
to make it and who worked most sincerely for its adoption enter-
tained grave doubts as to its durability; some of them even, in
despondent moments, questioned its usefulness. Philosophic
statesmen like Alexander Hamilton supported it with ardent pur-
pose and sustained hope ; but for the average citizen, who was not
in the least degree philosophic, it was at first an object of quite
unexciting contemplation. It was for his state, each man felt,
that his blood and treasure had been poured out : it was that
Massachusetts and Virginia might be free that the war had been
fought, not that the colonies might have a new central government
set up over them. Patriotism was state patriotism. The states
were living, organic persons: the union was an arrangement,
possibly it would prove to be only a temporary arrangement ;
entirely new adjustments might have to be made.
Early Tolerance of Threats of Secession. It is by this
frame of mind on the part of the first generation that knew the
present Constitution that we must explain the undoubted early
tolerance for threats of secession. The Union was too young to
be sacred ; the self-love of the states was too pronounced to be
averse from the idea that complete state independence might at
any time be resumed. Discontent in any quarter was the signal
for significant hints at possible withdrawal. As the new system
lived on from year to year and from year to year approved itself
strong and effective it became respected ; as it gathered dignity
and force regard was added to respect, until at last the federal
government became a rallying centre for great parties moved by
genuine national sentiment. But at first neither love nor respect
shielded the federal authorities from the jealousies and menaces
of the states. The new government was to grow national with
the growth of a national history and a national sentiment.
Growth of the National Idea. The career and fate of
the Federalist party very well illustrate the first state of opinion
concerning the Union. The Federalist party was the party of
294 THE GOVERNMENT OF THE UNITED STATES.
the Constitution, the party which had been chiefly instru-
mental in bringing about the adoption of the new frame of gov-
ernment. Immediately upon the inauguration of the present
Union this party of its friends was put in charge of the new
central body politic. It presided over the critical period of its
organization, and framed the first measures which gave it finan-
cial credit, international consideration, security, and energy.
But it soon became evident that the Federalists held views as to
the nature of the new government which not all of those who had
voted for the adoption of the Constitution were willing to sanc-
tion. They -assumed for the federal authorities prerogatives of
too great absoluteness, and seemed to many to be acting upon the
idea that the purpose of the Constitution was to subordinate, and
if need be sacrifice, state interests to the interests of the general
government. Very speedily, therefore, they brought a reaction
upon themselves, and were displaced by a party which felt that
the limitations put by the Constitution upon federal authority
ought to be very strictly observed. This new party, calling itself
' Democratic-Republican,' may be said to have been created by the
injudicious excesses of the Federalists; and from this point of
view the Federalist party may be said to have effected its own
destruction. After its first national defeat it never again came
into power. Rapidly in some places, slowly in others, it went
utterly to pieces.
. But, although the Federalist party was destroyed, time
worked in favor of its political conceptions. The Democratic-
Kepublicans soon found that success in conducting the affairs of
the federal government was, even for them, conditioned upon a
very liberal reading of the authority conferred by the Constitu-
tion ; and by slow degrees they drifted into practices of ' broad
construction ' quite as abhorrent to their own first principles as
the much berated measures of the Federalists had been. But the
Democratic-Republicans, or the Democrats as they were before
long more briefly called, had the advantage of a corresponding
change in public opinion. That, too, was steadily becoming
nationalist in its tendencies.
Railroads, Expansion, and War aid the National Idea.
So long as the people of one section of the country saw little or
THE GOVERNMENT OF THE UNITED STATES. 295
nothing of the people of the other sections, separateness of feel-
ing and localness of view continued to exist and to exercise a
controlling force; the majority of the people continued to put
the states before the nation in their thoughts and to demand
more or less punctilious regard for state prerogatives. But when
railroads began to be built and to multiply ; when people from
all parts of the Union began to go out and settle the West
together; when seeing each other and trading with each other
began to make the people of all the states very much alike in
most of the greater things of habit and institution, and even in
most of the smaller things of opinion and conduct; when new
states which had grown up in the West without any of the old
conservative colonial traditions began to be admitted to the Union
in increasing numbers, regarding themselves as born in and of
the Union ; when a second war with England and a hot struggle
with Mexico had tested the government and strengthened a sen-
timent of national patriotism, then at length it began to be
very generally thought that the Federalists had been right after
all ; that the federal government ought to come first in considera-
tion, even at the cost of some state pride.
Slavery stands in the Way of Nationality. What stood
most in the way of the universal growth of this sort of national
feeling was the great difference between the northern and southern
portions of the Union caused by the existence of slavery in the
South. So long as the laborers in the South were slaves and those
of the North free men, these two sections could not become like
one another either socially or politically, and could not have the
same national feeling. The North and Northwest meant one
thing when they spoke of the nation ; while the South meant quite
another thing. Each meant a nation socially and politically like
itself. The two sections, therefore, rapidly became dissatisfied
with living together under the same political system, and the seces-
sion so much talked about in various quarters in the earlier days
of the Union at last became a reality. Inevitably came the war of
secession, by means of whose fiery processes the differences of insti-
tution between North and South were to be swept utterly away.
Civil War completes the Union. The war wrought
changes of the most profound character. Secession was pre-
296 THE GOVERNMENT OF THE UNITED STATES.
vented, the Union was preserved, and slavery was forever
abolished; these were the immediate effects of the struggle.
But the remoter results were even more important. They pene-
trated to the changing of the very nature of the Union, though
the form of the federal government remained in all essential feat-
ures unaltered. The great effect of the war was, that the nation
was made, in social institutions, at last homogeneous. There
was no longer any permanent reason why the South should not
become like the rest of the country in character and sentiment.
Both sections were brought to the same modes of life and thought ;
there was no longer any legal obstacle to their being in reality one
great nation. The effort made in the war, moreover, to preserve
the Union, and the result of the war in making the country at
last socially homogeneous throughout, has made the federal gov-
ernment, as the representative of the nation, seem greater in our
eyes than ever before, and has permanently modified in the pro-
foundest manner the way in which all the old questions concern-
ing constitutionality and state rights are regarded.
Present Character of the Union. It by no means fol-
lows that because we have become in the fullest organic sense
a nation, ours has become a unitary government, its federal feat-
ures merged in a new national organization. The government
of the Union has indeed become permanent, the cherished repre-
sentative, the vital organ of our life as a nation ; but the states
have not been swallowed up. Their prerogatives are as essential
to our system as ever, are indeed becoming more and more
essential to it from year to year as the already vastly complex
organism of the nation expands. But, instead of regarding the
government of the United States and the government of a state
as two governments, as our fathers did, we now regard them,
if we may make a matter-of-fact analysis of our working views in
politics, as two parts of one and the same government, two
complementary parts of a single system. The value of the plan
of government which our statesmen adopted at the first, the plan
of functions divided between national and state authorities, has
depreciated not a whit : we are only a little less anxious about
the clearness of the lines of division. The national government
THE GOVERNMENT OF THE UNITED STATES. 297
still has its charter, somewhat enlarged since the war, but sub-
stantially the same document as of old ; and the national authori-
ties must still confine themselves to measures within the sanction
of that charter. The state governments, too, still have their
charters, and still have valid claim to all powers not specifically
delegated to the government of the Union. Liberal construction
of the federal charter the nation wants, but not a false construc-
tion of it. The nation properly comes before the states in honor
and importance, not because it is more important than they are
but because it is all important to them and to the maintenance ol
every principle of government which we have established and
still cherish. The national government is the organic frame of
the states : it has enabled, and still enables, them to exist.
Present Character of the Government of the Union.
It is perhaps most in accordance with the accomplished results
of our national development to describe the government of the
United States, not as a dual government, but as a double govern-
ment, so complete is the present integration of its state and fed-
eral parts. Government with us has ceased to be plural and has
become singular, the government of the United States. Distinct
as are its parts, they are not separate. The state and federal
systems are so adjusted under our public law that they may not
only operate smoothly and effectively each in the sphere which is
exclusively its own, but also fit into each other with perfect har-
mony of cooperation wherever their jurisdictions cross or are
parallel, acting as parts of one and the same frame of govern-
ment, with an uncontested subordination of functions and an
undoubted common aim.
Although these two parts of our government are thus
vitally united, however, thus integrated into what is in reality
a single scheme of government, state law by no means depends
upon federal law for its sanction. The Constitution of the
United States and the laws and treaties passed in pursuance
thereof are indeed the supreme law of the land, but their su-
prejnacy does not trench upon or displace the self-originated
authority of the states in the immensely important sphere re-
served to them. Although it is true, taking our system as a
298 THE GOVERNMENT OF THE UNITED STATES.
whole, that the governments of the states are subordinate in om
political order to the government of the Union, they are not sub*
ordinate in the sense of being subject to be commanded by it, but
only in being less than national in their jurisdiction.
The States not Administrative Divisions but Constituent
Members of the Union. The common and convenient distinction
between central and local government furnishes here no appropri-
ate ground of discrimination. A central government, as contra-
distinguished from a local government within the meaning of
that distinction, is a government which prescribes both the con-
stitution and the mode of action of the lesser organs of the sys-
tem to which it belongs. This the governments of the states do
with reference to the townships, the counties, the cities within
their territories: these local bodies are merely administrative
divisions of the states, agencies delegated to do the daily work
of local government. But there is no such relationship between
the federal government and the states. They are not adminis-
trative divisions but constituent members of the Union, coordi-
nate with the Union in their powers, in no sense subject to it
in their appropriate spheres. They are excluded, indeed, by the
federal Constitution from the exercise of certain functions, but
the great and all-important functions which they do exercise
are not given them by that Constitution : they are exercised, on
the contrary, upon the completest principles of self-direction.
We may properly distinguish the government of a county and
the government of a state by the distinction between local and
central government, but not the government of a state and the
government of the Union.
CHARACTER, ORGANS, AND FUNCTIONS OF THE STATES.
The States properly come first in a description of the
government of this country, not only because it was in conform-
ity with state models and precedents that the federal government
was constructed, but also and more particularly because the great
bulk of the business of government still rests with the state
authorities. The states still carry by far the greater part of
the weight of the governing function, still constitute the ordinary
THE GOVERNMENT OF THE UNITED STATES. 299
fountains of justice and of legal right, still stand nearest the
people in the regulation of all their social and legal relation-
ships. Like the Swiss Cantons, our states have given to the
government which binds them together their own forms of con-
stitution. Even more than the Cantons, our states have re-
tained their right to rule their citizens in all ordinary matters
without federal interference. They are the chief creators of law
among us. They are the chief constituent units of our political
system not only, but are also self-directive units. They make up
the mass, the body, the constituent tissue, the organic stuff of the
government of the country. " The federal government," as Tocque-
ville said, "is the exception; the government of the states is the
rule." To them is intrusted our daily welfare, to the federal gov-
ernment only certain collective interests. Upon the character of the
state governments depends the character of the nation in its several
constituent members ; upon the character of the federal govern-
ment depends the character of the nation as a whole. If we are
to begin our study of our institutions at the centre, at the heart
of self-government, we must begin with the states.
The Law of the States : its Character. The law of each
state consists of two great parts, (1) the Constitution, statutes, and
treaties of the United States and (2) the constitution and statutes
of the state. The Constitution, statutes, and treaties of the United
States are the supreme law of the land not so much in the sense
of being set above the constitutions and laws of the states as in
the sense of being, by virtue of the principles of our public law,
integral parts of the law of the states. The constitutions of
several of the states explicitly declare the Constitution of the
United States to be a part of their fundamental law : but such
declarations are only formal recognitions of a principle now in all
cases indubitable. On their legal as well as on their political side
the two parts of our system have been completely integrated.
Upon the state courts as well as upon the courts of the United
States rests the duty of administering federal law. The federal
Constitution is a negative portion of state law in respect of the
limitations which it sets to the sphere of state activity ; but the
laws passed by Congress under the authority of that Constitu-
tion are also positive portions of state law, whose mandates all
300 THE GOVEBNMENT OF THE UNITED STATES.
officers of government, whether state or federal, are bound to
obey.
The constituted authorities of the states do not stand in
the same relation, however, to the Constitution and laws of the
Union that they bear to state law. Of state law they are the
final interpreters, but of federal law they are only provisional in-
terpreters. In acting upon federal law state officers always act
subject to the supervision of the federal tribunals.
The functions of the state courts with regard to the inter-
pretation of federal law very forcibly illustrate the adjustments of our
system. If in any case brought in a state court the question arise whether
a certain state law involved in the case is or is not in violation of the Con-
stitution of the United States, the court may freely give its judgment upon
the question, and if its judgment be that the state law is not constitutional
that judgment is conclusive. If, however, it should declare the law to be
in agreement with the federal Constitution, its opinion may be cited to a
federal tribunal for revision. The federal law is, thus, not regarded as a
thing apart from the law of a state, too sacred to be handled by any but
the federal courts, its specially constituted guardians : it is a part of state
law and the state courts may declare and apply its principles. But in the
last resort the federal courts must themselves shield it from a too liberal
or too prejudiced judgment by state judges, who may very conceivably
be interested to vindicate the statutes of their state as against any objec-
tions drawn from the law of the Union. Both for the sake of making it
uniform and for the sake of keeping it supreme federal law must receive
its final adjudication in its own courts.
Scope of State Law. A moment's thought suffices to
reveal how very great a. field of activity, how preponderant a part
remains under our system to the states. The powers of the fed-
eral government seem great by enumeration. Besides being in-
trinsically powers of the greatest importance, they are made the
more imposing in the Constitution by the fact of their being set
forth in an exhaustive list. The residuum of powers that remains
to the states, consisting as it does of unenumerated items, is
vague, and because vague seems unimportant by comparison.
A moment's examination of this residuum however, a moment's
consideration of its contents, puts a very different face on the
matter. It is worth while for the sake of an adequate under-
standing of the real division of powers under our government to
THE GOVERNMENT OF THE UNITED STATES. 'J01
give to the powers remaining with the states something like the
same setting forth that is given to those granted to the Union.
Legislative Powers of the Union. The Constitution of
the United States grants to Congress first of all the power to lay
and collect taxes, duties, imposts, and excises for the support of
the government of the Union, the payment of its debts, and the
promotion of the common defence and welfare, and also the power
to borrow money on the credit of the United States ; but these
powers of taxation and borrowing belong also to the states, except
that they must raise their revenues without resort to duties, im-
posts, and excises, the privilege of imposing these being reserved
to the Union exclusively. The powers which distinguish the
general government from the governments of the states are not
these powers of raising money but these others : To control the
monetary system of the country, to maintain post-offices and post-
roads, to grant patents and copyrights, to deal with crimes com-
mitted on the high seas or against the law of nations, to shape the
foreign relations of the country, to declare war and control the
military forces of the nation, and to regulate commerce both with
foreign countries and among the states. It is empowered also to
establish uniform rules of naturalization and uniform laws concern-
ing bankruptcy ; but these powers do not belong to it exclusively.
In case Congress does not act in these matters, the states may
adopt laws for themselves concerning them. All the powers of
the general government are plainly such as affect interests which
it would be impossible to regulate harmoniously by any scheme
of separate state action, and only such ; all other powers whatever
remain with the states.
Powers withheld from the States. Some powers, it is
true, the Constitution of the United States expressly withholds
from the states, besides those granted exclusively to the general
government. No state may pass any bill of attainder, ex post facto
law, or law impairing the obligation of contracts, or grant any
title of nobility ; no state may, without the consent of Congress,
lay any imposts or duties, keep troops or ships of war in time of
peace, enter into any agreement with another state or with a
foreign power, or engage in war unless actually invaded or in such
immediate danger as will not admit of delay. But these prohibi
802 THE GOVERNMENT OF THE UNITED STATES.
tious obviously curtail scarcely at all the sphere which the states
would in any case normally occupy within the scheme of federal
union.
Powers left with the States. Compared with the vast
prerogatives of the state legislatures, these limitations seem
small enough. All the civil and religious rights of our citizens
depend upon state legislation ; the education of the people is
in the care of the states ; with them rests the regulation of the
suffrage ; they prescribe the rules of marriage, and the legal rela-
tions of husband and wife, of parent and child ; they determine the
powers of masters over servants and the whole law of principal
and agent, which is so vital a matter in all business transactions ;
they regulate partnership, debt and credit, and insurance ; they
constitute all corporations, both private and municipal, except
such as specially fulfil the financial or other specific functions of
the federal government ; they control the possession, distribution,
and use of property, the exercise of trades, and all contract
relations ; and they formulate and administer all criminal law,
except only that which concerns crimes committed against the
United States, on the high seas, or against the law of nations.
Space would fail in which to enumerate the particular items of
this vast range of power ; to detail its parts would be to catalogue
all social and business relationships, to set forth all the founda-
tions of law and order.
A striking illustration of the preponderant part played by state
law under our system is supplied in the surprising fact that only one out
of the dozen greatest subjects of legislation which engaged the public
mind in England during the nineteenth century would have come within the
powers of the federal government under the Constitution as it stood before
the war, only two under the Constitution as it stands since the addition of
the war amendments. I suppose that I am justified in singling out as
these twelve greatest subjects of legislation the following : Catholic eman-
cipation, parliamentary reform, the abolition of slavery, the amendment
of the poor-laws, the reform of municipal corporations, the repeal of the
corn laws, the admission of the Jews to Parliament, the disestablishment
of the Irish church, the alteration of the Irish land laws, the establishment
of national education, the introduction of the ballot, and the reform of the
criminal law. Of these every one except the corn laws and the abolition
of slavery would have been under our system, so far as they could be
dealt with at all, subjects for state regulation entirely ; and it was only
THE GOVERNMENT OF THE UNITED STATES. 303
by constitutional amendment made in recognition of the accomplished
facts of the war that slavery, which was formerly a question reserved
for state action, and for state action alone, was brought within the field
of the federal authority. 1
Non-constitutional Provisions in State Constitutions.
One of the most characteristic circumstances connected with our
state law is the threatened loss of all real distinction between
constitutional and ordinary law. Constitutions are in their
proper nature bodies of law by which government is constituted,
by which, that is, government is given its organization and
functions. Private law, the regulation of the relations of citi-
zens to each other in their private capacities, does not fall
within their legitimate province. This principle is fully recog-
nized in the construction of our federal Constitution, which
is strong and flexible chiefly because of its great, its admirable
simplicity and its strictly constitutional scope. But constitution-
making in the states, especially in the newer states, has pro-
ceeded upon no such idea. Not only do the constitutions of
the states go very much more into detail in their prescriptions
touching the organization of the government; they go far beyond
organic provisions and undertake the ordinary, but very different,
work of legislative enactment. They commonly embody regula-
tions, for example, with reference to the management of state
property, such as canals and roads, and for the detailed adminis-
tration of the state debt ; they determine the amounts and sorts
of property which are to be exempt from seizure for private
debt ; they formulate sumptuary laws, such as those forbidding
the sale of intoxicating liquors ; at a score of points they enter
without hesitation or restraint the field usually reserved for the
action of legislative bodies.
Distrust of Legislation. The motive is dissatisfaction
with legislation, distrust of legislators, a wish to secure for cer-
tain classes of law a greater permanency and stability than is
vouchsafed to statutes, which stand in constant peril of altera-
1 Compare J. F. Jameson, Introduction to the Constitutional and Political
History of the Individual States, Johns Hopkins University Studies in His-
torical and Political Science, 4th Series, p. 9 (continuous p. 189).
304 THE GOVERNMENT OF THE UNITED STATES.
tion or repeal. A further motive is the desire to give to such
laws the sanction of a popular vote. It is the almost universal
practice throughout the Union to submit constitutional provisions
to a vote of the people ; and the non-constitutional provisions
which are becoming so common in our constitutions are virtually
only ordinary laws submitted to popular sanction and so placed,
along with the rest of the instrument of which they form incon-
gruous parts, beyond the liability of being changed otherwise
than through the acquiescence of the same ultimate authority.
The practice perhaps discovers a tendency towards devising
means for making all very important legal provisions dependent
upon direct popular participation in the process of enactment.
The objections to the practice are as obvious as they are
weighty. General outlines of organization, such as the Consti-
tution of the United States contains, may be made to stand with-
out essential alteration for long periods together ; .but, in propor-
tion as constitutions make provision for interests whose aspects
must change from time to time with changing circumstance, they
enter the domain of such law as must be subject to constant
modification and adaptation. Not only must the distinctions
between constitutional and ordinary law hitherto recognized and
valued tend to be fatally obscured, but the much to be desired
stability of constitutional provisions must in great part be sacri-
ficed. Those constitutions which contain the largest amount of
extraneous matter, which does not concern at all the structure or
functions of government, but only private or particular interests,
must of course, however carefully drawn, prove subject to most
frequent change. In some of our states, accordingly, constitu-
tions have been as often changed as important statutes. The
danger is that constitution-making will become with us only a
cumbrous mode of legislation.
Distrust of the legislatures is further indicated by the intro-
duction in several states of the initiative and the referendum for
ordinary laws. By the former a certain percentage of the elec-
torate may initiate legislation by a petition which, when properly
signed and forwarded to the Secretary of State, compels the sub-
mission to popular vote of the measure set out in the petition.
By the referendum a certain percentage of the electorate, gener-
THE GOVERNMENT OF THE UNITED STATES. 305
ally smaller than in the case of the initiative,, may compel the
submission to popular vote of a measure already passed by the
legislature.
The objections to the initiative and the referendum are that
they assume a discriminating judgment and a fullness of infor-
mation on the part of the people touching questions of public pol-
icy which they do not often possess, and that it lowers the sense
of responsibility on the part of legislators. In their behalf it
may be urged that they enable the people to pass good measures
and to kill bad ones and that their educational value is large.
Constitutional Amendments. The amendment of state
constitutions, like the amendment of the federal Constitution, can
be effected only by elaborate, formal, and unusual processes which
are meant to hedge the fundamental law about with a greater
dignity and sanctity than attaches to any other body of legal
precepts. The theory of our whole constitutional arrangement
is, that the people have not only, in establishing their constitu-
tions, bound their agents, the governing bodies and officials of
the states, but have also bound themselves, have bound them-
selves to change the fundamental rules which they have made
only by certain formal and deliberate processes which must mark
the act of change as at once solemn and fully advised.
The distinction between constitutional provisions and ordinary
laws is further lessened in those states which have adopted the
initiative and the referendum both for constitution making and
amending and for the passage of ordinary laws. By their intro-
duction the formal difference between the constitution and a
statute, adopted through their use, has been very largely removed.
In England, constitutional amendment is not distinguishable
from simple legislation (page 216). Parliament may, by simple
Act, change any, even the most fundamental, principle of govern-
ment that the deliberate ojfinion of the nation wishes to see
changed. Where the constitution consists for the most part of
mere precedent, and for the rest of Acts of Parliament or royal
ordinances simply, it may be altered as easily as precedent may be
departed from. In England that is not easily. The great con-
servative force there is the difficulty with which Englishmen
abandon established courses.
306 THE GOVERNMENT OF THE UNITED STATES.
In France constitutional amendment differs from ordinary
legislation only in this, that the two chambers must sit together
at Versailles, as a single National Assembly, when passing laws
which affect the constitution (page 156).
In Germany constitutional amendment differs from ordinary
legislation only in the number of votes required for the passage
of an amendment through the Bundesrath, in which fourteen
negative votes will defeat it. In the United States, on the con-
trary, constitutional amendment differs from ordinary legislation
both in formal procedure and in the political powers called into
action to effect it.
Preliminary Steps of Amendment. Legislatures, with
us, cannot of themselves undertake any general revision of the
fundamental law. In case a general revision of a state constitu-
tion is sought to be effected, the legislature is empowered to pro-
pose the calling of a popular convention to be chosen specially
for the purpose ; the question whether or not such a convention
shall be called must be submitted to the people ; if they vote for
its being summoned, it is elected by the usual suffrage ; it meets
and undertakes the revision, and then usually submits the results
of its labors to the popular vote, which may either accept those
results, or reject them and fall back upon the old constitutional
arrangements.
In many of the states a proposition for the calling of such a
convention may be submitted to the people only if adopted by a
two-thirds vote of both houses of the legislature. The new state
constitution, adopted in South Carolina (1895) and in Delaware
(1897) were not submitted to the popular vote, but were promul-
gated as law by the conventions which framed them. This
method of adoption was once not uncommon ; but it is now very
unusual.
Proposal of Amendments. Legislatures may, however,
themselves propose particular amendments to constitutional pro-
visions. In some of the states a mere majority vote suffices for
the preliminary adoption of amendments by the legislature,
though in most states larger majorities, ranging from three-fifths
of a quorum to two-thirds of all the elected members of each
house, must be obtained. But in almost all cases popular sane-
THE GOVERNMENT OF THE IM I i;U STATES. 307
tion must follow : a vote of the people being made an indispen-
sable condition precedent to the incorporation of an amendment
in the fundamental law. In many states, indeed, amendments
proposed thus by the legislature must be adopted by two succes-
sive legislatures, besides receiving the people's sanction, before
they can become part of the constitution. In some a popular vote
intervenes between the two legislative adoptions which must be
had before the desired amendment is effected. In Delaware
amendments may be made without a popular vote, if adopted
by a two-thirds vote in two successive legislatures, a renewal of
the representative house by election intervening.
In some of the states amendments to the constitution can also
be proposed by the initiative of the people and when so proposed
must be submitted to popular vote and, if adopted, become part
of the constitution without the participation of the legislature.
The details of these processes differ widely in different states.
In Vermont only the senate can propose amendments, and it only
at intervals of ten years. In Connecticut amendments can be
originated only by the house of representatives. Various restric-
tions, too, are in many of the states put upon the number of
clauses of the constitution to which amendments can be proposed
at any single legislative session, the number of times amend-
ments may be submitted to the people within a specified term
of years, and the method to be followed in the popular vote
when more than one amendment is submitted. In most states,
too, special popular majorities are required for the adoption of
all constitutional changes.
These processes of amendment have been found by no means
so difficult as they seem. The habit of inserting in state consti-
tutions enactments not properly belonging with constitutional
provisions, and which must be subject to frequent alteration, has
led to frequent appeals to the people for purposes of amendment,
and has served to show how easy amendment may be made. So
easy and normal, indeed, have appeals to the people in state
affairs become that the constitution of New Hampshire goes the
length of providing for the submission to the vote of the people
every seven years of the question whether or not the state con-
stitution shall be revised by a convention called for the purpose,
808 THE GOVERNMENT OF THE UNITED STATES.
while that of Iowa commands the submission of the same ques-
tion to the people every ten years, that of Michigan every sixteen
years ; and the constitutions of New York, Ohio, Oklahoma, and
Maryland direct its submission every twenty years.
Conflict of Laws. The plan of leaving to the states the
regulation of all that portion of the law which most nearly touches
our daily interests, and which in effect determines the whole
structure of society, the whole organic action of industry and
business, has some very serious disadvantages : disadvantages
which make themselves more and more emphatically felt as
modern tendencies of social and political development more and
more prevail over the old conservative forces. When the Consti-
tution of the Union was framed the states were practically very
far distant from one another. Difficulties of travel very greatly
restricted intercourse between them : being, so to say, physically
separate, it was no inconvenience that they were also legally sepa-
rate. But now that the railroad and the telegraph have made
the country small both to the traveller and to the sender of mes-
sages the states have been geographically and socially compacted.
Above all, they have been commercially and industrially knit
together. State divisions, it turns out, are not natural economic
divisions ; they practically constitute no boundaries at all to any
distinctly marked industrial regions. Variety and conflict of
laws, consequently, have brought not a little friction and confu-
sion into our social and business arrangements.
Detrimental Effects. At some points this diversity and
multiformity of law almost fatally affect the deepest and most
abiding interests of the national life. Above all things else, it
has touched the marriage relation, that tap-root of all social
growth, with a deadly corruption. Not only has the marriage tie
been very greatly relaxed in some of the states, while in others it
retains its old-time tightness, so that the conservative rules which
jealously guarded the family, as the heart of the state, promise
amid the confusion to be almost forgotten; but diversities be-
tween state and state have made possible the most scandalous
processes of collusive divorce and fraudulent marriage.
In the Matter of Taxation so great a variety of law
obtains among the states as to preclude in part a normal and
THE GOVERNMENT OF THE UNITED STATES. 309
healthy economic development. Special taxes drive out certain
employments from some states, special exemptions artificially
foster them in others ; and in many quarters ill-judged or ill-
adjusted systems of taxation tend to hamper industry and
exclude capital. So, too, in the matter of Corporations diversity
of state law works great confusion and partial disaster to the
interests of commerce and industry, not only because some
states are less careful in their creation and control of corpora-
tions than others, and so work harm to their own citizens, but
also because loosely or unwisely incorporated companies created
by the laws of one state may do business and escape proper
responsibility in another state.
In the Criminal Law, again, variety works social damage,
tending to concentrate crime where laws are lax, and to under-
mine by diffused percolation the very principles which social
experience has established for the control of the vicious classes.
So, too, in laws concerning debt, special exemptions or special
embarrassments of procedure here, there, and everywhere impair
that delicate instrument, credit, upon whose perfect operation the
prosperity of a commercial nation depends.
Proposals of Reform. It is in view of such a state of
affairs, such a multiformity and complexity of law touching mat-
ters which ought, for the good of the country, to be uniformly
and simply regulated throughout the Union, that various exten-
sions of the sphere of the federal government have been proposed
by sanguine reformers, who would have all interests which need
for their advancement uniform rules of law given over to the care
of Congress by constitutional amendment.
Evils of the Case Easily Exaggerated. The extent of
the legal friction and confusion complained of may, however,
easily be exaggerated. It is in most cases a confusion of detail
and of procedure rather than of principle or substance, and has
more exasperations for the lawyer than for the layman. Unques-
tionably there is vastly more uniformity than diversity. Nearly
all the states have built up their law upon the ancient and com-
mon foundation of the Common Law of England, the new states
borrowing their legislation in great part from the old. Nothing
could afford clearer evidence of this than the freedom with which,
310 THE GOVERNMENT OF THE UNITED STATES.
in the courts of nearly every state in the Union, the decisions
of the courts of the other states, and even the decisions of the
English courts, are cited as suggestive or illustrative, some-
times also as authoritative, precedent. Everywhere, for instance,
the laws of property Test upon substantially the same bases of
legal principle, and everywhere those laws have been similarly
freed from the burdens and inequalities of the older system from
which they were derived. Everywhere there is the same facility
of transfer, the same virtual abolition of all feudal character-
istics of tenure, the same separation between the property in-
terests of man and wife, the same general rules as to liens and
other claims on property, the same principles of tenancy, of
disposition by will, and of intestate inheritance. Every-
where, too, contracts, common carriage, sales, negotiable paper,
and partnership rest upon similar principles of practically uni-
versal acceptance. We feel the conflicts, because we suffer under
their vexations ; while we fail to realize and appreciate the uni-
formities, because they are normal and have come to seem matters
of course. It must be acknowledged, moreover, that even within
the area of irritation there are strong corrective forces at work, a
growing moral sentiment and a fashion of imitation, promising
the initiation and propagation of reform. As the country grows
socially and politically, its tendency is to compact, to get a com-
mon thought and establish common practices. As it compacts,
likenesses will be emphasized, diversities pared and worn away.
Louisiana and New Mexico stand apart with a peculiar law of their own,
unlike the law of the rest of the states, because based upon the civil law of
France and Spain, which is Roman law filtered through the histories of the
Romance nations. Inevitably, however, the laws of these exceptional com-
munities have approximated in some degree to the legal systems of the rest
of the Union ; and they will draw still closer to them in the future.
Interstate Law: Commerce. In a country being thus
compacted, thus made broader than its states in its feelings and
interests, thus turned away from the merely local enterprise of
its early industrial history to the national commerce and produc-
tion of the present generation, state lines must coincide with the
THE GOVERNMENT OF THE UNITED STATES. 311
lines of very few affairs which are not political :- there must be
many calls for the adjusting weight of an authority larger than
that of any single state. Most such interests, happily, are
commercial in their nature, and with the regulation of interstate
commerce Congress has always been charged. It was to give
Congress this power, indeed, that the great constitutional con-
vention was called : interstate commerce was one of the chief
sources of the alarming friction between the states which marked
that time of crisis. It is by the operation of this power that the
great railroad systems of this country, and the endless telegraph
and telephone lines, have come under the guardianship, and, so
far as Congress has chosen, under the regulation of the federal
government. Federal law cannot touch agencies of commerce
which lie wholly within a single state ; but there are nowadays
very few such agencies, and the jurisdiction of Congress over
commerce, where it does exist, is exclusive of all interference by
the states. Federal law controls all navigable waters which
constitute natural highways of interstate traffic or intercourse,
whether directly or only through their connections ; it extends to
such waters, not only, but also to the control of the means by
which commerce may cross them in its land passage, to the
construction, that is, of bridges over navigable waters for the
facilitation of land traffic. It excludes every state tax or
license law, every state regulation whatever, that in any way
affects by way of restriction or control any movement of com-
merce or intercourse between the states.
Posts and Telegraphs. Directly supplementary to the
power of Congress over interstate commerce is its power to
establish post-offices and post-roads. This has been interpreted
to bestow upon Congress the right to facilitate telegraphic inter-
course between the states by taking measures to break down
exclusive privileges granted by a state ; and it must undoubtedly
be taken as rounding out to a perfect wholeness the control of
the general government over the means of communication
between state and state.
Of course, too, this is a jurisdiction which must necessarily ad-
vance with lengthening strides as the movements of our already
312 THE GOVERNMENT OF THE UNITED STATES.
vast commerce become yearly even .wider still and more rapid.
It has been made, indeed, to carry also a promise even of federal
ownership of the telegraph systems of the country, and of a very
much more extensive regulation of railway management than
has yet been ventured upon. 1 The most significant step yet
taken was the creation, in 1887, of an Interstate Commerce
Commission charged with the prevention of unjust discrimina-
tions in railroad rates either for freight or passage. This Com-
mission has already become one of the most important judicial
bodies of the nation, and illustrates a very important experiment
in federal control.
Citizenship. Citizenship in the United States illus-
trates the double character of the government. Whoever pos-
sesses citizenship at all is a citizen both of the United States
and of the state in which he lives. He cannot be a citizen of
the United States alone, or only of a state ; he must be a citizen
of both or of neither : the two parts of his citizenship cannot
be separated. The responsibilities of citizenship, too, are both
double and direct. Under our federal system punishment for the
violation of federal law falls directly upon individuals, as does
punishment for the violation of state law ; the obligation of obe-
dience is in both cases direct : every citizen must obey both federal
law and the law of his own state. His citizenship involves direct
relations with the authorities of both parts of the government
of the country, and connects him as immediately with the power
of the marshals of the United States as with the power of the
sheriff of his own county, or the constable of his own town.
The population of the United States is probably less stationary
in its residence than the population of any other country in the
world, and frequent changes of residence have led to a great
facilitation of the transfer of citizenship from one state to
another. A very brief term of residence in a new home in an-
other state secures the privileges of citizenship there: but in
transferring his state citizenship a citizen does not affect his
1 The control of both the railroads and the telegraph systems has been
taken over by the federal government for the period of the war.
THE GOVERNMENT OF THE UNITED STATES. 313
citizenship of the United States at all. The term of residence
required for the acquirement of the privilege of suffrage varies
from three months to two years and a half, but is in most cases
one year.
Elements of Confusion. A very considerable amount of
obscurity, it must be admitted, surrounds the question of citizen-
ship in the United States. The laws of our states have so freely
extended to aliens the right to hold property, and even the right
to vote after a mere declaration of intention to become naturalized
citizens (see page 320), have, in brief, so freely endowed aliens
with all the most substantial and distinguishing privileges of citi-
zenship, that it has become extremely difficult to draw any
clear line, any distinction not merely formal, between citizens
and aliens. Of course if a person who is not formally naturalized
exchanges residence in a state in which he was allowed the priv-
ileges of citizenship for residence in a state in which those priv-
ileges are denied him, he can complain of no injustice or inequal-
ity. The Constitution of the United States commands that " the
citizens of each state shall be entitled to all the privileges and
immunities of citizens in the several states " ; but only federal
law admits aliens to formal citizenship, and only formal citizen-
ship can give to any one, wherever he may go, a right to the
privileges and immunities of citizenship. The suffrage in par-
ticular is a privilege which each state may grant upon terms of
its own choosing, provided only that those terms be not inconsis-
tent with a republican form of government, and with the Consti-
tution of the United States.
Naturalization. Naturalization is the name given to
the acquirement of citizenship by an alien. The power to pre-
scribe uniform rules of naturalization rests with Congress alone,
by grant of the Constitution. The states cannot make rules of
their own in the matter, though they may, singularly and incon-
sistently enough, admit to the privileges of citizenship on what
terms they please (page 220). The national naturalization law
requires that the person who wishes to become a citizen must
apply to a court of law in the state or territory in which he
314 THE GOVEBNMENT OF THE UNITED STATES.
desires to exercise the rights of citizenship for formal papers
declaring him a legal citizen ; that before receiving such papers
he must take oath to be an orderly and loyal citizen and must
renounce any title of nobility he may have held ; and that in
order to obtain such papers he must have lived in the United
States at least five years, and in the state or territory in which
he makes application at least one year ; and at least two years
before his application he must have declared in court under oath
his intention to become a naturalized citizen.
It is not necessary for a person who became a resident of the
United States three years before coming of age to make such a sworn
declaration of his intention to become a citizen. If a man who has made
such sworn declaration dies before taking out his papers of naturalization,
his widow and minor children may become citizens by merely taking the
necessary oath of citizenship at the proper time. The children of persons
who become naturalized, if they live in the United States, and are under
twenty-one years of age when their parents take the oath of citizenship,
become citizens by virtue of the naturalization of their parents.
In Germany, the terms and conditions upon which foreigners are to be
admitted to citizenship are also regulated by federal law ; while in Switzer-
land citizenship in its fulness can be conferred only by cantonal law,
though naturalization is regulated by federal provision. The European
states have, however, very few of the problems of naturalization which
confront and confound us in the United States. The whole world is not
coming to them as it is coming to us.
Citizenship under a Confederation. The possession of a
national naturalization law is one of the practical political features which
distinguish our general government from the government of a mere
confederation. The states which compose it are the only ' citizens ' of a
confederation : for the individual there is no federal citizenship ; and the
transfer by an individual of his citizenship from one state to another
within the confederation is as much a mere matter of international comity
as if the states were not bound together by any common law.
Central Governments of the States. The governments
of the states depend for their structure and powers entirely upon
written fundamental law, upon documents which we may call
popular charters. It was, as I have said, upon the models and
precedents furnished by the governments of the thirteen original
states that the federal government was constructed, and this was
one of the features copied : the state governments, no less dis<
THE GOVERNMENT OF THE UNITED STATES. 315
tinctly than the federal government, rest upon fundamental law
based upon the explicit assent of the people or their representa-
tives.
A very great uniformity of structure is observable among
the central governments of the states in all general features. One
of the most obvious points of resemblance between them is the
complete separation and perfect coordination of the three great
departments of governmental action, the legislative, the execu-
tive, and the judicial ; and these are set apart and organized under
the state constitutions with a very much greater particularity than
characterizes the provisions of the federal constitution.
The State Legislatures: their Powers. The state con-
stitutions supplement the Constitution of the Union, providing
for the exercise of all powers not bestowed by the federal charter ;
and the legislatures of the states may be said, in general terms,
to possess all law-making powers not given to Congress. But this
is by no means a complete statement of the case. State constitu-
tions contain strict limitations of power no less than does the
Constitution of the United States. Some powers there are which
are altogether withheld: which cannot under our system be
exercised by any existing authority : which have been granted
neither to Congress nor to the legislatures of the states. Such,
for example, are the power to grant to any person or class of per-
sons exclusive political privileges or immunities, the power to
bestow hereditary privileges or honors, and the power to abridge
in any way the equal rights to life, liberty, and property. These
may safely be said, however, to be powers which no state legis-
lature would in any case dream of exercising, inasmuch as they
would have to be exercised, if exercised at all, in the face of a
public opinion which would certainly refuse reelection to any
legislator who should violate the principles of republican govern-
ment so strenuously worked out in our history, from Magna Charta
down, and now so warmly cherished by all classes of our people
that no denial of them could stand upon our statute books a single
twelve-month. These are at most limitations put upon reaction.
Limitations of Length of Session, etc. There are other
limitations, however, of a very different character contained in
our state constitutions : limitations meant especially to control
316 THE GOVERNMENT OF THE UNITED STATES.
the action of legislatures within the sphere of their proper and
undoubted powers, and unquestionably based upon a general dis-
trust of the wisdom, if not of the honesty, of legislators. Thus
our constitutions very commonly forbid all private or special
legislation, confining legislatures to the passage of general laws
applying uniform rules to all persons and all cases alike. They
limit, moreover, in very many cases, the length and frequency of
legislative sessions, 1 providing that the legislature shall convene,
for instance, only once in every period of two years, and shall
continue its biennial session for not more than a certain number
of days, except under special or exceptional conditions, when
extra sessions may be called by the governor or regular sessions
extended by a special two-thirds or three-fifths vote. Many con-
stitutions contain, also, minute provisions concerning the conduct
of legislation, forbidding the introduction of bills later than such
and such a day of a limited session, prescribing the general form
of bills, limiting their subject-matter to a single object each, and
even commanding the manner of their consideration.
Other Limitations. More than this, as we have seen,
there are certain classes of legislative provisions which have been
removed beyond the cognizance of legislatures by being put into
the constitutions themselves : such as exemptions of certain classes
of property from seizure for private debt (generally called " home-
stead exemptions "), ' prohibition ' provisions, etc. The embodi-
ment of such measures in constitutions is intended to put
them beyond legislative interference, is a limitation of the
same indirect sort as a Bill of Eights. It is usual, also, for our
state constitutions to limit the power of legislatures to create
corporations, by provisions which direct the passage of general
laws of incorporation to be applied in a formal administrative
manner by the courts, to which applications for incorporation
are to be made.
State Legislatures not Sovereign Bodies. It will thus
be seen that our state legislatures are not in any sense ' sovereign ?
1 The period to which the duration of legislative sessions is restricted
varies, when imposed, from forty days (Wyoming) to ninety days (Colorado
and Minnesota) , the most common period being sixty days.
THE GOVERNMENT OF THE UNITED STATES. 317
bodies. There is a certain serviceable clearness of view to be
had by regarding the state governments as, in their legal as-
pect, like corporations. Their legislatures are law-making bodies
acting within the gifts of charters, and are by these charters
in most cases very strictly circumscribed in their action. It
is this fact which gives so unique a place of power under our
system to the courts, the authoritative interpreters of the funda-
mental law to which all legislation and all executive action must
conform.
Legislative Organization. In every state the legislature
consists of two houses, a senate and house of representatives, and
in most of the states the term of senators is four years, that of
representatives two years, one-half of the senate being renewed
every two years at the general elections. There is no such differ-
ence in character, however, between the two houses of the state
legislatures as exists between the Senate and the House of Repre-
sentatives of the United States. Connecticut, as we have seen
(page 289), furnished the suggestion upon which the framers of
the federal Constitution acted in deciding upon the basis and
character of representation in the two federal houses ; for in the
Connecticut legislature of that time one house represented the
towns, as the confederate units of the state, while- the other rep-
resented the people directly. Even Connecticut has now aban-
doned this arrangement, however, and in almost all the states
representation in both houses is based directly upon population,
the only difference between the senate and house being that -the
senate consists of fewer members representing larger districts.
Often, for instance, each county of a state is entitled to send
several representatives to the lower house of the legislature,
while several counties are combined to form a single senatorial
district.
Reasons for Two Houses in State Legislatures. There
is, consequently, no such historical reason for having two houses
in the states as exists in the case of the federal government. The
object of the federal arrangement is the representation of the
two elements upon which the national government rests, namely,
the popular will and a federal union of states. The state legis-
latures have two houses simply for purposes of deliberateness in
318 THE GOVERNMENT OF THE UNITED STATES.
legislation, in order, that is, that legislation may be filtered
through the debates of two coordinate bodies, representing
slightly differing constituencies, though coming both directly
from the people, and may thus escape the taint of precipitation
too apt to attach to the conclusions of a single all-powerful
popular chamber. The double organization represents no prin-
ciple, but only an effort at prudence.
The reason for our having double legislatures cannot, however,
be so simply explained. It is compounded of both deliberate and histori-
cal elements. Its historical grounds are sufficiently clear : the senates
of our states are lineal descendants of the councils associated with the
colonial governors, though they now represent a very different principle.
The colonial councils emanated from the executive, and may be said to
have been parts of the executive, while our senates emanate from the
people. Then, too, there was the element of deliberate imitation of
English institutions. One hundred years ago England possessed the
only great free government in the world ; she was, moreover, our mother
land, and the statesmen who formed our constitutions at the revolution
naturally adopted that English fashion of legislative organization which
has since become the prevailing fashion among all liberalized govern-
ments. Possibly, too, they were influenced by more ancient example.
The two greatest nations of antiquity had had double legislatures, and,
because such legislatures existed in ancient as well as in modern times,
it was believed that they were the only natural kind.
Historical Precedents. Greeks, Romans, and English alike
had at first, it is true, only a single law-making body, a senate represent-
ing the elders or nobles of the community, associated with the king, and,
because of the power or rank of its members, a guiding authority in the
state. In all three nations special historical processes produced at length
legislatures representing the people also ; popular assemblies were, on one
plan or another, coordinated with the aristocratic assembly, and pres-
ently the plan of an aristocratic chamber and a popular chamber in close
association appeared in full development. We copied the English cham-
bers when they were in this stage of real coordination ; before her legis-
lature had sustained that great change, which Greece and Rome also had
witnessed, whereby all real power virtually came to rest again with a
single body, the popular assembly.
Terms of Senators and Representatives. Among the older
states of the union there is a more noticeable variety of law as to the
terms of senators and representatives than is to be found in most of
the constitutions of the newer states. In Massachusetts, for instance,
the term of both senators and representatives is a single year only.
THE GOVERNMENT OF THE UNITED STATES. 819
In New Jersey senators are elected for three years, one-third of the senate
being renewed every year at the election for representatives, whose term
in New Jersey is but one year. A few of the states, however, both new
and old, limit the term of senators to two years, the usual term of repre-
sentatives ; while in Louisiana representatives are given the term usually
assigned to senators, namely, four years.
Names of the Houses. There is some variety among the
states as regards the name by which the lower house of the legislature is
known. In New York the popular house is called "the Assembly" ; in
Virginia, the "House of Delegates"; in New Jersey, the "General
Assembly," a name usually given in most of the states to the two
houses taken together.
The Qualifications required of senators and representa-
tives vary widely in the different states, but not in any essen-
tial point of principle. It is universally required, for example,
that members of the legislature shall be citizens; it is very
generally required that they shall be residents of the states,
sometimes that they shall be residents of the districts for
which they are elected; and it is in almost all cases required
that a member of the legislature shall have reached a certain
age. Variety appears in these provisions only in respect of
details, as to the length of time citizenship or residence shall
have been acquired before election, the particular age necessary,
etc. The age required varies in the case of senators from
twenty-one to thirty years, in the case of representatives from
twenty-one to twenty-five.
Legislative Procedure. The same general rules of
organization and procedure are observed in the constitution
and business both of Congress and of the state legislatures.
The more numerous branch is in all cases presided over by
an officer of its own election who is called the < Speaker ' ; and
the senate sits under the presidency, generally, of a Lieutenant-
Governor, who occupies much the same place in the govern-
ment of the state that the Vice-President of the United States
occupies in the national government. He is contingent substi-
tute for the governor. In twenty-seven of the states it is re-
quired that the votes of a majority, not of a quorum merely, but
of the full number of members elected to each house, shall be
necessary for the passage of a bill.
320 THE GOVERNMENT OF THE UNITED STATES.
Standing Committees. The houses of the state legis
latures, too, being separated from the executive in such a way
as to be entirely deprived of its guidance, depend upon stand-
ing committees for the preliminary examination, digestion, and
preparation of their business, and allow to these committees
an almost unquestioned command of the time and the conclu-
sions of the legislature. The state legislatures of the early
time served as models for Congress. They and the legislatures
of the later states, made like them, have retained substantially
their first plan of organization, following the rules of parlia-
mentary practice universally observed among English-speaking
peoples; and they and Congress alike have had in the main
the same development. As they have grown larger they have
grown more dependent upon their advisory parts, their com-
mittees.
In several states the constitutions themselves command the refer-
ence of all bills to committees and forbid the passage of any measure
which has not been referred and reported upon.
The Suffrage. The suffrage is in all the states given
by constitutional provision to male citizens twenty-one years
of age ; but it does not in all the states stop there. Several of
the states extend the privilege of voting also to every male resi-
dent of foreign birth who is twenty-one years of age and has
declared his intention to become a naturalized citizen; and
several of the states grant it to every male citizen or 'inhabi-
tant' of voting age. The laws of almost all the states require
residence in the state for a certain length of time previous to
the election in which the privilege is sought to be exercised
(the period varies all the way from three months to two years
and a half), as a condition precedent to voting; most require
a certain length of residence in the county also where the
privilege is to be exercised; some a certain length of residence
in the voting precinct. Many states require all voters to have
paid certain taxes ; in Delaware they are required to have paid
a fixed registration fee ; but no state except Rhode Island and
South Carolina has a property qualification properly so-called,
[n South Carolina it is required that each voter shall be able
THE GOVERNMENT OF THE UNITED STATES. 321
to read and write, or, if illiterate, shall own property valued at
three hundred dollars.
In several of the states the suffrage is confined to those who can read the
constitution or the laws of the state. It is common, of course, throughout
the country to exclude criminals, insane persons, and idiots ; and in sev-
eral states the privilege is withheld from those who bet on elections. In
Florida betting on an election not only excludes from the election in con-
nection with which the offence is committed, but is punished, upon con-
viction, by entire and permanent disfranchisement.
Women are accorded the privilege of voting in school elections
in a number of states, and in a still larger number they are made
eligible to be elected to school boards. Several states have extended
the franchise to them in municipal elections ; and, although the con-
stitutions of most of the states declare the suffrage to be restricted
to males, eleven have conferred it upon women in all elections. 1
The ballot, or voting paper, is throughout all the states the in-
strument of voting, and they have adopted the so-called Australian
ballot system, by which voters are secured a complete privacy
in the preparation of the voting papers and in the casting of their
votes when prepared.
The State Courts. A very great variety exists among
the laws of the several states regarding the constitution,
functions, and relative subordination of the courts. A general
sketch of the state courts must, therefore, be made in very
broad outline. Perhaps in this department of state law, as in
others, there may be said to be, despite a bewildering variety
of detail, sufficient unity of general feature to warrant a gener-
alized description, and to render unnecessary the unsatisfactory
expedient of choosing the institutions of a single state as in some
broad sense typical, and describing them alone.
The courts of our states are in no sense organs of federal justice,
as the courts of the German states are. They have an entirely
independent standing and organization and an entirely indepen-
dent jurisdiction. Their constitution and procedure are in no
way affected by federal law, except of course by way of lim-
itation ; their sphere is a sphere apart. The series of courts
1 These states are Arizona, California, Colorado, Idaho, Kansas, Montana,
Nevada, Oregon, Utah, Washington and Wyoming. Illinois has conferred
upon women the suffrage in presidential elections and -some local elections.
322 THE GOVERNMENT OF THE UNITED STATES.
in each state, therefore, is complete. Every state has its supreme
court, as well as its inferior tribunals, and appeals lie from the
state courts to the courts of the United States only in cases in-
volving federal law or in cases where the character of the parties
to the suit does not give any state court complete jurisdiction.
One of the most characteristic features of our state
courts is what I may call their local attachment. In most cases
the judges are not appointed by any central authority but are
elected by the voters of the district or circuit in which they
hold court; they, like members of legislatures, may be said to
have ' constituents.' Their responsibility is thus chiefly a
responsibility to the electors, a popular rather than an official
responsibility. The courts are held together in a common
system and to a common duty only by law, therefore, and not
by discipline or official subordination to superior judicial authori-
ties. The courts may be said to be local rather than central
organs ; they are integrated only in opinion, only by the
course of appeal, the appellate authority of the higher over the
lower courts in points of law.
This localization of the organs of government, in their origin as
well as in their functions, is a general characteristic of American
political organization, a characteristic which appears most con-
spicuously in the arrangements of local government, which is not
so much organized as left to organize itself under general statutes,
for whose enforcement no central administrative machinery is
provided.
Common Law Courts. There are, usually, four grades
of jurisdiction in the judicial systems of the states, with four
grades of courts corresponding. There are generally (1) Justices
of the Peace, who have jurisdiction over all petty police offences
and over civil suits for trifling sums ; who conduct preliminary
hearings in cases of grave criminal offence, committing the
accused, when there is prima facie proof of guilt, for trial by a
higher court ; and who are, in general terms, conservators of the
peace. They act separately and have quite lost the high
judicial estate which still belongs to the English Justices, from
whom they take their name. Their decisions are in almost all
cases subject to appeals to higher courts.
THE GOVERNMENT OF THE UNITED STATES. 323
Mayor's courts in the towns are generally the same in rank and
jurisdiction, so far as criminal cases are concerned, as the courts of Jus-
tices of the Peace.
(2) County or Municipal Courts, which hear appeals
from Justices of the Peace and from Mayor's courts, and whose
own original jurisdiction is one step higher than that of the
Justices, including civil cases involving considerable sums, and
criminal cases generally not of the gravest character.
Often, however, courts of this grade, especially the municipal
courts of the larger towns, are given a much higher jurisdiction and are
coordinated in some respects with courts of the next higher grade, the
Superior Courts. In New York, New Jersey, and Kentucky the county
courts retain the English name of Quarter Sessions.
(3) Superior Courts, which hear appeals from the county
and municipal courts, and generally from all inferior courts, and
which are themselves courts of high original jurisdiction of the
most general character in both civil and criminal cases. They
may be said to be the general courts which give to the courts of
lower grade their name of ' inferior/ County and municipal
courts, as their names imply, sit only for certain small districts ;
but the districts over which superior courts have jurisdiction
usually cover a wide area, necessitating the sitting of each such
court in several places in succession. In other words, superior
courts are generally circuit courts, and in many states bear that
name.
1 Circuit courts ' is, indeed, the most generally used name for
courts of this grade, that is, for the principal courts of the state ; though
in almost as many states they are called ' district courts.' In most of the
states these courts have special judges of their own ; but in Maine and
New Hampshire they are held by the judges of the supreme court on
circuit.
In some states civil is separated from criminal jurisdiction in this
grade, and distinct courts are created for each. Thus in Texas there are
District courts for civil causes, District Criminal courts for criminal cases.
In Pennsylvania courts of Quarter Sessions are the courts of general crimi-
nal jurisdiction, as in England, civil causes going to the courts of Common
Pleas. Delaware has criminal courts called courts of Gaol Delivery.
(4) Supreme Courts, which in most of the states have no
original jurisdiction at all, but only appellate jurisdiction, hearing
324 THE GOVERNMENT OF THE UNITED STATES.
appeals in all classes of cases (except such as involve only trifling
offences or small sums of money) from the superior courts and
from various inferior courts.
(5) In several states there are supremest courts above the 'su-
preme.' Thus in New York there is a Supreme Court, which has its Appel-
late Division ; the Appellate Division has four several parts or sections
which sit and hear appeals in the four judicial districts into which the state
is divided ; and over all there is a Court of Appeals, a court of general
revision. In New Jersey there is a supreme court above the circuit, which
is itself of high appellate jurisdiction, and a Court of Errors and Appeals
above the supreme ; in Louisiana the order is reversed and there is a
supreme court above a court of appeals ; in Illinois a supreme court above
certain district " appellate courts " ; and in Kentucky a somewhat similar
arrangement prevailed until the Constitutional revision of 1891. In Texas
there are two coordinate supreme courts : one, called the supreme, for the
hearing of civil cases only, the other, called the court of appeals, for the
hearing of criminal cases and of civil cases brought up from the county
courts.
The name ' court of appeals ' is found also in California, Maryland, Vir-
ginia, and West Virginia.
In five of the original states (New Hampshire, Massachusetts,
Rhode Island, New York, New Jersey), and in Maine, the supreme
courts have, anomalously enough, original as well as appellate jurisdic-
tion in all cases ; but in the newer states such an arrangement is never
found. In the case of New York, however, it is hardly accurate to say
that the Supreme Court has original jurisdiction, but rather that its judges
have, acting separately, and subject to the oversight of the several sections
of the ' Appellate Division.'
In several of the larger cities of the country there are complete
sets of courts, reproducing the state judiciary in small. Thus in Baltimore,
for example, there are city courts from the lowest grade up to a * Supreme
Bench of Baltimore City.'
Courts of Equity. ' Equity * is denned, under the legal
systems of England and the United States, as " that portion of
remedial justice which is exclusively administered by a court of
equity, as contradistinguished from that portion of remedial jus-
tice which is exclusively administered by a court of common law "
(Story). In other words, it is that portion of remedial justice
which was administered in England by the Chancellors, who were
'the keepers of the king's conscience/ and from whose court, as if
from the king's sense of justice, there issued writs from time to
time for the remedy of wrongs for which the common law made
THE GOVERNMENT OF THE UNITED STATES. 325
no adequate provision (page 185). The early Chancellors were
ecclesiastics imbued with Roman law as it had come down through
the medium of the canon law, and both in their hands and in
those of their lay successors of later times, who were the heirs of
their principles and prerogatives, equity law and procedure became
a very different thing from the law and procedure of the common
law courts.
Fusion of Law and Equity. As time has gone on equity
and law have been largely fused, even in England, just as the jus
gentium and the jus civile became merged in the development
of the Roman law ; and in most of the states of the Union the
same courts exercise both equitable and common law jurisdic-
tion. In several states the whole procedure even, in both juris-
dictions has been made practically identical, and law is hardly
distinguishable from equity. Generally, however, the dis-
tinctive procedure at least has been preserved, and only courts
of the superior and supreme grades have been given equitable
jurisdiction, jurisdiction, that is, over cases in which the
remedy is equitable. In Alabama, Delaware, Michigan, Missis-
sippi, New Jersey, Tennessee, and Vermont there are still
special chancery courts.
Equity processes of trial differ from common law processes,
outwardly, chiefly in the fact that the testimony is written instead
of oral, and that decisions of fact as well as of law rest with the
judge instead of with a jury. For its special subject-matter equity
jurisdiction generally embraces such matters as trusts, mistakes,
frauds, etc., matters hardly tangible by ordinary remedies.
Probate Courts. In most of the states there are special
probate courts, special courts, that is, charged with jurisdiction
over the proof of wills, the administration of estates, the appoint-
ment of guardians, administrators, etc., the care of the estates of
wards, and, in general, of the proper disposition of the property of
persons deceased. In some of the states, however, these functions
are left to the ordinary courts of law.
In England this probate jurisdiction was, from the first until a very
recent date, a prerogative of the ecclesiastical courts, and in two of
our states the probate courts retain the names of the officers who exer-
cised this function in the place of the bishop ; in Georgia the court is
326 THE GOVERNMENT OF THE UNITED STATES.
called the court of the * Ordinary,' in New York the ' Surrogate's ' court.
In New Jersey, with a reminiscence of the same origin, it is called the
4 Prerogative ' court. In several states, on the other hand, it is known,
by virtue of one side of its function, as the Orphan's ' court.
Judges. The judges of most of the state courts are
elected, generally by the people, in a few cases by the legislature;
but in several states they are nominated by the governor and ap-
pointed by and with the advice and consent of the Senate. In
New Hampshire they are appointed by the governor by and with
the advice and consent of the Council.
Supreme court judges are usually elected by the people of the
state at large ; circuit, district, county, municipal, and other judges by the
electors of the areas in which they serve.
The terms of judges range all the way from two years to a tenure
during good behavior. The constitutions of more than three-fourths of
the states permit the removal of judges by the legislature, or by the gov-
ernor at the request of the legislature. In Florida, Massachusetts, and
Rhode Island all judges of the higher courts hold during good behavior ;
in New Hampshire until seventy years of age. The length of the term
varies with the grade of the court, the tendency being to give longer terms
to the judges of the higher courts.
The qualifications required of judges by state law are not
stringent. Only fourteen of the states require by law any
identification of their judges with the legal profession; and
only ten require ' learning in the law ' ; though custom and public
opinion invariably confine the choice of judges to professional
lawyers. Generally a certain age is required of judges (varying,
where there is such a requirement, from twenty-five to thirty-
eight years), besides, in most cases citizenship and residence in
the state or circuit. As a rule single judges hold all the courts
except the highest. Supreme courts have a more or less nu-
merous 'bench.'
The ministerial officers of the state courts, the sheriffs, are
generally not appointed by the judges or responsible to them, but
elected by the people and answerable to ' constituents/ just as the
judges themselves are. Even the clerks of the courts are often
elected.
The position of sheriff thus differs very materially from the
position of a United States marshal (sec. 1317), the sheriff's counterpart
THE GOVERNMENT OF THE UNITED STATES. 327
in the federal judicial system. The marshal is appointed by the Presi-
dent of the United States, and is responsible to a central authority, is
part of a centralized organization of justice. The sheriff, on the con-
trary, is the organ of an extremely decentralized, an almost disintegrated,
organization of justice. The bailiffs, the sheriff's deputies, are usually
the appointees of the sheriff.
The State Executives. The Executives of the states are
the least distinct parts of state organization, the least susceptible
of being adequately pictured in outline, or indeed in any broad
and general way. Under our system of state law the executive
officers of a state government are neither the servants of the legis-
lature, as in Switzerland, nor the responsible guides of the legis-
lature, as in England, nor the real controlling authority in the
execution of the laws, as under our own federal system. The
Executive of a state has an important representative place, as a
type of the state's legal unity ; it has a weighty function of super-
intendence, is the fountain of information, the centre and source
of advice, the highest organ of administration to the general eye ;
but it cannot be said to have any place or function of guiding
power. Executive power is diffused by our law throughout the
local organs of government ; only a certain formal superintendence
remains with the authorities at the state capitals.
Of course this does not apply to the governor's veto power,
that contains real energy, but only to executive functions proper ; these
are localized, not centralized, after the extremest pattern.
Not all of the states have the same central executive
officers. All have governors ; a majority of them have lieutenant-
governors ; all have secretaries of state ; all have treasurers ;
almost all have attorneys-general ; and a majority, superintend-
ents of education. Many have also auditors : eleven have comp-
trollers, and fifteen boards of education ; four (Massachusetts,
New Hampshire, Maine, and North Carolina) associate councils
with their governors.
For the rest, there are a great many minor officers of various
functions in the different states ; superintendents of prisons, for instance,
registrars of land offices, superintendents of labor, bureaux of agriculture,
commissioners of mines, commissioners of immigration, etc. There is
328 THE GOVERNMENT OF THE UNITED STATES.
no uniformity between the administrations of the states as regards these
special offices ; different states undertake different functions, new or old,
and create new, or revive old, offices accordingly.
The governor's term of office is in almost all of the states
either two or four years, although Massachusetts gives her gov-
ernor a term of but a single year, while New Jersey elects hers
for three. The lieutenant-governor, where such an officer is
elected, has the same term as the governor, and is generally
required to have the same qualifications.
These qualifications consist, almost always, of citizenship of
from two to twenty years' standing, residence within the state of
from one to ten years, and age of from twenty-five to thirty-five
years. In Maine it is required that the governor shall be a
native-born citizen.
The terms of the other principal state officers are usually
the same as the term of the governor, though it is not uncommon
to give to treasurers, secretaries of state, attorneys-general, and
auditors a longer tenure. The qualifications required of the dif-
ferent officers are of the most various nature.
The constitutions of many of the states still exhibit the jealousy
of long terms of office which was so characteristic of the extreme demo-
cratic feeling generated in the colonies by the constant friction between
the representatives of the people and officials who owed their offices, not
to election, but to royal appointment. Seven states limit official tenure
to a maximum period of seven years ; Texas makes two years the maxi-
mum ; and Massachusetts, Virginia, and Maryland give express constitu-
tional sanction to rotation in office.
Many states effect such a limitation with reference to the tenure
of the governor's office by provisions setting bounds to the reeligibility
of the governor. Thus some exclude their governors from successive
terms ; others allow only a single term to any one man within a specific
period of, say, eight years ; while still others withhold reeligibility al-
together.
Contrast between State and Federal Executives. The
federal executive was, as we have seen (page 289), constituted in
quite close accordance with the models of previous state organiza-
tion ; but the imitation can scarcely be said to have gone further
than the adoption of the suggestion that the United States should
have a single governmental head, a president, because the states
THE GOVERNMENT OF THE UNITED STATES. 329
had tried and approved a single presidency. For the rest, the
president was given the character, as regards his relations with
the other officials of the federal system, rather of an English sov-
ereign than of a state governor. Certainly the contrast between
the official place and power of the president and the place and
power of the state governors of the present day is a very sharp
and far-reaching contrast indeed. The president of the United
States is the only executive officer of the federal government who
is elected ; all other federal officials are appointed by him, and
are responsible to him. Even the chief of them bear to him, in
theory at least, only the relation of advisers ; though in fact, it
must be acknowledged, they are in effect his colleagues. Of state
officials associated with the governor it may, on the other hand,
be said that both in law and in fact they are colleagues of the
governor, in no sense his agents, or even his subordinates, except
in formal rank and precedence. They, like himself, are elected
by the people; he is in no way concerned in their choice. Nor
do they serve him after election. They are not given him
as advisers; they are, on the contrary, coordinated with him.
North Carolina, indeed, calls her chief officers of state a ' cabi-
net ' ; but they are not dependent upon each other even in counsel,
and they are quite as independent of the governor as Congress is
of the president. The only means of removal to which the prin-
cipal officers of the states are subject is, ordinarily, impeachment,
to which the governor also is equally exposed. Both they and
he may be charged with official crimes and misdemeanors by the
house of representatives, and tried, convicted, and removed by
the senate of the state. Their only other responsibility is to the
courts of law, to which, like other citizens, they are answerable,
for actual breaches of law. Governor, treasurer, secretary of
state, attorney-general, all state officers alike, serve, not other
officers, but the people, who elected them ; upon the people they
are dependent, not upon each other ; they constitute no hierarchy,
but stand upon a perfect equality.
In the states of Delaware, Maryland, New Jersey, Pennsylvania, and
Texas the secretaries of state are appointed by the governor, subject to
confirmation by the senate ; in several states the attorney-general also is
appointed ; nor is it uncommon for the state superintendent of education
330 THE GOVERNMENT OP THE UNITED STATES.
to be an appointee of the governor ; and these facts offer apparent contra-
diction to the statement that the several constituent parts of the state ex-
ecutives stand always apart in complete independence and coordination,
especially when it is added that in one or two states officers so impor-
tant as the secretary of state and the attorney-general hold during the
pleasure of the governor. Several of the states empower their governors
to suspend or remove subordinate officers against whom charges are pre-
ferred, and to institute criminal proceedings against them in the courts.
Maryland authorizes the summary removal of sundry minor officials by
the governor, and Michigan and New York even the suspension of the sec-
retary of state or the treasurer, in case of corruption or gross misconduct,
until the legislature can act ; and in Delaware the governor can remove
any public officer " convicted of misbehaving while in office, or of any in-
famous crime." But these cases constitute in fact no real exceptions:
for the duties of such officers, after their appointment, are prescribed by
constitutional provision or by statute, not by the governor ; and the
governor may remove them, not at his whim, or for mere administra-
tive reasons, but for just cause only, and as if he acted as an officer of
justice. In brief, even when appointed by him, they do not depend upon
him.
Heal Character of a State * Executive.' The governor
therefore, is not the ' Executive ' ; he is but a single piece of the
executive. There are other pieces coordinated with him over
which he has no direct official control, and which are of less
dignity than he only because they have no power to control
legislation, as he may do by the exercise of his veto, and because
his position is more representative, perhaps, of the state govern-
ment as a whole, of the people of the state as a unit. Indeed it
may be doubted whether the governor and other principal officers
of a state government can even when taken together be correctly
described as 'the executive,' since the actual execution of the
great majority of the laws does not rest with them but with the
local officers chosen by the towns and counties and bound to
the central authorities of the state by no real bonds of responsi-
bility whatever. Throughout all the states there is a significant
distinction, a real separation, between ( state ' and ' local ' officials ;
local officials are not regarded, that is, as state officers, but as
officers of their districts only, responsible to constituents, not to
central authorities. Throughout the country the sheriffs and
other county officers, the county treasurers, clerks, surveyors.
THE GOVERNMENT OF THE UNITED STATES. 331
commissioners, etc., and the town and city officials also, as well
as the judges of the courts and the solicitors or district attorneys
who represent the public authority before the courts, are, almost
without exception, chosen by the voters of limited areas, and are
regarded, for the most part, as serving, not the state, but their
part of the staff. Minor 'state' officers there are, minor officers,
that is, who ministerially serve the central offices, and these
are often appointed by the governor ; but it is exceptional for the
governor to control the local authorities by whom the laws are in
fact put into actual operation. The president of the United States
is the veritable chief and master of the official forces of the fed
eral government ; he appoints and in most cases can remove all
federal marshals, district attorneys, revenue officers, post-office
officials. But the governor of a state occupies no such position ;
nor does any high ' state ' official ; the central offices of a state
constitute a system of supervision and report often, but seldom
a system of control.
In Michigan, it is true, all officials not legislative or judicial may
be removed by the governor for just legal cause ; in New York, too,
sheriffs, coroners, district attorneys, and county clerks are removable by
the same authority, and in Wisconsin sheriffs, coroners, district attorneys,
and registrars of deeds ; but such provisions are exceptional, and are not
accompanied by a system of continuous central control. Government
remains disjointed, still lies in separated parts.
Relations of the Local to the Central Organs of Govern-
ment in the States. It is characteristic of our state organization,
therefore, that the counties, townships, and cities into which the
states are divided for purposes of local government do not serve
as organs of the states exactly, but rather as independent organ-
isms, constituted what they are by state law, indeed, but, after
being set up, left to themselves almost as entirely as if they were
self-constituted. They elect their own officers, and, except for
the occasional mandates of the courts, go their own paces in en-
forcing the general laws of the state.
Our local areas are not governed, in brief ; they act for themselves.
Self-government implies, when used in its strict historical meaning, that
the officers of local administration are officers of the state, of the central
332 THE GOVERNMENT OF THE UNITED STATES.
authority, whatever may be the machinery of their appointment, and that
their responsibility is central, instead of to their neighbors merely. The
only sense in which the local units of our state organizations are governed
at all is this, that they act under general laws which are made, not by
themselves, but by the central legislatures of the states. These laws are
not executed by the central executive authorities, or under their control,
but only by local authorities acting in semi-independence. They are, so
to say, left to run themselves.
The Governor. The usual duties of a state governor
may be conveniently summed up under four general heads :
(1) As towards the legislature, it is his duty to transmit to the
houses at each regular session, and at such other times as may be
required, full information concerning the state of the common-
wealth, and to recommend to them such measures as seem to
him necessary for the public good. It is also his duty in case
of necessity for such a step, or upon the requisition of a sufficient
number of legislators, to summon the houses to extra session.
(2) He is commander-in-chief of the state militia, and as such
is bound to see, not only that foreign invasion is repelled, but
also that internal order is preserved. (3) He exercises the clem-
ency of the state towards condemned persons, having the right
to grant pardons to persons convicted of crime, to remit fines
and penalties, under certain conditions, and to remove political
disabilities incurred in consequence of conviction of crime;
though he exercises these high prerogatives subject always to
a definite responsibility to public opinion and to the laws.
In some states, as notably in Pennsylvania, the power of grant-
ing pardons is given to the governor, however, only in form, the sanction
of a Board of Pardons being made necessary, whose action is semi-judicial.
In New Jersey there is a judicial committee on pardons ; and in Connecti-
cut the legislature alone can pardon : the governor can only reprieve until
the end of the next session of the legislature.
(4) In all the states with the single exception of North
Carolina the governor's assent is made necessary to the va-
lidity of all laws not passed over his dissent by a special
legislative vote upon a second consideration made in full view
of his reasons for withholding his signature. And in Rhode
Island, Ohio, and North Carolina, though the governor has no
THE GOVERNMENT OF THE UNITED STATES. 333
veto properly so-called, he can compel the reconsideration of any
measure by the legislature.
All bills which the governor signs, or upon which he does not
take any action within a certain length of time, become law ; those which
he will not sign he must return to the legislature with a statement of his
objections. Generally he must return bills which he thus rejects to the
house in which they originated, though in Kansas he must return them
always to the house of representatives.
The vote by which a bill may be passed over the governor's veto
varies very widely among the states. In Connecticut a mere majority
suffices for its second passage ; in other states a three-fifths vote is re-
quired, in some a two-thirds vote ; sometimes a majority of elected mem-
bers (instead of a special number within a mere quorum) must concur
in a second passage ; and sometimes two-thirds of the elected members.
In Missouri it is provided that the votes of two-thirds of the elected
members shall be necessary in the house in which the measure originated,
while a mere majority of the other house will suffice.
In many of the states the governor is given the power to veto
particular items in appropriation bills ; as regards all other bills his
approval or disapproval must cover all of the measure or none of it.
The Secretary of State. The title ' Secretary of State,'
borne by a conspicuous officer in each of the states, is very apt
to mislead those who have studied the English executive or the
functions of our own federal minister of foreign affairs. The
federal Secretary of State is first of all an executive minister,
only secondarily a secretary ; and the five principal Secretaries
of State in England are equally without prominent secretarial
functions. They are one and all executive heads of department.
The federal Secretary of State is entitled to his official name
chiefly by virtue of certain minor duties seldom thought of by the public
in connection with the Department of State. He has charge, for example,
of the seal of the United States ; he preserves the originals of all laws and
of all orders, resolutions, or votes of the houses which have received the
force of law ; he furnishes to Congress, besides consular and diplomatic
reports, lists of passengers arrived in the United States .from foreign
countries, etc.
The chief clerical features of the office which the five Principal
Secretaries of State in England theoretically share (page 198) would seem
to be represented by the necessity of the countersignature of some one of
them to the validity of the sign-manual.
334 THE GOVERNMENT OF THE UNITED STATES.
The Secretaries of State in the commonwealths of our
Union, on the contrary, can show substantial cause for holding
their title ; the making and keeping of records is the central
duty of their office. It is usually their duty to register the
official acts of the governor, to enroll and publish the Acts of
the Legislature, to draw up all commissions issued to public
officers, to keep all official bonds, to record all state titles to
property, to keep and affix, where authorized, the seal of the
commonwealth, to preserve accurate maps and careful records
of the boundaries of the various civil districts of the state,
(the counties, townships, etc.) and to give to all who legally
apply duly attested copies of the public documents in their
keeping. In brief, the Secretary's office is the public record
office.
Often other duties are assigned to the Secretary of State. In
one state, for instance, he is constituted Internal Improvement Com-
missioner; in another Surveyor-general. But such additional functions
are not necessarily characteristic of his office.
1200. It is to the Secretary of State in each commonwealth that the
votes of the state's electors for President and Vice-President are re-
turned ; and it is he who transmits them to the president of the Senate
to be opened in the joint session of the two houses.
Votes in state elections also are generally returnable to the
Secretary of State's office, and the Secretary of State is very commonly
one of the state canvassers of election returns. Such duties manifestly
flow very naturally from the general duties of his office.
The Comptroller, or that equivalent officer, the state
Auditor, is public accountant. It is his function to examine
and pass upon all claims presented against the state under
existing provisions of law ; to audit the accounts of all officers
charged with the collection of the revenue of the state, filing
their vouchers, requiring of them the necessary bonds, and
crediting them with all sums for which they present the state
Treasurer's receipt ; to ensure uniformity in the assessment and
collection of the public revenue by preparing and furnishing to
the local fiscal officers the proper forms and instructions ; to
issue warrants for all legal disbursements of money from the
treasury of the state, keeping a careful account with the state
treasurer; to submit his books and accounts at any time to
THE GOVERNMENT OF THE UNITED STATES. 335
examination by the legislature, in a word, to regulate the
assessment, collection, and disbursement of the public moneys.
The State Treasurer may be said simply to keep the
public moneys subject to the warrants of the Comptroller.
Without such warrant he can pay out nothing.
These, manifestly, are not offices of control. The Comptroller,
for example, can generally proceed against local fiscal officers through
the local law-representatives of the state, the local states-attorneys, in the
ordinary courts, for the purpose of securing the necessary bonds when
these are not promptly or properly given, or of enforcing the payment of
moneys withheld or uncollected ; and he may make test of the validity or
sufficiency of official bonds by any means within his reach ; but he has
none but this indirect control, exercised through the courts over officers
who refuse bond or who neglect the forms and instructions issued to them
regarding the assessment and collection of taxes. The whole machinery
of control is local, not central, through courts and states-attorneys who
are themselves elected by the same persons, in town or county, by whom
the collecting officers themselves are chosen. The local fiscal officers are
not officers of the state treasury, but officers of the towns and counties
whom the state employs as its agents.
The State Superintendent of Education often occupies a
somewhat different position. It is frequently his prerogative
to prescribe the qualifications of teachers and the methods by
which they are to be selected ; he is required to make a thorough
inspection of the schools throughout the state ; often he is
given power to secure proper reports of school work through
special inspectors appointed to act instead of local superin-
tendents whose reports are irregular or unsatisfactory. School
administration is recognized to require a certain degree of
centralization of administrative authority, and so to constitute
a legitimate exception to the general rules as to the constitution
of executive power in the states. Still, even the power of a
state Superintendent of Education does not often go very much
beyond supervision. The powers of district or township school
directors remain in most cases very absolute as regards the
management of the schools. They are governed by statute, not
by the state Superintendent.
Constitutional Diffusion of the Executive Power. The
constitutions of at least seven of the states make very frank confession of
386 THE GOVERNMENT OF THE UNITED STATES.
the diffusion of executive authority upon which I have dwelt as character,
istic of our state system. Thus the constitution of Alabama provides that
the executive power "shall consist of the governor, secretary of state,
state treasurer, state auditor, attorney-general, and superintendent of
education, and the sheriff for each county." The constitutions of Arkan-
sas, Colorado, Illinois, Minnesota, Pennsylvania, and Texas make similar
enumerations, with the exception of the sheriffs of the counties. The
Florida constitution of 1868 provided that the governor should be "as-
sisted by a cabinet of administrative officers" appointed by himself, sub-
ject to the confirmation of the senate ; but clothed these officers with
functions which made them in fact not assistants but colleagues.
The constitutions of most of the other states declare the execu-
tive power to be vested in the governor, but are hardly through with out-
lining his functions before they provide for the erection of executive
departments among which the greater part of executive power shall be
parcelled out ; so that the arrangement is everywhere practically that
of those states which in effect declare the executive office to be 'in com-
mission' by enumerating the officers who are to divide its duties.
Full Legal, but no Hierarchical, Control. This, then, is
the sum of the whole matter : the control of law, exercised through the
courts, is thorough and complete : statutes leave to no officer, either cen-
tral or local, any considerable play of discretionary power : so far as pos-
sible they command every officer in every act of his administration. But
no hierarchy stands between an officer and the law. The several func-
tions of executive power are segregated, each official, so to say, serves his
own statute. So thorough is the control attempted by legislation, and
so potent among us is the legal habit and conscience, the law-abiding
sense, that no official control, no hierarchical organization has been
deemed necessary.
LOCAL GOVERNMENT.
General Characteristics. The large freedom of action
and broad scope of function given to local authorities is the dis-
tinguishing characteristic of the American system of government.
Law is central, in the sense of being uniform and the command
of the central legislature in each state ; and its prescriptions are
minute ; but function and executive power are local. There is a
single comprehensive statutory plan, but a host of unassociated
deputies to carry it into effect, an infinite variety in the local
application of its principles. General laws are given to the
localities by state legislation, and these laws are generally char-
acterized by a very great degree of particularity and detail of
THE GOVERNMENT OF THE UNITED STATES. 337
provision ; but no central authority has executive charge of their
application : each locality must see to it for itself that they are
carried out.
Duties of Local Government. The duties of local gov-
ernment include Police, Sanitation, the Care of the Poor, the
Support and Administration of Schools, the Construction and
Maintenance of Koads and Bridges, the Licensing of Trades, the
Assessment and Collection of Taxes, besides the Administration
of Justice in the lower grades, the maintenance of Court Houses
and Jails, and every other affair that makes for the peace, con-
venience, comfort, and local good government of the various
and differing communities of each commonwealth. In many
places libraries are included among the institutions given into
the charge of the officers of local government. Local officers
look to state laws for their authority ; but practically state
administration represents only the unifying scheme of local
government. Local administration is the administration of the
state.
Local Varieties of Organization. Almost without excep-
tion the states which have been added to the original thirteen by
which the Union was formed have derived their local institutions,
whether by inheritance or by imitation, from the mother states
of the Atlantic seaboard. Wherever New England settlers have
predominated the township has taken quick rootage and had a
strong growth ; wherever Southern men have gone the county has
found favor above other forms of local organization; wherever
the people from the two sections have met and mixed, as in the
early days they met and mixed in New York, New Jersey, and
Pennsylvania, the same combination or mixture of institutions
that is characteristic of the middle Atlantic states is found in
full prominence. But in all cases the new foundations in the
West have this common feature : they have all been in a greater
or less degree artificially contrived. Towns have not grown up
in the Northwest for the same reasons that led to their growth
in New England, in the days when isolation was necessary and
when isolation involved compact and complete self-government:
they have, on the contrary, been deliberately constructed in
imitation of New England models. Neither have Western coun-
338 THE GOVERNMENT OF THE UNITED STATES.
ties been developed by processes of pioneer agricultural expan-
sion like those which made the irregular, and in a sense
geographically natural, counties of Virginia (pages 271-273) ;
they have, on the contrary, been geometrically laid off in the
exact squares of the government survey and deliberately organ-
ized after the Southern fashion because the settlers wanted to
reproduce by statute the institutions which in their old homes
had been evolved by slow, unpremeditated growth. The institu-
tions of the admitted states, in a word, were transplanted by
enactment, whereas the institutions of the original states were
sown by habit. It by no means follows that these newer institu-
tions lack naturalness or vigor : in most cases they lack neither,
a self-reliant race has simply readapted institutions common
to its political habit ; but they do lack the individuality and the
native flavor often to be found in the institutions in whose like-
ness they were made.
The differences of institution, then, which show them-
selves in the East between local government in New England,
local government in the South, and local government in the cen-
tral belt of Atlantic states extend also into the West. There, too,
we find the three types, the township type, the county type, and
the compound type which stands between the two ; but the com-
pound type is in the West naturally the most common. The West-
erner has had the sagacity to try to combine the advantages of
all the experiments tried in the older states, rejoicing in being
fettered by no hindering traditions, and profiting by being re-
strained by no embarrassing incapacity for politics.
Keeping these facts in mind, it will be possible to con-
sider without confusion, the Township, the County, the School
District, the Town, and the City as elements of local government
in the United States. The different place and importance given
to each of these organs in different sections may be noted as we
proceed.
The Township : its Historical Origin. The township is
entitled to be first considered in every description of local gov-
ernment in the United States not only because it is a primary
unit of administration, but also by reason of its importance and
because of its ancient and distinguished lineage. It is a direct
THE GOVERNMENT OF THE UNITED STATES. 339
lineal descendant from the primitive communal institutions which
Caesar and Tacitus found existing in the vigor of youth among
the peoples living in the ancient seats of our race. The New
England town was not an American invention ; and the settlers
upon the northern coasts did not adopt the town system simply
because they were obliged to establish themselves in isolated
settlements in a harsh climate and among hostile native tribes.
We have seen (pages 268, 269) that they kept together in close
settlements for religious purposes, for mutual defence, and for
purposes of trade, and that their settlements were often com-
pletely isolated by stretches of wild primeval forest ; but their
form of government, or at least the talent and disposition for
it, they brought with them, an inheritance of untold antiquity.
Their political organization was like a spontaneous reproduc-
tion of the ancient Germanic mark. In most cases they re-
garded the land upon which they settled as the property of
the community, just as their remote barbarian ancestors had
done ; like those ancestors, they divided the land among families
and individuals or worked it in common as might be decided by
public vote in general assembly, in open ' folk-moot ' we may call
it. This same ' town-meeting,' as they styled it, voted the com-
mon discipline, elected the officers, and made the rules of common
government. Each group of colonists constituted themselves a
state with a governing primary assembly. They reestablished,
too, the old principles of folk-land. Whether they tilled their
lands in common or divided them in severalty, they had always
a communal domain, part of which was kept as open common
for the general pasturage, and the rest of which was given over
in parcels, from time to time, for settlement. They were invent-
ing nothing ; they were simply letting their race habits and in-
stincts have natural play. Their methods showed signs at almost
every point of having been filtered through intervening English
practices ; but they rested, none the less, upon original Teutonic
principles.
The exceptions to the principle of folk-land occurred where, as
in the Hartford, Windsor, and Wethersfield settlements on the Connecti-
cut, the land was held, not in common by the civil community, but in
common by a sort of corporation of joint owners under whose supervision
340 THE GOVERNMENT OF THE UNITED STATES.
the new colonies were established. These joint owners were quite distinct
from the communal authorities. 1
Absorption of the Town in Larger Units of Govern-
ment. It was towns of this primitive pattern that were drawn
together ultimately into the New England colonies of the later
time, by the processes I have already described (page 269) ; and
in becoming parts of larger organizations they lost to some
extent their independence of movement, as well as in some
slight degree their individuality also. In some cases, as for
instance in the coalescence of ' Connecticut ' and New Haven
(page 278), the establishment of central state legislative control
over the towns took the shape of a mere confirmation to them of
their old functions and privileges, and in this way fully recog-
nized their elder and once sovereign place in the historical de-
velopment of the commonwealth; but it in all cases necessarily
resulted in their virtual subordination. It led also to the creation
of new areas of local government. Towns were grouped, at first
for judicial purposes only, into counties, and the counties came
in time to furnish a very convenient basis for certain adminis-
trative functions once vested exclusively in the smaller areas.
Great cities, too, presently grew up to demand more complex,
less simply and directly democratic, methods than those of the
towns. But no change has seriously threatened town organiza-
tion with destruction. The 'town' is still the most character-
istic and most vital element of local government in New
England; and it still has substantially the same officers, sub-
stantially the same functions, that it possessed at its foundation
in America.
An influx of foreigners has in many places disturbed and
impaired the town system, and the cities, which draw to themselves so
rapidly the rural population, but which are too big for the primitive
methods of town government, are powerful disintegrating elements in
the midst of the old organization ; but the new adaptation and develop-
ment of the township in the West, and the tendency to introduce it
in some parts of the South, seem still to promise it honor and length
of days.
1 See Andrews, The River Towns of Connecticut (Johns Hopkins Studies,
7th Series).
THE GOVERNMENT OF THE UNITED STATES. 341
Town-meeting. The sovereign authority, the motive
power, of town government is the Town-meeting, the general
assembly of all the qualified voters of the town, which has
reminded so many admiring observers of the ancient Grecian
and Roman popular assemblies and of the Landsgemeinde of
Switzerland. The regular session of this assembly is held once
a year, usually in the spring, 1 but extra sessions are held from
time to time throughout the year as occasion arises, due notice
being given both of the time of meeting and of the exact
business to be considered. Town-meeting elects all officers,
its regular annual session being the session for elections, and
decides every affair of local interest. 2 It is presided over by a
' Moderator ' and attended by the town officers, who must give a
full account of their administration, and who must set before the
Meeting a detailed statement of the sums of money needed for
local government. These sums, if approved, are voted by the
Meeting and their collection ordered, on a prescribed basis of
assessment. Everything that the officials and committees of the
town have done is subject to be criticised, everything that they
are to do is subject to be regulated by the Meeting.
The Town Officers. The officers of the town are certain
' Selectmen/ from three to nine in number, according to the size and
needs of the town, who constitute the general executive authority
for all matters not otherwise assigned ; a Town Clerk, who is the
keeper of the town records and registers ; a Treasurer ; Assessors;
whose duty it is to make valuation of all property for tax assess-
ment ; a Collector of the taxes voted by the Meeting or required
by the county and state authorities; a School Committee; and a
variety of lesser officers of minor function, such as Constables,
together with certain committees, such as library trustees, etc.
Generally there are also overseers of the poor and surveyors of
highways.
To this corps of officers all the functions of local gov-
ernment belong. The county authorities cannot enter their
1 In Connecticut in the autumn.
2 In some of the coast towns (townships), as notably in Connecticut, the
regulation of the use of the oyster beds is a very prominent question in
town-meeting.
342 THE GOVERNMENT OF THE UNITED STATES.
domain, but must confine themselves to the judicial duties
proper to them and to such administrative matters as the lay-
ing out of inter-town roads, the issuing of certain county licenses,
the maintenance of county buildings, etc., for the due oversight
of which larger areas than the town seem necessary. County
expenses are defrayed by taxes raised by the towns : the county
authorities apportion such taxes, but do not lay them.
In Rhode Island the only county officials are those connected
with the administration of justice.
The Township of the Northwest. The town may,
therefore, be said to exist in New England in its full historical
character and simplicity, though much overshadowed by great
cities, and everywhere modified and partially subordinated by
the later developments of state and county. In the Northwest,
whither New England emigrants have gone, it has entered an-
other phase and taken on another character, a character which
may perhaps foreshadow its ultimate organization, should the
country have at any future time the uniform practices of local
government now dimly promised by certain incipient forces of
institutional interchange and imitation.
In the first place, the Northwestern township is more
thoroughly integrated with the county than is the New England
township. County and township fit together as pieces of the
same organism. In New England the township is older than the
county, and the county is a grouping of townships for certain
purposes ; in the Northwest, on the contrary, the county has in
all cases preceded the township, and townships are divisions of
the county.
The county preceded the township because the county
furnishes, for our people, the natural basis of organization for a
scattered agricultural population ; the township came afterwards,
in obedience to the habit of the New England settlers, as the
natural organization for a population which had become more
numerous and which had drawn together into closer association.
Its Origin. It was school organization that supplied the
beginnings of the township system in all the more newly settled
portions of the country. The Western township has sprung out
THE GOVERNMENT OF THE UNITED STATES. 343
cf the school as the New England township of the earliest days
sprang out of the church. The government surveyor, who has
everywhere preceded final settlement in the West, has in all cases
mapped out the land in regular plots of thirty-six square miles
each, which, for convenience, he called ' townships ' ; and in every
township Congress has reserved at least a square mile of land
(one ' section') for the endowment of schools. This endowment
had to be administered by the settlers ; school organization had
to be effected; the name township had already been given to
the district so endowed; and there was, therefore, naturally
school organization on the basis of the township. From this
there eventually issued an equally natural growth of local politi-
cal institutions. 1
Spread of Township Organization. In the newer por-
tions of the country the development of the township has pro-
gressed almost in direct ratio with the development of local
government: in many sections, even where population is com-
paratively dense, county organization has been made to suffice
for such districts as have not assumed the structure and privi-
leges of village or city incorporation; but wherever any special
effort has been made to perfect local rural organization for ad-
ministrative purposes, the township has been accepted as the best
model of political association.
It has received its widest acceptance in such middle states as
New York and Pennsylvania, and in the great Northwestern states of
Michigan, Wisconsin, Illinois, and Minnesota. Elsewhere, in the middle
West, in Ohio, Indiana, and Kansas, for example, and in such states of
the far West as California, it is less fully developed, and occupies a much
more subordinate place as compared with the county. The county,
indeed, may be said to be the prevalent unit of local government in Cali-
fornia, as well as in Colorado, Oregon, Nebraska, and Nevada.
Township Organization. The organization of the town-
ship outside of New England varies with its development.
Where it is most vigorous there is the town-meeting, exercis-
ing powers strictly defined and circumscribed by statute and
somewhat less extensive than the powers of the town-meeting in
1 See p. 10 of Local Government in Illinois, by Dr. Albert Shaw (Jorns
Hopkins Studies in Historical and Political Science, First Series).
344 THE GOVERNMENT OF THE UNITED STATES.
New England, but still covering a multitude of local interests
and representing a very real control. Where it is less developed
there is no town-meeting, but instead only the processes of popu-
lar election to local office. In all cases the ' selectmen ' have dis-
appeared : at least we find no officers bearing their name, and no
officers possessing exactly their functions. Where the township
is most completely organized we find one or more < supervisors '
standing at the front of township administration, who are clothed
with the duties of overseers of the poor, exercise oftentimes a
certain control over the finances of the township, and are in
general function the presiding and directing authorities of the
administration.
Where there are several supervisors or trustees in the town-
ship, it is common to associate them together as a Board, and
under such an arrangement they very closely resemble the New
England board of selectmen in their administrative functions.
Township boards also exist under the laws of some states in
which there is but a single supervisor for each township, being
composed, usually, besides the supervisor, of such officers as the
town clerk and the Justices of the Peace. In Michigan such a
board has rather extensive supervisory powers ; in Illinois it is
a committee of audit simply.
The number of township officers varies with the degree of
development to which the township system has attained. In
Ohio, where the system is still more or less in germ, there are,
besides the three trustees, no township officers save a clerk and a
treasurer.
In Michigan, even, where the township system is fully ac-
cepted, there is neither an assessor nor a collector of taxes, the
supervisor acting as assessor and the treasurer as collector. In
Illinois, on the other hand, there is always a full corps of officers :
supervisor, collector, assessor, clerk, commissioners of highways,
justices of the peace, constables, etc., and for the school town-
ship a body of school trustees.
The term of all officers except justices of the peace, road and
school commissioners, and constables is generally but a single
year, as in New England ; the terms of the other officers named
THE GOVERNMENT OF THE UNITED STATES. :\\~>
are often three or four years. \Yhere there is a town-meeting the
officers are elected by it ; where there is no town-meeting they
are chosen at the polls.
The Township in the Middle Atlantic States. It is re-
versing the historical order to speak of the townships of the
middle Atlantic states after discussing the townships of the
newer West; but it is not reversing the order of convenient expo-
sition. The processes of formation are plainly visible in the
\\Vst ; in the East they are more complex and obscure, being the
formations of history rather than of legislation.
The New York township is like the townships of Michi-
gan and Illinois in its structure and functions ; but like because
it is an original, not because it is a copy. Over it presides a
single supervisor who is the treasurer and general financial officer
of the area. It has its clerk, its assessor, its collector, its commis-
sioners of highways, its constables, its justices of the peace. It
has also special overseers of the poor. An annual town-meeting,
under the presidency of the justices of the peace, or of the town
clerk, elects all officers, passes sundry by-laws, votes taxes for
schools and poor relief, and constitutes the general governing
authority.
In counties containing 300,000 or more inhabitants there is a provision
for the election of township officers at the polls.
The Pennsylvania Township. The New York township
system suggested the system of the states about the lakes, and
stands nearest in the order of development to the township
of New England. The township of Pennsylvania, on the other
hand, suggests the township system of the next lower belt of
middle Western states. In it there is no town-meeting, but
only an executive machinery. A board of two or three super-
visors, holding for a term of three years, presides over the town-
ship, and has as its most prominent function the care of high-
ways. For the rest, there are the usual officers, with the some-
what uncommon addition of the auditors. Where the township
is charged with the care of the poor, two special overseers are
elected.
346 THE GOVERNMENT OF THE UNITED STATES.
Origins of Local Government in the Middle States.
Local government in New York, Pennsylvania, Delaware, and
most of New Jersey runs back, as to a common source, to the
system established in colonial times by the Duke of York as
proprietor. Under that system the township was the principal
organ of local government. Its officers were certain constables
and overseers ; and above the township was only an artificial
' Riding/ presided over by a sheriff. Certain General Courts
levied highway and poor rates, appointed overseers of highways,
etc. After the period of the Duke's proprietorship, the develop-
ment of local government in the several parts of his domain
exhibited a considerable variety. The township retained its im-
portance in New York, but further south, particularly in Penn-
sylvania, the county gained the superior place.
The Township in the South. Wherever, in the South, the
principle of local taxation for local schools has been fully rec-
ognized, there the township has begun to show itself, at least in
bud. Virginia, the oldest of the southern states, and in most
respects the type of all the rest in institutional development, for
six years (1868-1874) tried the township system in its full form.
But the experiment proved unsatisfactory. The system, instead
of being gradually introduced and allowed to take a normal way of
growth, was adopted whole, proved too artificial, and was very
soon abolished by constitutional amendment. North Carolina
and West Virginia have adopted a township system of a very
much more rudimentary sort, and with better results in practical
administration.
The County. The division of power between township
and county can be most intelligibly discussed in connection with
the following outline of county organization. The natural history
of the county is best studied in the South, where, despite the par-
tial adoption of township organization here and there, the county
remains the chief and almost the only organ of local order and
government. We have seen (pages 271-273) how natural a basis
of government it was for a widespread agricultural population.
The county was imported into the West by Southern settlers, and
also found there at first its natural reason for existence in a simi-
larly diffused population. New England immigration and new
THE GOVERNMENT OF THE UNITED STATES. 347
conditions of industrial and social combination have created the
township within the county in the West, as similarly altered con-
ditions have begun to create it in the South also.
In all cases, it would seem, the county was originated
primarily for judicial purposes, as an area in and for which courts
were to be held, though in such confederate colonies as Connecticut
it was also in part the outgrowth of the union of different groups
of once independent towns. In the South the county became also
the single area for the administrative organization of local govern-
ment, being given the functions elsewhere divided between the
county and smaller areas like the township. In New England
certain general functions of a limited character have been con-
ferred upon it by subtraction from the townships. In the North-
west, county and township have been created almost simultaneously
and side by side, and are carefully integrated.
The American county was of course in the first instance a frontier
copy of the English shire ; but its growth affords no analogy to the growth
of its English prototype. The English shire in a great many instances
traces its history back to the time when it was a separate Saxon kingdom,
and may be said to have as natural boundaries as France ; American
counties, on the other hand, have all been deliberately * laid out, 1 as judi-
cial and administrative subdivisions, and have no such independent his-
torical standing.
The Southern county, which undertakes all of local ad-
ministration, has a complete set of officers. At its head is a
small board of county commissioners. Acting under the gen-
eral superintendence of the commissioners, there are generally
a county treasurer, auditor, superintendent of roads, superin-
tendent of education, and superintendent of the poor. On its
judicial side, the county has its sheriff, its clerk, its ordinary
or surrogate, its coroner, and its state-attorney, the latter
generally acting for a judicial district inclusive of several
counties. The functions of the county embrace the oversight of
education, the maintenance of jails and poorhouses, the construc-
tion and repair of highways, and all local matters. County
officers are in almost all instances elected by popular vote. Un-
der the Southern county system the sheriff is commonly also
tax-collector.
348 THE GOVERNMENT OF THE UNITED STATES.
Where the township exists there is great variety of
county organization, almost the only point of common likeness
being the organization of justice. The county always has its
sheriff, and generally its separate courts, with the usual coroner
and clerk. The variety shows itself in the field of administra-
tive structure. Sometimes, as in New York, Michigan, and Illi-
nois, the county administrative authority is a board composed of
the supervisors of all the townships; sometimes, as in Pennsyl-
vania and Minnesota, the county authority is a board of three
commissioners. In Wisconsin the county board consists of mem-
bers each of whom is chosen by two or more townships. Where
the county is given least power, as in New England, its adminis-
trative functions hardly extend beyond the maintenance of county
buildings such as the jail and courthouse, the granting of certain
licenses, and the partial supervision of the highway system. In
New York and the Northwest the county authorities often under
take the relief of the poor, sometimes exercise an extensive con-
trol over the debt-contracting privileges of the smaller areas, often
audit the accounts of local officers, and supervise taxation for pur-
poses of equalization.
Where townships exist, then, the division of functions may be
said to be as follows : the township is the area for the administration of
schools, for the relief of the poor (unless by special popular vote this func-
tion be given to the county), police, the construction and maintenance of
highways, and sanitation ; while the county is the area for the administra-
tion of justice, for the maintenance of jails, courthouses, and sometimes
poorhouses, for tax equalization, and often for the exercise of certain
other general supervisory powers.
Villages, Boroughs, Cities. Counties and townships are
areas of rural organization only. With the compacting of popu-
lation in great towns and cities other and more elaborate means
of organization became necessary, and a great body of consti-
tutional and statutory law has grown up in the states concern-
ing the incorporation of urban areas. There is no complete and
general municipal corporations act in any of our states such as
that under which, in England, cities of all sizes may acquire the
privileges and adopt the organization of full borough government
(page 240) : the largest towns are left to depend for their incor-
THE GOVEKNMENT OF THE UNITED STATICS. 34i>
poration upon special acts of legislation. The large cities of the
country consequently exhibit a great variety of political structure,
and even cities in the same state often differ widely in many
material points of organization and function.
The electors or freeholders of less populous urban dis-
tricts are in most of the states empowered to obtain a simple sort
of urban organization and considerable urban powers, by certain
uniform routine processes, from the courts of law; villages (as
they are called in New York), boroughs (as they are styled in
Pennsylvania), towns (as they are sometimes designated in the
South), 1 cities of the lesser grades (in states where towns are classi-
fied according to population), may usually get from the courts as
of course, upon proof of the necessary population and of the con-
sent of the freeholders or electors, the privilege of erecting them-
selves into municipal corporations under general acts passed for
the purpose ; very much as private joint-stock companies may get
leave to incorporate upon showing to the court evidence of the
possession of the necessary membership, stock, or paid-up capital.
The town or borough is, however, a public, not a private, corpo-
ration, receiving by delegation certain powers of government ; and many
states have left with their legislatures the power to create all public cor-
porations by special act. The incorporation of towns is not, therefore,
universally governed by general statute.
The Authorities of urban districts thus erected into
separate corporations succeed, generally, to all the powers of
township officers within their area and constitute a local body
apart ; but usually the area thus incorporated does not cease to
be a part of the county in which it lies. It continues to pay
county taxes and its electors continue to take their part in the
choice of county officials. In some cases, however, cities have
been definitely separated from the counties in which they lie.
This has been the virtually uniform policy of Virginia. In other
cases cities have by growth absorbed the counties in which they
were situated, as has happened, for example, by the expansion of
New York, Philadelphia, New Orleans, and San Francisco. Balti-
more and St. Louis have been made independent of county gov-
1 The name town when used in New England always means, not an urban
district, but a towns/tip.
350 THE GOVERNMENT OF THE UNITED STATES.
eminent and county obligations by special legal arrangement.
The organization of incorporated towns is unlike that of either
county or township principally in this, that they have at the front
of their government a representative council which within its
sphere is a law-making authority.
A common model of organization for the smaller urban areas
is : a mayor, president, or chief burgess ; a small town council given ex-
tensive power of making by-laws, considerable power of taxation for local
improvements as well as for local administration, and other powers of
local direction which quite sharply differentiate it from the merely execu-
tive boards often found in the townships and always found in the coun-
ties ; a treasurer ; a clerk ; a collector ; a street commissioner ; sometimes
overseers of the poor; and generally such other minor officers as the
council sees fit to appoint.
Organization of Government in Cities. The difference
between the organization of these smaller urban areas and the
organization of great cities is a difference of complexity not only
but often also a difference of kind. Cities, we have seen (page
324), are often given a separate judicial organization, being
made in effect separate judicial circuits or counties, with their
own courts, sheriffs, coroners, and state-attorneys ; and are some-
times also made quite independent of the counties in which
they lie (page 349). They are given also larger councils, with
larger powers ; a larger corps of officers ; and greater energy of
self-direction than other local areas possess.
The Council of a great city usually consists of two sections or
'houses,' a board of aldermen and a board of common councilmen, dif-
fering very much as the two houses of a state legislature differ, in the
number and size of the districts which their members represent. In most
of the cities of New York state, however, there is but a single legislative
chamber, called sometimes the Board of Aldermen, sometimes the Com-
mon Council.
These boards always constitute the law-making (or rather ordi-
wa?ice-making) and taxing power of the city ; and always until recent
years they have been constituted overseers of administration also, by
being given the power to control it not only by withholding moneys, but
also through direct participation in the power of appointment to the minor
city offices, all those, that is to say, not filled by popular election. The
chief officers of every city have usually been elected, but all others have,
as a rule, been appointed by the mayor subject to confirmation by the
THE GOVERNMENT OF TIIK I'M TIOI) STATES. 351
city council. The tendency of all very recent legislation with reference
to the constitution of city governments has been to concentrate executive
power, and consequently executive responsibility, in the hands of the
mayor, leaving to the council only its ordinance-making power and its
function of financial control. Some of the most recent charters have even
extended the appointing power of the mayor so as to include the most
important executive offices of the city administration. Local bills are
submitted to the mayors of the cities which they affect, for their approval.
But, if they do not approve, the repassage of the act by a mere majority
in the legislature suffices to make it law, notwithstanding.
Commission Form of Government. The most recent develop-
ment in municipal government is the commission form, where the
old form of organization, consisting of a mayor and an elected
council, has been replaced by a single elective commission, small
in number, which combines in itself both executive and legis-
lative functions. The commission form has been widely adopted
in smaller towns and cities, in a few cities of size, but not in
any of the very largest cities. Its merit lies in the concentra-
tion of powers in the hands of a few men whom it is easier to
hold responsible than was formerly the case when authority was
divided and parceled out among many. In some cities the plan
has been introduced of selecting a city manager, who under the
control of the commission, by whom he is appointed and removed,
is the actual administrative head of the city government.
School Administration. Wherever the public school
exists there we find the school district the usual administra-
tive area for educational purposes. Where the county system
prevails the county is divided into school districts ; where the
township system prevails the township is divided into school
districts. In every case there are district directors or trustees
who control school administration, and usually control it so
entirely as to prevent in great part the existence of any
uniform system of education for the whole state; but where
the township system prevails there is generally more partici-
pation on the part of the people, gathered in district-meeting,
in school administration, and generally a fuller power of local
taxation.
In New England recent years have been witnessing the disap-
pearance of the separate school district in some states, and its
352 THE GOVERNMENT OP THE UNITED STATES.
absorption by the township. Thus in Maine, in New Hampshire,
and in Connecticut school administration is being transferred
from district to township officers, and the township is being
made the school area. In Massachusetts the school district
system was entirely abolished in 1882, and township school
administration substituted. And outside New England the same
substitution has here and there been made, as, for example,
in Pennsylvania.
In the Northwest schools usually receive support from
three distinct sources : from the land granted to each town-
ship by the federal government; from a general state tax
for education, whose proceeds are distributed among the town-
ships, to be further distributed by the township authorities
among the districts ; and from district taxes levied by the
district directors. In New England there is generally state
and township taxation .for the support of the schools. In the
South, under the county system, there is state taxation only,
for the most part, save in certain exceptional localities, and
in the greater towns. In many cases in the Northwest the
school district is coincident in area with the civil township,
though distinct and separate in organization.
Nowhere is there sufficient centralization of control. State
superintendents or other central educational authorities are
without real administrative powers (compare page 335) ; county
superintendents seldom have much authority ; township trus-
tees or committees, as a rule, have little more than a gen-
eral supervision and power of advice; usually the directors
of the smallest area have the greater part of the total of
administrative authority, applying their quota of even the state
taxes according to their own discretion. The result is, variety
in the qualifications of teachers, variety in the method of
their choice, variety in courses of study, variety in general
efficiency.
Taxation. The most striking feature regarding local
taxation in the United States is the strict limitations put upon
it by constitution or statute. Commonly no local authorities
can tax beyond a certain fixed percentage of the appraised
value of the property of their district. Under the county
THK GnVKKNMKNT OF THE UNITED STATES. 353
system, requisition is made upon the officers of the counties
for the taxes voted by the legislature for state purposes, and
the county boards raise them, together with the county taxes,
upon the basis of the county assessment. Where the township
exists, the process goes one step further : requistion is made
upon the townships for both the state and county taxes, and
the townships raise these, together with their own taxes, upon
the basis of the assessment made by their own assessors.
An effort is made in most of the states, however, to equal-
ize assessments. Some county authority acts as a board of
equalization with reference to the assessments returned by the
assessors of the several townships, and above the equaliza-
tion boards of the counties there is generally a state board of
equalization, whose duty it is to harmonize and equalize, upon
appeal, taxation in the several counties. Appeals always lie
from the local assessors to these boards of equalization. The
system is, however, only partially successful. It has proved
practically impossible, under the present system of localized
authority, to avoid great varieties and inequalities of assessment :
local officials try to cut down the shares of their districts in
the general taxes as much as possible.
General Remarks on Local Government. Several features
observable in our systems of local government taken as a whole
are worthy of remark. (1) In the first place, outside of the
towns and cities, the separately incorporated urban districts,
there is a marked absence of representative, law-making bodies.
Almost everywhere local officers and boards have merely execu-
tive powers and move within narrow limits set by elaborate
statute law.
(2) In the second place, where there are local law-making
bodies, they act under strict constitutional law : under charters,
that is, possessing thus a strong resemblance, of kind, to state
legislatures themselves.
(3) In the third place, central control of local authorities exists
only in the enforcement, in the regular law courts, of charters and
general laws : there is nowhere any central Local Government
Board with discretionary powers of restriction or permission
(page 246).
354 THE GOVERNMENT OF THE UNITED STATES.
(4) In the fourth place, relatively to the central organs of the
state, local government is, administratively, the most vital part
of our system : as compared either with the federal government
or with local authorities, the central governments of the states
lack vitality not only, but do not seem to be holding their own in
point of importance. They count for much in legislation, but, so
far, for very little in administration.
THE FEDERAL GOVERNMENT.
The Constitution of the United States does not contain
all the rules upon which the organization of the federal govern-
ment rests. It says that there shall be a Congress which shall
exercise the law-making power granted to the general govern-
ment ; a President who shall be charged with the execution of
the laws passed by Congress ; and a Supreme Court which shall
be the highest court of the land for the determination of what is
lawful to be done, either by individuals, by the state governments,
or by the federal authorities, under the Constitution and laws.
It prescribes also in part the organization of Congress. But it
does not command how Congress shall do its work of legislation,
how the President shall be enabled to perform his great function,
or by what machinery of officers and subordinate courts the Su-
preme Court shall be assisted in the exercise of its powers. It
leaves all detail of operation to be arranged by statute : and
statute accordingly plays an all-important part in the organiza-
tion of the government.
The Constitution furnishes only the great foundations of the
system. Those foundations rest upon the same firm ground of
popular assent that supports the several constitutions of the
states. Framed by a federal convention and adopted by repre-
sentative conventions in the states, it stands altogether apart
from ordinary law both in character and sanction.
Amendment of the Constitution. The Constitution can-
not be amended without the consent of two-thirds of Congress
and three-fourths of the states. Amendments may be proposed
in one of two ways : either (a) two-thirds of the members of each
house of Congress may agree that certain amendments are neces-
THE GOVERNMENT OF THE UNITED STATES. 355
sary; or (b) the legislatures of two-thirds of the states may
petition Congress to have a general convention called for the con-
sideration of amendments, and such a convention, being called,
may propose changes. In both cases the mode of adoption is the
same. Every change proposed must be submitted to the states,
to be voted upon either by their legislatures or by state conven-
tions called for the purpose, as Congress may determine. Any
amendment which is agreed to by three-fourths of the states
becomes a part of the Constitution.
The seventeen amendments so far made to the Constitution
were all proposed by Congress. No general constitutional con-
vention has been called since the adjournment of the great body
by which the Constitution was framed in 1787.
None of the written constitutions of Europe is so difficult of
alteration as our own. In Germany a provision changing the
imperial constitution passes just as an ordinary law would pass,
the only limitation upon its passage being that fourteen nega-
tive votes in the Bundesrat will defeat it (14 out of 58). In
France (pages 154, 155) constitutional amendments pass as ordi-
nary laws do, except that they must be adopted by the two
houses of the legislature acting, not separately in Paris, but
jointly at Versailles, as a National Assembly. In Switzerland
such amendments must pass both houses of the federal legis-
lature and must also be approved, in a popular vote, by a major-
ity of the voters, and by a majority of the Cantons. In England
the distinction between constitutional law and statute law can
hardly be said to exist.
The Federal Territory. The territory of the United
States is of three different sorts : there is (a) the District of Co-
lumbia, over which the nation exercises exclusive jurisdiction as
the seat of its government, and the arsenals and dock-yards,
which it has acquired by purchase, and over which the states
have given it jurisdiction for military purposes ; and (b) the
great national property, the territories, which the federal author-
ities hold in trust for the nation as a seed-bed for the develop-
ment of new states, and (c) the dependencies.
The District of Columbia. It would have been incon-
venient for the federal government to have no territory of its
356 THE GOVERNMENT OF THE UNITED STATES.
own on which to build its public offices and legislative halls, and
where it could be independent of local or other state regulations.
The Constitution itself therefore provided that Congress should
have exclusive authority within any district not more than ten
miles square which any state might grant to the federal govern-
ment for its own uses. Acting upon this hint, Maryland and
Virginia promptly granted the necessary territorial jurisdiction,
it having been decided to establish the seat of government upon
the Potomac. A part of the home-land of the federal govern-
ment, thus ceded, was laid out under the name of the District of
Columbia : there the public, buildings were erected, and there,
after the removal of the government offices thither in 1800, the
city of Washington grew up.
The first Congress of the United States met in New York City ; there
the first President was inaugurated, and the organization of the new
government effected. In 1790 it was determined that the federal offi-
cers should live and Congress meet in Philadelphia (as the Continental
Congress had generally done) for ten years ; after that, in the district
specially set apart for the use of the federal government.
The creation of this federal home-plot is a feature peculiar to our
own federal arrangements. Berlin is the capital of Prussia, not the
exclusive seat, or in any sense the property, of the imperial govern-
ment. Berne, too, is cantonal, not federal, ground. Our government
would have been in the same case as those of Germany and Switzer-
land had our federal authorities remained the guests of New York or
Pennsylvania.
The several arsenals, dock-yards, forts, and light-houses established
by the federal government in different parts of the Union are built upon
land purchased by the federal government, generally of individuals. It
is the practice for the several states in which such pieces of property lie
to grant to the federal government exclusive jurisdiction over them,
usually with the proviso that the jurisdiction shall lapse when the prop-
erty ceases to be used for the federal purposes specified.
The Territories. As the different parts of our vast
national domain have been settled it has been divided, under the
direction of Congress, into portions of various sizes, generally
about the area of the larger states, though sometimes larger than
any state save Texas. These portions have been called, for want
of a better name, Territories, and have been given governments
THE GOVERNMENT OF THE UNITED STATES. 357
constituted by federal statute. First they have been given gov-
ernors and judges appointed by the President; then, as their
population has become numerous and sufficiently settled in its
ways of living, they have been given legislatures chosen by their
own people and clothed with the power to make laws subject to
the approval of Congress ; finally, upon becoming still more de-
veloped, they have been granted as full law-making powers as
the states. The territorial stage of their development passed,
they have one by one been brought into the Union as states.
The only territories remaining are Alaska and Hawaii.
Until 1803 the only territory of the United States consisted of the
lands east of the Mississippi which had belonged to the thirteen original
states individually, and had by them been granted to the general govern-
ment. In 1803 the vast tract known as Louisiana was bought ; in 1848,
by conquest, and in 1852, by negotiation, the Pacific coast lands were
acquired from Mexico ; in 1846 the right of the United States to a portion
of the Oregon country was finally established, by treaty.
The Dependencies. With the acquisition of Porto Rico
and the Philippines as a result of the war with Spain, the United
States acquired non-contiguous lands, already inhabited by
peoples differing from ourselves in language, customs and insti-
tutions. Unlike the territory previously acquired, with the
exception of Alaska and Hawaii, the insular possessions are
not adapted for the progressive development from territories
to states. They are dependencies, and will remain as such until
they reach the stage when they may become independent or
self-governing.
The post-offices, federal court chambers, custom-houses, -and other
like buildings erected and owned by the general government in various
parts of the country, are held by the government upon the ordinary
principles of ownership, just as they might be held by a private corpora-
tion. Their sites are not separate federal territory.
Congress. As in the states, so in the federal govern-
ment, the law-making power is vested in a double legislature, a
Congress consisting of a Senate and a House of Representatives.
Unlike the two houses of a state legislature, however, the two
358 THE GOVERNMENT OF THE UNITED STATES.
houses of Congress have distinct characters : the Senate differs
from the House not only in the number of its members, but also
in the principle of its composition. It represents the federal
principle upon which the government rests, for its members rep-
resent the states. The House of Representatives, on the other
hand, represents the national principle, upon which also the gov-
ernment has now been finally established, without threat of
change. Its members represent the people.
The Senate. The Senate consists of two representatives
from each of the states of the Union. It has, therefore, the states
being forty-eight in number, ninety-six members. Each senator
is elected, for a term of six years, by the people of the state
which he represents; and a state is legally free to choose
any one as senator who has been a citizen of the United States
nine years, who has reached the age of thirty, and who is at the
time of the election a resident of the state which he is choeen
to represent.
The Constitution directed that, immediately after coming to-
gether for its first session, the Senate should divide its members,
by lot, as nearly as it could into three equal groups ; that the
members assigned to one of these groups should vacate their seats
after the expiration of two years, the members assigned to an-
other after the expiration of four years, and the members of the
third after the expiration of six years ; after which arrangement
had been accomplished, the term of every senator was to be six
years as provided. It was thus brought about that one-third of
the membership of the Senate is renewed by election every two
years. The result is, that the Senate has a sort of continuous
life, no one election year affects the seats of more than one-
third of its members.
The Senate is the federal house of Congress. Its mem-
bers represent the states as the constituent members of the
Union. They are not, however, in any sense delegates of the
governments of the states. They are not subject to be instructed
as to their votes, as members of the German Bundesrat are, by
any state authority. Each senator is entitled and expected to
vote according to his own individual opinion. Senators, there-
fore, may be said to represent, not the governments of the states,
THE GOVERNMENT <>I THE I'NITED STATES. 359
but the people of the states organized as corporate bodies
politic.
There is no rule which obliges senators from the same state to
vote together after the fashion once imperative in the Congress
of our own Confederation, and still imperative in the German
Bundesrat (p. 288). Each senator represents his state, not in
partnership, but singly.
The equal representation of the states in the Senate more strictly con-
forms to the federal principle than does the unequal representation char-
acteristic of the German Bundesrat ; but the rule observed in Germany,
that the representatives of each state must vote together, must, in turn, be
admitted to be more strictly consistent with the idea of state representation
than is the rule of individual voting followed in our Senate.
The Vice-President of the United States is president of
the Senate. Unless the President die, this is the only function
of the Vice-President. He is not a member of the Senate ; he
simply presides over its sessions. He has a vote only when the
votes of the senators are equally divided upon some question and
his vote becomes necessary for a decision. If the President die
or resign, or be removed from office, or be rendered unable " to
discharge the duties and powers " of his office, the presidency
devolves on the Vice-President.
Organization of the Senate. The Senate makes its
own rules of procedure, the Vice-President being of course bound
to administer whatever rule it adopts. Naturally the internal
organization of the body is the matter with which its rules prin-
cipally concern themselves, and the most important feature of
that organization is the division of the members of the Senate
into standing committees ; into small groups, that is, to each of
which is entrusted the preparation of a certain part of the Sen-
ate's business. The Senate itself would not have time to look
into the antecedents and particulars, the merits and bearings,
of every matter brought before it ; these committees are, there-
fore, constituted to act in its stead in the preliminary exami-
nation and shaping of the measures to be voted on. Whenever
any proposal is made concerning any important question, that
proposal is referred to the standing committee which has been
360 THE GOVERNMENT OF THE UNITED STATES.
commissioned to consider questions of the class to which the
proposed action belongs. The committee takes the proposal
under consideration, in connection with all other pending pro-
posals relating to the same subject, and reports to the Senate
what it thinks ought to be done with reference to it, whether
it is advisable to take any action or not, and, if it is advisable to
act, what action had best be taken.
Thus there is a Committee on Finance, to which all questions
affecting the revenue are referred ; a Committee on Appropriations, which
advises the Senate concerning all votes for the spending of moneys ; a
Committee on Railroads, which considers all railroad questions ; a Com-
mittee on Foreign Affairs, which prepares for consideration all questions
touching our relations with foreign governments, etc.
Influence of the Standing Committees. Its standing
committees have a very great influence upon the action of the
Senate. The Senate is naturally always inclined to listen to
their advice, for each committee necessarily knows much more
about the subjects assigned to it for consideration than the rest
of the senators can know. Its committee organization may be
said to be of the essence of the legislative action of the Senate :
for the leadership to which a legislative body consigns itself is
of the essence of its method and must affect, not the outward
form merely, but the whole character also of its action. Under
every great system of government except our own, leadership
in legislation belongs for the most part to the ministers, to the
Executive, which stands nearest to the business of governing;
it is a central, and, as evidenced by its results, extremely impor-
tant characteristic of our system that our legislatures lead them-
selves, or, rather, that they suffer themselves to be led along the
several lines of legislation by separate and disconnected groups
of their members.
The Senate and the Executive. One of the chief uses of the
committees is to obtain information for the Senate concerning the affairs
of the government. But, inasmuch as the executive branch of the gov-
ernment is quite separate from Congress, it is often very difficult for the
Senate to find out through its committees all that it wishes to know about
the condition of affairs in the executive departments. The action of the
two houses upon some questions must of course be greatly influenced, and
THE GOVERNMENT OF THE UNITED STATES. 361
should be greatly influenced, by what they can learn of administrative
experience in the departments, and the Senate, as well as the House, has
the right to ask what questions it pleases of executive officers, either
through its committees or by requiring a written report to be made directly
to itself by some head of a department. Upon financial questions, for exam-
ple, the Senate or its Finance Committee must constantly wish to know
the experience of the Treasury. But it is not always easy to get legisla-
tive questions fully and correctly answered ; for the officers of the govern-
ment are in no way responsible to either house for their official conduct.
They belong to an entirely separate and independent branch of the gov-
ernment : only such high crimes and misdemeanors as lay them open to
impeachment expose them to the power of the houses. The committees
are, therefore, frequently prevented from doing their work of inquiry
well, and the Senate has to act in the dark. Under other systems of gov-
ernment, the ministers are always present in the legislative bodies to be
questioned and dealt with, directly, face to face.
The President Pro Tempore. It is the practice of the Senate
to make itself independent of all chances of the Vice-President's absence
by electing statedly from its own membership a president pro tempore, to
act in case of the absence or disability of the Vice-President.
The House of Representatives. The House of Repre-
sentatives represents, not the states, but the people of the
United States. It represents them, however, not in the mass,
but by states. Representation is apportioned among the states
severally according to population, and no electoral district crosses
any state boundary.
Apportionment of Representatives. Congress itself de-
cides by law how many representatives there shall be; it then
divides the number decided upon among the states according to
population ; after which each state is divided by its own legis-
lature into as many districts as it is to have representatives,
and the people of each of these districts are entitled to elect one
member to the House. The only limitation put by the Consti-
tution itself upon the number of representatives is, that there
shall never be more than one for every thirty thousand inhabi-
tants. The first House of Representatives had, by direction of
the Constitution itself, sixty-five members, upon the proportion
of one to every thirty-three thousand inhabitants. The number
has, of course, grown, and the proportion decreased, with the
362 THE GOVERNMENT OF THE UNITED STATES.
growth of population. A census is taken every ten years, and
the rule is to effect readjustments and a redistribution of repre-
sentation after every census.
In states which send but one representative (there are
now 1918 five of these), the representative is chosen by the
voters of the whole state. In some of the other states also it
sometimes happens that one or more representatives are chosen
thus ' at large/ pending a redistribution among districts, or for
some other reason.
At present there are four hundred and thirty-five members in the
House, and the states are given one member for every 211,877 of their
inhabitants. In cases where a state has many thousands more than an
even number of times that many inhabitants, it is given an additional
member to represent the balance. Thus, if it have four times 211,877
inhabitants and a very large fraction over, it is given five members instead
of four only. If any state have less than 211,877, it is given one member,
notwithstanding, being entitled to at least one by constitutional provision.
The reason for allowing a state an extra representative when there is a
large fraction remaining over after a division of its population by the
standard number is that the apportionment of representatives is made
according to states, and not by an even allotment among the people of
the country taken as a whole, and that under such a system a perfectly
equal division of representation is practically impossible. Congress makes
the most equitable arrangement practicable each time it reapportions the
membership of the House upon the basis of the decennial census which
Congress directs to be taken for this purpose in pursuance of a special
constitutional command.
Elections to the House. Any one may be chosen a
representative who has reached the age of twenty-five years,
has been a citizen of the United States for seven years, and
is at the time of his election an inhabitant of the state from
which he is chosen. The term of a representative is two years :
and two years is also the term of the whole House; for its
members are not chosen a section at a time, as the senators are ;
the whole membership of the House is renewed every second
year. Each biennial election creates ' a new House.'
Although the Senate has a continuous life, we speak habitually
of different ' Congresses,' as if a new Congress, instead of a new House
of Representatives merely, were chosen biennially. Thus the Congress of
THE GOVERNMENT OF THE UNITED STATES. 363
1917-1919 is known as the sixty-fifth Congress, because the House of Repre-
sentatives of that period is the sixty-fifth that has been elected since the
government was established.
Federal law does not determine who shall vote for members
of the House of Representatives. The Constitution provides,
simply, that all those persons in each state who are qualified
under the constitution and laws of the state to vote for members
of the larger of the two houses of the state legislature may
vote also for members of the House of Representatives of the
United States. The franchise is regulated, therefore, entirely
by state law.
In the fourteenth amendment to the Constitution (passed 1866-1868)
a very great pressure is, by intention at least, brought to bear upon the
states to induce them to make their franchise as wide as their adult male
population. For that amendment provides that, should any state deny to
any of its m;.le citizens who are twenty-one years of age the privilege of
voting for members of the more numerous branch of its own legislature
(and thus, by consequence, the privilege of voting for representatives in
Congress), for any reason except that they have committed crime, its
representation in Congress shall be curtailed in the same proportion that
the number of persons thus excluded from the franchise bears to the
whole number of male citizens twenty-one years of age in the state.
This provision has in practice, however, proved of little value. It is
practically impossible for the federal authorities to carry it satisfactorily
into effect.
Organization of the House. The House, like the
Senate, has its own rules, regulative of the number and duties
of its officers and of its methods of doing business ; and these
rules, like those of the Senate, are chiefly concerned with the
creation and the privileges of a great number of standing com-
mittees. The committees of the House were until 1910 ap-
pointed by the presiding officer of the House, the 'Speaker' 1 ;
1 The House of Representatives is not given a president by the Constitu-
tion, as the Senate is. It elects its own presiding officer, whose name, of
* Speaker,' is taken from the usage of the English House of Commons,
whose president was so called because whenever, in the old days, the Com-
mons went into the presence of the king for the purpose of laying some
matter before him, or of answering a summons from him, their president
364 THE GOVERNMENT OF THE UNITED STATES.
and this power of the Speaker to appoint the committees of the
House made him one of the most powerful officers in the whole
government. For the committees of the House are even more
influential than those of the Senate in determining what shall
be done with reference to matters referred to them. They as
a matter of fact have it in their power to control almost all the
acts of the House. The Senate, being a comparatively small
body, has time to consider very fully the reports of its com-
mittees, and generally manages to shape its own conclusions.
But the House is too large to do much debating : it must be
guided by its committees or it must do nothing. It is this fact
which made the Speaker's power of appointment so vastly
important. He determined who should be on the committees,
and the committees determined what the House should do. He
nominated those who shaped legislation. More than that, he
shaped the rules and determined the course of business. For he
was chairman of the Committee on Rules, which had but four
other members, whom be regarded as his ' assistants,' and that
committee guided the House quite absolutely in the use of its
time. The Speaker will not ' recognize ' (that is, will not give
the floor to) any member who seeks to upset the programme it
has fixed.
The extraordinary power of the Speaker often made his election
a very exciting part of the business of each new House : for he
was always selected with reference to what he would do in con-
stituting the principal committees, and in shaping and adminis-
tering the rules.
So great had become the power of the Speaker, not only to
control legislation but also to discipline recalcitrant members,
and so arbitrarily did Speaker Cannon exercise his power, that at
length opposition developed within his own party, the l insurgents,'
who finally in 1910 combined with the Democrats to change the
Committee on Rules. It was enlarged from five to ten members,
six of the majority and four of the minority party, elected by
the House, and the Speaker was deprived of his membership.
was their spokesman or Speaker. This name is used also in the legislative
bodies of all the English colonies, wherever, indeed, English legislative
practices have been directly inherited.
THE GOVERNMENT OF THE UNITED STATES. 365
In the next session the Democratic party had a majority in the
House and it carried through a complete change in the method
of constituting committees. The House now elects its own
committees, and in practice the following method is used. Each
party holds a caucus which elects a party committee on com-
mittees. These party committees select the party members for
committees ; the names thus selected are nominated to the House
by the respective party committees and the House elects the
members thus nominated. These changes have taken away
much of the Speaker's power and have placed it in the hands of
the party leaders, for the party committees on committees are
naturally composed of the party leaders. The autocratic character
of the Speaker's power has been replaced by a more democratic
control by the party. Yet the influence of the Speaker is still great,
and more than any one individual he can aid or hinder legislation.
The House has so many standing committees that every repre-
sentative is a member of one or another of them, but many of
the committees have little or nothing to do. Some of them,
though still regularly appointed, have no duties assigned them
by the rules. One of the most important committees is that on
Appropriations, which has charge of the general money-spending
bills introduced every year to meet the expenses of the govern-
ment, and which, by virtue of its power under the rules to bring
its reports to the consideration of the House at any time, to the
thrusting aside of whatever matter, virtually dominates the
House by controlling its use of its time. Special appropriation
bills, which propose to provide moneys for the expenses of
single departments, as, for example, the Navy Department or
the War Department, are, by a rule of the House, taken out
of the hands of the Committee on Appropriations and given to
the committees on the special departments concerned. Scarcely
less important than the Committee on Appropriations, though
scarcely so busy as it, is the Committee on Ways and Means,
which has charge of questions of taxation.
The House has to depend, just as the Senate does, upon its
standing committees for information concerning the affairs of the
government and the policy of the executive departments, and is
just as often and as much embarrassed because of its entire ex-
366 THE GOVERNMENT OF THE UNITED STATES.
elusion from easy, informal, and regular intercourse with the de-
partments. They cannot advise the House unless they are asked
for their advice ; and the House cannot ask for their advice
except indirectly through its committees, or formally by requir-
ing written reports.
Acts of Congress. In order to become a law or Act of
Congress a bill must pass both houses and receive the signature
of the President. Such is the ordinary process of legislation.
But the President may withhold his signature, and in that case
the measure which he has refused to sanction must receive the
votes of two-thirds of the members of each house, given upon a
reconsideration, before it can go upon the statute book. The
President is given ten days for the consideration of each measure.
If he take no action upon it within the ten days, or if within
that period he sign it, its provisions become law ; if within the
ten days he inform Congress by special message that he will
not sign the bill, returning it to the house in which it originated
with a statement of his reasons for not signing it, another
passage of the measure by a majority of two-thirds in each
house is required to make it a law.
There are, therefore, three ways in which a bill may become
law : either (a) by receiving the approval of a majority in each
house, and the signature of the President, appended within ten
days after its passage by the houses ; or (6) by receiving the ap-
proval of a majority in each house, and not being acted upon by
the President within ten days after its passage; or (c) by re-
ceiving the approval of two-thirds of each house after having been
refused signature by the President within ten days after its pas-
sage by a majority in each house. If Congress adjourn before the
expiration of the ten days allowed the President to consider bills
sent him, such bills lapse unless he has signed them before the
adjournment.
Neither house can do any business (except send for absent
members or adjourn) unless a majority of its members are
present, a majority being in the case of all our legislatures,
both state and federal, the necessary quorum.
In the practice of some foreign legislatures the quorum is
much less than a majority of the members. In the English House
THE GOVERNMENT OF THE UNITED STATES. 367
of Commons, for instance, it is only forty members, although the
total number of members of the House of Commons is seven
hundred and seven.
When it is said that under certain circumstances a bill must be
passed by a vote of two-thirds in order to become a law, it is
understood to mean that it must be voted for by two-thirds of the
members present, not necessarily by that proportion of the whole
membership of the body. In the case of bills which the Presi-
dent refuses to sign, however, the Constitution expressly says
that it cannot be made law unless a second time passed by two-
thirds of each house.
A bill may ' originate ' in either house, unless it be a bill relat-
ing to the raising of revenue. In that case it must originate in
the House of Representatives, though the Senate may propose
what amendments it pleases to a revenue bill, as to any other
which comes to it from the House.
If one of the houses pass a bill, and the other house amend it,
the changes so proposed must be adopted by the house in which
the bill originated before it can be sent to the President and be
made a law. When the two houses disagree about amendments
they appoint conference committees ; that is to say, each house
appoints a committee to consult with a similar committee ap-
pointed by the other house, to see what can be done towards bring-
ing about an agreement between the two houses upon the points
in dispute.
The Federal Judiciary : its Jurisdiction. The Judiciary
of the United States consists of a Supreme Court, nine Circuit
Courts of Appeals, nine Circuit Courts, eighty-three District Courts,
and a Court of Claims. Its organization and functions rest more
than do those of either of the other branches of the general gov-
ernment upon statute merely, instead of upon constitutional pro-
vision. The Constitution declares that " the judicial power of
the United States shall be vested in one supreme court, and in
such inferior courts as the Congress may, from time to time,
ordain and establish," and that " the judges, both of the supreme
and inferior courts, shall hold their offices during good behavior,
and shall, at stated times, receive for their services a compensa-
tion which shall not be diminished during their continuance in
368 THE GOVERNMENT OF THE UNITED STATES.
office." It provides also that the judicial power of the federal
government shall extend to all cases in law or equity which may
arise under the Constitution, laws, or treaties of the United
States ; to all cases affecting ambassadors, other public ministers,
and consuls ; to all admiralty and maritime cases ; to controver-
sies in which the United States is a party, controversies between
two or more states, between a state and citizens of another state
(the state being the suitor), between citizens of different states,
between citizens of the same state claiming lands under grants
from different states, and between a state or its citizens and for-
eign states, citizens, or subjects. And it directs that in cases
affecting ambassadors, other public ministers and consuls, and in
cases in which a state is a party the Supreme Court shall have
original jurisdiction ; while in all other cases it is to have appel-
late jurisdiction only, " with such exceptions, and under such
regulations, as the Congress shall make."
The judicial power of the federal government is thus made to
embrace two distinct classes of cases : (a) those in which it is
manifestly proper that its authority, rather than the authority of
a state, should control, because of the nature of the questions in-
volved: for instance, admiralty and maritime cases, navigable
waters being within the exclusive jurisdiction of the federal
authorities ; and cases arising out of the Constitution, laws, or
treaties of the United States or out of conflicting grants made by
different states. (6) Those in which, because of the nature of the
parties to the suit, the state courts could not properly be allowed
jurisdiction ; cases affecting, for instance, foreign ambassadors,
who are accredited to the government of the United States and
with whom our only relations are national relations, whose privi-
leges rest upon the sovereignty of the states they represent ; or
cases in which the state courts could not have complete jurisdic-
tion because of the residence of the parties ; for instance, suits
arising between citizens of different states. It is always open to
the choice of a citizen of one state to sue a citizen of another state
in the courts of the latter's own domicile, but the courts of the
United States are the special forum provided for such cases.
Power of Congress over the Judiciary, But these pro-
visions of the Constitution leave Congress quite free to distribute
THE GOVERNMENT OF THE UNITED STATES. 369
the powers thus set forth among the courts for whose organization
it is to provide, and even, if it so chooses, to leave some of them
entirely in abeyance. In other words, the Constitution defines
the sphere which the judicial power of the United States may
fill, while Congress determines how much of that sphere shall
actually be occupied, by what courts and in what manner, subject
to what rules and limitations.
With regard to the organization of the judiciary Congress
determines not only what courts shall be created irferior to the
Supreme Court, but also of what number of judges the Supreme
Court itself shall consist, what their compensation and procedure
shall be, and what their specific duties in the administration of
justice. It might also determine, should it see fit, what qualifica-
tions should be required of occupants of the supreme bench.
The Existing Federal Courts. In pursuance of these
powers, Congress has passed the Judiciary Act of September,
1789, and the Acts amendatory thereto upon which the national
judiciary system now rests. In 1911 all previous legislation was
codified and the organization and jurisdiction of the lower courts
were greatly modified. The Supreme Court consists of a chief
justice and eight associate justices ; it is required to hold annual
sessions in the city of Washington sessions which begin on the
second Monday of each October any six of the justices consti-
tuting a quorum. Next below the Supreme Court are nine Circuit
Courts of Appeal. The territory of the United States, including
Alaska, Porto Kico, and Hawaii, is divided into nine circuits, in
each of which there is a Circuit Court of Appeals, consisting of
two judges in the fourth circuit, three judges in the first, third,
fifth, sixth, and ninth circuits and of four judges in the second,
seventh, and eighth circuits.
The chief justice and associate justices of the Supreme Court
are allotted among the circuits by order of the court ; the chief
justice and the associate justices assigned to each circuit are com-
petent to sit as judges of the Circuit Court of Appeals within their
respective circuits and when so sitting shall preside. In case the
full court is not made up, one or more district judges shall sit in
the court.
The Circuit Courts of Appeal exercise appellate jurisdiction to
370 THE GOVERNMENT OF THE UNITED STATES.
review by appeal or writ of error final decisions in the District
Courts which may not be appealed direct to the Supreme Court,
and for the most part the decisions of the Circuit Courts of Ap-
peal are final ; they may, however, certify to the Supreme Court
such questions of law as they may deem best.
The nine circuits are divided into eighty-three districts, which,
like Congressional districts, never cross state lines ; and for each
of these districts there has been established a district court.
Some of the less populous states constitute each a single district ;
others are divided into two, while still others furnish sufficient
business to warrant their being divided into four. The District
courts are the lowest courts of the federal series, and have their
own separate judges.
The Court of Claims was established in 1855, to relieve Con-
gress of the necessity of determining the validity of claims against
the United States, for the settlement or adjudication of which no
provision had been made. It consists of a chief justice and four
associates, and sits always in Washington. Pension claims, war
claims, and claims already rejected were excluded from its juris-
diction ; but all other claims against the United States, which are
of such a kind that they could not be settled by an ordinary suit
at law, in equity, or in admiralty (if the United States were suable
like an individual) are referred to it. In some instances it is
authorized to enter judgment ; in others it can only find the facts ;
but in either case the claimant must wait for an appropriation by
Congress for the satisfaction of his claim.
The Court of Customs Appeals is composed of a presiding judge
and four associates. It has exclusive jurisdiction over appeals
from the Board of General Appraisers of the Treasury Department
as to the classification of imported goods and the rate of duty im-
posed thereon under such classifications. The court is always
open for business and sessions may be held in any circuit at the
discretion of the Court.
The division of jurisdiction between the Circuit Courts of
Appeal and the District courts is effected by act of Congress ;
and, inasmuch as Congress has not seen fit to vest in the courts
complete jurisdiction over all cases arising under the Constitution,
laws, and treaties of the United States, but has given to each
THE GOVERNMENT OF .THE UNITED STATES. 371
court power in certain specified cases, and left the rest in abey-
ance, it would be impossible to give in brief compass a detailed
account of the jurisdiction of the several courts. It must suffice
for present purposes to say, that the District courts are given
cognizance of all ordinary civil cases falling within the federal
jurisdiction of all common law suits brought by the United States,
all torts under international law or the treaties of the United
States, suits against consuls or vice consuls, land condemnations,
and all cases brought under the civil rights laws ; and that they
have exclusive original jurisdiction in postal law cases, prize cases,
admiralty and maritime cases, and suits against the United States
for money claims not exceeding $10,000. The Circuit Courts are
given appellate jurisdiction only.
All judges of the United States are appointed by the President,
with and by the consent and advice of the Senate, to serve during
good behavior. There are in all eighty-three federal judicial dis-
tricts, and for each of these, as a rule, a special district judge is
appointed, though in thickly populated sections of the country it
is customary to have more than one judge hold court in a district.
Thus at present there are one hundred and four district judges.
Federal judges of the inferior courts are, so to say, interchange-
able. When necessary, a district judge can go into another dis-
trict than his own and either aid or replace the district judge there.
A district judge may also, when it is necessary for the despatch of
business, sit as circuit judge ; and a circuit judge may, in his turn,
upon occasion hold District court. This seems the less anomalous
when it is remembered that the earliest arrangement was for the
district judges to hold Circuit court always in the absence of the
justices of the Supreme Court from circuit, or in conjunction
with them, and that special circuit judges were appointed only
because of the necessity for more judges consequent upon a rapid
increase of federal judicial business.
The District Attorney and the Marshal. Every district
has its own federal district attorney and its own United States
marshal, both of whom are appointed by the President. It is the
duty of the federal district attorney to prosecute all offenders
against the criminal laws of the United States, to conduct all
civil cases instituted in his district in behalf of the United States,
372 THE GOVERNMENT OF THE UNITED STATES.
and to appear for the defence in all cases instituted against the
United States; to appear in defence of revenue officers of the
United States where they are sued for illegal action, etc. The
marshal is the ministerial officer of the federal Circuit and
District courts. He executes all their orders and processes, arrests
and keeps all prisoners charged with criminal violation of federal
law, etc., and has within each state the same powers, within
the scope of United States law, that the sheriff of that state
has under the laws of the state. He is the federal sheriff.
The orders and processes of a state court are binding and opera-
tive only within the state to which the court belongs ; the orders
and processes of United States courts, on the contrary, are bind-
ing and operative over the entire Union.
The Courts of the District of Columbia and of the territories
are courts of the United States, but they are not federal courts ;
they bear, so far as their jurisdiction is concerned, the character
of state and federal courts united. The only laws of the terri-
tories and of the District of Columbia are laws of the United
States, inasmuch as the legislatures of the territories act under
statutory grant from Congress. 1 The territorial legislatures are,
so to say, commissioned by Congress ; and the laws which they
pass are administered by judges appointed by the President.
The territorial courts and the courts of the District of Columbia
do not come within the view of the Constitution at all. With
reference to them Congress acts under no limitations of power
whatever. The rule of tenure during good behavior, for example,
which applies to all judges of the United States appointed under
the Constitution, does not apply to judges of the territories or of
the District of Columbia. The term of office of territorial judges
is fixed at four years. The federal courts sitting in the states,
and the United States courts established in the territories, ought
not to be thought of as parts of the same system, although the
Supreme Court is the highest tribunal of appeal for both.
The procedure of a federal court follows, as a rule, the pro-
cedure of the courts of the state in which it is sitting; and
1 Congress early enacted that the people of the District of Columbia should
continue to live under the laws which had previously had force in the District
before its cession to the federal government.
THE GOVERNMENT OF THE UNITED STATES. 373
state law is applied by the courts of the United States in all mat-
ters not touched by federal enactment. Juries are constituted,
testimony taken, argument heard, etc., for the most part, accord-
ing to the practice of the state courts ; so that, so far as possible,
both as regards the outward forms observed and the principles
applied, a federal court is domestic, not foreign, to the state in
which it acts.
It is not within the privilege of Congress to delegate to the
courts of the states the functions of courts of the United States ;
for the Constitution distinctly provides that, besides the Supreme
Court, there shall be no court authorized to exercise the judicial
powers of the United States except such as Congress " may, from
time to time, ordain and establish." The adoption of state courts
by Congress is excluded by plain implication. A very interesting
contrast is thus established between the federal judicial system
of the United States and the federal judicial systems of Germany
and Switzerland.
The Federal Executive. " The executive power," says
the Constitution, " shall be vested in a President of the United
States of America," who " shall hold his office during a term of
four years." Of course it is impossible for one man actually to
exercise the whole executive power. The President is assisted
by numerous heads of departments to whom falls so large a part
of the actual duties of administration that it has become substan-
tially correct to describe the President as simply presiding over
and controlling by a general oversight the execution of the law ;
which is doubtless all that the sagacious framers of the Constitu-
tion expected. The Vice-President has no part in the executive
function. He is the President's substitute, and is chosen at the
same time and in the same manner that the President is chosen.
Election of a President. The choice is not direct by
the people, but indirect, through electors chosen by the people.
In each state there are elected as many electors as the state has
representatives and senators in Congress, the "electoral vote"
of ea 3h state being thus equal to its total representation in Con-
gress.
The electors are voted for on the Tuesday following the first
Monday of November in the year which immediately precedes
374 THE GOVERNMENT OF THE UNITED STATES.
the expiration of a presidential term. They assemble in the
several state capitals to cast their votes on the second Monday
of the January following. Their votes are counted in the house
of Congress sitting in joint session on the second Wednesday of
the following February. The President is inaugurated on the
fourth of March.
Practical Operation of the Plan : the Party Conventions.
The original theory of this arrangement was that each elector
was really to exercise an independent choice in the votes which
he cast, voting for the men whom his own judgment had selected
for the posts of President and Vice-President. In fact, however,
the electors only register party decisions made during the pre-
vious summer in national conventions. Each party holds during
that summer a great convention composed of party delegates from
all parts of the Union, and nominates the candidates of its choice
for the presidency and vice-presidency. The electors, again, are,
in their turn, chosen according to the nominations of party con-
ventions in the several states ; and the party which gains the
most electors in the November elections puts its candidates into
office through their votes, which are cast in obedience to the will
of the party conventions as a matter of course. The party con-
ventions, of which the Constitution knows nothing, are in fact by
far the most important part of the machinery of election.
Qualifications for the Office of President. " 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." l In respect of age there is here only a slight advance
upon the qualifications required of a senator ; in respect of citi-
zenship it is very much more rigorous than in the case of mem-
bers of Congress.
It is provided by the Constitution that the compensation received by
judges of the United States shall not be diminished during their terms of
office ; concerning the President, whose tenure of office is much briefer,
1 Constitution, Art. II., sec. i., par. 5.
THE GOVERNMENT OF THE UNITED STATES. 375
it is provided that his compensation shall neither be diminished nor in-
creased during his term.
Duties and Powers of the President. It is the duty
of the President to see that the laws of the United States are
faithfully executed ; he is made cominander-in-chief of the army
and navy of the United States, and of the militia of the several
states when called into the actual service of the United States ;
he is to regulate the foreign relations of the country, receiving
all foreign ministers and being authorized to make treaties with
the assent of two-thirds of the Senate ; he is to appoint and com-
mission all officers of the federal government ; and he may grant
reprieves and pardons. The Constitution makes all his appoint-
ments subject to confirmation by the Senate ; but it also gives
Congress the power to remove from the superintending view of
the Senate the filling of all inferior official positions, by vesting
the appointment of such subordinate officers as it thinks proper
in the President alone, in the courts of law, or in the heads of
departments. As a matter of fact, legislation has relieved the
Senate of the supervision of the vast majority of executive
appointments. The confirmation of the Senate is still neces-
sary to the appointment of ambassadors, other public ministers,
and consuls, of judges of the courts of the United States,
of the chief military, naval, and departmental officials, of the
principal post-office and customs officers, of all the more
important servants of the general government : but these con-
stitute only a minority of all the persons receiving executive
appointment. The majority are appointed without legislative
oversight.
The unfortunate, the demoralizing influences which have been
allowed to determine executive appointments since President
Jackson's time have affected appointments made subject to the
Senate's confirmation hardly less than those made without its
cooperation ; senatorial scrutiny has not proved effectual for
securing the proper constitution of the public service. Indeed,
the "courtesy of the Senate," the so-called "courtesy" by
which senators allow appointments in the several states to be
regulated by the preference of the senators of the predominant
876 THE GOVERNMENT OF THE UNITED STATES.
party from the states concerned, has frequently threatened to add
to the improper motives of the Executive the equally improper
motives of the Senate.
Reform of Methods of Appointment to Federal Offices.
The attempts which have been made at various times to reform
by law the system of appointments have not been directed
towards the higher offices filled with the consent of the Senate,
but only towards those inferior offices which are filled by the
single authority of the President or of the heads of the executive
departments ; have touched in their results, indeed, only the less
important even among those offices. The Act which became law
in June, 1883, and which is known as the " Pendleton Act," may
be said to cover only * employees ' : it does not affect any person
really in authority, though it does affect a large body of federal
servants. It provides, in brief, for the appointment by the Presi-
dent, by and with the advice and consent of the Senate, of a Civil
Service Commission consisting of three persons, not more than
two of whom shall be adherents of the same political party,
under whose recommendation, as representatives of the President,
selections shall be made for the lower grades of the federal serv-
ice upon the basis of competitive examination. It forbids the
solicitation of money from employees of the government for
political uses, and all active party service on the part of members
of the civil administration. It endeavors, in short, to " take the
civil service out of politics."
The carrying out of those portions of the Act which relate to the
method of choosing public officers is, however, almost entirely subject to
the pleasure of the President. The Constitution vests in him the power
of appointment, subject to no limitation except the possible advice and
consent of the Senate. Any Act which assumes to prescribe the manner
in which the President shall make his choice of public servants must,
therefore, be merely advisory. The President may accept its directions
or not as he pleases. The only force that can hold him to the observance
of its principle is the force of public opinion.
The Presidential Succession. In case of the removal, death,
resignation, or disability of both the President and Vice-President, the
office of President is to be filled ad interim by the Secretary of State, or, if
he cannot act, by the Secretary of the Treasury, or, in case he cannot act, by
the Secretary of War ; and so on, in succession, by the Attorney-General,
THE GOVERNMENT OF THE UNITED STATES. 377
the Postmaster-General, the Secretary of the Navy, or the Secretary of the
Interior, the Secretary of Agriculture, the Secretary of Commerce, and
the Secretary of Labor. None of these officers can act, however, unless
he have the qualifications as to age, citizenship, and residence required by
the Constitution of occupants of the presidential chair. Until 1886, the
' succession ' passed first to the president pro tempore of the Senate, and,
failing him, to the Speaker of the House of Representatives. This was
found inconvenient, because there are intervals now and again when there
is neither a president pro tempore of the Senate nor a Speaker of the
House. Those officers, moreover, are by no means always of the same
political party as the President and Vice-President. Some doubt was felt,
too, as to whether they were ' officers ' within the meaning of the Con-
stitution, in the clause in which Congress is authorized to designate the
' officers ' upon whom in such cases the presidential office was to devolve.
Relations of the Executive to Congress. The only pro-
visions contained in the Constitution concerning the relation of
the President to Congress are these : that, " 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 " ; and that " he may, on
extraordinary occasions, convene both houses, or either of them,"
in extra session, "and, in case of disagreement between them,
with respect to the time of adjournment, he may adjourn them
to such time as he shall think proper " (Art. II., sec. iii.). His
power to inform Congress concerning the state of the Union and
to recommend to it the passage of measures is exercised only in
annual and special < messages/
Washington and John Adams interpreted this clause to mean that
they might address Congress, in person, as the sovereign in England may
do : and their annual communications to Congress were spoken addresses.
But Jefferson, the third President, being an ineffective speaker, this habit
was discontinued, and the fashion of written messages was inaugurated
and firmly established. 1 (Compare page 193.) Possibly, had the President
not so closed the matter against new adjustments, this clause of the Con-
stitution might legitimately have been made the foundation for a much
more habitual and informal, and yet at the same time much more public
and responsible, interchange of opinion between the Executive and Con-
gress. Having been interpreted, however, to exclude the President from
1 President Wilson reverted to the original practice, and has read his mes-
sages to Congress.
378 THE GOVERNMENT OF THE UNITED STATES.
any but the most formal and ineffectual utterance of advice, our federal
executive and legislature have been shut off from cooperation and mutual
confidence to an extent to which no other modern system furnishes a
parallel. In all other modern governments the heads of the administrative
departments are given the right to sit in the legislative body and to take
part in its proceedings. The legislature and executive are thus associated
in such a way that the ministers of state can lead the houses without
dictating to them, and the ministers themselves be controlled without
being misunderstood, in such a way that the two parts of the govern-
ment which should be most closely coordinated, the part, namely, by
which the laws are made and the part by which the laws are executed,
may be kept in close harmony and intimate cooperation, giving coherence
to the action of the one and energy to the action of the other.
The Executive Departments. The Constitution does
not explicitly provide for the creation of executive departments,
but it takes it for granted that such departments will be created.
Thus it says (Art. II., sec. ii., par. 1, 2) that the President " may
require the opinion, in writing, of the principal officer in each of
the executive departments, upon any subject relating to the duties
of their respective offices," and that Congress may vest the ap-
pointment of such inferior officers as it may see fit " in the heads
of departments.' 7 The executive departments consequently owe
their creation and organization to statute only.
The first Congress erected three such departments, namely,
the departments of State, of the Treasury, and of War ; providing,
besides, for the creation and exercise of the office of Attorney-
General, but not erecting a Department of Justice. In 1798 the
management of the navy, which had at first been included in the
duties of the War Department, was intrusted to a special Depart-
ment of the Navy ; in 1829 the post-office, which had been a sub-
division of the Treasury, was created an independent Department ;
and in 1849 a Department of the Interior was organized to receive
a miscellany of functions not easy to classify, except in the fea-
ture of not belonging properly within any department previously
created. 1 In 1870 the Attorney-General was put at the head of a
1 A character like that of the Department of the Interior, it is interesting
to remark, may be attributed to some corresponding department, bearing
either this name or a name of like significance, in almost every other modern
government. There is everywhere some department of state to receive
functions not otherwise specially disposed of.
THE GOVERNMENT OF THE UNITED STATES. 379
regularly constituted Department of Justice ; and in 1889 the
Department of Agriculture, which had existed as a subordinate
executive bureau since 1862, was given full standing under a
Secretary of ' cabinet ' rank ; in 1903 the Department of Com-
merce and of Labor was established, and in 1913 the Department
of Labor.
We have, thus, at present, ten executive departments,
viz. : (1) A Department of State, which is what would be called in
most other governments our * foreign office,' having charge of all
the relations of the United States with foreign countries.
(2) A Department of the Treasury, which is the financial
agency of the government, and whose functions cover the collec-
tion of the public revenues accruing through the customs duties
and the internal revenue taxes, their safe keeping and their
disbursement in accordance with the appropriations from time to
time made by Congress ; the auditing of the accounts of all de-
partments ; the supervision and regulation of the national banks
;u id of the currency of the United States ; the coinage of money ;
and the collection of certain industrial and other statistics. This
Department, therefore, contains within it the treasury and comp-
trolling functions which in the states are separated.
To this Department is attached also the Bureau of Printing
and Engraving, by which all the printing of the paper currency,
bonds, and revenue stamps of the government is done.
(3) A Department of War, which has charge of the mili-
tary forces and defences of the Union. It has charge of the
Military Academy at West Point, and supervision of the various
military schools to which Congress gives aid.
(4) A Department of the Navy, which has charge of the
naval forces of the general government ; and which has charge of
the Naval Academy at Annapolis and the Naval War College at
Newport.
(5) A Department of Justice, from which emanates all the
legal advice of which the federal authorities stand in need at any
time, and to which is intrusted the supervision of the conduct of
all litigation in which the United States may be concerned. To
it are subordinate all the marshals and district attorneys of the
United States, all ministerial, non-judicial law officers, that is,
380 THE GOVERNMENT OF THE UNITED STATES.
in the service of the government. It may be compendiously de-
scribed as the lawyer force of the government. It is presided over
by an Attorney-General, all the other department's, except the
Post-Office, being under ' Secretaries.'
(6) A Post-office Department, under a Postmaster-Gen-
eral, which is charged with the carrying and delivery of letters
and parcels, with the transmission of money by means of certain
' money orders ' issued by the Department, or under cover of a
careful system of registration, and with making the proper postal
arrangements with foreign countries.
These arrangements with foreign countries may be made with-
out the full formalities of treaty, the consent of the President
alone being necessary for the ratification of international
agreements made by the Postmaster-General for the facilitation
of the functions of the Department. The United States is a
member of the Universal Postal Union, to which most of the
civilized countries of the world belong. The central office of this
Union is under the management of the Swiss administration.
Its administrative expenses are defrayed by contribution of the
various governments belonging to the Union.
(7) A Department of the Interior, which has charge:
(I) Of the management of the public lands (General Land Office) ;
(II) Of the government's dealings with the Indians, a function
which is exercised through a special Commissioner of Indian
Affairs in Washington and various agencies established in dif-
ferent parts of the Indian country.
It is through this Indian Bureau, for example, that all laws con-
cerning the settlement, assistance, or supervision of the tribes are
administered, as well as all laws concerning the payment of
claims made upon the federal government for compensation for
depredations committed by the Indians, and laws touching the
distribution and tenure of land among the Indians.
(Ill) Of the paying of pensions and the distribution of bounty
lands, a function which it exercises through a special Commis-
sioner of Pensions; (IV) Of the issuing and recording of patents
and the preservation of the models of all machines patented.
For the performance of these duties there is a Patent Office.
(V) Of the keeping and distribution of all public documents
THE GOVERNMENT OF THE UNITED STATES. 381
(Superintendent of Public Documents) ; (VI) Of the collection
of statistical and other information concerning education,
and the diffusion of the information so collected for the pur-
pose of aiding the advance and systematization of education
throughout the country (The Office of Education) ; (VII) Of the
superintendence of the government hospital for the insane and
the Columbia Asylum for the Deaf and Dumb ; (VIII) Of the Geo-
logical Survey ; (IX) Of the Freedmen's Hospital and the Howard
University.
Many of these subdivisions of the Interior, through in strict-
ness subject to the oversight and control of the Secretary of the
Interior, have in reality a very considerable play of independent
movement.
(8) A Department of Agriculture, which is charged with
furthering in every possible way, by the collection of information
not only, but also by the prosecution of scientific investigation
with reference to the diseases of plants, etc., the agricultural
interests of the country, and under which there are maintained a
special Forestry Division, and the national Weather Bureau.
(9) A Department of Commerce. By an Act of 1903 a
Department of Commerce and Labor was established which in
1913 was divided, the Department of Labor becoming a separate
Department. It is the province and duty of the Department of
Commerce to foster, promote and develop the foreign and domes-
tic commerce, the mining, manufacturing, shipping and fishing
industries of the United States. From the Treasury Department
there have been transferred to the Department of Commerce the
Light-House Board and Establishment, the Steamboat-Inspection
Service, the Bureau of Navigation, the United States Shipping
Commissioners, the National Bureau of Standards, the Coast and
Geodetic Survey ; from the Department of the Interior, the Cen-
sus Office ; from the Department of State, the Bureau of Foreign
Commerce ; and under it were placed also the Fish Commission,
and the office of Commissioner of Fish and Fisheries.
(10) A Department of Labor. In 1913 the Department
of Commerce and Labor was divided and a separate Department
of Labor was created, charged with the duty to foster, promote
and develop the welfare of the wage earners, to improve their
382 THE GOVERNMENT OF THE UNITED STATES.
working conditions, and to advance their opportunities for profit-
able employment. Under its direction were placed the Bureaux
of Labor Statistics, Immigration, Naturalization, and the Chil-
dren's Bureau.
Set apart to themselves, and therefore without representation
in the Cabinet, there are (1) the Interstate Commerce Commis-
sion, a semi-judicial body by which the federal statutes forbid-
ding unjust discrimination in railway rates in interstate freight
or passenger traffic, prohibiting certain sorts of combinations in
railroad management, etc., are interpreted and enforced. (2) The
Civil Service Commission, by which the Act mentioned on page
376 is administered. (3) The Government Printing Office,
which prints all public documents. (4) The Smithsonian Insti
tution, the National Museum, and the Bureau of Ethnology.
SOME REPRESENTATIVE AUTHORITIES.
Histories*:
Adams, Henry, The History of the United States under the Admin-
istrations of Jefferson and Madison, 9 vols., N.Y., 1889-1891;
Documents relating to New England Federalism, Boston, 1877.
Adams, Herbert B., Maryland's Influence upon Land Cessions to the
United States, in the Johns Hopkins Studies in Historical and Politi-
cal Science, 3d Series, No. 1.
American Nation Series.
American Statesman Series, a series of Biographies. 26 vols., 12mo,
Boston, 1882-1891.
Bancroft, George, History of the United States, from the discovery of
America to the adoption of the federal constitution. Revised ed.,
6 vols., 8vo, N.Y.
Benton, Thomas H., Thirty Years' View ; or, A History of the Work-
ing of the American Government for Thirty Years, 1820-1850.
2 vols., 8vo, N.Y., 1854-1856.
Bishop, Cortlandt F., History of Elections in the American Colonies (in
Columbia University Studies in History, Economics, and Public
Law), N.Y., 1896.
Curtis, George T., History of the Origin, Formation, and Adoption of
the Constitution of the United States. 3 vols., N.Y., 1854, 1858,
1896.
Doyle, J. A., The English Colonies in America. 5 vols., N.Y., London
and N.Y., 1882-1907.
THE GOVERNMENT OF T1IK I'NITKD STATES. 383
Fisher, George P., The Colonial Era, X.Y., 1892.
Fiske, John, The Critical Period of American History, Boston, 1888,
JL897.
Froth in r/Jiam, Richard, Rise of the Republic of the United States, 3d ed.,
Boston, 1881.
Hart, Albert B., Formation of the Union, 23d ed., London and N.Y.
lliltlreth, R., History of the United States from the Discovery of Amer-
ica to the End of the Sixteenth Congress (1821). Two Series,
6 vols., New ed., N.Y., 1879.
Hnlst, II. von, The Constitutional and Political History of the United
States. Trans, from the German. 7 vols., Chicago, 1877-1892.
Jameson, J. F. (editor), Essays in the Constitutional History of the
United States in the Formative Period, 1775-1789, Boston, 1889.
Johnston, Alexander, History of American Politics, 3d ed., revised,
N.Y., 1890; The First Century of the Constitution, in the New
Princeton Review, September, 1887.
London, Judson S., The Constitutional History and Government of the
United States. A Series of Lectures. Boston, 1889.
Lodge, Henry C., A Short History of the English Colonies in America,
N.Y., 1881.
Mni'Mnaicr, John B., History of the People of the United States, 8 vols.,
N.Y., 1913.
Pith-in, Timothy, Political and Civil History of the United States of
America from their Commencement to the Close of the Adminis-
tration of Washington, 2 vols., 8vo, New Haven, 1828.
Rhodes, James F., History of the United States from the Compromise of
1850, 8 vols., N.Y., 1893-1906.
Roosevelt, Theodore, The Winning of the West, 4 vols., London and
N.Y., 1889-1896.
ScJiouler, James, History of the United States of America under the
Constitution, 7 vols., N.Y., 1889-1913.
Scott, Eben G., Development of Constitutional Liberty in the English
Colonies of America, N.Y., 1882.
Sloane, William M., The French War and the Revolution, N.Y., 1893.
Stn/iirood, Edward, A History of the Presidency, 2 vols., Boston and
N.Y., 1916.
Sumner, William G., Politics in America, 1776-1876. North American
Review, January, 1876, p. 47.
Taylor, Hannis, The Origin and Growth of the English Constitution,
2 vols., Boston, 1889-1898.
TJiwaites, Reuben G., The Colonies, 1492-1750, 22d ed., London and
X.Y., 1910.
384 THE GOVERNMENT OF THE UNITED STATES.
Tucker, George, The History of the United States from their Coloniza-
tion to the End of the Twenty-sixth Congress in 1841, 4 vols.,
Phila., 1856-1857.
Walker, Francis A., The Making of the Nation, N.Y., 1895.
Wilson, Woodrow, Division and Reunion, 1829-1889, 13th ed., London and
N.Y., 1898 ; and History of the American People, 5 vols., N.Y., 1908.
Winsor, Justin (editor), Narrative and Critical History of America,
Vol. VII., Boston, 1888. Contains full bibliographical notes.
The controversial literature accompanying and preceding the War of
Secession may be seen, representatively, in :
Adams, John, Works.
Bledsoe, Albert T., Is Davis a Traitor? Balto., 1866.
Brownson, O. A., The American Republic : its Constitution, Tendencies,
and Destiny, N.Y., 1866 and 1886.
Calhoun, John Caldwell, Works.
Centz, P. C. (B. J. Sage), The Republic of Republics, 4th ed., Boston,
1881.
Hurd, J. C., The Theory of Our National Existence, Boston, 1881.
Jefferson, Thomas, Works.
Stephens, Alexander H., A Constitutional View of the War between the
States, 2 vols., 8vo, Phila., 1868.
Webster, Daniel, Speeches.
Commentaries and Treatises :
Atkinson, C. T., The Committee on Rules and the Overthrow of Speaker
Cannon, N.Y., 1911.
Beard, C. A., American Government and Politics.
Borgeaud, Charles, The Adoption and Amendment of Constitutions in
Europe and America, N.Y., 1895.
Boutmy, Emile, Studies in Constitutional Law, London and N.Y.,
1891.
Bryce, James, The American Commonwealth, 2 vols., Revised ed.,
N.Y., 1915.
Burgess, John W., Political Science and Constitutional Law, 2 vols.,
Boston, 1891.
Carter, C.H., Connecticut Boroughs, in New Haven Historical Society's
Papers, Vol. IV.
Cooley, Thomas M., Treatise on the Constitutional Limitations which
rest upon the Legislative Power of the States" of the American
Union, 2d ed., Boston, 1871; The General Principles of Con-
stitutional Law in the United States of America, Boston, 1880,
and several later editions. And (with others) Constitutional
THE GOVERN MK NT OF THE UNITED STATES. 385
History of the United States as seen in the Development of American
Law, a survey of the successive constitutional decisions of the
Supreme Court of the United States, N.Y., 1889.
M, E. S., The Doctrine of Judicial Review, Princeton, 1914.
Coxe, Brinton, Judicial Power and Unconstitutional Legislation,
Phila., 1893.
Dicey, Albert V., Lectures Introductory to the Study of the Law of the
Constitution, 8th ed., London, 1915. This book, though a com-
mentary on the English constitution, contains much excellent com-
ment also on our own.
Digest of State Constitutions. Prepared for the use of the New York
State Constitutional Convention. Albany, 1915.
l)ii[>riez, L., Les Ministres dans les principaux Pays d'Europe et d'Ame"-
rique, 2 vols., Paris, 1892. Vol. II., pp. 3 et seq.
Ely, Richard T., Taxation in American States and Cities, N.Y., 1888.
The Federalist, by Alexander Hamilton, James Madison, and John Jay.
Fiske, John, Civil Government in the United States considered with
Some Reference to its Origins, Boston, 1890.
Follett, M. P., The Speaker of the House of Representatives, London
and N.Y., 1896.
Ford, H. J., The Rise and Growth of American Politics.
Ford, W. C., The American Citizen's Manual. Part I. N.Y., 1882.
Goodnow, Frank J., Comparative Administrative Law, 2 vols., London
and N.Y., 1893 ; Municipal Home Rule, London and N.Y., 1895.
Haines, C. G., The American Doctrine of Judicial Supremacy, N.Y.
Harrison, Benjamin, This Country of Ours, N.Y., 1897.
Hart, A. B., Actual Government, 3d ed., 1910.
Hart and McLaughlin, Cyclopedia of American Government, N.Y. and
London, 1914.
Howard, George E., Local Constitutional History of the United States,
VoL L, 8vo, Balto., 1885.
Jameson, J. F., Introduction to the Constitutional and Political History
of the Individual States, in the Johns Hopkins University Studies in
Historical and Political Science, 4th Series, No. V.
Johns Hopkins Studies in Historical and Political Science, 14 vols.,
Balto., 1883-1896.
Maine, Sir H. S., Popular Government, N.Y., 1886. Especially Chap.
VI.
McConachie, L. C., Congressional Committees.
Me Call, S. W., The Business of Congress, N.Y., 1911.
Oberholzer, E. P., The Referendum in America, New ed., N.Y., 1911.
Parker, Joel, Jaffrey Address, 1873. Origin, Organization, and In-
386 THE GOVERNMENT OF THE UNITED STATES.
fluence -of the Towns of New England. Proceedings Mass. Hist.
Soc'y, June, 1886.
Poore, Ben : P., Federal and State Constitutions, Colonial Charters, and
other Organic Laws of the United States, 2 vols., Washington,
1877.
Schouler, James, Constitutional Studies, N.Y., 1897.
Shires and Shire Towns in the South. Lippincotfs Magazine^ Aug.,
1882.
Sloane, W. M., Party Government in the U.S., N.Y. and London, 1914.
Stevens, C. E., Sources of the Constitution of the United States, Lon-
don and N.Y., 1894.
Story, Joseph, Commentaries on the Constitution. Ed. by T. M. Cooley.
Thorpe, Francis N., Compiled Federal and State Constitution, 7 vols.,
Govt. Printing Office, 1909.
Tocqueville, Alexis de, Democracy in America. Translated by Henry
Reeve. New ed., London, 1875.
Wilson, Woodrow, Congressional Government, A Study in American
Politics, Boston, 1885 ; and Constitutional Government in the United
States, N.Y., 1908.
Young, J. T., The New American Government and its Work, N.Y., 1916.
XI.
THE GOVERNMENTS OF SWITZERLAND.
Feudalism in Switzerland. Until the beginning of the
fourteenth century the towns and communes of the country now
called Switzerland were all held fast in the meshes of the feu-
dal system. Real vassalage, indeed, such as the low countries of
France and Germany knew, had never penetrated to all the val-
leys of the Alps ; many a remote commune had never known any-
thing but a free peasantry; and hardly anywhere near the heart
of the great mountains had feudal fealty meant what it meant
elsewhere. Still great neighbor lords and monasteries had swept
even these mountain lands at least nominally within their over-
lordships, and most of the Swiss Cantons of to-day represent
pieces of old feudal domains.
First Movements towards Cantonal Independence. In
1309, however, began the process which was to create the Switzer-
land of our time. In that year the Cantons of Schwyz, Uri, and
Unterwalden, lying close about the lake of Lucerne, won from the
Emperor Henry VII. the recognition of their freedom from all
supremacy save that of the Empire itself. They had already,
about the middle of the thirteenth century, drawn together into
a league which was to prove the seed of the modern Confederacy.
That Confederacy has two distinguishing characteristics. It has
brought down to us, through an almost unbroken tradition, the
republican institutions of the Middle Ages; and it has by slow
processes of cautious federation drawn together into a real union
communities the most diverse alike in point of race, of language,
and of institutions without destroying their individuality.
The Processes of Confederate Growth. In its briefest
terms the story is this. The Cantons broke from the toils of the
387
388 THE GOVERNMENTS OF SWITZERLAND.
feudal system while still in possession of those local liberties
which the disintegrateness of that system gave leave to grow
wherever courageous men could muster numbers enough to assert
their independence; having a common cause against the feudal
powers about them, they slowly drew together to each other's
support; and, having allied themselves, they went on to show the
world how Germans, Frenchmen, and Italians, if only they respect
each the other's liberties as they would have their own respected,
may by mutual helpfulness and forbearance build up a union at
once stable and free. Several centuries elapsed before the devel-
opment was complete, for the Confederation, as finally made up,
consisted of two very different elements : of strong and for the
most part aristocratic free cities and of quiet rural peasant
democracies. It was necessarily a long time before even common
dangers and common interests brought proud Cantons like Bern
and aristocratic cities like Geneva into cordial relations with
Schwyz, Uri, and Unterwalden, the humble originators of the
Confederacy. But circumstances constrained and wisdom pre-
vailed : so that union was at last achieved.
French Interference. The year 1513 may be taken as
marking the close of the period during which the Confederacy
won the place it was always to keep among the powers of Europe.
In that year the League was joined by the last of those thirteen
German Cantons which were to constitute its central membership
down to the French Eevolution. It was not till 1848, however,
that its constitution was put upon its present foundations ; and
not till 1874 that that constitution received at all points its pres-
ent shape. In the meantime events of the greatest magnitude
gave direction to Swiss affairs. The great powers had recognized
the independence of Switzerland in the Treaty of Westphalia,
1648. The thirteen original Cantons had received great French
cities, like Geneva, to the west, and various Italian lands, to the
south, either into close alliance or into fixed subjection. The
French Revolution had sent French troops into Switzerland, in
support of a fruitless attempt to manufacture out of the always
stiffly independent Cantons, hitherto only confederates, a com-
pact and centralized 'Helvetic Republic,' after the new model
just set up in unhappy France (1798-1802). Napoleon had inter-
THE GOVERNMENTS OF SWITZERLAND. 389
vened (1803-1814) for the purpose of both loosing these artificial
bonds and creating a new cement for the League in the shape of
a common allegiance to himself. And, in 1815, the pressure of
the French power being removed, reaction had come. The irri-
tated Cantons, exasperated by the forms of a government not of
their own choosing, had flung apart, to the practice of principles
of cantonal sovereignty broader, extremer even than those upon
which they had based their Union before 1798. And then reac-
tion, in its turn, brought its own penalties. Troubles ensued
which read very much like those, so familiar to Americans,
which forced a strong federal government upon the United
States.
The Sonderbund War. It was, however, differences of
religious, not of political, opinion which were in Switzerland the
occasion of the strife which was to bring union out of disunion.
After the power of Napoleon had been broken, the Congress
of Vienna had sought to readjust all the arrangements that he
had disturbed, and Swiss affairs had not been overlooked. The
Cantons were induced to receive Geneva, Valais, Neuchatel, and
the territories hitherto held as dependencies, into full confed-
erate membership, and to agree to a Pact (known as the Pact of
1815) which gave to the League, with its increased membership
of twenty-two Cantons, a new basis of union. One of the clauses
of that Pact contained a solemn guarantee of the rights and privi-
leges of the monasteries still maintained in the Roman Catholic
Cantons: and upon that guarantee were based the hopes of all
parties for peace among the members of the League. But the
guarantee was broken down. The wave of democratic reform
swept steadily and resistlessly through Switzerland during the
revolutionary period of 1830-1848, and where the Protestant and
Roman Catholic parties were nearly equal in popular force threat-
ened not a few of the oldest foundations of the mediaeval church.
The crisis was first felt in Zurich, where the excesses of a radical
party temporarily in control brought about, in 1839, a violent
reaction. The next year saw the disturbance transferred to
Aargau. There the anti-Catholic party, commanding, during a
period of constitutional revision, a narrow popular majority, and
exasperated by the violent opposition tactics of the clerical party,
390 THE GOVERNMENTS OF SWITZERLAND.
forced a vote in favor of the abolition of the eight monasteries
of the Canton. The Diet of the Confederation was thereupon
asked by the aggrieved party whether it would permit so flagrant
a breach of the Pact of 1815. It was forced by a conflict of
interests to a compromise, agreeing to the abolition of four of
Aargau's eight monasteries. This was in August, 1843. The
next month saw the formation of a separate League (Sonderbund)
by the seven Roman Catholic Cantons, Schwyz, Uri, Unterwal-
den, Luzern, Freiburg, Valais, and Zug. The deputies of these
Cantons were, however, slow in withdrawing from the Diet, and
the Diet was reluctant to come to open strife with its recalcitrant
members. Four years this league within a league was permitted
to continue its obstructive agitation. But at last, in November,
1847, war came, a sharp, decisive contest of only eighteen days'
duration, in which the seceded Cantons were overwhelmed and
forced back to their allegiance.
The New Constitution. Constitutional revision followed
immediately. The Pact of 1815 was worn out : a strong and pro-
gressive constitution had become a necessity which not even the
party of reaction could resist or gainsay. By the Constitution of
1848 there was created, out of the old discordant Confederation
of States (Staatenbund) the present federal State (Bundesstaat) .
That Constitution, as modified and extended by the impor-
tant revision of 1874, is the present Constitution of Swit-
zerland.
Character of the Constitution. The federal government
thus established has many features which are like, as well as
many which are very unlike, the familiar features of our own
national system. It has had, since 1874, a federal Supreme
Court, which is in many important fields of jurisdiction the high-
est tribunal of the land; and it has had since 1848 a Legislature
consisting of two branches, or Houses, the one representative of
the people, the other representative of the states of the Confed-
eration. The popular chamber is called the 'National Council'
(der Nationalrat), the federal senate, the ' Council of States '
(der Sttinderat). The former represents the people as a whole ;
the latter, the States as constituent members of the Confedera-
tion.
THE GOVERNMENTS OF SWITZERLAND. 391
Much of the resemblance of these arrangements to our own is due
to conscious imitation. The object of the reformers of 1848 and 1874 waf
not, however, to Americanize their government, and in most respects it
remains distinctively Swiss.
Nationality and State Sovereignty. Much as such in-
stitutions resemble our own federal forms, the Constitution of
Switzerland rests upon federal foundations such as our own gov-
ernment had during the first half century of its existence rather
than upon national conceptions such as have dominated us since
the war between the States. The Swiss Constitution does indeed
expressly speak of the Swiss nation, declaring that "the Swiss
Confederacy has adopted the following Constitution with a view
to establishing the union (Bund) of the Confederates and to main-
taining and furthering the unity, the power, and the honor of the
Swiss nation " : and not even the war between the States put the
word nation into our Constitution. But the Constitution of
Switzerland also contains a distinct and emphatic assertion of
that principle of divided sovereignty which is so much less fa-
miliar to us now than it was before 1861. It speaks of the Con-
federation as formed by " the people of the twenty -two sovereign
Cantons," and it explicitly declares that "the Cantons are sover-
eign, so far as their sovereignty is not limited by the federal
Constitution, and exercise as such all rights which are not con-
ferred upon the federal power " ; and its most competent inter-
preters are constrained to say that such a constitution does not
erect a single and compacted state of which the Cantons are only
administrative divisions, but a federal state, the units of whose
membership are themselves states, possessed, within certain
limits, of independent and supreme power. The drift both of
Switzerland's past history and present purpose is unquestion-
ably towards complete nationality; but her present Constitution
was a compromise between the advocates and the opponents of
nationalization; and it does not yet embody a truly national
organization or power.
Large Constitutional Grants. At the same time, the
grants of power under the Swiss Constitution have from the first
been both larger and less definite than those contained in the
Constitution of the United States. It contains such indefinite
392 THE GOVERNMENTS OF SWITZERLAND.
grants as these : that the federal legislature shall have power to
pass " laws and resolutions concerning those subjects which the
Confederacy is commissioned by the federal Constitution to act
upon"; to control the foreign relations of the Cantons; to guar-
antee the constitutions and territories of the Cantons ; to provide
for the internal safety, order, and peace of the country ; to adopt
any measures " which have the administration of the federal Con-
stitution, the guaranteeing of the cantonal constitutions, or the
fulfilment of federal duties for their object " ; and to effect revi-
sions of the federal Constitution.
It adds to such federal powers as we are familiar with
the authority to regulate religious bodies and monastic orders,
to control the manufacture and sale of alcoholic liquors, to estab-
lish general sanitary regulations in the case of certain diseases,
to control the construction and operation of all railroads, to regu-
late labor in factories, to provide for the compulsory insurance
of workmen, and to legislate throughout the whole field of com-
mercial law. The federal government is given, besides, a large
power of superintendence. It has supervision of streams and
forests, and of the more important roads and bridges ; it has the
right to disapprove of and annul the , press laws of the several
cantons, and their regulations with regard to the acquisition of
residence and the franchise in the communes; and it exercises
in many another matter a general oversight and guardianship.
Guarantee of the Cantonal Constitutions. The Swiss fed-
eral Constitution is more definite in guaranteeing to the Cantons
their constitutions than our federal Constitution is in guaranteeing
to the States " a republican form of government." The guarantee
is made to include the freedom of the people and their legal and
constitutional rights ; the exercise of those rights under repre-
sentative or democratic forms ; and the revision of any cantonal
constitution whenever an absolute majority of the citizens of the
Canton desire a revision.
This ' guarantee ' is not used or understood in Switzerland as it is in the
United States. Here the sanction and support of the federal government
is taken for granted, unless the constitutional arrangements of a State
are challenged as unrepublican. In Switzerland it is expected that each
Canton shall seek the explicit sanction or guarantee of the federal govern-
ment for its constitution, and even for each amendment as added.
THE GOVERNMENTS OF SWITZERLAND. 393
THE CANTONAL GOVERNMENTS.
The Cantonal Constitutions and the Federal Constitution.
So deeply is Swiss federal organization rooted in cantonal
precedents, that an understanding of the government of the Con-
federation is best gained by studying first the political institu-
tions of the Cantons. At almost all points the federal government
exhibits likeness to the governments of the Cantons, out of whose
union it has grown. As our own federal Constitution may be
said to generalize and apply colonial habit and experience, so the
Swiss Constitution may be said to generalize and apply cantonal
habit and experience : though both our own Constitution and that
of Switzerland have profited largely by foreign example also.
In some respects the Swiss Constitution is more conserva-
tive or, if you will, less advanced than the Constitution of the
United States. Those who have fought for union in Switzerland
have had even greater obstacles to overcome than have stood in
the way of the advocates of a strong central government in this
country. Differences of race, of language, and of religion, as
well as stiffly opposing political purposes, have offered a persist-
ent resistance to the strengthening and even the logical develop-
ment of the prerogatives of the federal power. The Constitution
of the Confederation, therefore, bears many marks of compromise.
It gives evidence at certain points of incomplete nationalization
not only, but even of imperfect federalization. Cantonal insti-
tutions are, consequently, upon a double ground entitled to be
first considered in a study of the governments of Switzerland.
Both their self-assertive vitality and their direct influence upon
federal organization make them the central subject of Swiss
politics.
Position of the Legislative Power. The development of
political institutions has proceeded in the Swiss Cantons rather
according to the logic of practical democracy than according to
the logic of the schools. The Swiss have not, for one thing,
hesitated to ignore in practice all dogmas concerning the separa-
tion of legislative, executive, and judicial functions. I say 'in
practice'; for in theory such distinctions are observed. The
394 THE GOVERNMENTS OF SWITZERLAND.
constitutions of fully half the Cantons say explicitly that legisla-
tive, executive, and judicial functions shall be kept fundamen-
tally distinct; but in the practical arrangements actually made
the line of demarcation is by no means sharply drawn. The
leading principle according to which they proceed in all political
arrangements is, that in every department of affairs the people
must, either immediately or through representatives, exercise a
direct, positive, effective control. They do not hesitate, there-
fore, to give to their legislative bodies a share both in the admin-
istration and in the interpretation of laws ; and these bodies are
unquestionably the axes of cantonal politics.
A Single House. A very great variety of practice marks
the organization of government in the Cantons. Each Canton has
had its own separate history and has, to a certain extent, worked
out its own individual political methods. But there is one point
of perfect uniformity, the Legislature of each Canton consists
of but a single House. The two Houses of the federal legisla-
ture have been made after foreign, not after Swiss, models. In
Uri, Upper and Lower Unterwalden, G-larus, and Appenzell
Interior and Exterior this single lawmaking body is the Lands-
gemeinde, the free assembly of all the qualified voters, the folk-
moot ; but in the other Cantons the legislative assembly is repre-
sentative. Representatives are elected by popular vote in all
the Cantons, and in ten by the method of proportional represen-
tation.
Elections are for a term which varies from two years to five in the
different Cantons, the rule being a term of from three to four years. The
number of representatives bears a proportion to the number of inhabitants
which also varies as between Canton and Canton. In Zug there is one
member of the legislature for every 350 inhabitants ; in Bern one to every
3000. As a result of the low ratios, the cantonal legislators have a rela-
tively large membership. 1
In most of the Cantons the legislative body is called the Great Council
(Grossraf) the executive body being the Lesser Council in some it is
called the Cantonal Council (Kantonsraf) .
Functions of the Cantonal Legislatures. The functions
of these councils have the inclusiveness characteristic of Swiss
1 Brooks, Government and Politics of Switzerland, p. 313.
THE GOVERNMENTS OF SWITZERLAND. 395
political organization. Not only are they entrusted with such
legislative power as the people are willing to grant ; they also, as
a rule, select many of the administrative officers of the Canton,
and exercise, after such election, a scrutiny of administrative
affairs which penetrates to details and keeps executive action
largely within their control. It is a recognized principle of can-
tonal government, indeed, that the- executive body executive
power, as we shall see, being vested in a board or commission,
not in an individual is a committee of the representatives of
the people, a committee of the legislative council. 1 To that
council they are responsible, as the selectmen of a New-England
town are responsible to the town-meeting (page 341). l
The Executive Power is collegiate in all the Cantons, is
exercised, that is, not by a single individual or by several indi-
viduals acting independently of each other, but by a commission.
This commission is variously called in the different Cantons. In
some it is known as the " Landammann and Council," in others
as the " Estates-Commission " (Standeskommission), in some as
the " Smaller Council " ; but in most as the " Administrative
Council " (Regierungsrat). Its term of office varies in the differ-
ent Cantons with the term of the legislative body, with which it
is always coincident; but the custom is reelection, so that the
brief tenure does not in practice result in too frequent changes in
executive personnel The members of the executive have always
in the mountain Cantons been chosen by the people themselves ;
in the others they were formerly elected always by the legislative
council whence the name, " smaller council," which they bear
in some Cantons. Now, however, direct election by the people
has been substituted in all but two of the Cantons. Whether
elected by the people or by the Great Council, however, the
Administrative Council remains, in function, a committee of the
legislative body. Its members freely take part in the business
of legislation and in the debates of the Great Council. It in fact
originates most of the measures of each session, and is looked to
for guidance in every matter of consequence. It does not resign
if outvoted upon its proposals. It is, on the contrary, regarded in
most of the Cantons rather as a business head than as a body of
i Orelli, p. 99.
396 THE GOVERNMENTS OF SWITZERLAND.
party leaders, and its membership is usually made up, not from
one, but from the several political parties of the Canton.
The Administrative Council usually consists of from five to
seven members, though in the Cantons of Bern and Appenzell
Interior it contains nine, and in Lower Unterwalden, eleven. It
has proved necessary of late years to give over the attempt to
act in all matters as a Board, and it has become usual to divide
the work of the Council among departments. But these depart-
ments are under the general direction of the Council as a whole,
and the administration of a canton has usually a very real cohe-
rence and an intimate coordination.
The People's Control over Legislative Action. Although
the people have delegated their legislative powers to representa-
tive chambers in all the Cantons except those which still retain
their primitive Landsgemeinden, they have nevertheless kept in
their own hands more than the mere right to elect representatives.
The largest of the Cantons (Bern) has but a little more than half
a million inhabitants ; the majority of the Cantons have less than
one hundred thousand apiece ; and the average population, taking
big and little Cantons together, is only about one hundred and
twenty thousand. Their average area scarcely reaches six hun-
dred and forty square miles. The people of such communities
stand, as it were, in the midst of affairs. They are in a sense
always at hand to judge of the conduct of the public business.
Their feelings and their interests are homogeneous, and there is
the less necessity to part with their powers -to representatives.
In seven of the German Cantons a certain number of citizens (the
number varies from one to twelve thousand) can demand a popu-
lar vote upon the question whether the Great Council shall be
dissolved or not ; and if the vote goes in the affirmative the
chamber's term is ended and a new election takes place at once.
If this method of control is no longer used, it is because more
effective methods have been substituted. In all the Cantons the
question of constitutional revision can be brought to popular
vote upon petition, and the revision, if undertaken, may go any
length in changing or reversing the processes of legislation.
The Initiative : Imperative Petition. So far has the
apparent logic of democracy been carried in Switzerland that the
THE GOVERNMENTS OF SWITZERLAND. 397
people exercise in several ways a direct part in lawmaking.
The right of petition, which is recognized in every country where
popular rights exist at all, has become in Switzerland a right of
initiative in legislation. In every Canton the people have been
granted the right to initiate constitutional reforms by petition ;
and in all except Freiburg the same right has been established
with regard to the revision or enactment of ordinary laws. In
the Confederation petitions signed by fifty thousand voters have,
since 1891, been imperative in respect of the introduction of con-
stitutional amendments. In the case of ordinary legislation,
specific laws may be proposed by petition, in all the Cantons
except the one I have named; the legislature must submit the
law proposed to the popular vote ; and its adoption at the polls
puts it upon the statute book.
In the case of constitutional amendments, it is generally pro-
vided that either general or specific changes may be proposed :
that is, that the changes may be proposed either in general terms
or in definitive and final form, ready for adoption. If the pro-
posal is couched only in general terms, the legislature may either
formulate the desired amendment at once and submit it to the
people, or, if it disapprove of the change proposed, it may first
submit the general question to the vote of the electors. If, in the
latter event, the vote be in the affirmative, the legislature must
proceed to formulate the necessary article or articles, and these
must be submitted in their definitive shape once more to the
popular verdict. If the petition itself embody a specific change
already drawn and formulated, the amendment must go in that
shape to the vote, and its adoption makes it part of the funda-
mental law. The number of signatures required for these im-
perative petitions varies with the size of the Cantons. Petitions
demanding a change in the fundamental law of the Confederation
must be signed, as we have seen, by not less than fifty thousand
voters.
In the earlier years of its use, the constitutional initiative in
the Confederation gave rise to severe criticism through the adop-
tion of a constitutional amendment which aimed a blow at the
Jews, under the disguise of forbidding the slaughtering of ani-
mals by bleeding ; but since 1900 the use of the initiative has
398 THE GOVERNMENTS OF SWITZERLAND.
justified itself. " The measures submitted during the later period
were moderate and progressive. Those which failed laid an
educational foundation for reforms which are likely to be made
in the not distant future, while the two successful amendments
represent substantial achievement." l In the Cantons the expe-
rience has been similar.
The Referendum. In every Canton of the Confedera-
tion, except Freiburg only, the right of the people to have all im-
portant legislation referred to them for confirmation or rejection
has now been, in one form or another, established by law. In the
smaller Cantons, which have had, time out of mind, the directest
forms of democracy, this legislation by the people is no new thing ;
they have always had their Landsgemeinden, their assemblies of
the whole people, and the legislative function of their Councils
has long been only the duty of preparing laws for the considera-
tion of the people. Among the Cantons which have representa-
tive institutions, on the other hand, the Referendum assumes a
different form. In some of them laws must be submitted to the
vote of the electors only when their submission is demanded by
petition, with the requisite number of signatures. This is called
the ' optional' or * facultative 7 Referendum. In the rest of the
Cantons (always excepting Catholic and conservative Freiburg)
substantially all substantive changes in the laws must be sub-
mitted to the electors, and the action of their legislatures is
periodically voted upon. This is known as the ' obligatory ' Ref-
erendum. 2 The Federation itself has had the optional Referendum
since 1874. The Referendum is, moreover, everywhere obligatory,
whether in the Confederation or in the several Cantons, in the
case of every constitutional change. Administration and the
ordinary budget are usually excepted from its operation, and it is
made to apply, within the field of ordinary legislation, only to
laws of a general character ; but in most of the Cantons it is made
to cover also all appropriations of an unusual character or above
a certain sum ; and in Valais it applies only to certain financial
measures.
1 Brooks, Government and Politics of Switzerland, p. 162.
2 Eleven Cantons have adopted the obligatory referendum for ordinary
legislation.
THi: <;<>\ KKNMKNTS OF SWIT/KK LAND. 399
Origin of the Referendum. The term Referendum is as
old as the sixteenth century, and contains a reminiscence of the
strictly federal beginnings of government in two of the present
Cantons of the Confederation, Graubtlnden, namely, and Valais.
These Cantons were not at that time members of the Confedera-
tion, but merely districts allied with it (zugewandte Orte). Within
themselves they constituted very loose confederacies of Com-
munes (in Graubtinden three, in Valais twelve). The delegates
whom the Communes sent to the federal assembly of the district
had to report every question of importance to their constituents
and crave instruction as to how they should vote upon it. This
was the original Referendum. It had a partial counterpart in the
Constitution of the Confederation down to the formation of the
present forms of government in 1848. Before that date the mem-
bers of the central council of the Confederation acted always
under instructions from their respective Cantons, and upon ques-
tions not covered by their instructions, as well as upon all matters
of unusual importance, it was their duty to seek special direction
from their home governments. They were said to be commis-
sioned ad audiendum et referendum. The Referendum as now
adopted by almost all the Cantons bears the radically changed
character of legislation by the people. Only its name now gives
testimony as to its origin. 1
Its Operation. In respect of constitutional changes the use
of the Referendum is not peculiar to Switzerland. In that field its
use in this country is older than its use in Switzerland. And in its
application to ordinary laws it is modern even in Switzerland.
Its earliest adoption was in 1831, and it was not until the decade
1864-1874 that it won its way into the constitutional practice of
the greater Cantons. It led in the earlier years to the rejection
of radical legislation, even to the rejection of radical labor legis-
lation, such as the ordinary voter might be expected to accept
with avidity. The Swiss populations, being both homogeneous
and deeply conservative, long resisted the infection of modern
radical opinion, but in recent years progress toward social legis-
lation has been marked. They have shown themselves apt to
reject, also, complicated measures which they do not fully com-
i Orelli, p. 104.
400 THE GOVERNMENTS OF SWITZERLAND.
prehend, and measures involving expense which seems to them
unnecessary. And they have shown themselves not a little in-
different, too. The vote upon most measures submitted to the
ballot is usually very light ; there is not much popular discus-
sion ; and the Referendum by no means creates that quick interest
in affairs which its originators had hoped to see it excite.
Local Government : The Districts. Local government in
the Cantons exhibits a twofold division, into Districts and Com-
munes. The District is an area of state administration, the
Commune an area of local self-government. The executive func-
tions of the District, the superintendency of police, namely, and
the carrying into effect of the cantonal laws, are entrusted, as a
rule, not to a board, but to a single officer, a Bezirksamman
or Regierungs-Statthalter, who is either elected by popular vote
in the District or appointed by one of the central cantonal coun-
cils, the legislative or the administrative. Associated with this
officer, there is in some Cantons a District or county Council
chosen by vote of the people.
The Gemeinde, or Commune, enjoys in Switzerland a degree
of freedom in self-direction which is possessed by similar local
organs of government hardly anywhere else in Europe. It owns
land as a separate corporation, has charge of the police of its
area, of the relief of its poor, and of the administration of its
schools, and acts in the direction of communal affairs through
a primary assembly of all its freemen which strongly reminds
one of the New-England town-meeting (page 241). Besides its
activities as an organ of self-government in the direction of
strictly local affairs, the Commune serves also as an organ of
cantonal administration, as a subdivision of the District. Thus
it is an electoral district, and a voting district in the case of a
Referendum; and in so far as it is used as a district of the Canton
it is subject to the supervision of the local authorities of the state.
There is by no means a fixed and uniform organization in the
local government of the Cantons. In most of the smaller Com-
munes the people themselves act directly in affairs, in township
meeting, while in the large cities a city council (Stadtrat) is
elected by popular vote. In all the Communes, as in the Cantons,
the executive power is vested in a board of officials, presided over
THE GOVEKN.MI'N TS <>F SWITZERLAND. 401
by a Hauptmann, a Gemeindeamman, a Syndic, or a Maire. This
communal or municipal council is chosen by the freemen in assem-
bly or by direct popular election. The Hauptmann has often
separate powers of his own, apart from and independent of his
colleagues ; but in most matters he is merely the presiding officer
of the administrative council, and executive action is collegiate.
Citizenship in Switzerland is associated very closely with the
Commune, the immediate home-government of the citizen,
the primary and most vital organ of his self-direction in public
affairs. The Commune is, so to say, the central political family in
Switzerland ; it is to it that the primary duties of the citizen are
owed. Every citizen of a Canton is by the Federal Constitution
a Swiss citizen. Naturalization is regulated by cantonal law sub-
ject only to approval by the Federal Council, upon the advice of
its Political Department. The result has been the greatest di-
versity of practices in regard to a matter of vital consequence to
the whole state, and the full rights of citizenship can be conferred
only by cantonal and communal law.
THE FEDERAL GOVERNMENT.
The Federal Executive. In no feature of the federal
organization is the influence of cantonal example more evident
than in the collegiate character of the Executive. The executive
power of the Confederation, like the executive power of each Can-
ton, is vested not in a single person, as under monarchical or
presidential government, but in a board of persons. Nor does
Swiss jealousy of a too concentrated executive authority satisfy
itself with thus putting that authority ' into commission ' : it also
limits it by giving to the legislative branch of the government,
both in the Cantons and in the federal system, an authority of
correction as regards executive acts such as no other country has
known. The share of the legislative branch in administrative
affairs is smaller, indeed, under the Federal Constitution than
under the laws of the Cantons ; but it is large even in the federal
system, and it seems inherent in Swiss political thought.
The executive commission of the Confederation is known
as the Federal Council (Bundesrat). It consists of seven mem-
402 THE GOVERNMENTS OF SWITZERLAND.
bers elected for a term of three years by the two houses of the
federal legislature acting together in joint session as a Federal
Assembly (Bmidesversammlung). The Constitution forbids the
choice of two of its seven members from one and the same Can-
ton: they must represent seven of the twenty-two Cantons. The
Council is organized under a President and Vice-Preside nt chosen
by the Federal Assembly, from among the seven councillors, to
serve for a term of one year, the Constitution insisting upon the
extreme democratic doctrine of rotation. Neither President nor
Vice-President can fill the same office for two consecutive terms ;
nor can the President be immediately nominated to the office of
Vice-President again upon the expiration of his term. There is
nothing to prevent the Vice-President succeeding the President,
however ; and it has hitherto been the uniform practice to follow
this natural and proper line of promotion.
The Federal Assembly may elect to the Council any Swiss citizen
who is eligible to either Chamber of the Legislature. As a matter of fact,
however, they almost invariably make their choice from amongst the
members of the Chambers, though an election to a place in the executive
body necessitates a resignation of the legislative function. Bern and
Zurich have always been represented in the Buridesrat, and are consid-
ered to have acquired a sort of prescriptive right to places on it. Vaud
has almost always had a member, too ; and Aargau was represented con-
tinuously till 1891.
The choice of the Federal Assembly in constituting the executive has
hitherto been admirably conservative. Some of the more prominent
members of the Council have been retained upon it by repeated reelection
for fifteen or sixteen years ; one has served for thirty years ; and those
who have left its membership have generally done so of their own accord,
Only twice, indeed, since 1848, have members who wished reelection been
refused it.
The Federal Assembly fills all vacancies in the membership of the
Council, electing, however, only for the unexpired term.
The three-years term of the Council Is coincident with the three-years
term of the National Council, the popular branch of the Legislature. At
the beginning of each triennial term of this lower House, the two Houses
come together as a Federal Assembly and elect (in practice reelect) the
Federal Council. If the National Council be dissolved before the close of
its three-years term, the election of the Bundesrat must be renewed by the
two Houses upon the assembling of the new National Council. The Bun-
desrat is thus not, strictly speaking, elected for three years, but for the
term of the National Council, whatever that may turn out to be.
THE GOVERN. M KM S OF SWITZERLAND. 403
The precedence of the President of the Council is a merely
formal precedence: he is in no sense the Chief Executive. He
represents the Council in receiving the representatives of foreign
powers ; he enjoys a somewhat enhanced dignity, being addressed
in diplomatic intercourse as ' His Excellency ' ; and he receives a
little larger salary than his colleagues receive ; but he is in all
practical matters merely the Council's chairman.
The Executive and the Legislature. The members of the
Federal Council, though they may not be at the same time mem-
bers of either House of the Legislature, may attend the sessions
of either House, may freely take part in debate, and may intro-
duce proposals concerning subjects under consideration: may
exercise most of the privileges of membership, except the right to
vote. They are expected, indeed, to prepare and guide the busi-
QCSS of the Houses, and every bill is submitted to them for an
opinion before its passage. They thus to a certain extent occupy
a position resembling that which a French or English ministry
occupy ; but there is this all-important difference : the English or
French ministers are subject to < parliamentary responsibility,'
must resign, that is, whenever any important measure which they
favor is defeated ; whereas the Swiss ministers are subject to no
such responsibility. Defeat in the Legislature does not at all
affect their tenure. They hold office for a term of years, not for
a term of legislative success ; and they are the servants of the
Houses, not their leaders. They have habitually been chosen
from both the chief parties in the Confederation, and since 1891
a third political group has been represented among them. They
are not expected to speak the same opinions even on the floor
of the Houses. But they are expected to act in harmony in all
business, and to mediate between extreme views in matters of
deliberation.
At the outbreak of the war in 1914 the Federal Assembly
conferred by resolution unlimited power upon the Council "to
take all measures necessary to the security, integrity, and neu-
trality of Switzerland, and to protect the credit and economic
interests of the country, especially including the assurance of its
food supply. For this purpose the Federal Council shall possess
unlimited credit to meet expenses. It is especially authorized
404 THE GOVERNMENTS OF SWITZERLAND.
to conclude all necessary loans. The Federal Council shall ac-
count to the Federal Assembly at its next session with regard to
its employment of the unlimited powers hereby conferred upon
it." l It is doubtful if any permanent change in the relations be-
tween the executive and the legislature will be produced by this
emergency measure. The jealousy with which the two Houses
have regarded the exercise of the powers thereby conferred
would indicate a return to former conditions with the return
of peace.
The Executive Departments. The Council acts as a body
of Ministers. It was the purpose of the Constitution that all
executive business should be handled by the Council as a whole,
but of course such collegiate action has proved practically im-
possible : it has been necessary to divide the work among seven
Departments. Each member of the Council presides over a De-
partment, conducting it much as an ordinary minister would under
a Cabinet system, though there is a somewhat closer union of the
several Departments than characterizes other systems, and a
greater degree of control by the several ministers over such
details of administration as the 'permanent 7 subordinates of
Cabinet ministers generally manage, by virtue of possession, to
keep in their own hands, to the restraint and government of tran-
sient political chiefs. All important decisions emanate from the
Council as a whole ; and, so far as is practicable, the collegiate
action contemplated by the Constitution is adopted.
The seven Departments are (1) Political, including Foreign Affairs,
(2) Justice and Police, (3) Interior, (4) War, (5) Finance and Imposts,
(6) National Economy, and (7) Posts and Railways. The department
of Foreign Affairs is associated with the presidency. The arrangement of
administrative business in Departments is effected in Switzerland, as in
France and Germany, by executive decree, and not by legislative enact-
ment, as in the United States.
It is considered the capital defect of this collegiate organization of
the Swiss executive, combined as it is with the somewhat antagonistic
arrangement of a division of executive business among Departments, that
it compels the members of the Council to exercise at one and the same
i Bundessbeschluss of August 3, 1914, A. S. XXX, 347, quoted in Brooks,
p. 114.
THE GOVERNMENTS OF SWITZERLAND. 405
time two largely inconsistent functions. They are real, not simply nomi-
nal, heads of Departments, and are obliged as such to give their time and
attention to the routine, the detail, and the technical niceties of adminis-
tration ; and yet as a body they are expected to impart to the administra-
tion as a whole that uniformity, breadth, and flexibility of policy that can
be imparted only by those who stand aloof from detail and routine and
command the wider views of general expediency. They are called to be
both technical officials and political guides. It has been suggested by
* thoughtful Swiss publicists that it would be vastly better to give the De-
partments permanent heads and leave to a board of ministers such as the
present Council only a general oversight. t Political and administrative
functions require different aptitudes, must be approached from very differ-
ent points of view, and ought seldom to be united in the same persons.
Mixed Functions of the Executive. Swiss law, as I have
said, makes no very careful distinction between executive, legis-
lative, and judicial functions. Popular jealousy of executive
power has resulted, alike in the cantonal systems and in the sys-
tem of the Confederation, in the vesting of many executive func-
tions either wholly or in part in the lawmaking bodies, and a
very singular confusion between executive and judicial functions
has resulted in the possession by both the executive and the legis-
lative bodies of prerogatives which should, on any strict classifi-
cation, belong only to regularly constituted courts of law. It is,
consequently, somewhat difficult to get a clear summary view of
the role played in Swiss federal affairs by the central executive
Council. Its duties give it a touch both of legislative and of
judicial quality.
(1) It stands closely connected with the Legislature
because of its part in shaping legislation. The Council both origi-
nates proposals in the Houses and gives its opinion upon pro-
posals referred to it, either by the Houses or by the Cantons. It
renders annual reports to the Houses concerning its conduct of
administration and the condition of the Confederation, which give
it opportunity to urge upon them necessary measures of reform or
amelioration ; and which, being freely debated, give the members
of the Houses, also, an opportunity to press their own criticisms
and suggestions with reference to the conduct of the administra-
tion. It presents the budget of the Confederation also to the
Houses and leads in its debates of financial legislation. It is, in
406 THE GOVERNMENTS OF SWITZERLAND.
brief, the intimate servant and in part the authoritative guide of
the Legislature, both taking and giving advice. The Houses may
reverse whatever action, of the Executive they please, even though
it be merely administrative in character ; but they usually suggest,
they do not often condemn action already taken.
(2) In the exercise of several of its most important duties the
action of the Council is essentially judicial. It is empowered to
examine the agreements made by Cantons among themselves or
with foreign governments and to judge of their conformity with
federal constitutional law, withholding its approval at its dis-
cretion. In like manner there are other cantonal laws and
ordinances whose validity is made dependent upon its approval ;
and until 1893 to a very limited extent, a jurisdiction like that
entrusted to the Federal Court in hearing complaints concerning
breaches of federal law was given it. It has also authoritative
oversight of the administration of federal law by the cantonal
officials. There are not many federal officials ; federal law is for
the most part executed by local officers, the Federal Council
supervising.
Here are some of the topics touching which the authoritative
opinion of the Council may be taken : cantonal school affairs ; freedom of
trade and commerce, and the interpretation of contracts with foreign
states which concern trade and customs-levies, patent rights, rights of set-
tlement, freedom from military service, free passage, etc. ; rights of settle-
ment within the Cantons ; freedom of belief ; validity of cantonal elections,
Totes, etc. ; gratuitous equipment of the militia. 1
(3) Its strictly executive functions are, however, its most
prominent and important functions. It appoints all officers
whose selection is not otherwise specially provided for by law ;
it of course directs the whole executive action of the government,
controlling federal finance, and caring for all federal interests;
equally of course, it manages the foreign affairs of the Confedera-
tion. Besides these usual executive and administrative functions,
it exercises, however, others less common. It is the instru-
ment of the Constitution in making good to the Cantons the
federal guarantee of their constitutions. It executes the judg-
ments of the Federal Court, and also all agreements or decisions
THE GOYKK.VMKNTS OF S\\ l'I ZKRLAND. 407
of arbitrators concerning matters in dispute between Cantons.
In cases of necessity it may call out and itself direct the move-
ments of such cantonal troops as are needed to meet any sudden
danger, provided the Legislature is not in session fJb command such
measures, and provided the call is for not more than two thousand
men for a service of more than three weeks. If more men or
longer service seem necessary, the Legislature must be called at
once and its sanction obtained. This power of the Council to call
out troops to meet a pressing peril of war or riotous disorder is a
logical part of the duty imposed upon it of "guarding the external
and internal safety and order of the Confederation, a duty which
embraces the general police function of keeping the peace.
The Army. Compulsory military service is required by the con-
stitution of 1848 which at the same time forbade the federation to maintain
a standing army. The consequence was that the Cantons were left in
charge of military administration. The constitution of 1874 gave the
federation a much enlarged control over the army, though the prohibition
against the maintenance of a standing army was retained. The law of
1907, passed upon referendum by a large popular vote, is the basis of the
army organization. Liability to military service extends from the twen-
tieth to the forty-eighth year, but the periods of service are short.
Detail of Federal Supervision. The federal government is
directed by the Constitution to see to it that the Cantons provide free,
compulsory, non-sectarian education for their people, and that the politi-
cal rights and liberties of individuals are respected by cantonal law. It is
likewise authorized, in case of internal disturbances, to intervene to pre-
serve the public order upon its own initiative, whenever the cantonal
authorities are unable to call upon it for assistance. It has been held,
moreover, that it may exercise many of these extensive powers of over-
sight and direction upon the initiative of individuals whose rights are
affected, as well as upon the initiative of the cantonal governments ; and
its powers of superintendence and intervention have shown a marked ten-
dency to grow. The people have come to feel the Cantons in many things
too small to do without the aid and countenance of the federal power.
Execution of Federal Law. Although the supervisory powers
of the federal government are very great, however, its active administra-
tive duties are not many. The federal laws are for the most part executed
by cantonal officials, under the superintendence of the Federal Council.
In all that concerns foreign affairs the federal government acts for itself
and through its own officials ; it directly administers the custom house, too,
and the postal and telegraph systems of the country. It has charge of its
own arsenals ; and it is entrusted with the management of the government
408 THE GOVERNMENTS OF SWITZERLAND.
alcohol monopoly and of the national polytechnic school. But in almost
all other matters it is served by cantonal officials. Even the Federal
Court has no executive officers of its own.
Appeal in Judicial Cases. Following the example of the
cantonal constitutions, which provide for a very absolute depend-
ence of the executive upon the representatives of the people and
freely neglect, in practice, the careful differentiation of legislative
from administrative functions, the Federal Constitution of 1848
allowed an appeal in all cases from the Federal Council to the
Federal Assembly (Bundesversammlung). The constitutional re-
vision of 1874, which had as one of its chief objects the develop-
ment and strengthening of the judiciary of the Confederation,
transferred many appeals to a Federal Court, but it left the
action of the Federal Council no less subject to the Assembly
than before, and it did not exclude the Legislature from judicial
functions. It was, indeed, provided that the Federal Court,
rather than the Assembly, should in most cases hear appeals
from the Federal Council ; but it was also arranged that certain
1 administrative ' cases might be reserved to the Assembly by
special legislative action. Eeligious and ' confessional ' questions
have, accordingly, been retained by the Legislature questions
which would seem to be as far as possible removed from the
character of administrative matters.
It seems to have been the conscious purpose of the more advanced
reformers in 1874 to bring the Federal Court as near as possible in char-
acter and functions to the Supreme Court of the United States ; but they
were able to realize their purpose only in part. The most important pre-
rogative of our own Court, its powers, namely, of constitutional interpre-
tation, was denied the Federal Court in Switzerland. Most constitutional
questions are decided by the Legislature, except when specially delegated
to the Court by legislation. The chief questions of this nature now taken
cognizance of by the Court are disputes as to constitutional rights between
cantonal and federal authorities.
The Federal Chancellor. The office of Federal Chancellor is
worth noting as an inheritance of the present from the older Confedera-
tion, in whose days of incomplete federalization the Chancellor typified
the unity of the Cantons. The Chancellor is elected by the Federal
Assembly at the same time and for the same term (three years) as the
Federal Council. He is chief clerk of both Houses of the Federal Assem-
bly, is keeper of all the federal records, and exercises a semi-executive
THE GOVERNMENTS OF SWITZERLAND. 409
function as preserver of diplomatic forms and usages. A Vice-Chancellor
acts under the Chancellor as Secretary of the Council of States (Stande-
rai), the Chancellor acting chiefly for the popular chamber.
The Federal Legislature. Properly speaking, the legis-
lative powers of the Confederation are vested in the Federal
Assembly (Bundesversammlung) ; but that Assembly consists of
two distinct Houses, the National Council (Nationalrat) and the
Council of States (Stdnderat) ; and the Houses act separately
in all strictly legislative- matters, coming together as a single
Assembly only for the exercise of certain electoral and judicial
functions. The two Houses stand in all respects upon an equal
footing : there is no difference of function between them. The
originative work of each session that is, the first handling of
measures is divided between them by a conference of their
Presidents at the beginning of the session. The Constitution
requires that at least one session be held annually : as a matter
of practice there are usually two sessions of about four weeks
each every year, one beginning in June, the other in December,
and a shorter extra session in March. Special sessions may be
called either by resolution of the Federal Council or upon the
demand of rive Cantons or of one-fourth of the members of the
National Council. An absolute majority of its members consti-
tutes a quorum in each House.
Composition of the Houses : I. The National Council.
The popular chamber of the Assembly consists of one hundred
and eighty-nine members chosen from forty-nine federal electoral
districts ( Wahl-Kreise) in the proportion of one representative
for every 20,000 inhabitants. The federal electoral districts can-
not, however, cross cantonal boundary lines and include territory
in more than one Canton. If, therefore, in the apportionment of
representatives among the Cantons, the division of the number
of inhabitants of any Canton by the number 20,000 shows a
balance of 10,000, or more, that balance counts as 20,000, and
entitles to an additional representative. Reapportionments are
made from time to time to meet changes in the number of
inhabitants as shown by decennial censuses. If any Canton
have less than 20,000 inhabitants, it is, nevertheless, entitled
to a representative,
410 THE GOVERNMENTS OF SWITZERLAND.
There are now six single- member Cantons. Bern has thirty-two repre-
sentatives, and Zurich, twenty-five, and Vaud has sixteen.
In those electoral districts which send more than one representative,
candidates are voted for upon a general ticket, each voter being en-
titled to vote for as many representatives as the district returns. It
requires an absolute majority to elect, and if no one secures a majority
at the first election, a second is held in which a plurality suffices.
Every Swiss twenty years of age who is not a clergyman and who
is qualified to vote by the law of his Canton may vote for mem-
bers of the National Council. The term of the National Council
is three years. Elections take place always in October, on the same
day throughout the country, and that day is always a Sunday.
It is upon the assembling of each new National Council that the
election of the Federal Council takes place (pages 402, 403). The three-
years term of the executive Council is thus made to extend from the begin-
ning of the first session of one National Council to the beginning of the
first session of the next.
The National Council elects its own officers ; but in selecting its
President and Vice-President it is bound by a rule similar to that which
limits the yearly choice of a President of the Confederation. The Presi-
dent or Vice-President of one session cannot be reflected for the session
next following. For the officers of the National Assembly, like the officers
of most European law-making bodies, are elected eveiy session instead of
for the whole term of the body, as in our House of Representatives and
the English House of Commons.
II. The Council of States (Standerat) is composed of
forty-four members : two from each of the twenty-two Cantons.
It would thus seem to resemble very closely in its composition
our own federal Senate and to represent distinctively the federal
feature of the union between the Cantons. In fact, however, it
has no such clearly denned character : for the mode in which its
members shall be elected, the qualifications which they shall
possess, the length of time which they shall serve, the salary
which they shall receive, and the relations they shall bear to
those whom they represent, in brief, every element of their
character as representatives, is left to the determination of the
Cantons themselves, and the greatest variety of provisions con-
sequently prevails. From some Cantons the members are sent
for one year only ; by some for three ; by others for four ; by still
others for two. In most of the Cantons they are elected by
THE GOVERNMENTS OF SWITZERLAND. 411
popular vote, as the members of the National Council are; in
seven Cantons they are elected by the legislative body of the
Canton. 1 Differing, thus, from the National Council, as regards
at least very many of its members, only in the fact that every
Canton sends the same number as each of the others and chooses
the term for which they shall be elected, the Council of States can
hardly be called the federal chamber : neither is it merely a second
chamber. Its position is anomalous and obviously transitional.
694. The Council of States elects its own President and Vice-President,
but subject to the restriction that neither President nor Vice-President
can be chosen at any session from the Canton from which the President
for the immediately preceding session was taken, and that the office of
Vice-President cannot be filled during two successive regular sessions by
a member from the same Canton.
695. The Cantons, upon enumeration, number, not twenty-two, but
twenty-five, because three of them have been divided into 4 half -can tons,'
namely, Unterwalden, Basel, and Appenzell. The half-cantons send each
one member to the Council of States. The following is a list of the Can-
tons : Zurich, Berne, Luzern, Uri, Schwyz, Obwalden, Nidwalden, Glarus,
Zug, Freiburg, Solothurn, Baselstadt, Baselland, Schauffhausen, Outer
Appenzeil, Inner Appenzell, St. Gallen, Graubtinden, Aargau, Thurgau,
Ticino, Vaud, Valais, Neuchatel, Geneva.
696. Functions of the Houses. It may be said, in general
terms, that its Legislature is the supreme, the directing organ of
the Confederation. It is difficult, therefore, to classify the func-
tions which the Houses exercise, because they extend into every
field of government; but the following may serve as a distinct
arrangement of them: 1. They exercise the sovereignty of the
Confederation in its dealings with foreign states, controlling all
alliances or treaties with foreign powers, determining questions
of peace and war, passing all enactments concerning the federal
army, and taking the necessary measures for maintaining the
neutrality and external safety of Switzerland. 2. They maintain
the authority of the Confederation as against the Cantons, taking
care to pass all the measures necessary for preserving internal
safety and order and for fulfilling the federal guarantee of the
cantonal constitutions, and deciding, upon appeal from the Fed-
1 They are Bern, Freiburg, St. Gallen, Aargau, Vaud, Valais, and Neu-
chatel.
412 THE GOVERNMENTS OF SWITZERLAND.
eral Council, the validity of agreements between the Cantons or
between a Canton and a foreign power. 3. They exercise the
general legislative powers of the Confederation, providing for
the carrying out of the Federal Constitution and for the fulfil-
ment of all federal obligations. 4. They pass upon the federal
budget and control the federal finances. 5. They organize the
federal service, providing for the creation of all necessary depart-
ments or offices and for the appointment and pay of all federal
officers. 6. They oversee federal administrative and judicial
action, hearing and acting upon complaints against the deci-
sions of the Federal Council in contested administrative cases.
7. With the concurrence of the people, they revise the Federal
Constitution.
Legislative Procedure. Each House is served in the conduct
of its business by a President, a Vice-President, and four Tellers. These
six officers constitute a 'Bureau,' whose duty it is not only to count the
votes upon a division, but also to look after absentees, and to appoint such
committees as the chambers do not themselves choose to elect. Much of
the business introduced is referred to committees for detailed considera-
tion ; but the Federal Council is the grand committee. All important
legislation either comes from it or goes to it for final formulation, and its
part is generally a guiding part in debate.
Kevision of the Constitution. When the two Houses can
agree concerning a revision of the Constitution, it is effected by
the ordinary processes and under the ordinary rules of legislation,
though it is followed by an obligatory Referendum to the people.
But a revision may also be otherwise accomplished. If one
House demands particular changes and the other House refuses
to assent, or if 50,000 qualified voters call for a revision by peti-
tion, the question whether or not a revision shall be undertaken
must be submitted to popular -vote; and if there be a majority of
the whole of such popular vote in the affirmative, new Houses
must be elected and the revision proceeded with. In every case
the amendments adopted by the Houses must be voted upon by
the people and must be accepted by a majority of the people and
by a majority of the Cantons also in order to go into force. In
reckoning up the votes by Cantons, on such occasions, the vote
of a half-canton counts as half a vote.
THE GOVERNMENTS OF SWITZERLAND. 413
The Federal Referendum. "Federal laws, as well as
generally binding federal resolutions, which are not of a pressing
nature, shall be laid before the people for their acceptance or
rejection upon the demand of 30,000 qualified Swiss citizens or
of eight cantons." Such is the command of Article 89 of the
Federal Constitution which establishes for the Confederation the
1 facultative ' or * optional ' Referendum (page 398).
The whole detail of the exercise of the Referendum is regulated
by federal legislation. A period of ninety days, running from the date of
the publication of the law, is set within which the demand for a popular
vote must be made. Copies of all federal laws which are subject to Ref-
erendum are sent to the authorities of each Canton, and by them pub-
lished in the Communes. For the Communes are constituted the districts
in which the popular demand is to be made up. That demand must
be made by written petition addressed to the Federal Council ; all signa-
tures must be autographic ; and the chief officer of the Commune must
attest the right of each signer to vote. Demands from Cantons for the
Referendum are made through the cantonal councils, subject to the right
of the people, under the provisions of the cantonal Referendum, to reverse
the action. In case it appears that 30,000 voters or eight Cantons demand
Referendum, the Federal Council must set a day for the popular vote ;
a day which must be at least four weeks later than the resolution which
appoints it.
Functions of the Federal Assembly. The functions which
the Houses exercise in joint session, as the Federal Assembly, are
not legislative but electoral and judicial. 1. The Assembly elects
the Federal Council, the federal judges, the Chancellor, and the
generals of the federal army. 2. It exercises the right of pardon.
3. It determines conflicts of jurisdiction between federal au-
thorities.
The President of the National Council presides over the sessions
of the Federal Assembly, and the rules of the National Council
for the most part govern its proceedings.
Administration of Justice : I. The Cantonal Courts.
The Cantons are left quite free by the Federal Constitution to
organize their courts as they please. Not even a general uni-
formity of system is prescribed ; nor are the cantonal courts sub-
ordinated to the Federal Court except in certain special cases
provided for by statute. It may be said, in general terms, that
414 THE GOVERNMENTS OF SWITZERLAND.
justice is administered by the Cantons, with recourse in selected
cases to the tribunal of the Confederation.
There is, however, a certain amount of uniformity in judicial
organization throughout Switzerland. There are usually two
ranks of courts in each Canton : District Courts (Bezirksgerichte
or Amtsgerichte) which are courts of first instance, and a supreme
Cantonal Court (Kantonsgericht) which is the court of final in-
stance. There are also everywhere Justices of the Peace whose
duty it is, in many places, first to act as mediators in legal dis-
putes, and as magistrates only when they fail as mediators.
Petty police cases are heard by the District Courts ; but for the
hearing of criminal cases there is trial by jury under the presi-
dency of a section of the supreme court justices, or by a special
criminal court acting without a jury.
In some of the larger Cantons, there are special Cassation
Courts formed by a division of the Cantonal Court. Special
Commercial Courts (HancMsgerichte), and industrial courts
(Gewerbegerichte) have been established in industrial districts.
In many of the Cantons the Supreme Court exercises cer-
tain semi-executive functions, taking the place of a Ministry
of Justice, in overseeing the action of the lower courts and of all
judicial officers, such as the states-attorneys.
In most of the Cantons, too, the Supreme Court makes an-
nual reports to the legislative Council, containing a full review
of the judicial business of each year, discussing the state of
justice, with criticisms upon the system in vogue and suggestions
of reform. These reports are important sources of judicial
statistics.
The terms of cantonal judges vary. The usual terms are
three, four, and six years. The judges of the inferior courts are
as a rule elected directly by the people : those of the supreme
courts commonly by the legislative Council.
No qualifications for election to the bench are required by
Swiss law except only the right to vote. But here, as well as
in regard to the very brief terms of the judges, practice is more
conservative than the law. To the higher courts, at least, com-
petent lawyers are generally elected ; and reelection is in most
cases the rule.
THE GOVERNMENTS OF SWITZERLAND. 415
In Geneva the States-attorney, instead of the Supreme Court, is
given the general duties of superintendence which, outside of Switzerland,
are vested in a Minister of Justice ; and in other Cantons similar officers
.are given prerogatives much more extensive than are usually associated
with such offices elsewhere.
II. The Federal Court. The Federal Court was created
by the Constitution of 1848. Before that time arbitration had
been the only form of adjudication between the Cantons. Even
in creating it, however, the Constitution of 1848 withheld from
the Federal Court all real efficiency : its jurisdiction was of the
most restricted kind and was condemned to be exercised under
the active superintendence of the omnipotent Federal Assembly.
It was one of the chief services of the constitutional reform of
1874 that it elevated the Federal Court to a place of substantial
influence and real dignity. It still rests with the Houses to de-
termine by statute many of the particular questions which shall
be submitted to the Court ; but its general province, as well as
its organization, is prescribed in considerable detail by the Con-
stitution.
The Federal Court consists of twenty-four judges chosen by
the Federal Assembly (with due regard to the representation of
the three official languages of Switzerland, German, French, and
Italian) for a term of six years. Every two years, also, the Fed-
eral Assembly selects two of these twenty-four to act, the one as
President, the other as Vice-President, of the Court. The Court
sits, not at Berne, the legislative capital of the Confederation, but
at Lausanne.
The Federal Assembly elects, at the same time that it chooses
the judges, nine substitutes also, who sit, as occasion demands,
in place of any judge who cannot act, and who receive for their
occasional services a per diem compensation.
The members of the Court may not hold any other office or
follow any other business during their term as judges ; nor can
they be members of any business corporation.
Criminal Jurisdiction of the Federal Court. In the exercise
of its criminal jurisdiction the Federal Court goes on circuit.
The country is divided into three assize districts (Assisen-
bezirke), one of which embraces French- and Italian-speaking
Switzerland ; the other two, German-speaking Switzerland.
416 THE GOVERNMENTS OF SWITZERLAND.
The Court annually divides itself, for criminal business, into
four bodies : A Criminal Chamber, the Federal Penal Court,
a Chamber of Complaints, and a Chamber of Appeals. The Crim-
inal Chamber decides at what places in the several Districts assizes
shall be held. The places selected furnish, at their own cost, a
place of meeting. The cantonal police and court officers serve as
officers of this Court. A States-attorney appears for the Federal
Council in all cases.
Cases in Public Law. The jurisdiction of the Federal
Court covers a great variety of causes. There are (1) Cases in
Public Law. These include disputes between Cantons concern-
ing such matters as the fulfilment of inter-cantonal agreements,
the settlement of boundary lines, conflicts of jurisdiction between
the authorities of different Cantons, and extradition ; also the
enforcement of agreements between Cantons and foreign govern-
ments ; and, most fertile of all, cases involving the constitutional
rights of citizens, whether those rights rest upon the federal or
upon a cantonal constitution. Its jurisdiction does not, however,
cover questions as to the constitutionality of federal legislation.
The federal Houses are the sole judges, under public opinion, of
their own powers.
It is considered "the proper and natural province of the Federal
Court" in Switzerland "to defend the people and the citizens against
abuses of power, whether they proceed from federal or cantonal authori-
ties." Such a province is, however, in the very nature of the case, insus-
ceptible of definite limitations ; and the powers of the Federal Court have
gradually spread far abroad by reason of the temptations of this vague
prerogative. The most usual and proper cases arising under it are in-
fringements of the federal guarantee to citizens of equality before the
law, of freedom of settlement, of security against double taxation, of
liberty of the press, etc., but the Court has gone much beyond these. Its
jurisdiction has been extended to the hearing of complaints against can-
tonal authorities for ordinary alleged failures of justice, such as the Consti-
tution can hardly have contemplated giving into the hands of the Federal
Court. The Court has even "brought within the circle of its judgments
cases where the appellant asserts a denial of his claims by a cantonal
judge grounded upon merely obstructive motives or an arbitrary applica-
tion of the law." *
lOrelli, p. 42.
THE GOVERNMENTS OF SWITZERLAND. 417
The Federal Court has also cognizance of contested citizenship
cases between Communes of different Cantons. For citizenship
in Switzerland is first of all of the Commune. The Commune is,
so to say, the unit of citizenship, and it is through communal
citizenship that cantonal citizenship is held (p. 401).
(2) Civil Cases in Private Law. The administration
of justice between individuals under federal laws is left for the
most part to the cantonal courts, which thus serve in a sense as
federal tribunals ; but if, in any case falling under federal law, a
sum of 3000 francs be involved, or if the matter involved be not
susceptible of money valuation, an appeal may be taken to the
Federal Court from the court of last resort in the Canton. Cer-
tain other private law cases, even when they do not involve fed-
eral law, may be brought, not by appeal, but in the first
instance, before the Federal Court upon another principle,
because, i.e., of the nature of the parties to the suit, viz. :
Cases between Cantons and private individuals or corporations ;
cases in which the Confederation is defendant; cases between
Cantons ; and cases between the Confederation and one or more
Cantons.
Cases of the first two of these four classes can be brought in the
Federal Court only if they involve a sum of 3000 francs. Otherwise they
must be instituted and adjudged in the cantonal Courts.
By agreement of both parties, the jurisdiction of the Federal Court
may be invoked in any case in which the subject of litigation is rendered
important by virtue of federal legislation.
A special railroad jurisdiction, too, has been given by statute to
the Federal Court, covering cases concerning right of way and the right
of eminent domain, and cases in private law between railroads and the
Confederation.
(3) Criminal Cases. The criminal jurisdiction of the
Federal Court covers cases of high treason and of outbreak or
violence against the federal authorities, breaches of international
law, and political offences which were the cause or the result of
disorders which have necessitated the intervention of the Con-
federation. It may, however, in the discretion of certain authori-
ties, include a variety of other matters in addition to these.
Federal officers, whose breaches of duty are ordinarily punished
418 THE GOVERNMENTS OF SWITZERLAND.
upon judgment of the cantonal tribunals, may, by resolution of
the Federal Council or of the Federal Assembly, be handed over
to the Federal Court "to be judged. Cases may even, also, be as-
signed to the federal tribunal by cantonal constitutions or laws,
if the Federal Assembly assent to the arrangement.
The Chamber of Appeals of the Federal Court takes cognizance, besides,
of complaints concerning judgments of the cantonal courts given under
certain fiscal, police, and banking laws of the Confederation.
By amendments to the constitution adopted in 1898, the feder-
ation was expressly authorized to deal with all matters of civil
and criminal law. To carry out this power and bring about
uniformity a civil code was drafted and put into operation by the
Federal Assembly on January 1, 1912. A similar codification of
the criminal law is in process.
The Federal Council: (4) Administrative Cases. The
administrative jurisdiction of the Confederation, which is exer-
cised, not by the Federal Court, but by the Federal Council,
includes a great number of important cases. It covers questions
touching the calling out of the cantonal militia, the administra-
tion of the public-school system of the Cantons, freedom of trade,
occupation and settlement, consumption taxes and import duties,
freedom of belief and worship, the yalidity of cantonal elections
and votes, and rights arising out of contracts with foreign powers
regarding trade relations, the credit to be given to patents, ex-
emption from military service, freedom of passage, etc. In all
these cases an appeal lies from the Federal Council either to the
Houses or to the Federal Court.
In 1914 an amendment to the Constitution was adopted, pro-
viding for the establishment of an administrative court to exer-
cise such jurisdiction in administrative cases as the Federal
Assembly may confer upon it.
Inter-Cantonal Judicial Comity. The Swiss Constitu-
tion, in close imitation of the provision on the same subject in
the Constitution of the United States, requires that full force and
credit be given the judgments of the courts of each Canton
throughout the Confederation,
THE GOVERNMENTS OF SWITZERLAND. 419
SOME REPRESENTATIVE AUTHORITIES.
Adams, Sir F. O., and Cunningham, C. D., The Swiss Confederation.
8vo, London and X.Y., 1889.
Blumer, J. J., Handbuch des schweizerischen Bundesstaatsrechts, 2 vols.,
1863-1865; New ed. completed by J. Morel, 1887.
Bluntschli, J. C., Geschichte des schweizerischen Bundesrechts von den
ersten ewigen Biiuden bis auf die Gegenwart, 2 vols., 1849-1852;
2d ed., VoL L, 187:..
Borgeaud, Chas., Adoption and Amendment of Constitutions in Europe
and America. Trans, by C. D. Hazen and J. M. Vincent. New York
and London, 1895. Pp. 250 ff.
Brooks, R. C., Government and Politics of Switzerland, N.Y., 1918. Ex-
cellent and has critical bibliography.
Burakhanlt, W., Kommentar der Schweizerischen Bundesverfassung,
Bern, 2 ed., 1914.
Coolidge, Early History of the Referendum, in the English Historical Re-
view, 1891, p. 674.
Curti, Th., Le Referendum ; histoire de la legislation populaire en Suisse,
Paris, 1915.
Demombynes, G., Les Constitutions Europe*nnes, Ed. 1883, Vol. II., pp
30i ff.
Deploige, S., Le Referendum en Suisse, Brussels, 1893.
Dodd, W. E., Modern Constitutions, 2 vols., Chicago, 1909.
Droz, Numa, Etudes et portraits politiques.
Units, J., Das offentliche Recht der schweizerischen Eidgenossenschaft,
2d ed., Zurich, 1878.
Dupriez, L., Les Ministres dans les principaux pays d'Europe et d'Ame"-
rique, 2 vols., Paris, 1892. Vol. II., pp. 167 ff.
Hilty, C., Die Bundesverfassung der schweizerischen Eidgenossenschaft,
Bern, 1891.
Lowell, A. L., Governments and Parties in Continental Europe, 2 vols.,
Boston, 1896. Chaps. XL-XIII.
Macy, Jesse and Gannaway, Comparative Free Government, N.Y., 1915.
Moses, Bernard, The Federal Government of Switzerland, An Essay on
the Constitution. A comparative study. San Francisco, 1889.
Ogg, F. A., The Government of Europe, N.Y., 1913.
Orelli, Alois von, Das Staatsrecht der schweizerischen Eidgenossenschaft
(in Marquardsen's Handbuch des offentlichen Rechts), Freiburg im
B., 1885.
Rambert, Eugene, Etudes historiques et nationales, Les Alpes Suisses,
1889.
420 THE GOVERNMENTS OF SWITZERLAND.
Richman, Irving B., Appenzell, Pure Democracy and Pastoral Life in
Inner Rhoden. A Swiss Study. London and N.Y., 1895.
Snell, Ludwig, Handbuch des schweizerischen Staatsrechts, 2 vols., Zurich,
1837-1845. Contains a great deal of original material for the period
preceding the formation of the present federal government.
Stiissi, Referendum und Initiative in den Sweizerkantonen, Ziirich, 1893.
Vincent, J. M., Government in Switzerland. N.Y., 1900.
Winchester, Boyd, The Swiss Republic, Philadelphia and London, 1891.
XI.
THE GOVERNMENT OF ITALY.
The Empire. The overthrow of the Roman Empire by the
barbarian tribes in the fifth century did not destroy the tradition
of supremacy associated with the name of Rome, any more than
it destroyed Roman law and civilization. As the latter survived
and profoundly modified the civilization imposed upon it, so
Rome survived as the traditional mistress of the world and be-
came again under the Frankish kings, in name at least, the head
of a new Empire, that of Charlemagne and his successors. The
imperial tradition thus revived and centered in Rome had a pro-
found influence upon subsequent Italian history and had much to
do with the late realization of Italian unity. While other na-
tions, as France, England, and Spain, were developing into the
modern national states, unified under their own national kings,
Italy was ruled for the most part by foreigners ; in the first in-
stance by the Emperors of the Holy Roman Empire, who were
German, and at a later date by these German Emperors and by
the French and Spanish who established claims to various parts
of the peninsula.
The Church. Throughout all this period the Church was
a temporal power, at times rivalling in influence the Emperor and
always supreme in the States of the Church, a territory stretch-
ing across central Italy from northeast to southwest and for cen-
turies forming a competing temporal power.
The City Republics. In the later Middle Ages there grew
up, particularly in northern Italy, great free city Republics, such
as Genoa, Florence, Pisa, Milan, and Venice and for a brief mo-
ment, Rome itself. These city Republics felt the full force of
421
422 THE GOVERNMENT OF ITALY.
the Renaissance and its awakening spirit, and for a space played
a great part in the history of the world. In time they lost their
republican character for the most part and sank into subjection
or obscurity, but left behind them a strong republican tradition.
Napoleon. At the end of the eighteenth century Italy
remained but a geographical designation for a great number of
petty kingdoms and principalities, most of them under the con-
trol of foreign princes. Napoleon, with the conqueror's ruthless-
ness, swept them all away and established the Kingdom of Italy.
Brief as was the existence of this artificial union, it nevertheless
left its impression of a united Italy an impression which added
strength to the growing sentiment in favor of national unity.
But Napoleon's Kingdom of Italy had been preceded by the
establishment of a number of Republics in northern Italy when
he was still the leader of nominally republican France. They
were Republics created out of hand by the conqueror and were as
readily dissolved by the same hand, yet they revived the medi-
eval tradition of the city Republics and gave expression to the
awakening spirit of the people. Thus Napoleon contributed to
the development of the aspiration both for national union and for
a republican form of government.
Congress of Vienna. At the Congress of Vienna, the
former condition of Italy was in large measure reestablished
everywhere were small kingdoms and principalities under rulers
whose powers were nowhere limited by constitutional restraints
and many of whom were tyrannical. Foreign influence was
again reestablished. But the democratic spirit engendered by the
French Revolution was very much alive and led to the organiza-
tion of secret societies whose object was the establishment of a
united Italy under a republican form of government.
House of Savoy. In the northwestern part of the penin-
sula, stretching from the mountains to the sea, was the Kingdom
of Sardinia, under the rule of the House of Savoy, which was des-
tined to become the leader in the unification of Italy, but as a
kingdom and not as a republic. In response to the Revolutionary
movement of 1848, Charles Albert, its king, granted to his people
a constitution, called the Statute, and in 1848-49 he sought to
free Italy from the oppression of Austria. Though defeated and
THE GOVERNMENT OF ITALY. 423
compelled to abdicate in favor of his son, Victor Emmanuel, he
had centered the thought of the Italians upon the House of Savoy
as the possible liberators of Italy. Despite the threats of Austria,
Victor Emmanuel refused to repeal the Statuto.
The four principal figures in the struggle for Italian unity
were Mazzini, the revolutionary enthusiast; the King, Victor
Emmanuel ; Cavour, his great minister ; and Garibaldi, the dash-
ing soldier of fortune. Mazzini's part was played in the earlier
years in filling the place of high minded advocate of liberty, in
stirring the spirit of freedom throughout Italy, and in conspiring
to secure its realization. The king formed the rallying point about
which the sentiment in favor of unification could gather, and the
high place which he held in the respect and admiration of the
people contributed much to the willingness of the republicans to
yield their preference and accept a monarchy. Cavour was a
truly great statesman who realized that the Austrian power must
be driven out before Italy could be united. Accordingly he in-
duced Napoleon III. to declare war on Austria in 1859, in con-
junction with Sardinia. The full success of the war was lost by
the sudden withdrawal of Napoleon, leaving Venice still in the
hands of Austria. Garibaldi fired the imagination of the people,
and his successful operations in overrunning Sicily and in driving
out the rulers of Naples occurred at a most opportune time.
Cavour' s original plan had been for a federation of the Italian
states under the nominal headship of the Pope, but with the real
leadership in the King of Sardinia. With the conclusion of the
war against Austria, leaving Venice in her hands, he concluded
that the only solution lay in unification under the House of Savoy.
The northern states had risen in 1860 and driven out their rulers ;
they now voted for union with Sardinia. Sicily and Naples, freed
by Garibaldi, likewise decided by popular vote to join the new
kingdom. With the exception of Venice, held by Austria, and
Rome, held by French troops, the rest of Italy soon followed.
Venice was not added to the new Kingdom of Italy till 1866,
when Italy joined Prussia in the war against Austria ; but Italy
failed then to acquire two districts, preponderantly Italian in
population and sympathy the Trentino, a mountain district,
and Italia Irredenta, that part of the Adriatic sea coast adjoining
424 THE GOVERNMENT OF ITALY.
Venice, of which Trieste is the most important city. Both of
these districts will have been added to Italy as a result of the Great
War, 1914-1918. Eome was acquired in 1870 at the time of the
Franco-Prussian war, when Italian soldiers took possession of the
city and Rome became the capital of a united Kingdom of Italy.
Thereby the last remnant of the temporal power of the Pope was
destroyed.
The Statute. The Statute granted by Charles Albert in
1848 remains to-day the constitution of Italy not the whole
constitution, for both custom and enactment have greatly modified
the original instrument, but it is still the principal source of gov-
ernmental arrangements. As the Kingdom of Sardinia expanded
into the Kingdom of Italy the Statute was extended to the new
territories. The Statuto contained no provision for its amend-
ment, and the custom, has become so firmly established as to be re-
garded as a part of the constitution that the constitution may be
amended by an ordinary act of Parliament.
The eighty-four articles of the constitution deal with the
rights and duties of citizens, the Crown, the Ministers, the Sen-
ate, the Chamber of Deputies, and the Judiciary. All inhabitants
are guaranteed equality before the law ; liberty of person ; free-
dom of the press and of assembly, though the latter is subject
to qualifications ; inviolability of property and of domicile ; and
exemption from taxation not authorized by Parliament.
The King. According to the Statuto the form of govern-
ment is a "representative monarchical government," with an
hereditary king who succeeds under the Salic law, that is, only
by and through the male line. The executive power is vested in
the King, who approves and promulgates the laws, concludes
treaties, declares war, appoints all officers of state, makes decrees
and ordinances, creates Senators, and commands the military and
naval forces. These powers, though vested in the King, are not
exercised by him but by ministers responsible to the Chamber of
Deputies. No act of the king is valid unless countersigned by
one of his ministers, and this fact is the legal foundation for the
'responsibility of the ministers to the Chamber of Deputies.
The actual powers exercised by the King are slight, and no at-
tempt has been made by any one of the three kings to be other
THE GOVERNMENT OF ITALY. 425
than a constitutional monarch, but each has recognized whole-
heartedly that the actual government is carried on by the minis-
ters under responsibility to the popular house of Parliament.
The " representative " function of the King is not without im-
portance ; his opinions in matters of foreign relations have much
weight and at times of cabinet crises, when the ministry resigns
the King may exercise a certain amount of choice with respect to
the man who shall be selected to form a new cabinet and in doing
so may exert some influence upon the course of government.
The Ministry. As in other countries with responsible
cabinet government, the ministers are both political leaders and
heads of the administrative department. Of the latter there are
at present thirteen, which are as follows : Foreign Affairs ; War ;
Marine; the Interior; Finance; the Treasury; Public Instruction ;
Public Works; Justice and Ecclesiastical Affairs; Commerce,
Industry, and Agriculture ; Posts and Telegraphs ; Colonies ; and
Railways and Merchant Marine.
In the exercise of their functions as political leaders, the min-
isters, who are members either of the Senate or of the Chamber
of Deputies, have a right to appear upon the floor and to speak in
both houses, though their right to vote is confined to the house of
which they are members. The king may appoint to the post of
minister one who is not a member of Parliament, but such a min-
ister must be appointed a member of the Senate or stand for
election to the Chamber at the first vacancy. Also there have
been ministers without portfolio. The premier has generally
held the post of Minister of the Interior.
As the head of the government, responsible to the Chamber,
the cabinet takes the initiative in legislation, though private
members may introduce bills; but by reason of the multiplicity
of parties, cabinets have usually been lacking in internal unity and
in the power of controlling the Chamber, with the result that it is
difficult for a cabinet to inaugurate and put through an extended
programme and that ministries change with frequency.
The Senate. The Italian Senate is unlike any other sec-
ond chamber in its composition. Its membership is unlimited in
number (395 in 1916), and aside from the royal princes, of whom
there are six, its members are appointed by the king for life from
426 THE GOVERNMENT OF ITALY.
certain classes of the people as defined in the Statute. Generally
these classes may be said to comprise high state officials, church
officials also are eligible but since the break with the Vatican in
1870 none have been appointed, persons of fame in science or
literature or who have performed a distinguished service for the
state, and persons who pay over 3000 lire ($600) in taxes. Ap-
pointment by the king means of course appointment by the
ministry in power, but the Senate has a right to decide whether
or not the proposed appointee comes from one of the recognized
classes and in a number of instances it has decided that the re-
quirements had not been met and in consequence the appointment
failed. Members must not be less than forty years of age. The
president and vice-president are designated by the crown. The
power of appointment has been exercised on several occasions for
the purely political purpose of changing the opinion of the body,
as many as seventy-five senators being appointed at one time in
1890, and through this power the equality of the Senate with the
chamber has been destroyed.
Legally the Senate has an equal voice with the Chamber in law-
making, and no bill can become a law without its consent, but its
consent can be forced by the method of appointment. The Senate
lacks popular character and cannot stand against the Chamber.
Ministers are responsible to the Chamber and not to the Senate
and those cases in which opposition in the Senate has led to the
resignation of a ministry may be regarded as accidental.
The Senate may act as a High Court for the trial of ministers
impeached by the Chamber and to try cases of high treason and
attempts upon the safety of the state.
The Chamber of Deputies. The popular house of the
Italian Parliament is elected on the basis of universal manhood
suffrage, except that those under thirty years of age who have
neither performed military service nor learned to read and write
are excluded. In the earlier years of the Kingdom the electorate
was narrowly limited, due to the backward condition of the country
and to the large proportion of illiterates. With the establish-
ment of better school facilities, and with the economic and com-
mercial development of the country, the suffrage has been ex-
tended until by the Electoral Law of 1912 universal manhood
THE GOVERNMENT OF ITALY. 427
suffrage was all but reached. There is still a large ignorant and
illiterate population but no bad effects therefrom have as yet
made themselves felt in serious fashion ; and universal manhood
suffrage is in keeping with the democratic spirit of the people.
The Chamber is composed of 508 members, or one to each
71,000 inhabitants, elected each from a district. Originally the
deputies were elected from separate districts but in 1882 the
scrutina di lista, or the election of a number of deputies from a
single district, was introduced. It was hoped that the new sys-
tem would lead to the choice of deputies having more of a national
and less of a local point of view, but the experiment did not prove
a success and was abandoned in 1891 and the former system was
reestablished. A candidate in order to be elected must receive
the votes of more than one-tenth of the inscribed electors and
more than one-half of the votes cast. If no candidate secures the
necessary number of votes, a second election is held a week later.
Qualifications of Members. Members of the Chamber
must be citizens, at least thirty years of age, and in possession of
full civil and political rights. It is not necessary that a member
should reside in the district which he represents. Priests, salaried
government officials, except the officers of the army and navy,
ministers and under-secretaries, and a few other high officials and
all persons receiving stipends from the state are ineligible. Of
those government officials who are eligible there can never be
more than forty who are members at the same time, but ministers
and under-secretaries are not counted in the forty. Deputies are
elected for a period of five years, which is the maximum period for
the duration of Parliament, but they seldom fill out the term be-
cause of the earlier dissolution of Parliament.
The members receive 2000 lire ($400) to cover the cost of cor-
respondence and 4000 lire a year if not in receipt of an income
from a public source. Those who are in receipt of a public in-
come receive the difference to make up this income to four
thousand lire. All travel free on government railroads. Since
the budget and the contingent of recruits is determined by annual
laws, the houses must meet at least once a year unless, as fre-
quently happens, the sessions are prolonged for more than a year.
Procedure. The president and vice-president of the
428 THE GOVERNMENT OF ITALY.
Senate are appointed by the Crown, but the Chamber chooses
its own president, who is continued in office without regard to
party affiliations. The business of the houses is transacted by
committees. The president of the Chamber appoints the com-
mittees on rules and contested elections ; in each house the
budget committee is elected directly by the houses. For the
rest, the Senate is divided into five and the Chamber into nine
sections by lot every two months and these sections choose the
committees not otherwise provided for.
The ministers appear regularly upon the floor of the houses to
defend their measures and to answer questions. The interpella-
tion, or challenge of the policy of the ministry, exists, but the
vote must follow after an interval of several days, and the minis-
try is protected from the rashness of a snap vote taken immedi-
ately which has proved so destructive to ministries in France.
The Judiciary. The judicial system of Italy is the
result of a compromise between the existing order in the indi-
vidual states at the establishment of the Kingdom and the needs
of the new Kingdom. As a result there is lacking that centrali-
zation and coordination of courts which makes for unity. Instead
of a single supreme court there are five courts of Cassation, located
in Turin, Florence, Koine, Naples, and Palermo, each supreme
within its own territory, and each interpreting the law in accord-
ance with its own views, so that it is possible to have five dif-
ferent interpretations of the same law, each affecting a different
district. The Court of Cassation at Rome has had conferred
upon it exclusive jurisdiction to decide in cases of conflict of
jurisdiction between different courts, conflicts between the courts
and the administrative authorities, the transfer of cases from
one court to another, writs of error in criminal cases, and some
other special matters, but in all other cases involving the ordinary
civil law the five courts of Cassation are all equal. The lower
courts are more symmetrically organized, for they are new crea-
tions and do not differ materially from the French plan.
Administrative Courts. In Italy, as in the rest of conti-
nental Europe, there are administrative courts to try cases affect-
ing administrative officers. In England no distinction is made
between public and private law and all offences are subject to trial
THE GOVERNMENT OF ITALY. 429
by the ordinary courts. Administrative law and administrative
courts are sharply differentiated in France from the ordinary
law and courts. In Italy the distinction is made but it has not
been so clearly carried out as hi France. A special section of the
Council of State, composed of a president and eight councillors ap-
pointed by the king, serves as the highest administrative court,
while inferior jurisdiction has been conferred upon the prefects
and certain assistants in the provinces. It has in general the
right to decide whether the acts of the local or central officers
are authorized by law, unless some special provision to the con-
trary has been made by law.
Local Government. The local government in Italy is
modeled on that of France and is even more centralized than that
of the latter. Familiarity with the French system and the need
for a strongly centralized government to meet the unsettled con-
ditions in parts of the newly formed kingdom combined to sweep
away all preexisting territorial divisions and forms of local gov-
ernment. In its place was substituted an artificial division of
the country into provinces, circondari, mandamenti, and com-
munes, lacking in real local life.
Prefect. At the head of each province they are
sixty-nine in number is a prefect appointed by the king and
directly responsible to the minister of the Interior. His func-
tions correspond very closely to those of the French prefect, for
he is both a political and an administrative official. He pub-
lishes and executes the laws, supervises the administration of the
provinces, opens and closes the sessions of the provincial council,
sanctions or vetoes the acts of that body, and protects the inter-
ests of the central government in the province.
Council. With the prefect there is associated a council
of from twenty to sixty members, elected for a period of six
years, with one-half of the members renewed every three years.
The Council meets regularly once a year and its most important
business is the voting of the provincial budget. A commission,
elected by the Council from its members, carries on the business
of the Council in the interval between its meetings. The prefect
has large powers of control over the proceedings of the Council
and he is not responsible to it but only to the central government.
430 THE GOVERNMENT OF ITALY.
The circondari are primarily electoral districts and the mandamenti,
or cantons, are mere administrative subdivisions of the provinces.
The Commune. The commune is the most vital of Italian
local government units. It has the duty of maintaining streets,
roads and markets ; to provide elementary education ; to provide
poor relief ; to see to the registration of electors ; to keep a regis-
ter of births and deaths ; and to provide police protection. In
addition to its duties, it may provide for every sort of local enter-
prise. The government of the commune is composed of a syndic,
or mayor, and a council. The syndic is elected by the council
from among its members for a term of three years. Though
chosen by the council the syndic is a representative of the central
government and may be removed, save in exceptional circum-
stances, only with the consent of the prefect and is responsible not
to the council but to his superiors. The council is composed of
from fifteen to eighty members and its members are elected for a
period of six years, one-half being renewed every three years.
The council meets regularly twice a year and its work is carried
on between meetings by a committee chosen from its members.
The Pope. The relation of the Kingdom of Italy to the
Papacy has been extremely difficult of a satisfactory solution.
The temporal power of the Popes had existed for centuries and
was regarded as necessary for full religious freedom on the part
of the church. But the continued existence of the Papal states
stretching across the central portion of the peninsula was a bar to
Italian unity. Accordingly the Papal states, with the exception of
Rome, were added to the Kingdom in 1860. But there was a
feeling that without Kome, united Italy was incomplete.
Advantage was taken of the Franco-Prussian war, when Na-
poleon III. was in no position to aid the Pope, and on September
20, 1870, Italian troops entered Home and took possession of the
city. Before moving the seat of government to Eome it was
thought best to settle the position of the Pope, so the Law of the
Papal Guarantees of May 13, 1871, was passed. According to
this law the Pope enjoys the personal rights and privileges of a
sovereign. His person is declared sacred and inviolable ; public
officials are not permitted to enter his palace or grounds in the ex-
ercise of their duties ; and persons accredited to him enjoy all the
THE GOVEEIOIENT OF ITALY. 431
immunities of diplomats. He is guaranteed freedom of intercourse
and protection for papers and messages ; he is granted annually
the sum of six hundred and forty-five thousand dollars, but this
he has never consented to receive ; and he is left in undisturbed
possession of the palaces of the Vatican, the Lateran, and Castel
Gandolfo, with their gardens free from taxation.
The Popes have never been willing to recognize the loss of their
temporal power or to acquiesce in the present arrangements.
For a time there was a hope that foreign powers might intervene
to reestablish their claims, but when this hope vanished, Pope
Pius IX. in 1883 promulgated a decree, the non expedit, by which
it was declared " inexpedient " for Catholics to participate in Par-
liamentary elections, and in 1895 what had been declared " inex-
pedient " was forbidden. This prohibition did not apply to mu-
nicipal elections and was not widely observed by Catholics, many
of whom strongly opposed it. Ten years later it was found neces-
sary to relax the prohibition ; the socialist party had been so
rapidly growing in strength that Pope Leo XIII yielded to the
argument that it was the duty of the Church to oppose socialism,
and in 1905 he issued an encyclical which made it the duty of
Catholics to support the social order and enjoined that they take
part in political contests in its defense wherever it was threatened.
The participation in political struggles must, however, be under
the direction and control of the Church. The result has been to
found a strictly Catholic and conservative party and to unite more
closely the radical-republican-socialist groups through a common
anti-clerical sentiment.
SOME REPRESENTATIVE AUTHORITIES.
Cesaresco, M., The Liberation of Italy, London, 1895, London, 1898.
Dodd, W. E., Modern Constitutions, 2 vols., Chicago, 1909.
Dupriez, L., Les Ministres dans les principaux pays d'Europe et L'Ame-
rique, 2 vols., Paris, 1892.
Godkin, G., Life of Victor Emmanuel II., London, 1880.
King, B., A History of Italian Unity, 2 vols., London, 1899. Mozzini,
London, 1902.
King and Okey, Italy To-day.
Lowell, A. L., Governments and Parties in Continental Europe, 2 vols.,
Boston, 1896.
Ogg, F. A., The Governments of Europe, New York, 1913,
XII.
THE GOVERNMENT OF BELGIUM.
THE history of Belgium justifies the statement that it has been
the battle ground of Europe. It has formed a part of three great
Empires : those of Charlemagne, of Charles the Fifth, and of
Napoleon. It had been successively Spanish, Austrian, French,
and Dutch, before finally attaining independence. From the days
of Charles the Fifth it has had a separate existence. In the
eighteenth century the Austrian Netherlands appear as a terri-
tory distinct from the hereditary possessions of the Habsburgs>
and under French dominion, administration and legal uniformity
were gained. Thus through all the centuries and under so many
different powers, the Belgians retained their identity and pre-
pared the way for political independence. By the terms of the
Congress of Vienna, there was established the United Kingdom
of the Netherlands with William of Orange as sovereign. The
Kingdom was composed of Holland, the bishopric of Liege, and
the Austrian Netherlands, but the union was from the first an
unhappy one. The constitution, drawn up in Holland, was re-
jected by the Belgians, but was nevertheless put into operation.
Dutch was made the official language though French was spoken
in a large part of the Kingdom. The Protestant Dutch antago-
nized the Catholic Belgians and the administration was more
favorable to the Dutch than to the Belgian provinces.
The French revolution of 1830 inspired the Belgians to follow
a like course, and a national congress proclaimed the independ-
ence of Belgium. A constitution was adopted February 7, 1831
and Leopold of Saxe-Coburg was chosen king. In spite of Dutch
opposition, the conference of The Powers in London in 1831
432
THE GOVERNMENT OF BELGIUM. 433
recognized the independence of Belgium, and Holland was forced
to acquiesce.
Plan of the Constitution. The Belgian constitution con-
sists of 139 articles divided into 8 titles as follows : the territory
and its divisions ; citizens and their rights ; concerning powers ;
finances ; the array ; general provisions ; revision of the consti-
tution ; and temporary and supplementary provisions. It is in-
teresting that the constitution contains no declaration of " the
rights of man and of citizens," but instead a rather long list of
individual rights, guaranteed by the constitution and safeguarded
by law. Among the constitutional rights of Belgians may be
mentioned equality before the law ; no distinction of classes ; in-
dividual liberty ; no arrest for longer than twenty-four hours
without a warrant ; inviolability of domicile and of property ; re-
ligious liberty, freedom of the press, of speech, and of assembly,
and the right of petition.
Powers of Government. All power emanates from the
people and can only be exercised in the manner provided by the
constitution. The legislation is exercised collectively by the
King, the House of Kepresentatives, and the Senate, each of
which has the right of initiative ; but money bills and laws relat-
ing to the army contingent must be voted first by the House of
Representatives.
The executive power is vested in the King, subject to the
provisions that his ministers are responsible and that no decree
of the King shall take effect unless it is countersigned by a minis-
ter who thereby renders himself responsible for it.
The judicial power is exercised by the courts and the tribunals,
but the authoritative interpretation of the laws is vested in the legis-
lative power. Belgian courts cannot declare laws unconstitutional
and the legislative power is the supreme power in the government.
Made under the impulse of revolution, the Belgian constitution
was remarkable for its liberality and democracy ; at a time when
the reactionary forces were in control in Europe, it represents
complete popular supremacy and legislative omnipotence under
the form of a constitutional monarchy.
The Legislative Power; the Senate. The country is
divided into nine provinces, and from each province senators are
434 THE GOVERNMENT OF BELGIUM.
chosen in two ways : by election according to the population and
by the provincial councils, to the number of two for each province
having less than 500,000 inhabitants, of three for each province
having from 500,000 to 1,000,000 inhabitants, and of four for
each province having more than 1,000,000 inhabitants. The num-
ber of senators to be elected directly by the voters shall be equal
to one half the number of members of the House of Representa-
tives.
Senators are elected for a term of eight years, one half being
elected every four years. In case of dissolution the whole Senate
is renewed. The Senate is then divided, one half serving for four
years and the other for eight. The qualifications for senator are
Belgian citizenship and residence, civil and political rights, the
payment of at least 1200 francs direct taxes or the proprietor or
usufructuary of real estate in Belgium, the assessed income of
which amounts to at least 12,000 francs. In the provinces in
which those eligible do not reach the proportion of one for every
5000 inhabitants, there are added a sufficient number of the
highest taxpayers to make this proportion. In the case of senators
elected by the provincial council, there is no property qualification.
Senators must be at least forty years of age ; they receive no
salary or emoluments. Sons of the King, or if there be none, the
Belgian princes of the branch of the royal family designated to
succeed to the throne, are senators at the age of eighteen but have
no vote until the age of twenty-five.
House of Representatives. The members of the House
are chosen by direct election for a terra of four years, one half
being elected every two years. In the event of a dissolution, the
whole House is renewed and the members are divided into two
groups, one of which serves for two years and the other for four.
Plural voting exists for members both of the House and of the
Senate. All male citizens twenty-five years of age and resident
for one year in the same commune and not otherwise disqualified
by law have the suffrage. An additional vote is given all
married men, and widowers with children, who have reached the
age of thirty-five and pay a tax of not less than five francs as
householders, unless exempt on account of a profession, and like-
wise to all those who have reached the age of twenty-five, who
THE GOVERNMENT OF BELGIUM. 435
own real estate of the value of at least 2000 francs or possess an
income from land corresponding to such value, or are inscribed in
the great book of the public debt or possess obligations of the
Belgian savings bank bearing at least 100 francs interest.
Two additional votes are given to citizens who have reached
the age of twenty-five years and who hold a diploma from an in-
stitution of higher instruction or a certificate showing the com-
pletion of a course of secondary education of the higher degree or
who hold or have held a public office or position or who practice
or have practiced a private profession which presupposes at least
the knowledge imported in the secondary instruction of higher
degree. But no one shall have more than three votes, and voting
is obligatory under penalties ranging from a reprimand and a fine
of twenty-five francs to a temporary deprivation of the right to
vote and hold office. The system of proportional representation
is employed. The number of representatives is fixed by law ac-
cording to the population, but must not exceed one for every
40,000 inhabitants.
Qualifications. Members of the House must be Belgian
citizens, resident in Belgium, and in the enjoyment of civil and
political rights and at least twenty-five years old. The compen-
sation of members is 4000 francs a year and free transportation on
government railroads from the place of residence to the city
where the session is held.
The King and the Ministers. The succession to the
throne, or rather to the constitutional powers of the King, is
hereditary in the House of Saxe-Coburg according to the Salic
law. The powers of the King are limited to those conferred by
the constitution and the laws ; these he can exercise only through
a responsible minister who must countersign all his decrees.
The parliamentary system of government through responsible
ministers is established by the constitution, and powers conferred
upon the King are in reality the powers of the ministers who are
responsible to the House of Representatives. The King ap-
points and dismisses the ministers, but he must appoint those who
can secure support for their policies from a majority in the
House of Representatives, and he cannot in practice dismiss min-
isters so long as they enjoy that support. The King approves
436 THE GOVERNMENT OF BELGIUM.
and promulgates the laws and must issue all regulations and de-
crees necessary for the execution of the laws, but he cannot sus-
pend or dispense with the laws. The King commands the military
and naval forces, declares war, makes treaties of peace, alliance,
and commerce, but treaties which may burden the state or bind
Belgians individually take effect only after having received the
approval of the two Houses.
The Houses meet annually the second Tuesday in November,
but the King may summon them earlier ; he may dissolve one or
both of the Houses and he may adjourn them, but not for longer
than a month and not oftener than once in a session without the
consent of the Houses.
The ministers are the leaders of the majority in the House of
Representatives and also the administrative heads of the depart-
ments, of which there are ten : Foreign Affairs ; Interior ; Science
and Arts ; Agriculture ; Industry and Labor ; Justice ; Finance ;
Public Works ; War ; and Railroads. Ministers have the right to
appear and be heard in both Houses but can vote only in the
House of which they are members. The Houses have the right
to demand the presence of ministers.
As under other systems of parliamentary government, the
question and the interpellation are the normal means by which
the Houses exercise control over the government. The question
demands an answer from the minister but not a vote ; if a vote is
demanded, it becomes an interpellation and there is a debate,
followed by a vote.
Committees. The House is divided into six sections, re-
newed every month by lot. Bills are referred to the sections for
examination unless a special committee is appointed for a particu-
lar bill. Each section appoints a reporter, and the six reporters,
together with the president of the Chamber, form the central
section, which in turn appoints its reporter. There are two per-
manent committees of the House, elected by secret ballot at each
session a committee of finance and accounts and a committee of
agriculture, industry, and commerce. The House also elects
special committees whenever it sees fit, and this is the normal
procedure in the Senate.
The Judiciary. The judicial system consists of a Court
THE GOVERNMENT OF BELGIUM. 437
of Cassation for the whole of Belgium, which sits at Brussels. Its
members are appointed by the King from two lists, one presented
by the Court itself and the other by the Senate. Below the
Court of Cassation are three courts of appeal, whose members are
appointed by the King from two lists, one presented by these
courts and the other by the provincial councils. Next in sequence
come the courts of first instance who are appointed by the King,
but the presidents and vice-presidents of these courts are ap-
pointed from two lists, one presented by the courts and the other
by the provincial council. In addition there are courts of assizes
to hear criminal cases, military courts, courts of commerce and
justices of the peace. All judges are appointed for life and no
judge shall be deprived of his office or suspended till after trial
and judgment. Nor can they be transferred except by a new ap-
pointment and with their consent. Belgium differs from other
continental countries in that it has no administrative courts but
in this particular has followed the English system.
XIII
THE GOVERNMENTS OF GERMANY.
The Feudalization of Germany was in some points strongly
contrasted with the feudalization of France. There was in Ger-
many no Romanized subject population such as existed in Gaul,
with habits which should enter like a leaven into the polity of
their conquerors. Beyond the Rhine all were of one general
kin, all bred to the same general customs. What was new
there was the great Frankish kingship of Merowingian and
Carolingian, the new size and potency of the regal power bred
amidst the readjustments of conquering migration by the domi-
nant Franks. For the rest, there was at first the old grouping
about elective or hereditary princes, the old tribal individualities
of custom, the old organization into separate, semi-independent,
self-governing communities. Feudalism came, not so much
through fresh gifts of land and novel growths of privilege based
upon such fresh gifts, not so much through 'benefice ' and ' com-
mendation ' (pages 104-106, 108), as through the official organiza-
tion of the Frankish monarchy.
Official System of the Frankish Monarchy : the Counts.
In order to exercise their kingly powers the more effectually, the
Frankish monarchs adopted the natural plan, for which there was
Roman precedent, of delegating their functions to officers com-
missioned to act as their representatives in various districts of
their extensive domains. There does not seem to have been any
symmetrical division of the territory into districts to fit the official
system. Here and there there were counts (Graferi), the king's
vicegerents in the exercise of the financial, judicial, and military
prerogatives of overlordship; but the limits of their jurisdiction
were not always sharply defined. There were, for one thing,
438
THE GOVERNMENTS OF GERMANY. 439
many exemptions from their authority within the general dis-
tricts allotted them. There were the dignity and pretensions
of provincial princes to be respected, more important still, there
were the claims of the great landowners to a special jurisdiction
and independent lordship of their own to be regarded. As a
matter of policy such claims were generally allowed. The
demesnes of the greater landowners were cut out from the ad-
ministrative territory of the count and given separate political
functions. Barons, such as we have seen in France, local
autocrats with law courts and a petty sovereignty of their own,
were freely created. The king apparently could not deny
them the ' immunities ' they demanded.
The Magistracy of Office and the Magistracy of Proprietor-
ship. There thus grew up, side by side, a double magistracy
a magistracy of office and a magistracy of proprietorship. The
count ruled by virtue of his office ; the baron by virtue of his
landed possessions : there were lords by privilege, and lords by
commission. As time went on the two sets of magnates drew
nearer and nearer to the possession of a common character
through an interchange of qualities. The office of count tended
more and more to become hereditary and to connect itself with
the ownership of large estates. Heredity of title and prerogative
was the almost irresistible fashion of the age : the men of great-
est individual consequence, besides, the men who were fit be-
cause of their individual weight to be delegated to exercise the
royal authority, were commonly the men of large properties.
Either there went, therefore, along with the grafship, gifts of
land, or else men already sufficiently endowed with lands were
given the grafship : and as the office connected itself with pro-
prietorship it took from proprietorship its invariable quality of
heredity. This was the double process : counts became heredi-
tary territorial lords ; and hereditary territorial lords acquired
either the grafship itself or powers quite as great.
Hereditary Chiefs. Add to this hierarchy the more
ancient dukes of the tribes, and the tale of greater lords is com-
plete. These dukes were, by traditional title at least, rulers
of the once self-governing communities which Frankish ascen-
dency had in the days of conquest united under a common author-
440 THE GOVERNMENTS OF GERMANY.
ity. In many cases, no doubt, they retained a vital local sway.
They were intermediate, in the new political order, between the
king and the barons.
Full Development of Territorial Sovereignty. By the
thirteenth century German feudalization was complete. Dukes,
counts, and barons had all alike become lords within their own
territories (Landesherren). Bishops and abbots, too, as in France,
had entered the competition for power and become themselves
counts and barons. That territorial sovereignty, that private
ownership of political authority which is the distinguishing mark
of feudalism, and which we have seen so fully developed in
France, is present in as full development here in Germany also.
But the elements of the development are very different in the
two countries. In France we have seen the appointment of royal
delegates come after the perfecting of feudalism and lead, through
the gradual concentration of judicial and other authority in the
king's hands, to the undermining and final overthrow of baronial
sovereignty (pp. 195, 197). In Germany, on the contrary, the
royal representatives, appointed while feudalism was taking shape,
themselves entered and strengthened the baronage, quitting their
dependent functions as officials for the independent privileges
of territorial lords.
The Markgraf . One office especially fostered feudal in-
dependence in Germany. Outside the hierarchy I have described,
and standing in special relations with the king, was the Mark-
graf, the count of the march or border, set to defend the king-
dom against inroads by hostile peoples. He was of course chosen
chiefly because of his capacity in war, and was of the most im-
perative, masterful soldier breed of the times. To him, too, were
necessarily vouchsafed from the first extraordinary powers. He
was made virtual dictator in the unsettled, ill-ordered border dis-
trict which he was appointed to hold against foreign attack ; and
he was freely given all the territory he could conquer and bring
under the nominal authority of the king. It was thus that the
Mark Brandenburg spread itself out to the northeast, to become
at last a great kingdom, and that the Ostmark, established by
Charles the Great as a barrier against the Hungarians, increased
till it became the great state of Austria. The Markgraf was not
THE GOVERNMENTS OF GERMANY. 44^
long in becoming virtually a ruler in his own right, little dis-
turbed by the nominal suzerainty of a distant monarch, and pos-
sessed by fast hereditary right of the titles and powers which
would one day make of him a veritable king.
The Empire. Charles the Great set for his successors
the example of a wide rule and a Roman title. But for many
a long age it seemed as if he had left behind him nothing but a
tradition and a scheme of power which no man was able to take
up. His great empire fell to pieces, never to be put together
again, except as it seemed to rise once more for a little space in
the days of Charles V. Even the greater fragments of it fell
apart beyond the Khine, shattered by the disintegrating forces
of feudalism. But the name and shadow of the imperial power
persisted from age to age with a strange vitality. First a line
of Saxon princes, then men of the Franconian house, after them
the masterful Hohenstaufen essayed the office Charles had made
great, wielding such authority as they could as power came and
vent amidst the shifting scene of German politics. Finally the
succession fell to the house of Habsburg, who were building a
veritable kingdom together upon the southern skirts of Germany,
where the Ostmark had grown to be Austria. As their strength
increased, their presidency amidst the German states became an
unmistakable power of command, and Germany had at last a
leader, if not a master.
The Imperial Cities. While the imperial power lan-
guished a notable thing happened. Germany gave birth to great
free cities, set like independent states in the midst of their weak
neighbors. The cities of the Empire had, as feudalism devel-
oped, fallen into its order in two classes. Some of them held
their privileges of the Emperor himself, were his immediate vas-
sals ; others were subordinated to some feudal lord and were sub-
jects of the Empire only through him. The position of those
immediately dependent upon the Emperor was much more advan-
tageous than the position of those who had lesser and nearer
masters. The imperial supervision was apt to be much less
exacting than the overlordship of princes who, having less wide
interests to care for than those which busied the Emperor, could
render their power greater by concentration. They were always
442 THE GOVERNMENTS OF GERMANY.
near at hand and jealous of any movement of independence on the
part of the towns within their domain ; the Emperor, on the other
hand, was often far away and never by possibility so watchful.
He was represented always by some deputy; but the presence
of this officer did not greatly curtail municipal self-government.
In the thirteenth century even this degree of control was got
rid of at the suit of some of the cities. They were allowed to
become 'free ' imperial cities, bound to the Emperor only by
sworn allegiance, not by any bonds of actual government. The
next step in the acknowledgment of their independence and im-
portance was their admission to representation in the Diet of the
Empire, and such recognition was not long delayed. The role
of these great free cities o imperial affairs became one of the
most important of the many independent roles played on the
confused stage of that troubled time. Lu'beck, . Hamburg, and
Bremen retain to this day a certain privilege of position as free
cities in the German Empire.
484. The Swiss Confederation. Almost at the very time that
the Habsburgs first won the imperial crown and acquired the duchy of
Austria, some of their Swiss dependencies broke away from them, and
established an independence never since permanently broken. Schwyz,
Uri, and Unterwalden, the sturdy little mountain communities grouped
about the southern end of quiet Lucerne, with whose struggle for freedom
the glorious story of the Swiss Confederation begins, contained some part
of the estates of the Counts of Habsburg, whose hereditary domainr
touched the other end of Lucerne, and stretched wide to the north about
the further shore of Lake Geneva, and southward again on the West. The
region of the Alps contained the notable imperial cities of Zurich, Berne,
Basle, and Schaffhausen ; and Schwyz, Uri, and Unterwalden claimed to
be immediate vassals of the Emperor, as these cities were. The Counts
of Habsburg, in despite of this claim, sought to reduce them to submission
to themselves. The result was a long struggle in which the three littL
cantons, at first joined only by their neighbor canton, Lucerne, but after-
wards by Zurich, Glarus, Zug, and Berne, were eventually completely
victorious. By the formation of this famous league of free cantons and
cities, at first known as the " Old League of High Germany," but ulti-
mately as Switzerland (the land of Schwyz), there emerged from the
German Empire one of the most interesting states known to history. It
may be said to have been the offspring of the disintegrating forces of the
Empire, a living proof of its incoherence.
THE GOVERNMENTS OF GERMANY. 443
Austria's Rival, Prussia. While Austria's power was on
the make a formidable rival had grown up in the north, out of
the North Mark established in the tenth century as the Empire's
barrier against the Wends. Men of energy and daring had
steadily pushed forward the eastern boundaries of the Mark until
it had become a great territory, the Mark Brandenburg. In the
fifteenth century the markgrafship fell into the hands of a race
more capable than the Habsburgs, the Hohenzollerns of Nurem-
berg. Under them it waxed greater yet alike in territory and in
organized power : took in Prussia, the district from which it
was to get its later name, and got ready for the role it was to
play in the seventeenth, eighteenth, and nineteenth centuries.
In 1640 Frederic William, the Great Elector (1640-1688), came
upon the stage, to make his power a determining element in
the politics of Europe. His son was Frederic, the first t king in
Prussia.'
Frederic the Great. Frederic, the first king of Prussia,
governed from 1688 to 1713. His son, Frederic William I.
(1713-1740), rounded out Brandenburg's possessions and hoarded
the money and prepared the army with which his son, Frederic
the Great (1740-1786), was to complete the greatness of Prussia.
Frederic took Silesia from Austria, and then, joining in the
heartless and scandalous partition of Poland in 1772, filled up the
gap between Brandenburg and East Prussia with West Prussia
and the Netze district. The second and third partitions of friend-
less Poland in 1793 and 1795 added to Prussia the district now
known as Posen and a part of East Prussia.
Prussia was at last ready for her final rivalry with Austria for
the leadership of Germany. But first there was to be the great
storm of the Napoleonic wars, which was to sweep away so much
that was old in German political arrangements, and create the
proper atmospheric conditions for German nationality.
Napoleon: the Confederacy of the Rhine. One of the
earliest acts of Napoleon in his contest with Austria and Prussia
was to isolate these two great German states by thrusting between
them a barrier of smaller German states attached to the French
interest. So little coherent was Germany, so little had the Em-
pire made of the Germans a single nation, that Napoleon was
444 THE GOVERNMENTS OF GERMANY.
able to detach from all alliance with either Austria or Prussia
every one of the German states except Brunswick and the elec-
torate of Hesse. Of these the chief were the kingdoms of Bavaria
and Wurttemberg and the grand-duchy of Baden. Napoleon
organized out of these allies the so-called 'Confederacy of the
Rhine,' of which he constituted himself ' Protector,' and which
lasted from 1806 till 1813.
The year 1806 had marked also the formal end of the
' Holy Koman Empire ' over which the Habsburgs had so long
presided. The eighteenth century had witnessed a notable de-
cline in their power; the sweeping conquests of Napoleon put
them at his mercy; and in 1806 Francis of Austria was forced to
abdicate and forever renounce the imperial office. There was no
more to be a German Empire till Prussia should draw one about
her, and Austria be once for all ousted from her place of leader-
ship in Germany.
The German Confederation (1815-1866). Despite the
ease with which he at first divided Germany in order to conquer
it, Napoleon discovered at last that he had himself aroused there
a national feeling which was to cast him out and ruin him. In
1813 Germany rose, the Confederacy of the Rhine went to pieces,
and all Napoleon's plans were undone. He had done Germany
the inestimable service of making her patriotic. The Congress
of Vienna, which met at the close of the Napoleonic wars to
recompose Europe, could not revivify the German Empire : that
had been dead for some time before Napoleon forced a winding
up of its affairs. But Germany was not to remain disintegrate.
The year 1815 witnessed the formation of a new union of the Ger-
man states, the German Confederation, which, loose as it seemed,
held them more closely together than they had been held for many
generations. Austria was the president of the Confederation.
The organ of government was a Diet of ambassadors from the
thirty-nine component states (kingdoms, duchies, cities, princi-
palities) authorized to mediate between the states in all matters
of common concern; and the Confederation maintained an army
of thirty thousand men. The arrangement was little enough like
national union : the large states had a preponderant representation
in the Diet, Austria dominating all ; and each state, whether great
THE GOVERNMENTS OF GERMANY. 445
or small, was suffered to go its own way, make its own alliances,
and fight its own wars, if only it refrained from injuring any one
of the Confederates or the interests of the Confederation. But
there was sufficient cohesion to keep the states together while
German national feeling grew, and while the political revolutions
of the century (1830 and 1848) liberalized political institutions.
Period of Constitutional Reform. By 1848 most of the
German states, except Prussia, granted constitutions to their
people. In the same year a ' German National Parliament ' met
at Frankfort (the seat of the Diet of the Confederation) and
attempted to formulate a plan for more perfect union under the
leadership of Prussia ; but its leaders proposed much more than
was possible, the time was not yet ripe, and the attempt failed.
Still earlier, in 1833, Prussia had led in the formation of a ' Cus-
toms Union' (Zollverein) between herself and all 1 the states of
the Confederation except Austria, which laid a free-trade basis for
those subsequent political arrangements from which also Austria
was to be excluded. In 1850 Prussia received from the hands of
her king the forms, at least, of a liberal government, with parlia-
mentary institutions.
The North German Confederation (1867-1871). Finally,
in 1866, came the open breach between Prussia and Austria.
The result was a six weeks' war in which Austria was completely
defeated and humiliated. The Confederation of 1815 fell to
pieces ; Prussia drew about her the Protestant states of Northern
Germany in a ' North German Confederation ' ; the middle states,
Bavaria, Wurttemberg, Baden, etc., held off for a while to them-
selves ; and Austria found herself finally excluded from German
political arrangements.
Austria out of Germany. Thereafter Austria, originally
predominantly German, devoted herself to the fruitless task of
amalgamating the various nationalities of Southeast Europe under
her hegemony, and so became in large part a non-German state.
Prussia became the head and front of Germany, in her stead.
Meantime Prussia has grown more than one-fifth in territory.
The rearrangement at Vienna in 1815 gave her Swedish Pom-
merania and the northern half of Saxony ; the war of 1866 gained
1 The Union did not at first include this ' all,' but it did eventually.
446 THE GOVERNMENTS OF GERMANY.
for her the possession of Schleswig-Holstein, Hannover, Hesse-
Cassel, Hesse-Nassau, and Frankfort.
The German Empire. The finishing impulse was given
to the new processes of union by the Franco-Prussian war of
1870-1871. Prussia's successes in that contest, won, as it seemed,
in the interest of German patriotism, broke the coldness of the
middle states towards their great northern neighbor ; they joined
the rest of Germany ; and the German Empire was formed
(Palace of Versailles, January 18, 1871).
GOVERNMENT OF THE EMPIRE.
Austria and Germany: Character of the German Empire.
When he ceased to be Emperor of the Holy Roman Empire
(1806), Francis I. still remained Emperor of Austria. He had
assumed that title in 1804 ; and there became in full form,
what there had long been in reality, an Austrian Empire. In
1871 there arose by its side a new German Empire, but the two
empires were thoroughly unlike one another. The Austrian
Empire, though wearing the form of a dual monarchy as Austria-
Hungary, was composed of the hereditary possessions of the
House of Habsburg; the German Empire, on the other hand,
was a federal state composed of four kingdoms, six grand-duchies,
five duchies, seven principalities, three free cities, and the im-
perial domain of Alsace-Lorraine, these lands being united in a
great ' corporation of public law ' under the hereditary presidency
of the king of Prussia as German Emperor.
The four kingdoms were Prussia, Bavaria, Saxony, and Wtlrt-
temberg ; the grand-duchies, Baden, Hesse, Mecklenburg-Schwerin,
Saxe-Weimar, Oldenburg, and Mecklenburg-Strelitz ; the duchies,
Brunswick, Saxe-Meiningen, Anhalt, Saxe-Coburg, and Saxe-Alten-
burg ; the principalities, Waldeck, Lippe, Schwarzburg-Kudolstadt,
Schwarzburg-Sondershausen, Eeuss-elder line, Schaumberg-Lippe,
and Reuss-younger line ; the free cities, Hamburg, Ltibeck, and
Bremen.
The Central German States and the Empire. The first
step towards the new union was taken in 1870, when Baden,
Bavaria, and Wurttemberg, fearing that the object of Napoleon
THE GOVERNMENTS OF GERMANY. 447
III. was to conquer the central German states or renew the Con-
federation of the Rhine, decisively espoused the side of Prussia
and the North German Confederation. While the siege of Paris
was in progress these three states sent delegates to King William
at Versailles and formally united themselves with their northern
compatriots : the North German Confederation became the Ger-
man Confederation, with King William as president. Almost
immediately, thereafter, the influences of the time carried the Con-
federates a step farther : the president-king was crowned Emperor,
and the German Confederation became the German Empire. 1
The Character of the Empire. These changes of mem-
bership and of title did not, however, change the character or, at
first, the constitution of the union. It remained a federal state,
and the king of Prussia was still its president only ; he was not
its monarch. Its make-up and powers were not radically altered.
Prussia, indeed, was very great : in territory nearly three times
as large as all the other states of the union put together, her
population three-fifths that of all Germany ; and the king of
Prussia had other means of mastery than those afforded by the
law. But as Emperor he occupied not an hereditary throne, but
only an hereditary office. Sovereignty did not reside in him,
but " in the union of German federal princes and the free cities."
He was the chief officer of a great political corporation, whose
object it was to " form an eternal union for the protection of the
realm and the care of the welfare of the German people."
The Emperor. Still his constitutional prerogatives were
of the most eminent kind. He was irresponsible : he could not be
removed, his office belonging inalienably to the throne of Prussia.
He summoned, opened, adjourned, and closed the two Houses
of the federal legislature, the Bundesrat and the Reichstag, the
latter of which he could also, with the consent of the Bundesrat,
dissolve. He appointed, and might at his pleasure remove, the
Imperial Chancellor, who was both the vital centre of all impe-
rial administration and the chairman of the Bundesrat ; and he
appointed also, under the countersignature of the Chancellor, all
minor officers of the imperial service, whom, with a like coopera-
tion of the Chancellor, he might also dismiss. He controlled the
1 The constitution of the Empire bears date April 16, 1871.
448 THE GOVERNMENTS OF GERMANY.
foreign affairs of the Empire and commanded its vast military
forces ; and in this latter capacity, of commander-in-chief of the
imperial army, it rested with him, acting at the suggestion of the
Bundesrat) to coerce into obedience such states of the Empire
as might at any time wilfully and pertinaciously neglect to fulfil
their federal duties. He had, in brief, to the fullest extent, both
the executive and the representative functions now characteristic
of the head of a powerful constitutional state. There were dis-
tinct limits to his power as Emperor, limits which marked and
emphasized the federal character of the Empire ; but those limits
nevertheless lay abundantly wide apart. Adding, as he did, to
his powers as hereditary president of the Empire his command-
ing privileges as king of Prussia and, as king of Prussia, the
dominant member of the Union, he possessed no slight claim to
be regarded as the most powerful ruler of our time.
Sovereignty of the Empire in Legislation. So complete,
so unlike that of a mere confederation, was the union of German
states that the sovereign legislative power of the Empire was
almost unlimited. The constitution could be amended by the
federal legislature ; amendment might change all the existing
allotments of power as between the federal and the state govern-
ments ; powers reserved to the states could, except in one or two
instances in which they were explicitly guaranteed, be withdrawn
from them without their consent. The individual states virtually
retained their general rights " only by sufferance of the Empire." 1
Amendments of the constitution were not submitted either to the
people or to the governments of the states : nor were they passed
by any special or peculiar procedure, as in France (p. 401). They
were originated and acted upon as ordinary laws would be. The
only limitations put upon their passage were, first, that fourteen
negative votes in the Bundesrat would defeat a proposed amend-
ment, and, second, that no state could be deprived of any right
guaranteed to it by the constitution, without its own consent.
From the first the legislative power of the Empire covered the
entire field of the law of contracts, of commercial law, and of
criminal law ; and by an amendment of December 20, 1873, it was
1 Laband, Das Staatsrecht des deutschen Belches (Marquardsen's Hand-
buck^ p. 22.
THE GOVERNMENTS OF GERMANY. 449
extended to the whole field of civil law as well. For some time
it did not exercise its power over the whole domain of these great
subjects, but it later enacted, besides full codes of commercial and
criminal law, an exhaustive civil code which brought practically all
of private law under the statutes of the imperial government.
The Bundesrat : its Composition and Character. The
central and characteristic organ of the Empire was the Bundesrat,
the Federal Council, which was alike in make-up and function,
the lineal successor of the Diet of the older Confederation. In
form, in theory, and indeed in fact, the Bundesrat was a body of
ambassadors. Its members represented the governments of the
states from which they came, and were accredited to the Emperor
as diplomatic agents, plenipotentiary charges d'affaires, to whom
he must extend the same protection that was extended to the like
representatives of foreign states. It was a fundamental conception
of the German constitution that " the body of German sovereigns
together with the senates of the three free cities, considered as a
unit, tanquam unum corpus, is the repository of imperial
sovereignty " ; l and the Bundesrat was the organ of this body.
It was therefore the organ through which the sovereignty of the
Empire was expressed. The Emperor did not exercise sovereignty :
he only shared it as king of Prussia, so far as the Empire was con-
cerned, and took part in its exercise only through the Prussian
members of the Bundesrat. It followed, of course, from this prin-
ciple that the members of the Bundesrat were only the agents of
their governments, and acted under instructions from them, making
regular reports of the proceedings of the Bundesrat to their home
administrations. The votes of a state were valid, whether cast by
its representatives in accordance with their instructions or not ;
but the delegates were responsible for every breach of instructions
to their home authorities. In practice they were generally them-
selves members of the governments they represented, entrusted
also with high administrative functions at home, and represent-
ing their governments in the local legislative bodies of their own
states, as well as in the Bundesrat. The Bundesrat was thus
used, as it was intended to be, and as it was used under the some-
what looser forms of the earlier Confederation, as a body of con^
1 Laband, p. 40.
450 THE GOVERNMENTS OF GERMANY.
sultation and guidance, a larger sort of imperial cabinet, in which
the responsible ministers of the several states drew together to
determine all questions of general interest, whether they affected
the making or the administration of the laws.
Representation of the States in the Bundesrat. The
states of the Empire were unequally represented, according to
their size. Prussia had seventeen votes ; Bavaria six ; Saxony
and Wiirttemberg four each ; Baden, Hesse and Alsace-Lorraine, 1
each three ; Mecklenburg-Schwerin and Brunswick each two ;
the other seventeen states one apiece. The votes of each state
which was entitled to more than one vote were cast together as a
unit, and each such state could cast her full vote whether or not
it had its full number of representatives present.
Members were sent and withdrawn at the pleasure of their
respective governments, like the responsible agents they were ;
and their constant responsibility made formal instruction as to
their votes upon particular measures for the most part un-
necessary. The smaller states found the duty of maintaining
representatives at times very onerous ; and, inasmuch as it was
not required by law that their delegates should be chosen from
among their own citizens, it became a common practice for them
to serve economy and their own convenience by combining to
maintain joint representatives. Groups of them combined, and
each group delegated its powers to a single person, who was
authorized to represent them severally.
The significance of the constitutional provision that amend-
ments to the constitution could not pass even if there be fourteen
negative votes cast in the Bundesrat is quite evident. A com-
bination of the small states could in theory defeat any organic
change of law proposed by the large states ; and Prussia alone
could bar any amendment to which she was opposed. The seven-
teen votes of Prussia on the one side and the seventeen votes of
the small states on the other might be said, were there any real
offset to the power of Prussia, to have constituted the central
balance of the system, but the control by Prussia of the four
additional votes destroyed even the semblance of a balance.
1 The one vote of Waldeck was permanently in the hands of the King of
Prussia and the three votes of Alsace-Lorraine were controlled by Prussia.
THE GOVERNMENTS OF GERMANY. 451
Functions of the Bundesrat. The Bundesrat occupied a
position in the German system in some respects not unlike that
which the Roman Senate held in the government of Rome. It
was, so to say, the residuary legatee of the constitution.' All
functions not speciiically entrusted to any other constitutional
authority remained with it, and no power was in principle
foreign to its jurisdiction. It had a composite character, and
was the presiding organ of the Empire. It was at one and the
same time an administrative, a legislative, and a judicial body.
In its legislative capacity, it presided over the whole course of
lawmaking. The Reichstag had the right to originate measures,
but, as a matter of practice, originated very few. Most bills first
passed the Bundesrat and went with its sanction to the Reichstag.
If passed by the people's house, they were returned to the
Bundesrat, and there once more adopted. All the more im-
portant legislation, moreover, was framed by the imperial officials
and presented to the Bundesrat by the Chancellor, who was not
only president of the federal chamber but also chief of the
Prussian delegation. Prussia, therefore, in reality presided over
the process of legislation. Hers was the chief initiative ; and the
federal chamber, in which she controlled twenty-one votes, was
the usual source of every great measure. The Reichstag had, of
course, the right of amendment, and sometimes exercised it ; but
nothing that it suggested could become law without the assent of
the guiding and overseeing Bundesrat. The consent of the
Bundesrat, as well as of the Reichstag, was necessary to every
treaty which affected any matter that fell within the legislative
powers of the Empire.
The measures sent down from the Bundesrat to the Reichstag
were generally advocated there, if not by the chancellor himself,
by members of the federal chamber specially delegated for that
purpose; and the Reichstag was usually kept advised of the
amendments which the Bundesrat would accept. All members
of the Bundesrat had, however, the right to be present in the
Reichstag, and to express the views of their governments upon
its floor concerning pending legislation, even when the views
were not those which had been accepted by the majority in the
Bundesrat.
452 THE GOVERNMENTS OF GERMANY.
The administrative function of the federal chamber may be
summed up in the word oversight. It considered all defects or
needs which discovered themselves in the administrative arrange-
ments of the Empire in the course of the execution of the laws,
and might, in all cases where that duty had not been otherwise be-
stowed, formulate the necessary regulation to cure such defects
and meet such needs. It had, moreover, a voice in the choice of
some of the most important officers of the imperial service. It
nominated or elected the members of the Court of Accounts, of
the Supreme Court of the Empire (Reichsgericht), and of the
' Chamber of Discipline,' as well as the officials who administered
the imperial pension funds, and those who constituted the direc-
tory of the Imperial Bank. It confirmed the nomination, also,
either directly or through one of its committees, of consuls and
of the officers who exercise the imperial control over the duties
and taxes laid by the states under laws of the Empire. The con-
sent of the Bundesrat was also necessary to a declaration of war l
(except in case of invasion, when the Emperor could act alone),
to a dissolution of the Reichstag during a legislative period, and
to coercive action against a state of the Empire.
The judicial functions of the Bundesrat sprang in part out of
its character as the chief administrative council of the Empire.
When acting as such a council, many of its conclusions partook
of the nature of decisions of a supreme administrative court of
appeal. But its jurisdiction as a court was much wider than ques-
tions of administration. It could declare a state of the Empire
delinquent, and order execution to issue against it. It was the
court of highest instance in every case of the denial of justice to
an individual in a state court arising out of a defect or deficiency
in the law of the state ; it being within its competence in such a
case to compel the state to cure the deficiency and afford the
suitor the proper remedy. It was the court of appeal in all cases
of dispute between the imperial government and a state, and in
all cases arising between two or more states of the Empire which
involved not mere private law questions (such cases go to the or-
dinary civil courts), but points of public law.
1 That this power was illusory is shown by the declaration of war in 1914
when the Bundesrat was not in session.
THE GOVERNMENTS OF GERMANY. 453
In case it could not agree upon a conclusion in such disputes, the
whole legislative power was brought into play and a law was passed
covering the matter in controversy. If in any case it considered it-
self unfitted by its organization, or for any other reason, to act
as a court in controversies brought before it, it might delegate its
judicial powers to a court or to experts. This it did in 1877 with
reference to the dispute between Prussia and Saxony concerning
the Berlin-Dresden railway. l
Organization of the Bundesrat. The Imperial Chan-
cellor was chairman of the Bundesrat. He was appointed by the
king of Prussia, and he must also be one of Prussia's seventeen
representatives, for it is the better opinion among German con-
stitutional lawyers that the Chancellor's membership in the federa 1
chamber was necessary to his presidency of the body. In case of
a tie vote, the Chancellor's vote was decisive: that is to say, the
side on which Prussia's votes were cast prevailed, for her vote must
be undivided : the Chancellor's vote was not his own, but was
one-seventeenth part of Prussia's whole vote.
Inasmuch as it was not merely the legislative but also the ad-
ministrative organ of the Empire, the Bundesrat might be convened
without the Reichstag. It must be called together if one-third of
its members demanded a session. Its business, moreover, was
continuous from session to session, being taken up at each session
where it was left off at the last : an arrangement by which it gained
both efficiency and expedition in action. Its sessions were secret :
for it preserved the reserve of a guiding cabinet. Its compro-
mises and quarrels did not go abroad.
Imperial law made no provision with regard to a quorum in the
Bundesrat. It is believed by German jurists, however, that its
business could go forward, after proper notice, if only the Chan-
cellor, its president, were present. No state could cast its vote
upon any question in which it was not interested.
Committees. The Bundesrat followed the practice of other
deliberative bodies in referring various matters to special com-
mittees of its members. It had, too, like other bodies, r certain stand-
ing committees. These were four : one on Alsace-Lorraine, one on
the Constitution, one on the Order of Business, and one on Kail-
road Freight Rates
J Laband, p. 43, n.
454 THE GOVERNMENTS OF GERMANY.
Much more important than these, however, were eight delega-
tions of its members which, though called committees, may be more
properly described as Commissions, for, like the executive commit-
tee of our own Congress under the old Confederation (p. 288), they
continued to sit during the recesses of the chamber which they in
a sense represented. Of these Commissions two were appointed by
the Emperor, namely a Commission " for the Land Forces and
Fortifications " and a Commission " for Naval Affairs " : five were
chosen yearly by the Bundesrat, namely, those "on Tariffs and
Taxation," "for Trade and Commerce," "for Railways, Posts,
and Telegraphs," " on Justice," and " on Accounts " (Eechnungs-
weseri)-, the eighth and most important, the "Commission on
Foreign Affairs," consisted of the representatives of Bavaria,
Saxony, and Wiirttemberg, and of two other members chosen by
the Bundesrat. At least five states must be represented on each
of these Commissions, and Prussia must always be one of the five,
except in the case of the Commission on Foreign Affairs. On this
last Prussia needed no representation ; she had committed to her,
through her king who is also Emperor, the whole conduct of the
foreign affairs of the Empire; the Commission was appointed
simply to watch the course of international relations, and to inform
the several states of the posture of foreign affairs from time to
time. " It has to prepare no conclusion for the Bundesrat and to
make no reports to it : it serves to receive communications concern-
ing the foreign affairs of the Empire and to exchange opinions with
the imperial administration concerning " those affairs. 1 Its action
was thus independent of its connection with the Bundesrat; and
this is the chief point of contrast between it and the other Com-
missions. Their duties were principally to the Bundesrat : they
for the most part only made reports to it.
Besides their right to representation on the Commission on
Foreign Affairs, of which Bavaria had the presidency, Wurttem-
berg, Bavaria, and Saxony had also the right to appointments on
the Commissions for Land Forces and Fortifications and for Naval
Affairs which it was the privilege of the Emperor to name.
Prussia was entitled to the presidency of all the Commissions ex-
cept that on Foreign Affairs. Each state represented had one
iLaband, p. 46.
THE GOVERNMENTS OF GERMANY. 455
vote in the action of a Commission, and a simple majority
controlled.
The Reichstag : its Character and Competence. It would
lead to very serious misconceptions to regard the Bundesrat and
the Reichstag as simply the two houses of the imperial legislature,
unlike each other only in some such way as our Senate and House
of Representatives are unlike, only, i. e., because the upper house
was differently constituted and was entrusted with a certain share
in functions not legislative. Properly conceived, the Bundesrat
and Reichstag stood upon a very different footing with reference
to each other. The Bundesrat was the sovereign organ of the
Empire, the authoritative representative of the " body of German
sovereigns and the senates of the free cities." Though it in-
itiated most of the legislation of the Empire, legislation was no
more peculiarly its business than was the superintendence of ad-
ministration or the exercise of judicial functions. It, as part of
the administration, governed ; the Reichstag, as representing the
German people, was supposed to control. The control of the
Reichstag was exercised, not only through its participation in
legislation, but also through the giving or withholding of its sanc-
tion to certain ordinances to whose validity the constitution made
its concurrence necessary ; through its power of refusing to pass
the necessary laws for the execution of treaties of which it does
not approve ; through its right to inquire into the conduct of
affairs ; and through its right of remonstrance. Its powers were
not enumerated ; they were, exercised in one .form or another,
in theory as wide as the activities of the Empire. The legislative
competence of the Empire was, after 1873, legally unlimited as to
private law: it covered the whole field of civil and criminal
enactment.
Composition of the Reichstag. The Reichstag represented,
not the states, or the people of the several states regarded sepa-
rately, but the whole German people. Representation was dis-
tributed on the basis of about one representative to every one
hundred and thirty-one thousand inhabitants. Representatives
were, however, elected by districts, one for each district, and no
district could cross a state line and include territory lying in more
than one state. If, therefore, any state of the Empire had less
456 THE GOVERNMENTS OF GERMANY.
than one hundred and thirty-one thousand inhabitants, it must,
nevertheless, be constituted a district and send a representative to
the Reichstag.
The Reichstag consisted (1917) of three hundred and ninety-
seven members ; and of this number Prussia returned two hundred
and thirty-five, about three-fifths of the whole number. The elec-
toral districts were fixed so long ago that Berlin, though it had
grown to possess more than two million inhabitants, had only six
members in the Reichstag.
The members of the Reichstag were elected for a term of five
years by universal suffrage and secret ballot. The voting age in
Germany was twenty-five years ; and that was also the earliest
age of eligibility to the Reichstag.
The election districts were determined in the northern states according
to laws passed under the North German Confederation ; in Bavaria, by the
Bavarian legislature ; in the other southern states, by the Bundesrat. The
subdivisions of the districts, the voting precincts, were determined by the
administrations of the states.
An absolute majority was required for election, as in France (p. 152).
In case no candidate received such a majority, the commissioner of election
an officer appointed by the state administration for each district
ordered a new election to take place within fourteen days after the official
publication of the result of the first, the voting to be for the two candi-
dates who received the highest number of votes. Should this second elec-
tion result in a tie, the lot decided.
Election to the Reichstag took place, not on days set by statute,
but on days appointed by executive decree. For the Reichstag
could be dissolved by the Emperor, with the consent of the Bund-
esrat (by a vote in which Prussia concurred) before the completion
of its regular term of five years.
In case of a dissolution, it was required that a new election
must be ordered within sixty days, and the Reichstag must re-
assemble within ninety days. The Emperor could also adjourn
the Reichstag without its own consent (or, in English phrase, pro-
rogue it) once during any session, for not more than thirty days.
Sessions of the Reichstag. The Reichstag met at the call
of the Emperor, who must call it together at least once each year ;
and who might convene it oftener. He must summon at the same
time the Bundesrat. The sessions of the Reichstag were public j it
THE GOVERNMENTS OF GERMANY. 457
was not within its choice to make them private. A private session
was regarded as, legally, only a private conference of the members
of the Reichstag, and could have no public authority whatever.
Members of the Reichstag who accepted a salaried office under the
Empire or one of the states, or an imperial or state office of higher rank
or power than any they may have held when elected, were compelled to
resign and offer themselves for reelection.
Organization of the Reichstag. The Reichstag elected its
own president, vice-presidents (2), and secretaries. For the
facilitation of its business, it divided itself by lot, for the session,
into seven ' Sections ' (Abteilungeri), each Section being made to
contain, as nearly as might be, the same number of members as
each of the others. These Sections divided among them the work
of verifying the election of members and the choice of special
committees. The Reichstag had no standing committees ; but
from time to time, as convenience suggested, temporary commit-
tees were named, whose duty it was to prepare information for the
body, which they presented in reports of a general nature. These
committees it was which the Sections selected. Each Section con-
tributed its quota of members to each committee. The party
leaders, however, always determined beforehand the division of
places on the Committees and the Sections merely did their will
in the matter. Government bills, moreover, were not referred to
the committees. They played no such part in revision as is played
by the committees of the French Chamber of Deputies. One-half
of the members constituted a quorum.; and an absolute majority
was requisite to a valid vote.
Election of Officers. The initial constitution of a newly
elected Reichstag was interesting. It came to order under the
presidency of the oldest member ; it then elected its president,
two vice-presidents, and secretaries ; the president and vice-
presidents for a term of only four weeks. At the end of these
four weeks a president and vice-presidents were elected for the
rest of the session. There was no election of officers for the
whole legislative term, as in England and the United States : at
the opening of each annual session a new election took place. It
was only at the first, however, that there was a, so to say, ex-
perimental election for a trial term of four weeks.
458 THE GOVERNMENTS OF GERMANY.
Powers of the Reichstag : the Budget. The Bundesrat,
as I have said, governed ; the Reichstag in a measure controlled.
But only in a measure. Its assent was necessary to the validity
of all legislation. Though the Bundesrat originated, it could not
rule in the field of law without the cooperation of the popular
chamber. Like other popular assemblies, too, the Reichstag
voted the taxes and subjected the government to criticism
when it asked for money. But the annual budget came to it like
other subjects of legislation, from the Bundesrat, and with the
sanction of that great chamber already behind it ; many of the
principal revenue laws were not annual but permanent ; the army,
for whose maintenance the larger votes were asked, was organized
for periods of several years together and must be paid ; and there
was really very little latitude of choice with regard to any but
new or subordinate expenditures. No minister was responsible to
the Reichstag for what he did or proposed. The Emperor might
dissolve the Reichstag at any time, if the Bundesrat consented,
and he frequently exercised the power with the result of obtain-
ing in the new elections the majority he desired. The Reichstag
might influence affairs, might win slow victories by persistent and
well-directed criticism, might force modifications of policy ; but it
was constantly made to realize the fact that it could not govern,
and that its chief function was not origination but control. 1
Classes and Parties. The majority of its members, more-
over, were Prussians, and Prussia was above all things else a mili-
tary state, trained to the compact order and instinctive obedience
of a strong monarchy. Classes, too, were sharply marked in Prus-
sia. An active and influential landed aristocracy furnished the
army with its best officers, the court with its most devoted servants,
the public assemblies with their most conservative leaders. The
parties that desired democratic privilege worked against ancient
prestige, against the habit of the community, against the organi-
zation and the prejudices of long-established classes. National
parties, moreover, were broken athwart by the divergent feelings
and variant interests of the different states of the unequal Em-
pire. Prussia supported the monarchy whose power galled the
1 On at least two occasions unfavorable votes upon the resolution after inter-
pellation had no effect upon the government.
THE GOVERNMENTS OF GERMANY. 459
lesser states ; her statesmen withstood the process of liberaliza-
tion which men of some of the smaller states would fain have
seen pressed forward. Neither responsible party government nor
any kind of clear-cut constitutional rule was possible.
Imperial Administration. While the distinction between
the executive and legislative functions of government was sharply
enough preserved in Germany, no equally clear discrimination was
made in practice between executive and judicial functions. The
judiciary was a branch of the administration. The caption ' Im-
perial Administration' covered, therefore, all activities of the
government of the Empire which were not legislative.
Although it was a fundamental principle of the imperial con-
stitution that ' the Empire has sovereign legislative power, the
states only autonomy,' the Empire occupied only a part of the
great field thus opened to it, and confined itself as a rule to mere
oversight, leaving to the states even the execution of imperial
laws. The judges of all but the supreme imperial court, for
instance, the tariff officials and gangers, the coast officers, and the
district military authorities, were state officers.
The Imperial Chancellor. The Empire had, neverthe-
less, its own distinct administrative organs, through which it
took, whether through oversight simply or as a direct execu-
tive, a most important and quite controlling part in affairs ; and
the head and centre of its administration was the Imperial Chan-
cellor, an officer who has no counterpart in any other constitu-
tional government.
(1) Looked at from one point of view, the Chancellor may be said
to have been the Emperor's responsible self. If one could clearly
grasp the idea of a responsible constitutional monarch standing be-
side an irresponsible constitutional monarch from whom his au-
thority was derived, he would have conceived the real, though not
the theoretical, character of the Imperial Chancellor of Germany.
He was the Emperor's responsible proxy. Appointed by the
Emperor and removable at his pleasure, he was still, while he re-
tained his office, virtually supreme head of the state, standing be-
tween the Emperor and the Reichstag, as the butt of all criticism
and the object of all punishment. He was not a responsible
minister in the English or French sense (pages 160 and 196) ; there
460 THE GOVERNMENTS OF GERMANY.
was, strictly speaking, no ' parliamentary responsibility ' in Ger-
many. In many respects, it is true, the Chancellor occupied
with regard to the Reichstag much the same position that a
French or English ministry holds towards the representatives of
the people ; he must give an account of the administration to
them, when a debate was forced upon him. But an adverse vote
did not unseat him. His 'responsibility' did not consist in a
liability to be forced to resign, but consisted simply in amena-
bility to the laws. He did not represent the majority in the
Reichstag, but he must obey the law.
This 'responsibility' of the Chancellor's, so far as it went,
shielded, not the Emperor only, but also all other ministers.
" The constitution of the Empire knows only a single administra-
tive chief, the Imperial Chancellor." l So all-inclusive was the
representative character of the chancellorship that all powers not
specifically delegated to others rested with the Chancellor. Thus,
except when a special envoy was appointed for the purpose, he
conducted all negotiations with foreign powers. He was also
charged with facilitating the necessary intercourse between the
Bundesrat and the Reichstag.
The Chancellor's relation to the Reichstag was typified in his
duty of submitting to it the annual budget of the Empire.
(2) Still further examined, the chancellorship is found to
have been the centre, not only, but also the source of all depart-
ments of the administration. Theoretically at least the chancel-
lorship was the administration : the various departments were
offshoots from it, differentiations within its all-embracing sphere.
In the official classification adopted in German commentaries on
the public law of the Empire, the Chancellor constituted a class
by himself. 2 There were (1) The Imperial Chancellor, (2) Ad-
ministrative officials, (3) Independent (i.e., separate) financial
officials, and (4) Judicial officials. The Chancellor dominated the
entire imperial service,
(3) A third aspect of the Chancellor's abounding authority was
his superintendency of the administration of the laws of the
Empire by the states. With regard to the large number of
imperial laws which were given into the hands of the several
i Laband, p. 57. 2 Laband, p. 56.
THE GOVERNMENTS OF GERMANY. 461
states to be administered, the Empire could not only command what
was to be done, but might also prescribe the way in which it should
be done : and it was the duty of the Chancellor to superintend
the states in their performance of such behests. In doing this he
did not, however, deal directly with the administrative officials of
the states, but with the state governments to whom those officials
were responsible. In case of conflict between the Chancellor and
the government of a state, the Bundesrat decided.
The expenses of this administration of federal laws by the states fel^
upon the treasuries of the states themselves, not upon the treasury of the
Empire. Such outlays on the part of the states constituted a part of
their contribution to the support of the imperial government. The
states were required to make regular reports to the imperial government
concerning their conduct of imperial administration.
(4) When acting in the capacity of chairman of the Bundesrat,
the Chancellor was simply a Prussian, not an imperial, official.
He represented there, not the Emperor, for the Emperor as Em-
peror had no place in the Bundesrat, but the king of Prussia.
During most of the time since the institution of the Empire the
Chancellor was also chief minister of Prussia as president of the
Council. Theories aside, the Prussian government guided im-
perial affairs through the Chancellor.
The Vice-Chancellorship. The laws of the Empire made
a double provision for the appointment of substitutes for the
Chancellor. As already said, in connection with his presidency
of the Bundesrat he could himself appoint a substitute, for whose
acts he was, however, responsible. In addition to this a law of
March 17, 1878, empowered the Emperor to appoint a responsible
Vice-Chancellor. This appointment was made, upon the motion
of the Chancellor himself, for the administration of all or any
part of his duties, when he was himself hindered, even by an
overweight of business, from acting; the Chancellor himself
judging of the necessity for the appointment. The Chancellor
might, at any time, too, resume any duties that might have been
entrusted to the Vice-Chancellor, and himself act as usual. He
was thus, in effect, ultimately responsible in every case, even
for the non-exercise of his office. The vice-chancellorship was
only a convenience.
462 THE GOVERNMENTS OF GERMANY.
Foreign Affairs. The full jurisdiction over the foreign
affairs of the Empire conferred upon the imperial government by
the constitution of the Empire did not exclude the several states
from having their own independent dealings with foreign courts :
it only confined them in such dealings to matters which concerned
them without immediately affecting imperial interests. The
subject of extradition, for instance, of the furtherance of science
and art, of the personal relations and private affairs of dynasties,
and all matters which affect the interests of private citizens indi-
vidually, were left to be arranged, if the states desired, inde-
pendently of the imperial Foreign Office. The states, therefore,
had as full a right to send ambassadors for their own constitutional
purposes as the Empire had to send ambassadors for its greater
objects affecting the peace and good government of Europe. It
might thus often happen that the Empire and several of the states
of the Empire were at the same time separately represented at
one and the same court. In the absence of special representatives
from the states, their separate interests were usually cared for by
the representative of the Empire. The department of the impe-
rial administration which had charge of the international rela-
tions of the Empire was known as the Foreign Office simply (das
Auswdrtige Ami).
Internal Affairs. The general rule of government in
Germany was that administration was left for the most part to
the states, only a general superintendence being exercised by
the imperial authorities. But the legislative sphere of the
Empire was very much wider than is the legislative sphere of
the central government in any other federal state. Imperial
statutes prescribed in very great variety the laws which the states
administered, and constantly extended farther and farther their
lines of prescription. From the Empire emanated not only laws
which it was of the utmost moment to have uniform, such as
laws of marriage and divorce, but also laws of settlement, poor
laws, laws with reference to insurance, and even veterinary regu-
lations. Its superintendence of the local state administration of
imperial laws, moreover, was of a very active and systematic sort.
Weights and Measures. Imperial methods of supervision are
well illustrated in the matter of weights and measures. The laws with
THE GOVERNMENTS OF GERMANY. 463
reference to the standard weights and measures to be used in commerce
were passed by the imperial legislature and administered by state officials
acting under the direction and in the pay of the state authorities ; but
thorough control of these state officials was exercised from Berlin. There
was at the capital a thoroughly organized Weights and Measures Bureau
(Normal-Eichungskojnmission) , which supplied standard weights and
measures, superintended all the technical business connected with the
department, aud was in constant and direct association with the state offi-
cials concerned, to whom it issued from time to time specific instructions.
Money. With regard to money the control of the Em-
pire was, as might be expected, more direct. The states were for-
bidden to issue paper money, and imperial legislation alone
determined money-issue and coinage. But even here the states
were the agents of the Empire in administration. Coining was
entrusted to state mints, the metal to be coined being distributed
equally among them. This, however, was not really state coinage.
The state mints were the mere agents of the imperial government :
they coined only so much as they were commanded to coin ; they
operated under the immediate supervision of imperial commis-
sioners ; and the costs of their work were paid out of the imperial
treasury. They were state mints only in this, that their officers
and employees were upon the rolls, not of the imperial, but
of the state civil service. The Empire would doubtless have
had mints of its own had these not already existed ready to
its hand.
Railways. The Empire made comparatively little use of
the extensive powers granted it in this field by its constitution.
It could virtually control ; but it in practice only oversaw and
advised. The Imperial Railway Office (Reichs-Eisenbahnami)
had advisory rather than authoritative functions ; its principal
supervisory purpose was to keep the various roads safe and ade-
quately equipped. Some railways the Empire itself owned, but
most of the lines were owned by the several states ; and the
states were bound by the constitution to administer them, not in-
dependently or antagonistically, but as parts of a general German
system. Here again the Empire refrained from passing any laws
compelling obedience to the constitution on this point ; possibly
because the states assiduously complied of their own accord.
464 THE GOVERNMENTS OF GERMANY.
Using the Bundesrat for informal conference on the matter
(though the Bundesrat has no constitutional authority in railway
administration) they effected satisfactory cooperative arrange-
ments.
The railways of Bavaria stood upon a special footing: for
Bavaria came into the federation on special te/ms, reserving an
independence much greater than the other states retained in the
management of her army, her railways, and her posts and tele-
graphs.
For military purposes, the Empire could command the services
of the railways very absolutely. It was as aids to military ad-
ministration primarily that their proper construction and efficient
equipment were insisted on through the Imperial Kail way Office.
Even the Bavarian railroads could be absolutely controlled when
declared by formal imperial legislative action to be of military
importance to the Empire. With reference to any but the Bava-
rian roads a simple resolution of the Bundesrat alone sufficed for
this declaration.
The duty of the states to administer their roads as parts of a
single system was held to involve the running of a sufficient num-
ber of trains to meet all the necessities of passenger and freight
traffic, the running of through coaches, the maintenance of proper
connections, the affording of full accommodations, etc.
At times of scarcity or crisis, the Emperor could, with the ad-
vice of the Bundesrat, prescribe low tariffs, within certain limits,
for the transportation of certain kinds of provisions.
Posts and Telegraphs. Here the administrative arrange-
ments of the Empire were somewhat complicated. Bavaria and
Wiirttemberg retained their own systems and a semi-independence
in their administration, just as Bavaria did with regard to her
railways also ; being subject to only so much of imperial regula-
tion as brought their postal and telegraphic services into a neces-
sary uniformity with those of the Empire at large. In most of
the states the imperial authorities directly administered these
services ; in a few Saxony, Saxe-Altenburg, the two Mecklen-
burgs, Brunswick, and Baden there was a sort of partnership
between the states and the Empire. The principle throughout
was, however, that the Empire controlled.
THE GOVERNMENTS OF GERMANY. 465
Patents, etc. Besides the administrative activities with refer-
ence to internal affairs which have been mentioned, the Empire issued
patents, granted warrants to sea-captains, naval engineers, steersmen, and
pilots ; and examined sea-going vessels with a view to testing their sea-
worthiness.
Military and Naval Affairs. The Empire as such had
a navy, but no troops. Prussia was the only state of the Empire
that ever maintained a naval force, and she freely resigned to
the Empire, which she virtually controls, the exclusive direction
of naval affairs. But the case was different, in form at least,
with the army. That was composed of contingents raised, equipped,
drilled, and, in all but the highest commands, officered by fhe
states. This at least was the constitutional arrangement : the
actual arrangement was different. Only Bavaria, Saxony, and
\\ iirttemberg really maintained separate military administra-
tions. The other states handed over their military prerogatives
to the king of Prussia. Bavaria's privileges extended even to
the appointment of the commander of her contingent. The Em-
peror was commander-in-chief , however, appointing all the higher
field officers ; and the imperial rules as to the recruitment, equip-
ment, discipline, and training of troops and as to the qualifications
and relative grading of officers were of the most minute kind and
were imperative with regard to all states alike.
Finance. The expenses of the Empire were met partly
from imperial revenues, and partly from contributions by the
states. The Empire levied no direct taxes ; its revenues came
principally from customs duties and excises, certain stamp taxes,
the profits of the postal and telegraph system, of imperial rail-
ways, of the imperial bank, and like sources. So far as these did
not suffice, the states assisted, being assessed according to popu-
lation. And here, again, the states undertook mueh of the actual
work of administration : the customs officials, for example, being
state officers acting under imperial supervision. The financial
bureaux, like all other branches of the imperial government, were
immediately subordinated to the Imperial Chancellor.
Justice. In the administration of justice, as in so many
other undertakings of government, the Empire superintended,
merely, and systematized. The state courts were also courts of
466 THE GOVERNMENTS OF GERMANY.
the Empire : imperial law prescribed for them a uniform organi-
zation and uniform modes of procedure : and at the head of the
system stood the Imperial Court (Reichsgericht) at Leipzig, cre-
ated in 1877 as the supreme court of appeal. The state govern-
ments appointed the judges of the state courts and determined
the judicial districts ; but imperial laws fixed the qualifications
to be required of the judges, as well as the organization that the
courts should have. The decisions of the court at Leipzig gave
uniformity to the system of law.
Citizenship. Every citizen of a state of the Empire
was a citizen of the Empire also and enjoyed the rights and im-
munities of a citizen in every part of the Empire ; but citizenship,
though rooted in the states by way of locus, was conferred only
upon terms fixed by federal law. The Empire determined in
nearly all respects this fundamental question of civil status; and
every citizen was thereby made the more directly and immediately
a citizen of the Empire. It remained, nevertheless, the theory
of the relationship that citizenship was primarily state citizen-
ship and that citizenship of the Empire flowed out of citizenship
of the state. A law of the Empire of 1913 provided that a Ger-
man, becoming naturalized in another country, might neverthe-
less retain his German citizenship. The oath of allegiance to his
adopted country was not to hinder him from being still a loyal
subject of the Eatherland.
THE GOVERNMENT OF PRUSSIA.
The organization of government in Prussia had, for the student
of German political institutions, a double interest and importance.
In the first place, Prussia's king was Germany's Emperor ; Prus-
sia was the presiding and controlling state of the Empire ; and
many of her executive bureaux were used as administrative agen-
cies of the Empire. Her government was in a very real sense
an organ and representative of the imperial government. In the
second place, Prussia's administrative system served as a type
of the highest development of local government in Germany.
Stages of Administrative Development. Until the time
when she emerged from the long period of her development as
the Mark Brandenburg and took her place among the great mili-
THE GOVERNMENTS OF GERMANY. 467
tary states of Europe, Prussia's administrative organization was
of a very crude sort, not much advanced beyond the mediaeval
pattern. Later, under the Great Elector and his immediate suc-
cessors, though well out of her early habits, she was still little
more than a mere military state, and her administration, though
more highly developed, had almost no thought for anything but
the army. Only since the close of the Napoleonic wars has her
system of government become a type of centralized civil order
Process of Centralization. The Great Elector reduced
the feudal Estates of the Mark to complete subjection to his
will. He it was, also, who began the policy by which local
affairs as well were to be centralized. In the towns the pro-
cess was simple enough. In them there was little effective ob-
struction : the channels were already open. There the military
authorities, directly representative of the Elector, had all along
dictated in police and kindred matters ; direct ordinances of the
Elector, moreover, regulated taxation and the finances, and even
modified municipal privileges at pleasure. It did not take long,
such being the system already established, to make burgomasters
creatures of the royal will, or to put effective restrictions upon
municipal functions.
In the provinces, however, it was quite another matter
to crush out local privilege. The Prussia of the Great Elector
and his successors was no longer the Mark Brandenburg, but the
extended Prussia of conquest. There were many Estates to deal
with in the several principalities of the kingdom; and these
Estates, exercising long-established prerogatives, very stubbornly
contested every step with the central power. They were the
channels through which the sovereign's will had at first to
operate upon provincial government, and they were by no means
open channels. They insisted, for a long time with considerable
success, that the chief officers of the provinces should be nomi-
nated by themselves ; and they nominated natives, men of their
own number. Only by slow and insidious processes did the
Elector, or his successors the kings of Prussia, make out of these
representative provincial officials subservient royal servants.
First Results of Centralization. The system pursued in
the process of centralization, so far as there was any system,
468 THE 'GOVERNMENTS OF GERMANY.
was a system by which central control was grafted upon the old
growths of local government derived from the Middle Ages. The
result was of course full of complexities and compromises. In
the vast royal domains bailiffs administered justice and police, as
did Schulzen in the manorial villages. In the larger rural areas
a Landrath, or sheriff, " nominated by the county nobility, usu-
ally from among their own number, and appointed by the king,"
saw to the preservation of order, to the raising of the levies, to
tax collection, and to purveyance. In the towns there was a
double administration. Magistrates of the towns' own choosing
retained certain narrow local powers, constantly subject to be
interfered with by the central authority; but royal tax-commis-
sioners, charged with excise and police, were the real rulers.
Above this local organization, as an organ of superintendence,
there was in each province a 'Chamber for War and Domains/
which supervised alike the Landrath and the city tax-commis-
sioners.
A War and Domains Chamber consisted of a president, a " director
or vice-president, and a number of councillors proportioned to the size,
populousness, or wealth of the province." The president of a chamber
was " expected to make periodical tours of inspection throughout the
province, as the Landraths did throughout their counties." In the
despatch of business by a Chamber, the councillors were assigned special
districts, special kinds of revenue, or particular public improvements for
their superintendence or administration, the whole board supervising,
auditing, etc. 1
Justice and Finance. Much progress towards centraliza-
tion was also made by the organization of justice and finance.
" The administration of justice was in the hands of boards, the
Regierungen, or governments, on the one hand [the whole organi-
zation of administration in Prussia being characteristically col-
legiate], and the courts on the other."
In finance also there was promise of systematization.
During the period preceding the Napoleonic wars, when Prussia
figured as a purely military state, the chief concern of the central
government was the maintenance and development of the army.
The chief source of revenue was the royal domains : the chief
1 Tuttle, History of Prussia, Vol. III., pp. 107-109.
THE GOVERNMENTS OF GERMANY. 469
need for revenue arose out of the undertakings of war. 1 There
were, therefore, at the seat of government two specially promi-
nent departments of administration, the one known as the 'Gen-
eral War Commissariat,' and having charge of the army, the
other known as the 'General Finance Directory/ commissioned
to get the best possible returns from the domains; and here and
there throughout the provinces there were 'War Commissariats '
and 'Domains Chambers ' which were the local branches of the
two great central departments. 2 These two departments and
their provincial ramifications were, however, instead of being
coordinated, kept quite distinct from each other, clashing and
interfering in their activities rather than cooperating.
Fusion of Departments of War and Domains. Such at
least was the system under the Great Elector and his immediate
successor, Frederic I., if system that can be called which was
without either unity or coherence. Frederic William I. united
War and Domains under a single central board, to be known as
the 'General Supreme Financial Directory for War and Domains,'
and brought the local war and domains boards together in the
provinces as Chambers for War and Domains. Under this ar-
rangement the various * war councillors ' who served the provin-
cial Chambers were charged with a miscellany of functions.
Besides the duties which they exercised in immediate connection
with military administration, they were excise and police com-
missioners, and exercised in the cities many of the civil functions
which had formerly belonged to other direct representatives of
the Crown. In the rural districts the Chambers were served in
civil matters by the several Landrdthe.
Differentiation of Central Bureaux. This arrangement
speedily proved as cumbrous as the name of its central organ, and
an internal differentiation set in. The General Directory sepa-
rated into Committees; and, as time went on, these committees
began to assume the character of distinct Ministries, though
upon a very haphazard system. Frederic the Great further con-
fused the system by creating special departments immediately
1 The ariny consumed about five-sevenths of the entire revenue.
2 Seeley, Life and Times of Stein, Vol. L, Chap. II. Also Tuttle, Vol. I.,
pp. 421, 422.
470 THE GOVERNMENTS OF GERMANY.
dependent upon himself and a special cabinet of advisers having
no connection with the General Directory. He was himself the
only cohesive element in the administration: it held together
because clasped entire within his hand.
Reforms of Stein and Hardenberg. Order was at last
introduced into the system through the influence of Baron vom
Stein and the executive capacity of Count Hardenberg, the two
most eminent ministers of Frederic William III., who together
may be said to have created the present central administration
of Prussia. Prussia owes to the genius of Stein, indeed, the
main features of both her central and her local organization.
Her central organization is largely the direct work of his hands;
and her local organization derives its principles from his thought
not only, but also from the provisions of the Ordinance by
which he reconstructed the administration of the towns.
Reform of Local Government before 1872. The county
law (Kreisordnung) of the 13 December, 1872, has been called
the Magna Charta of Prussian local government. Upon it all
later changes and modifications rest. Between the period of
Stein's reforms and the legislation of 1872 the organization of
local government was substantially as follows : l The provinces
were divided into ' Government Districts,' as afterwards, the Gov-
ernment Districts into ' Circles ' or Counties. An administrative
Board established in the Government District was then, as after-
wards, the vital organ of local administration. In the province
there was also a board, exercising general supervisory powers, the
eye of the central bureaux in the larger affairs of administration,
the affairs, that is, which extended beyond the area of a single
Government District ; and, as the chief officer of the province, a
' Superior President' of influential position and function. But
alongside of this quite modern machinery stood the old provincial
Estates (revived in 1853), representing, not the people, but the
social orders of a bygone age, and possessing certain shadowy
powers of giving advice. In the ' Circle ' or County, there was
still the Landrathj as formerly, appointed from a list of local
1 See R. B. D. Morier's essay on Local Government in Germany, in the
volume of Cobden Club Essays for 1875.
THE GOYKHN.MENTS OF GERMANY. 471
landed proprietors, and associated with the ' Estates of the Circle/
a body composed of the county squires and a few elected repre-
sentatives from the towns and the rural townships, a body of
antiquated pattern recalled to life, like the Estates of the prov-
ince, in 1853. In the towns, which had directly received the
imprint of Stein's reforming energy and sagacity, administration
was conducted by boards of magistrates chosen by popular coun-
cils and associated with those councils in all executive business
by means of a joint-committee organization, the burgomasters
being presidents rather than chief magistrates.
Landgemeinde and Manors. Besides these areas of adminis-
tration there were rural communes (Landgemeinde) still connected, quite
after the feudal fashion, with adjacent or circumjacent manors, their gov-
ernment vested in a Schulze and two or more Schoffen (sheriffs or justices),
the former being appointed either by the lord of the manor, or, if the
village was a free village, as sometimes happened, by the owner of some
ancient freehold within the commune with which manorial rights had
somehow passed. The commune had, besides, either a primary or an
elective assembly. The communes were often allowed, under the super-
vision of the official board of the Government District, to draw up charters
for themselves, embodying their particular local laws and privileges.
Within the manors police powers, poor-relief, the maintenance of roads,
etc., rested with the proprietor. Local government was within their
borders private government.
Reform of 1872. The legislation of 1872 took the final
steps towards getting rid of such pieces as remained of the anti-
quated system. It abolished the hereditary jurisdiction of the
manor and the dependent office of Schulze, and established in
place of the feudal status an equal citizenship of residence. In
place of the Estates of the province and county it put real repre-
sentative bodies. It retained the Land-rath, but somewhat cur-
tailed his powers in the smaller areas within the Circle, and
associated with him an effective administrative board, of which
he became little more than president. It carried out more
thoroughly than before in the various areas the principle of
board direction, integrating the lesser with the greater boards,
and thus giving to the smaller areas organic connection with
the larger. It reformed also the system of local taxation.
472 THE GOVERNMENTS OF GERMANY.
It is upon this legislation that the system of local government
later obtaining in Prussia was erected. 1
The Central Executive Departments. Stein's scheme for
the development of the central organs of administration brought
into existence five distinct ministries, which no longer masquer-
aded as committees of a cumbrous General Directory, and whose
functions were distributed entirely upon a basis of logical distinc-
tion, not at all upon any additional idea of territorial distribution.
These were a Ministry of Foreign Affairs, a Ministry of the
Interior, a Ministry of Justice, a Ministry of Finance, and a
Ministry of War. This, however, proved to be by no means a
final differentiation. The Ministry of the Interior was at first
given a too miscellaneous collection of functions, and there split
off from it in 1817 a Ministry of Ecclesiastical, Educational, and
Sanitary Affairs, and in 1848 a Ministry of Trade, Commerce, and
Public Works and a Ministry of Agriculture. In 1878 a still
further differentiation took place. The Ministry of Finance, re-
taining distinct reminiscence of its origin in the administration
of the royal domains, had hitherto maintained a Department of
Domains and Forests. That department was in 1878 transferred
to the Ministry of Agriculture. At the same time the Ministry
of Trade, Commerce, and Public Works was divided into two, a
Ministry of Trade and Commerce and a Ministry of Public
Works.
There were, then, nine ministries : (1) a Ministry of Foreign
Affairs (Stein, 1808); (2) a Ministry of the Interior (1808);
(3) a Ministry of Ecclesiastical, Educational, and Sanitary Affairs
(1817) ; (4) a Ministry of Trade and Commerce (1848) ; (5) a
Ministry of Agriculture (1848), Domains, and Forests (1878) ;
(6) a Ministry of Public Works (1878) ; (7) a Ministry of Justice
(1808) ; (8) a Ministry of Finance (1808) ; and (9) a Ministry of
War (1808).
The Council of State. Most of these ministries were
created before Prussia had any parliamentary system, and when,
consequently, there was no instrumentality in existence through
which there could be exercised any legislative control over the
executive. Stein would have revived for the exercise of some
i Morier, p. 434.
THE GOVERNMENTS OF GERMANY. 473
such function the ancient Council of State (Staatsrath) founded
by Joachim Friedrich in 1604, which had at first presided over
all administration but whose prerogatives of oversight and
control had gradually decayed and disappeared. This council,
which bore a general family resemblance to the English Privy
Council, had a mixed membership made up in part of princes of
the blood royal, in part of certain civil, military, and judicial
officials serving ex officio, and in part of state officials specially
and occasionally summoned. It was Stein's purpose to rehabili-
tate this body, which was in a sense representative of the classes
standing nearest to government and therefore presumably best
qualified to test methods, and to set it to oversee the work of the
ministers : to serve as a frame of unity in the administration
without withdrawing from the ministers their separate responsi-
bility and freedom of movement. This part of his plan was not,
however, carried out, and the Council of State, though still exist-
ing, a shadow of its former self, never regained its one-time
prominence in administration.
Staatsministerium. Instead of adopting Stein's plan,
Count Hardenberg integrated the several ministries by establish-
ing the Ministry of State, or College of Ministers (Staatsminis-
terium)) which stood in much the same relation to Prussian
administration that the French Council of Ministers (page 157)
occupies towards administration in France, though it in some
respects resembled also the French Council of State (page 173).
It was composed of the heads of the several ministries and met,
once a week or oftener, for the consideration of all matters which
concerned all the executive departments alike, to discuss proposed
general laws or constitutional amendments, to adjust conflicts
between departments, to hear reports from the ministers as to
their policy in the prosecution of their separate work, to exercise
a certain oversight over local administration, to concert measures
to meet any civil exigency that might arise, etc. It served to
give unity and coherence to administration.
The Supreme Chamber of Accounts. The same purpose
was served by the Supreme Chamber of Accounts (Oberrechnungs-
Jcammer) and by the Economic Council (Volkswirthschaftsrath).
The Supreme Chamber of Accounts was founded in 1714 by
474 THE GOVERNMENTS OF GERMANY.
Frederic William I. Its members had the tenure and responsi-
bility of judges. Its president was appointed by the Crown on the
nomination of the Ministry of State ; its other members were ap-
pointed by the Crown upon the nomination of its president,
countersigned by the president of the Ministry of State. It con-
stituted a distinct branch of the government, being subordinate,
not to the Ministry of State, but directly responsible to the Crown.
Its duty was the careful oversight and revision of the accounts of
income and expenditure from all departments ; and the oversight
of the state debt and of the acquisition and disposition of prop-
erty by the state. It watched, in brief, the detailed adminis-
tration of the finances, and was the judicial guardian of the laws
concerning revenue and disbursement.
The Economic Council. The Economic Council considered
proposals for laws or ordinances affecting weighty economic in-
terests which fell within the domains of the three ministries of
Trade and Commerce, of Public Works, and of Agriculture. Such
proposals, as well as the proposals for the repeal of such laws
and ordinances, might be submitted to its debate before going to
the king for his approval. It was also privileged to consider the
question how Prussia's votes should be cast upon such matters in
the Bundesrat. Of course, however, its part in affairs was merely
consultative. It was composed of seventy-five members appointed
by the king for a term of five years, forty-five of this number
being appointed upon the nomination of various chambers of com-
merce, mercantile corporations, and agricultural unions.
The Ministers in the Legislature. The king or, more
properly, the Administration was represented in the legislative
houses by the ministers, who need not be members in order to
attend and speak on the public business.
The Landtag : the House of Lords. The Prussian Land-
tag, or Legislature, consisted of two houses, a House of Lords
(Herrenhaus) and a House of Representatives (Abgeordnetenhaus).
The House of Lords might better be described as a house of classes.
It contained not only hereditary members who represented rights
of blood, but also life members who represented landed properties
and great institutions, and officials who represented the civil hier-
archy. There sat in it princes of the blood royal nominated to
THE GOVERNMENTS OF GERMANY. 475
membership by the king ; the heads of families once royal whose
domains had been swallowed up by Prussia ; certain greater noble-
men appointed by the Crown, together with eight others elected by
the resident landowners of the provinces ; the four chief officials
of the province of Prussia (the Supreme Burggraf, the High Mar-
shal, the Grand Master of the Teutonic Order, and the Chan-
cellor) ; and a great number of life members appointed by the
king upon the presentation of various bodies : certain evangelical
foundations, namely, certain colleges of counts, and of land-
holders of great and ancient possession, the nine universities,
and forty-three cities which received the right of nomination.
The king could, besides, issue special summons to sit in the
House of Lords to such persons as he thought worthy. There
was no limit placed upon the number of members, the only
restriction concerned age : members must be at least thirty
years old. The number of members was about 300. Of these
quite one-third were of the landed nobility, and almost as many
more were the nominees of the landed classes ; so that the House
stood for the loyalty to the Crown and opposition to liberal
change.
The House of Representatives. Though in a sense repre-
senting every Prussian twenty-five years of age who was not
specially disqualified to vote, it was not constituted by a direct
popular franchise, or even by an equal suffrage. The vote was in-
direct and was proportioned to taxable property. The country
was divided into districts ; the qualified voters of each district
were divided into three classes in such a way that each class
should represent one-third of the taxable property of the district ;
each of these classes selected by vote a third of the number of
electors to which the district was entitled ; and the electors so
chosen elected the members of the House of Representatives.
The Electoral System. One elector was chosen for every
two hundred and fifty inhabitants ; the voting was not by the
ballot, but was public, and an absolute majority of the electors was
required to elect. The total number of members of the House
was 443. The term was five years. Any Prussian who was thirty
years of age and in full possession of civil rights might be chosen.
In case a vacancy occurred in the House, no choice of electors
476 THE GOVERNMENTS OF GERMANY.
was necessary. Once chosen, the electors were competent to act
throughout the legislative term.
It need hardly to be remarked that the division of the primary
voters into classes according to the amount of taxes they pay gave
a preponderance to wealth. The three classes were of course very
unequal in numbers. It required a comparatively small number
of rich men to represent one-third of the taxable property in a
district ; it took a considerably larger number of the well-to-do
to represent another third ; and the last third was represented by
the great majority of the inhabitants of the district. For the
classes were not constituted with a view to distributing the small
taxpayers and equalizing the classes numerically. Those who
paid most taxes constituted the first class ; those who paid less,
the second ; those who paid least or none, the third ; and it might
thus very well happen that a very small number of persons
elected a third of the electors.
Equality and Competence of the House. The consent
of both Houses was necessary to the passage of a law, and they
stood upon a perfect equality as regards also the right of initiative
in legislation, except that all financial measures must originate
in the lower house, and that the upper house could pass upon the
budget, which must be presented first to the House of Represent-
atives, only as a whole. The Lords could not amend the budget
in part : they must accept or reject it entire.
The King' s Power of Adjournment and Dissolution. The king
could adjourn the House of Representatives for a period not exceeding
thirty days, once during any one session without its consent. He could
also dissolve it. When a dissolution was resorted to he must order a new
election within sixty days, and the newly elected House must assemble
within ninety days. (Compare p. 155.)
Local Government. The organization of local govern-
ment in Prussia is [rendered complex by a mixture of historical
and systematic elements : it is compounded of old and new, of
the creations of history and the creations of Stein and Gneist.
Stein's hand is even more visible in local organization in Prussia
than in the organization of the central ministries. More conserva-
tive than the Constituent Assembly and Napoleon in France, he
did not sweep away the old provinces of Prussia, whose bounda-
Tl IK GOVERNMENTS OF GERMANY. 477
, like those of the French provinces of the old regime, were
set deep in historical associations. The twelve provinces were
given a place, a function of superintendence, in the new sys.
tern established. The country was, indeed, divided into Districts
(Bezirke) corresponding in general character and purpose with
the French Departments ; but these Districts were grouped under
a superintendent provincial organization. There were, therefore,
in Prussian local organization (1) the Province, (2) the Govern-
ment District, (3) the Circle (Kreis) or County, and (4) the town-
ship and the town. The township and the town were coordinate,
standing in the same rank of the series.
The usual organs of local government throughout all the series
of the Prussian system were u first, a representative body with
an exclusive control over the economic portion of the communal
business ; secondly, an executive board with an exclusive con-
trol over the public portion of the communal business ; thirdly,
mixed committees, composed of members of both bodies, for the
ordinary management of the affairs of the community ; fourthly,
the division of the communal area into administrative districts
under overseers responsible to the executive board." l
The Province. There were in the Province two sets of
governmental organs : one of which represented the state and its
oversight, the other the Province and its self-government.
(1) The state is represented by a Superior President^ and a Pro-
vinzialrat associated with him. The original purpose in retain-
ing the provincial organization was to secure broad views of
administration through officials charged with the oversight of
extended areas and so elevated above the near-sightedness of local
routine and detail. Nearer to the particulars of local adminis-
tration than the minister at Berlin, but not so near as the officials
of the Government Districts, the provincial representatives of
the state were charged with the care " of all such affairs as concern
the entire province or stretch beyond the jurisdiction of a single
[district] administration." 2 These were such matters as affect
1 R. B. D. Morier, Cobden Club Essays (1876) on Local Government and
Taxation, p. 433.
2 Schulze, Das Staatsrecht des Konigreichs Preussen (in Marquardsen's
lliindhuch), p. 03.
478 THE GOVERNMENTS OF GERMANY.
imperial interests or the whole Prussian state ; the concerns of
public institutions whose functions extend beyond a District;
insurance companies ; extensive plans of improvement ; road and
school management, etc. In exercising most of these functions
the provincial authorities acted, however, not through officers of
their own, but through the District Administrations. There lay
with the Superior President, also, the duty of overseeing district
administration, the provincial tax directors, and the general
Commission for the regulation of the relations between landlords
and tenants. He represented the central government, too, in all
special, occasional duties, and under all extraordinary circum-
stances. He had, besides, initial jurisdiction in cases of conflict be-
tween District Administrations, or between such Administrations
and specially commissioned officials not subject to their orders.
The extraordinary powers of the ' Superior President ' are illustrated
by the fact that, in case of serious civil disturbance, of war or the danger
of war, he was authorized to assume the whole authority of administra-
tion, local as well as general, within the Province. In overseeing the
District Administration, however, he had no executive, but only advisory,
powers. He was merely the eye of the Ministries at Berlin, advising them
of all matters needing their action. Like the French Prefect, he was the
servant of all Ministries alike, though most directly and intimately asso-
ciated with the Ministry of the Interior. The defect of the provincial
organization in Prussia was said to be lack of vitality. Critics like Pro-
fessor Gneist thought that it rendered the system of local government
cumbrous without adding to its efficacy. It was too much restricted to
gratuitous advice, and too little authorized to take authoritative action.
The Provinzialrat, the administrative Council associated with the
Superior President, consisted, besides the President or his repre-
sentative as presiding officer, of one professional civil official of
high rank, appointed by the Minister of the Interior, practically
for life, and of five lay members chosen by the Provincial Committee
for a term of six years. The assent of the Provinzialrat was
necessary to every ordinance issued by the Superior President.
(2) The organs representing the Province and its self-gov-
ernment were the Provincial Landtag, the Provincial Committee,
and the Landeshauptmann or Landesdirektor. In a Prussian law
concerning local government the province is described as "a
communal union established with the rights of a corporation for
THE GOVERNMENTS OF GERMANY. 479
self-government of its own affairs." l The provincial legislative
body, the Landtag, was composed of representatives elected from
the Circles or Counties by the Diets of the Circles : for, when
looked at from the point of view of self-government, the Province
was a union of Circles, not of Districts : the Districts were organs
of the central government only. The functions of the Landtag
lay within the narrow field of such matters as the apportionment
of taxes among the Circles (which in their turn apportioned them
among individuals), the examination of the local budget, the care
of provincial property, and the election of certain officials,
though it was at liberty to take cognizance of anything that was
of local concern.
It might also, on occasion, give its opinion on bills concerning the
Province and on other matters referred to it, for an expression of opinion,
by the authorities at Berlin. The Superior President could be present at
its sessions and could annul all acts in which it overstepped its jurisdiction.
Its by-laws were subject to the Crown's approval, as were also many of its
votes of appropriation ; and the king might dissolve it.
The Landtag elected the Provincial Committee and the Landes-
hauptmann, who were the executive organs of provincial self-
government. The Landeshauptmann and the Committee stood
related to each other very much as do the Superior President and
Provinzialrat, or the French Prefect and the Pref ectural Council :
the Landeshauptmann was the executive, the Committee the ad-
visory organ of local self-administration, though it in effect
directed the action of the Landeshauptmann in most matters.
The spheres of the representatives of the state and of the
representatives of local self-government were quite sharply dis-
tinguished in Prussia. The Provincial Committee and the
Landeshauptmann had nothing to do with the general adminis-
tration : that was altogether in the hands of the Superior Presi-
dent and the Provinzialrat, who on their part had nothing to do
with local self-government. The sphere of local self-government,
though narrow, was somewhat more guarded against the constant
interference of the central authorities in Prussia than in France.
(Compare page 170.)
1 Schulze, Das Staatsrecht des Konigreichs Preussen (in Marquardsen's
Handbuch}, p. 85.
480 THE GOVERNMENTS OF GERMANY.
The Government District (Regierungsbezirk). Unlike the
Province, the Government District had no organs of self-gov-
ernment: it was exclusively a division of state administration.
Its functionaries were the principal, it may even be said the uni-
versal, agents of the central government in the detailed conduct
of administration : they were charged with the local management
of all affairs that fall within the sphere of the Ministries of the
Interior, of Finance, of Trade and Commerce, of Public Works,
of Agriculture, of Ecclesiastical and Educational Affairs, and of
War, exclusive, of course, of such matters as were exceptionally
entrusted to officers specially commissioned for the purpose. In
brief, they served every ministry except the Ministry of Justice.
Collectively the functionaries of the District were called the
' Administration ' (Regierung), and their action is for the most
part collegiate, i.e., through Boards. The exception to this rule
concerned matters falling within the province of the Ministry of
the Interior. That Ministry acted in the District, not through a
board of officials, but through a single official, the President of
the Administration (Regierungsprdsident). In dealing with all
other matters the action was collegiate ; but the Boards were not
independent bodies : they were divisions (Abteilungeri) of the
' Administration ' taken as a whole, and in certain affairs of gen-
eral superintendence the ' Administration ' acted as a single coun-
cil (im Plenum). Each Board was presided over by a ' Superior
Administrative Councillor ' (Oberregierungsrat) , and that on Do-
mains and Forests had associated with it a special functionary
known as the Forest-master. The members of the ' Administra-
tion ' were all appointed by the central government, which placed
upon the Boards whose functions require for their proper dis-
charge a special training, certain so-called " technical members " :
for instance, school experts, medical experts, road-engineers, and
technically instructed forest commissioners.
These ' Administrations ' took the place of the old-time War
and Domains Chambers, and which, like the Administrations,
acted through Boards as a sort of universal agency for all de-
partments of government. In 1883 the affairs of the Interior
were given into the sole charge of the President of the Adminis-
tration. Before that date they also were in the hands of a Board.
THE GOVERNMENTS OF GERMANY. 481
" Every head of a department, as well as every Rat and asses-
sor, is bound each year to make a tour through a portion of the
district, to keep an official journal of all he sees, to be afterwards
preserved amongst the records of the Board, and thus to make
himself practically acquainted with the daily life and the daily
wants of the governed in the smallest details." l (Compare page
468.)
The President of the Administration (Regierungsprasident) was
the most important official in the Prussian local service. Not
only did he preside over the ' Administration,' the general and
most important agency of local government ; he was also equipped
for complete dominance. He might, upon occasion, annul the
decisions of the ' Administration ' or of any of its Boards with
which he did not agree, and, in case delay seemed disadvantageous,
could himself command necessary measures. He could also, if he
would, set aside the rule of collegiate action and arrange for the
personal responsibility of the members of the ' Administration/
whenever he considered any matter too pressing to await the meet-
ing and conclusions of a Board, or, if when he was himself present
where action was needed, he regarded such an arrangement as
necesary. 2 In brief, he was the real governing head of local adminis-
tration. The jurisdiction of the ' Administration ' covered such
matters as the state taxes, the churches, the schools, and the
public domain.
The District Committee. Although the Government
District was not an area of self-government, a certain part in the
oversight of governmental action in the District was given to lay
representatives chosen by the provincial agents of the people.
A District Committee (Bezirksausschuss), composed of two pro-
fessional members (one of whom must be qualified for judicial
office, the other for the higher grades of the administrative
service) appointed by the king for life, and of four members
chosen by the Provincial Committee (page 479) for a term of
six years, was allowed an oversight of such matters as it were
thought best to put under lay supervision. The President of the
Administration was ex ojficio a member of the Committee and usu-
iMorier (Cobden Club Essays}, p. 422.
2 Schulze (in Marquardsen), p. 64.
482 THE GOVERNMENTS OF GERMANY.
ally presided over its sessions. All orders or arrangements which
he wished to make with regard to local police were subject to its
confirmation, and all questions regarding the control of subordi-
nate local authorities fell to it. More important than its admin-
istrative functions were the judicial functions with which it was
invested. Since 1883 the District Committee was the Adminis-
trative Court of the District (page 488). When acting in
this capacity the Committee was presided over by its judicial
member, and the President of the Administration did not sit with
it. The Government Districts numbered thirty-five, and were
grouped within the twelve Provinces.
The Circle (Kreis). In the Circle, as in the Province,
there emerged a double set of functions : there was the state admin-
istration and, alongside of it, the narrower function of self-gov-
ernment. This double set of functions was performed, however,
by a single set of functionaries : by a professional officer known as
the Landrat, associated with a Circle Committee (Kreisausschuss),
which acted by delegation for the Diet of the Circle (Kreistag),
the consultative and supervisory authority. There were not, as
in the Province, one council and one executive for the state,
another council and another executive for the locality.
The Landrat and the Circle Committee. The Landrat
stood upon a peculiar footing : his office was ancient and retained
some of its historical features. Originally the Landrat repre-
sented the landed gentry of various districts of Brandenburg ; he
was appointed upon their nomination and in a sense represented
their interests. In some parts of Prussia traces of this right of
presentation to the office by the landowners remained ; and in
almost all parts of the kingdom the privilege of nomination
was transferred to the Circle Diet, as heir of the control once
exercised by the local lords of the soil. The Landrat was, there-
fore, formally, the representative of the locality in which he
officiated. In reality, however, he was predominately the agent of
the state, serving both the District Administration and the de-
partments at Berlin. He was appointed by the Superior President
of the Province in which the Circle lay, and was always a profes-
sional officer who had passed, by examination, into the higher
grades of the civil service. He was chief of police within the
THE GOVERNMENTS OF GERMANY. 483
Circle, and superintendent of all public affairs. The Circle Com-
mittee was associated with him in the administration of his office
and organized under his presidency. It consisted, besides himself,
of six members chosen by the Circle Diet. It constituted the
Administrative Court of the Circle (page 488), hearing appeals
from the acts of subordinate officials as well as supervising ad-
ministrative action.
The Diet of the Circle represented, not the people, but groups
of interests, was based upon the economical and social re-
lations of the people. Each Circle included all towns lying
within it which had less than 25,000 inhabitants, and represen-
tation in the Diet was divided between town and country. The
country representation, in its turn, was divided between the rural
Communes and the greater landowners.
The cities elected representatives either singly or in groups ; if
singly, through their magistrates and councils acting together ; if
in groups, through electors who assembled under the Presidency
of the Landrat. As ' greater landowners ' were classed all those
who paid, in their own right, 75 thalers annual land or building
tax ; and these were organized for electoral purposes in Unions
(Verbdnde). The rural Communes elected in groups through
electors. The term of members of the Circle Diet was six years.
Cities having more than 25,000 inhabitants constituted separate
Circles, and combined in their town governments both Circle and
Commune under the forms of city government.
The Circle the Basis of Local Government. A moment's
review of the electoral arrangements which underlay Prussian
local government as outlined will show how literally the whole
structure, so far as it was a system of self-government, rested
upon the electoral organization of the Circle. The Diet of the
Circle was the only representative body I have yet named which
was chosen by the qualified voters of the locality : and it was not
chosen directly. The larger towns elected their quota of members
through their councils, while the smaller towns united and chose
through electors. The rural communes elected in groups, through
electors. The greater landowners sent their separate quota. And
then from the Circle Diet, when once it was chosen, proceeded, in-
directly, all the other lay bodies of administration in the larger
484 THE GOVERNMENTS OF GERMANY.
areas. It nominated the Landrat, elected the Circle Committee,
and united with the Diets of the other Circles of the Province
in choosing the provincial Landtag. The provincial Landtag, in
turn, elected the Landeshauptmann and the Provincial Committee.
The Provincial Committee elected five out of the seven members
of the Provinzialrat and four out of the six members of the
District Committee. Each Provincial Committee chose, on an
average, two District Committees. It was in only a very re-
stricted sense a system of popular control in local affairs. It was
a long way from the people to the District Committee.
The Magisterial District (Amtsbezirk). The rural Com-
munes were grouped in Magisterial Districts containing each
about fifteen hundred inhabitants ; and each District was presided
over by a Reeve or Justice (Amtsvorsteher or Amtsmann) who was
appointed by the king upon the nomination of the Circle Diet,
usually from among the landowners of the locality. The Reeve's
term was six years. He was given charge of the police of the
District, and was entrusted with the administration of the laws
for the relief of the poor and the preservation of health. As
police commissioner he was put over the mayors of the several
Communes within his district. He acted under the supervision
of the Committee of the Circle.
The Rural Commune (Landgemeinde). The larger rural
Communes acted through small representative assemblies or
councils, while the less populous regulated their affairs by mass
meeting. In some Communes the executive officer was known as
' mayor/. in others as ' village judge/ in still others as ' president.'
In most localities he was assisted by one or more aids or assessors.
The electoral privilege was based upon the three-class system of
voting already described, except that those who paid no taxes
at all were usually excluded from the franchise. The powers of
the Communes covered all matters of strictly local interest.
The City Communes (Stadtgemeinde). Among the City
Communes there was great variety of organization. In some cities
there was a single executive, a single Burgomaster, perhaps
assisted by certain Boards ; in others the Burgomaster had col-
leagues ; in still others the magistracy was collegiate, was itself a
Board. In all there were councils more or less directly represent-
THE GOVERNMENTS OF GERMANY. 485
ative of the people. In the cities, as in every other unit of local
administration, the subjects of finance, police, and the military
were largely controlled from Berlin ; and in these branches of
administration the city governments were agencies of the central
government. They thus had a double character ; they were at
one and the same time representatives of the authorities at the
capital and of the citizens at home. When acting as agencies of
state administration they were, of course, responsible to the
central Departments at Berlin.
General Principles of Prussian Town Government. Al-
though without uniformity of structure, town government in
Prussia had certain uniformities of principle at its basis. The
mayor of a Prussian city was a trained official, taken from the
professional service ; but he was not the Executive ; he was simply
president of the executive. There was associated with him a
board of Aldermen most of whose members were elected from the
general body of citizens, to serve without salary, but an important
minority of whose members were salaried officials who, like the
mayor, had received a thorough technical training in their various
branches of administration, and whose tenure of office was in effect
permanent : and this board of Aldermen was the centre of energy
and rule in city government. But it acted under check. A town
council represented the citizens in the exercise of a control over
the city budget, and citizens not of the Council as well as Coun-
cilmen acted with the Aldermen in the direction of executive busi-
ness. The Aldermen did their administrative work in Committees,
and acted always in association with certain delegations of town-
councilmen and certain ' select citizens ' named by the council.
In the wards of the larger towns the Aldermen commanded also
the assistance of local committees of citizens, by whom the condi-
tions and needs of the various districts of the town were familiarly
known. Thus in the work of poor relief, in the guardianship of
destitute orphans, in education, and in tax assessment 'select
citizens' commonly reinforced the more regular, the official, corps
of city officers. This literal self-government, which breaks down
the wall of distinction between the official and the non-official
guardian of city interests and presses all into the service of the
community, was not optional ; it was one of the principles of the
486 THE GOVERNMENTS OF GERMANY.
system that service as a ' select citizen ' was to be enforced by pen-
alties, by increasing the taxes of those who refused to serve.
The citizens chosen for ward work or for consultation with the
central committees of Aldermen and town-councillors included
merchants, physicians, solicitors, manufacturers, head-masters of
public schools, and like representative persons.
The three-class system of voting obtained also in all municipal
elections in Prussia, so that weight in the electoral control of city
affairs was proportioned to tax-assessment. One-third of the
elected Aldermen and town-councillors represented the wealthy
class, one-third the middle class, one-third the ' proletariat.' It
was said that in Berlin the first class contained " less than two
per cent of the voters, the second class less than thirteen per cent,
and the third eighty-six per cent. 57 The arrangement bred dis-
content in the lowest class and they largely refrained from voting.
The Administration of Justice. The Prussian courts of
justice, like those of the other states of the Empire, had the
general features of their organization and jurisdiction prescribed
by imperial law (p. 465). They were Prussia's courts ; but they
also served as courts of the Empire ; Prussian law commanded only
their personnel and their territorial competence. At the head of
the system sat the supreme court of the Empire (Reiclisgericlif),
to which the courts of all the other states stood subordinated. 1
In each Province there was a Superior District Court (Oberlandes-
gericht), and, next below it, a District Court (Landgericht). In
each magisterial District there was an Amtsgericht.
The Amtsgericht, which was the court of first instance in
minor civil cases, consisted of one or of several judges, according
to the amount of business there was for the court to despatch : for
when there was more than one judge the work was not handled by
them together, but separately ; it was divided, either logically or
territorially.
The higher courts, the District Court, and the Superior District
Court consisted each of a number of judges. At the beginning of
each year, the full bench of judges in each court determined a
division of the business of the court among themselves, constituting
1 Prussia is vouchsafed by imperial law the privilege of retaining her own
supreme court ; but she has not availed herself of the permission.
THE GOVERNMENTS OF GERMANY. 487
themselves in separate ' chambers ' for separate classes of cases.
There was always a ' civil chamber ' and a ' criminal chamber/ and
of ten a chamber for commercial cases (Kammerfiir Handel ssachen).
Each chamber had its own president and its own independent
organization.
Minor criminal cases were tried in sheriffs' courts (Schoffen-
gerichte) sitting in the Magisterial Districts ; more serious offences
by the criminal chamber of the District Court ; all grave crimes
by special jury-courts (Schwurgerichte) which, sat under the presi-
dency of three judges of the District Court.
An appeal from a sheriff's court on the merits of the case could
go no further than the District Court. Appeals on the merits of
the case from the criminal chamber of the District Court were
not allowed; but a case could be taken from that court to the
Superior District Court on the ground of neglect of a rule of law,
and on other legal grounds to the Imperial Court, for revision.
The nomination of all judges rested with the king : but the
appointment was for life and the judges stood in a position of
substantial independence. The Minister of Justice, however,
completely controlled all criminal prosecutions : for no criminal
prosecution could be instituted except by the states-attorneys who
represented the government in the several courts, and these held
their offices by no permanent tenure, but only at the pleasure of
the Minister.
Purity in the administration of justice was sought to be secured
by public oral proceedings. Until a very recent period all pro-
ceedings in the Prussian courts were written : the plea and the
answer constituted the suit. Later public oral proceedings were
made imperative.
The organization of justice in Prussia provided for the assump-
tion by the state of a certain ' voluntary ' jurisdiction, some of
which, such as the exercise of guardianship and the probate of
wills (which latter was made a function of the Amtsgericht) are
quite familiar to the practice of other countries; but others of
which, such as an oversight over certain feudal interests, are
somewhat novel in their character. The system knew also certain
officially commissioned Arbitrators (Schiedsmanner) and certain
trade judges, which were in some respects peculiar to itself.
488 THE GOVERNMENTS OF GERMANY.
Administrative Courts (Verwaltungsgerichte). The same
distinction between administrative and ordinary courts of justice
that we have observed in France obtained also in Prussia (page
173). Here again appeared the organizing hand of Stein. He
established for Prussia the principle that cases arising out of tjie
exercise of the state's sovereignty should be separated in adju-
dication from cases between private individuals and should be al-
lotted to special courts. Such were cases of damage done to an
individual through the act of an administrative officer, or cases of
alleged illegal action on the part of a public official, in brief, all
cases of conflict between the public power and private rights, as
well as all questions between administrative authorities.
The courts charged with this jurisdiction were, (1) in the
Circle, the Circle Committee (page 482), presided over, as in deal-
ing with other matters, by the Landrat, and in the cities which
themselves constitute Circles, the City Committee (Stadtausschuss),
consisting of the Burgomaster as president and four members,
all of whom must be qualified for judicial service or for the higher
grades of administrative office, elected by the magistracy of the
city, acting collegiately, for a term of six years. (2) In the
Government District, the District Committee (page 481), to whose
presidency when sitting in this capacity, the king could appoint,
as representative of the President of the Administration, one
of the members of the 'Administration' under the title of Di-
rector of the Administrative Court (Verwaltungsgerichtsdirektor).
(3) The Superior Administrative Court in Berlin (Oberverwaltungs-
gericht\ whose members were appointed by the king, with the con-
sent of the Council of Ministers, for life. This court stood upon
the same footing of rank with the supreme federal tribunal, the
Eeichsgericht. Its members were qualified, half of them for high
judicial, half for high administrative office. It acted, like the
other courts, in divisions or "senates," each of which had its
separate organization ; and these sections came together only for
the settlement of certain general questions.
The Court of Conflicts (Gerichtshof fur Kompetenz-kon-
jlilcte). Between the two jurisdictions, the ordinary or private
and the administrative, stood, as in France, a Court of Conflicts.
It consisted of eleven judges appointed for life (or for the term
THE GOVERNMENTS OF GERMANY. 489
of their chief office, in case they acted ex officio) ; and of these
eleven six were members of the Superior District Court of Berlin,
must belong, that is, to a court of the ordinary jurisdiction.
The other five were persons eligible to the higher judicial or
administrative offices. (Compare p. 174.)
The Prussian Courts and Constitutional Questions. The
Prussian courts had no such power of passing upon the constitutionality
of laws as is possessed by the courts of the United States. They could not
go beyond the simple question whether a law had been passed, or, in
administrative cases, an official order issued, in due legal form.
Revolution in Germany. At the time this is written
(December 1, 1918) all Germany is in a state of revolution. The
Emperor has abdicated and taken refuge in Holland and a pro-
visional government has been established with the Socialists in
control. Soldiers' and Workmen's Councils have been established
in numerous places and have assumed control of local affairs. In
all the monarchical states of the Empire, the rulers have abdi-
cated or have been deposed, and it appears that a democratic form
of government will be established both in the Empire and in the
individual states.
A general election in the Empire has been called for January,
1919 and upon the body then chosen will devolve the task of
formulating the new governmental arrangements.
This much may safely be predicted that the Empire will
lose Alsace-Lorraine and Prussia will lose that part of Poland
which it acquired through the partitions of the unhappy country.
SOME REPRESENTATIVE AUTHORITIES.
Ashley, Local and Central Government, London, 1906.
/>'///>/*, J. E., Modern Germany, new ed., London, 1912.
Binding, K., Die Rechtliche Stellung des Kaisers, Dresden, 1898.
Borgeaud, Ch., Adoption and Amendment of Constitutions, trans, by
C. D. Hazen and J. M. Vincent, N.Y., 1895.
Burgess, J. W., Political Science and Constitutional Law, 2 vols., N.Y.,
1891.
Dawson, W. H., Germany and the Germans, 2 vols., 8vo, London, 1894.
and The Evolution of Modern Germany, London, 1908.
490 THE GOVERNMENTS OF GERMANY.
Demoiribynes, G., Constitutions Europeennes, 2 vols., 8vo., Paris, 1883.
See Vol. II., pp. 487 and 733.
Dodd, W. F., Modern Constitutions, 2 vols., Chicago, 1909.
Dupriez, L., Les Ministres dans les principaux pays d'Europe et d'Ame-
rique, 2 vols., Paris, 1892.
Fleiner, F., Institutionen des deutschen Verwaltungsrecht, Tubingen,
1911.
Goodnow, F. J., Comparative Administrative Law, 2 vols., 8vo, N.Y.,
1893.
Grais, Graf Hue de, Handbuch der Verfassung und Verwaltung in
Preussen und im deutschen Reiche, 8th ed., Berlin, 1907.
Howard, B. E., The German Empire, N.Y., 1906.
James, E. J., The Federal Constitution of Germany (Translation),
Am. Acad. Social and Political Science, Phila., 1890.
Laband, Paul, Das Staatsrecht des deutschen Reiches, 4 vols., 4th ed.,
Tubingen, 1901. Also, under same title, a briefer commentary in
Marquardsen's Handbuch des Oeffentlichen Rechts der Gegenwart,
Freiburg in B., 1883.
Lowell, A. L., Governments and Parties in Continental Europe, 2 vols.,
Boston, 1896.
Mayer, O., Deutsches Verwaltungsrecht, Leipzig, 1895-1896.
Morier, R. B. D., in Cobden Club Essays on Local Government and
Taxation, 1875.
Munro, W. B., The Government of European Cities, N.Y., 1909.
Ogg, F. A., The Governments of Europe, N.Y., 1913.
JRonne, L. v., Das Staatsrecht des deutschen Reiches, 2d ed., Leipzig,
1876. Das Staatsrecht der preussischen Monarchic, 5 vols., 4th
ed., 1881-1883.
Sarwey, O. von, Allgemeines Verwaltungsrecht, in Marquardsen's Hand-
buch des Oeffentlichen Rechts der Gegenwart, Freiburg in B.,
1884, pp. 112-117.
Seeley, J. R., Life and Times of Stein. Part L, Chap. V. ; Part III.,
Chap. I. ; Part V., Chaps. II., III.
Schulz, Hermann, Das preussische Staatsrecht, auf Grundlage des
deutschen Staatsrechtes, 2 vols., Leipzig, 1872-1877. Das Staats-
recht des Konigreichs Preussen, in Marquardsen's Handbuch, Frei-
burg in B., 1884.
Stengel, K. von, Worterbuch des deutschen Verwaltungsrechts, 2 vols.,
Freiburg in B., 1889-1890.
Turner, Saml Epes, A Sketch of the Germanic Constitution, N.Y., 1889.
Zorn, P., Das Staatsrecht des deutschen Reiches, 2d ed., Berlin, 1895-
1897.
XIV.
THE GOVERNMENTS OF AUSTRIA-HUNGARY.
Austria's Historical Position. Until the middle of the
last century Austria stood at the front of German political
union ; not until 1866 was she deposed from leadership in Ger-
many and set apart to attempt alone the difficult task of amalga-
mating the polyglot dual monarchy of Austria-Hungary (page 445).
Acquisition of Hungary and Bohemia. It was unques-
tionably Austria's headship in the Empire which enabled the
Habsburg princes at once to broaden and to consolidate their
domain in the southeastern border-land between Slav and Teuton.
Their power and influence within the Empire gave them their
opportunity to control the destiny of border states like Bohemia
and Hungary, lying at Austria's doors. Both Hungary and
Bohemia fell to Habsburg in the same year, the year 1526, when
Ferdinand I. mounted their throne.
Bohemia. Bohemia was a Slavonic wedge thrust into
the side of Germany. Compassed about by hostile powers, it
was a prize to be fought for. Alternately conquered by several
neighboring kingdoms, it finally fell into German hands and
became an apanage of the Empire. It was as such that the Habs-
burgers seized it when its throne became vacant in consequence
of the extinction of a Luxemburg line of princes. In 1526 their
hold upon it became complete, and they were thenceforth able to
keep it secure as an hereditary possession within their family.
Moravia. Moravia also was and is Slavonic. Slavs early
drove out its Teutonic possessors, and were prevented from joining
the Slavs of the southeast in the formation of a vast Slavonic
kingdom only by the intervention of the Magyars, the conquerors
491
492 THE GOVERNMENTS OF AUSTRIA-HUNGARY
of Hungary. This dominant race in the tenth century thrust
themselves in between the Slavs of the northwest and those of
the southeast, and, driving back the Slavs of Moravia, reduced the
once ' Great Moravia ' to the dimensions of the present province.
Striven for by Hungary, by Poland, and by Bohemia, Moravia
finally met her natural fate in incorporation with Slavonic Bohe-
mia (1029), and passed, along with that kingdom, into Austrian
hands, in 1526.
Hungary. Hungary is the land of the Magyars, a Tura-
nian race which retains even to the present day its distinctive
Oriental features, habits, and bearing among the native European
races about it. After having suffered the common fortune of
being overrun by numerous barbaric hordes at the breaking up of
the Eoman Empire, the territory of Hungary became, in 889, the
realm of the Magyar duke Arpa*d, the Conqueror. In the year
1000 the duke Vaik, who had succeeded to the duchy in 997, re-
ceived at the hands of Pope Sylvester II. the title of ' apostolic
king ' of Hungary, and, under the name of Stephen, became the
first of a line of native monarchs which kept the throne until
1301. From 1301 till 1526 kings of various families and origins
won places upon the throne. During this period, too, Hungary
felt the full power of the Turk, since 1453 master of Constanti-
nople. The battle of Mohacs (29 August, 1526) brought terrible
overthrow upon the Hungarian forces at the hands of Soliman
the Magnificent, and death to Louis, the Hungarian king. Louis
was childless ; his widow, Maria, was sister to Ferdinand I. of
Austria ; and it was her influence which led the more powerful
party of nobles within the kingdom to elect the Habsburger to
the throne and so put Austria permanently in the Hungarian
saddle. Not, however, until 1665-1671, a period of insurrection
in Hungary, did the Habsburgers convert their elective into an
hereditary right to the throne.
Transylvania, Slavonia, Croatia. Transylvania, Slavonia,
and Croatia, annexed at various times to Hungary, passed with
Hungary to the house of Habsburg. Except during the period
1848 to 1867, the period during which Hungary was being disci-
plined for her revolt of 1848-1849, these provinces remained
apanages of Hungary, though Croatia occupied a distinctive
THE GOVERNMENTS OF AUSTRIA-HUNG A It V. 493
position, and was always accorded a representative of her own in
the Hungarian ministry. From 1848 to 1867 Transylvania,
Slavonia, and Croatia were treated as Austrian crown lands.
Galicia, Dalmatia. Galicia, a district much fought for
and often divided, but for some time attached to Poland, came to
Austria upon the first partition of Poland, in 1772. Dalmatia,
once part of ancient Illyria, afterwards a possession of Venice,
much coveted and sometimes held by Croatia and by Hungary,
came to Austria through the treaty of Campo Formio, in 1797.
Bosnia and Herzegovina. The Congress of Berlin, 1878,
which met to fix upon a basis for the new settlements resulting
from the victories of Russia over Turkey, added to Austria's
multifarious duties as ruler of many races the protectorate of
Bosnia and Herzegovina, districts inhabited by a Servian race and
long subject to Turkish dominion. They were annexed by Aus-
tria in 1908.
Austria-Hungary: Nature of the Union. The constitu-
tion of the Austro-Hungarian monarchy practically recognized
but two parties to the union, Austria and Hungary. Bohemia,
for all she had so much individuality and boasted so fine a
history of independence, was swallowed up in Austria : only the
Magyars of Hungary, among all the races of the heterogeneous
realm of the Habsburgers, obtained for the kingdom of their
making a standing of equality alongside of dominant Austria.
Variety of Race. The commanding difficulty of govern-
ment throughout the whole course of Austro-Hungarian politics
has been the variety of races embraced within the domain of the
monarchy. First and most prominent was the three-sided contrast
between German, Slav, and Magyar. Within this general clas-
sification, again, Slav differed from Slav by reason of many sharp
divergencies of history, of speech, and of religion ; and outside
this classification, there was added a miscellany of Italians, Croats,
Serbs, Rumanians, Jews, men of almost every race and people
of eastern Europe. This variety was emphasized by the fact that
only the Czechs (Bohemians), among all these peoples, had a
separate home land in which they were in the majority. In Bohe-
mia and Moravia the Czechs constituted considerably more than
half the population; whilst in Hungary the Magyars, though
494 THE GOVERNMENTS OF AUSTRIA-HUNGARY.
greatly outnumbering any other one element of the population,
were less than half the whole number of inhabitants ; and in Aus-
tria, though men of German blood were very greatly in the major-
ity in the central provinces which may be called Austria proper,
they constituted in Austria taken as a whole very little more than
one-third of the population.
Home Rule : Bohemia, Hungary. At least two among
these many races, moreover, were strenuously, restlessly, persist-
ently devoted to independence. No lapse of time, no defeat of
hopes, seemed sufficient to reconcile the Czechs of Bohemia to in-
corporation with Austria. Pride of race and the memories of a
notable and distinguished history kept them always at odds with
the Germans within their gates and with the government set over
their heads. They desired at least the same degree of autonomy
that had been granted to Hungary.
Not ' granted J either. No doubt it would be more correct to
say the degree of autonomy won by Hungary. Dominant in a
larger country than Bohemia, perhaps politically more capable
than any Slavonic people, and certainly more enduring and defi-
nite in their purposes, the Magyars, though crushed by superior
force in the field of battle, were able to win a specially recog-
nized and highly favored place in the dual monarchy. Although
for a long time a land in which the noble was the only citizen,
Hungary has been a land of political liberties almost as long
as England herself has been. The nobles of Hungary won from
their king, Andreas II., in 1222, a " Golden Bull " which was a
veritable Magna Charta. It limited military service in the
king's army, it regulated taxation, it secured for every noble
trial by his peers, it gave order and propriety to judicial admin-
istration, it even enacted the right of armed resistance to tyranny.
The nobles, too, established their right to be personally summoned
to the national Reichstag. Standing upon these privileges, they
were long able to defeat the absolutism of the Austrian monarchs.
Ferdinand I. acquired the throne of Hungary only after recognizing
her constitution ; not for more than a hundred years did the crown
become hereditary in the Austrian house ; and not till 1687 did
the ancient right of armed resistance lose its legal support.
The period of reaction which followed the Napoleonic wars
THE GOVERNMENTS OF AUSTRIA-HUNGARY. 495
and the Congress of Vienna found kings everywhere tightening
where they could the bonds of absolutism : and nowhere were
those bonds more successfully strengthened than in Austria-
Hungary under the reigning influence of the sinister Metternich.
1848, however, saw the flames of insurrection break forth more
fiercely in Hungary than anywhere else in terror-stricken
Europe : only by the aid of Russia was Austria able once more
to get control of her great dependency. So completely was Hun-
gary prostrated after this her supreme effort that she had for a
little no choice but to suffer herself to be degraded into a mere
province of Austria.
The Constitution of 1867. Wars and disasters presently
burst upon the absolutist Austria, however, in an overwhelming
storm. Thrust out from Germany (page 445) she was made at
length to feel the necessity, if she would give her realm strength,
to give her subjects some rights. Her eyes were at last opened
to the supreme folly of keeping the peoples under her rule weak
and spiritless, poor and motionless, in order that her monarchs
might not suffer contradiction. She assented, accordingly,
18 February, 1867, to a constitutional arrangement which recog-
nized the kingdom, not as Austria's, but as the joint kingdom of
Austria-Hungary, and which gave to the Empire its political
organization.
Dual Character of the Monarchy. The Austro-Hun-
garian monarchy, although compacted by the persistent forces of
a long historical development, was not a unitary state, a territorial
and legal unit, but simply a " real union of two constitutionally
and administratively independent states." This union was, in-
deed, more substantial than that formerly existing between
Sweden and Norway: the latter began only in 1815, and was
only an arrangement by which two kingdoms might subsist under
a single king, as partners in international undertakings but as
something less than partners in affairs of nearer interest ; while
Austria-Hungary, on the contrary, held as a dual possession by a
single royal house for more than three hundred and fifty years,
subjected by that house to the same military and financial ser-
vices, and left the while in possession of only such liberties as
could be retained by dint of turbulent insistence, consisted of two
496 THE GOVERNMENTS OF AUSTRIA-HUNGARY.
countries at many points interlaced and amalgamated in history
and in institutional life.
The Fundamental Laws. The constitutional law of
the dual kingdom rested upon grants of privilege from the
Crown. It is divisible into three parts : the laws of the union,
the laws of Austria, and the laws of Hungary, (a) The laws of
the union embraced, beside various other rules concerning succes-
sion to the throne, the Pragmatic Sanction of 1713, which was
formally adopted by the representatives of the Hungarian group
of states ; and the identical Austrian and Hungarian laws, passed
in December, 1867, which fixed the relations of the two kingdoms
to one another and arranged for the administration of their com-
mon affairs, (b) The fundamental law of Austria consisted of
various royal decrees, ' diplomas,' and patents, determining the
membership, privileges, etc., of the national Reichsrath and of
the provincial Landtags. Of these the chief are five fundamental
laws of December, 1867, by which a general reconstruction of the
government was effected, in agreement with the new constitution
given to the union in that year, (c) The constitutional arrange-
ments of Hungary rested upon the Golden Bull of Andreas II.,
1222, touching the privileges of the Estates (page 494) ; upon cer-
tain laws of 1790-1791 concerning the political independence of
Hungary, and her exercise of legislative and executive powers ;
upon laws of 1847-1848 granting ministerial responsibility, annual
sessions of the Reichstag, etc. ; and upon a law of 1868 (amended
in 1873) whereby Croatia-Slavonia was given certain distinct privi-
leges to be enjoyed independently of Hungary. These were most
of them older laws than the Austrian. Although able for long
periods together to keep Austria at their feet, the Hapsburgers
were never able to keep Hungary for long in a similar attitude of
submission. Her constitutional separateness and independence,
though often temporarily denied in practice, were never destroyed.
The cooperative rights of the Estates in government, communal
self-administration, and the privileges of the free cities tri-
umphantly persisted spite of all efforts made to suppress them.
The Common Government : the Emperor-King. The Em-
peror of Austria bore also the titles King of Bohemia and
' Apostolic ' King of Hungary (page 492). He stood at the head,
THE GOVERNMENTS OF AUSTRIA-HUNGARY. 497
not of one of the branches of the government, but of the whole
government in all its branches. In theory, indeed, he alone gov-
erned : he made, while legislatures and provincial assemblies only
assented to, the laws. Law limited his powers : the sphere of his
authority was fixed in each kingdom by definite constitutional pro-
visions ; but, whatever practical concessions modern movements
of thought and of revolution may have compelled, it yet remained
the theory, and to a certain extent the fact, of constitutional de-
velopment in Austria-Hungary that the monarch had himself of
his own free will created such limitations upon his prerogative
as existed. There was, therefore, significantly enough, nothing to
be said by constitutional commentators in Austria-Hungary either
concerning the king's veto or concerning any special arrange-
ments for constitutional change. It was thought to go without the
saying that the monarch's negative would absolutely kill, his ' let it
be ' abundantly vitalize, all laws, whether constitutional or other.
Succession, Regency, etc. The laws touching the ] suc-
cession to the Austro-Hungarian throne provided so minutely for
the widest possible collateral inheritances that provision for a
vacancy was apparently not necessary. Permanent laws vested
the regency in specific representatives of the royal house. The
royal age of majority was sixteen years.
The Common Ministries. The Emperor-King was assisted
in his direction of the common affairs of his two kingdoms by
three Ministries and an Imperial Court of Audit. There was (1) a
Ministry of Foreign Affairs and of the Imperial Household, which,
besides the international functions indicated by its name, was
charged with oversight of the foreign trade and shipping inter-
ests of the dual kingdom. (2) The Ministry of War, by which
the common standing army of the two kingdoms was administered.
The legislation upon which the maintenance of this common
standing army was based originated with the legislatures of the
two kingdoms acting separately. It was, that is, matter of agree-
ment between the two countries. It covered such points as the
size of the army, liability to military service, rules and methods
of recruiting, etc., and was embodied in identical laws adopted by
the two legislatures, each acting for itself and without constitu-
tional compulsion,
498 THE GOVERNMENTS OF AUSTRIA-HUNGARY.
As commander-in-chief of the army, the Emperor-King had the
full right of discipline, full power to appoint, remove, or transfer
officers of the line, and the determination of both the war and
peace organizations of the army, quite independently of any action
whatever on the part of the minister of war. In most other con-
cerns of the military administration, however, his acts require the
countersignature of the minister. The militia, or reserve, services
of the two kingdoms were separate, and separately maintained ;
but in war the militia of both countries became supplementary to
the regular army.
(3) The Ministry of Finance : acting under the Emperor, the
minister of finance prepared the joint budget, apportioned the costs
of the common administration between Austria and Hungary, saw
to the raising of the relative quotas, applied the common income
in accordance with the provisions of the budget, and administered
the common floating debt.
The chief sources of the common revenue in Austria-Hungary
were customs duties and direct contributions from the treasuries
of the two states. Certain parts of the customs duties were as-
signed to the common treasury ; and such expenses as these were
not sufficient to meet were defrayed by the contributions, Austria
paying sixty-three and six tenths (63.6), and Hungary thirty-six
and four tenths (36.4) per cent of the sums needed.
The Economic E/elations of Austria and Hungary were regu-
lated in the important matters of commerce, the money system,
the management of those railroads and telegraph lines whose
operation affected the interests of both kingdoms, the customs
system, and the indirect taxation of industries by formal agree-
ments of a semi-international character entered into every ten
years, and brought into force by separate but of course identical
laws passed in the national legislatures of both countries. Each
state controlled for itself the collection of customs duties within
its own territory ; but Austria-Hungary was regarded as forming
only a single customs and trade territory, and the laws touching
administration in these fields were identical in the two countries.
There was a joint stock Austro-Hungarian bank at Vienna;
the two kingdoms had by treaty the same system of weights and
measures ; and there was separate coining but the same coinage.
THE GOVERNMENTS OF AUSTRIA-HUNGARY. 499
Patents, Posts, and Telegraphs. A common system of
patents and copyrights was maintained ; and both countries had
the same postal and telegraph service.
The Delegations. The most singular, interesting, and
characteristic feature of the common government of Austria-Hun-
gary was the Delegations, which constituted, in germ at least, a
common legislature. There were two Delegations, an Austrian
and a Hungarian. They were respectively committees of the Aus-
trian and Hungarian legislatures. Each Delegation consisted of
sixty members, twenty of whom were chosen by the upper, forty
by the lower chamber of the legislature which they represented.
But, although thus in form a committee of the legislature which
sent it forth, each Delegation may be said to have represented the
kingdom from which it came rather than the legislature of that
kingdom. It was not subject to be instructed, but acted upon its
own judgment as an independent body. The two Delegations sat
and acted separately, though they exercised identical functions.
Each passed judgment upon the budget of the common adminis-
tration, each was at liberty to take action upon the management
of the common debt, each superintended the common administra-
tion, and could freely question and ' interpellate ' the ministers,
from whom each heard periodical reports ; and each had the
privilege of initiative as regards all measures coming within
their competence. These functions were concurrent, not joint.
They were, nevertheless, obviously functions which must under
such a system be exercised in full agreement : the common ad-
ministration could not serve two masters. If, therefore, after a
triple exchange of resolutions no agreement was reached between
the two bodies, a joint session was held, in which, without
debate, and by a mere absolute majority vote, the question at
issue was decided.
As a matter of fact the legislative powers of the Delegations
were very narrow indeed. Their independent action was con-
fined for the most part to the granting of supplies and the super-
intendence of the administrative action of the three common
ministries. The very supplies they granted came out of taxes
voted separately by the parliaments of the two kingdoms ; and
almost every agency they used rested upon treaties and identical
500 THE GOVERNMENTS OF AUSTRIA-HUNGARY.
laws independently passed. The term for which the Delegations
were elected was one year. They were called together by the
monarch annually, one year at Vienna, the next at Buda-Pest.
In the selection of members of the Delegation the Austrian crown
lands (the provinces once separate or independent) were entitled
to representation, as was also Croatia-Slavonia on the Hungarian
side. When the two Delegations met in joint session, the
number of members present from each must be equal to the
number of those present from the other, any numerical inequality
being corrected by lot.
Citizenship. There was no common citizenship for the
two kingdoms; but in all business relationships the citizens of
each state were regarded as citizens of the other.
The Government of Austria: the Executive. The gov-
erning power rested in Austria with the Emperor. The recent
Emperors by no means ventured upon the centralization of
authority attempted and in part effected by Maria Theresa and
Joseph II.; but Austrian constitutional law did not assign duties
to the head of the state : it assigned functions to the ministers
and granted privileges to the representative bodies. All powers
not explicitly so conferred remained with the Emperor. He
directed all the administrative activities of the state ; he ap-
pointed the life members of the upper house of the Reichsmt; and,
through his ministers, he in large measure controlled legislation.
But he must act in administration through the ministers and in
legislation through the parliament. The countersignatures of the
ministers were, by statute, made necessary for the validity of his
decrees ; and the consent of the Reichsrat was indispensable to the
determination of the policy and content of all legislation. The
only judicial prerogative that remained with him was the power of
pardon. On all sides his power was circumscribed by the legally
necessary cooperation of other regularly constituted authorities.
The Ministry, which consisted of a Minister-President and
seven heads of departments, acted as the Emperor's council, but
it did not constitute a board whose majority vote decided admin-
istrative questions. Action was taken, rather, in each department
upon the individual responsibility of the minister at its head.
The ministers had a threefold office : they were the Emperor's
THE GOVERNMENTS OF AUSTRIA-HUNGARY. 501
councillors, they executed his commands, and they were the re-
sponsible administrators of special branches of the public service.
They acted for the Emperor also in introducing measures in the
Reichsrat. They must attend both Houses to defend the policy
of the executive and to answer 'interpellations.' There were
eight executive departments : Interior, National Defence, Keligion
and Education, Trade, Agriculture, Finance, Justice, and Rail-
ways. The Minister-President often held no portfolio, and con-
stituted a ninth minister.
Legislation : the National and Provincial Legislatures.
In all legislation of whatever kind the cooperation of the repre-
sentatives of the people was necessary ; but not all of this cooper-
ative privilege belonged to the Reichsrat, the national legislative
body. Cooperation in the greater matters of legislation was ex-
pressly given by law to the Reichsrat, but all legislative powers
not expressly granted to it belonged to the sphere of the Land-
tags of the seventeen provinces (kingdoms, grand-duchies, arch-
duchies, duchies, and counties), of which the conglomerate realm
was made up.
The Reichsrat. The Reichsrat consisted of a House of
Lords (Herrenhaus) and a House of Representatives (Abgeord-
netenhaus). To the House of Lords came princes of the blood
royal who had reached their majority, the archbishops and cer-
tain bishops, nobles of high rank who had acquired hereditary
seats in the chamber, and such life members as the Emperor
chose to appoint in recognition of special services to the state,
to the church, to science, or to art. To the other House came
representatives chosen by general, equal, and direct manhood
suffrage. 1 The term of the lower house was six years. The
number of members in the House of Representatives by the law
of 1907 was 516. Representation was apportioned among the
several lands which form the Austrian domain.
The assent of the chambers was required not only in legis-
lation but also for the validity of treaties which affected the trade
of the country, which laid economic burdens upon the state, which
affected its legal constitution, or which concerned an alienation or
extension of territory. The powers of the two Houses were the
i Law of 1907.
502 THE GOVERNMENTS OF AUSTRIA-HUNGARY.
same, except that financial measures and bills which affected re-
cruitment for the army must originate in the House of Repre-
sentatives. It was the general rule that the assent of both Houses
was necessary to every resolution or action of the Eeichsrat; but
an interesting exception is to be noted. If a disagreement arose
between the chambers upon a question of finance or of military
recruitment, the lowest figures or numbers were to be considered
adopted.
The Emperor named not only the life members but also the
president and vice-president of the House of Lords. He called
and opened the sessions of the Reichsrat, and might close, ad-
journ, or dissolve it. It was within the prerogative of the Em-
peror, acting with the advice of his ministers, to enact any laws
which seemed to be immediately necessary during a recess of the
Reichsrat) provided they were not financial laws, or laws which
in any way permanently encumbered the state. But such laws
must be submitted to the Eeichsrat within four weeks after its
next assembling (going first to the House of Representatives),
and altogether lapsed unless submitted to the Reichsrat within
that time, and sanctioned by it.
Ministerial Responsibility. In theory, the ministers were
responsible to the Houses, and resigned if defeated ; but the
theory found no realization in practice. Race lines determined
party lines in the Houses, and even members of the same race did
not keep steadily together in purpose or policy ; so that there
were no governing parties, and no majorities that could be reck-
oned beforehand. The Emperor might placate now this group,
and again the other, and so keep his own ministers and pursue
his own policy.
The Landtags. The greater political divisions of Austria
retained their own Landtags, or local legislatures, and to these be-
longed considerable legislative powers. The Emperor named
the chairmen of the Landtags and their substitutes ; he called,
opened, and might close, adjourn, or dissolve the Landtags; and
his assent was necessary to all their acts. But their consent was
necessary to almost all laws which affected the provinces which
they represented, and their privileges constituted an important
part of the total of legislative power which rested with the repre-
THE GOVERNMENTS OF AUSTKIA-HUNGAKY. 503
sentatives of the people. The provinces had also extensive rights
of self-administration.
Local Government. The Landtags were the most con-
spicuous organs of self-government. Each Landtag consisted of
a single chamber and represented the same classes of voters that
sent members to the national Reichsrat (page 501), with the ad-
dition of another, an official class. The administrative organ of
the province was a provincial committee, as in France. The cen-
tral government was represented in the exercise of its many local
powers by a Statthalter or Landesprdsident, whose powers were
very extensive. Within the province there were, in some parts
of the country, districts or circles, which were areas of financial
administration ; and throughout the country the smallest areas
of local government were the Communes, local bodies which, act-
ing within the commission of general statutes, exercised con-
siderable powers of self-direction through a communal committee
and a communal president chosen, together with a certain num-
ber of assistants, by the committee. The Communes were organs
of the provinces, and their presidents to a certain extent served
the general state administration.
The Government of Hungary : the Executive. The king
bore substantially the same relations to the other powers of the
state in Hungary that he bore in Austria. The directing head
of the state, he yet must act in all administrative matters through
the ministers, and in all legislative matters through the national
chamber. Even his treaty-making power was limited as regards
Hungary in the same way that it was limited as regards Austria
(page 502).
The Hungarian Ministry consisted of a Minister-President and,
if he held no portfolio, of nine other ministers : a minister attend-
ant upon the king, a minister of the Interior, a minister of Finance,
a minister of Industry and Commerce, a minister of Agriculture,
a minister of Justice, a minister of Religion and Education, a
minister of National Defence, and a special minister for Croatia-
Slavonia.
The ministers attended the sittings of the chambers and played
there the same part that the Austrian ministers played in the
Reichsrat (page 501). The Hungarian ministers were, however,
504 THE GOVERNMENTS OF AUSTRIA-HUNGARY.
subject to a real responsibility to the parliament of the kingdom.
The Magyars maintained a veritable majority in the Hungarian
Houses, and they knew their own minds and the right methods
of party discipline, besides. They have been statesmen and
rulers time out of mind, and the king's ministers in Hungary
obeyed and represented the majority in parliament, resigning as
of course when defeated.
The Diet. The Diet (Orszdggyule's), the national repre-
sentative body, consisted of a Table of Magnates and a Table of
Eepresentatives. To the former went all hereditary peers who paid
an annual land tax of three thousand florins, the highest officials
of the E/oman Catholic and Greek churches, certain ecclesiastical
and lay representatives of the Protestant churches, eighty-four
life peers appointed by the king, certain members ex ojficio, three
delegates from Croatia-Slavonia, and those royal archdukes who
had reached their majority and who owned landed estates in Hun-
gary. The Table of Representatives consisted of four hundred
and fifty-three members elected by direct vote for a term of five
years. The membership of the House for ordinary business,
however, was only four hundred and thirteen. The forty addi-
tional members represented Croatia-Slavonia ; and, inasmuch as
that great province had an almost independent legislature of its
own, its members in the national House voted only upon ques-
tions of national action which affected their own province. These
subjects were understood to be, the army, trade, and finance. As
must always happen where there is real ministerial responsi-
bility, the lower House was the governing House. The Magnates
yielded, in the long run, every point upon which the purpose of
the Representatives was definitely fixed.
The franchise rested upon the payment of a small amount of
taxes on land or on income. Members of certain learned and
professional classes, however, possessed the franchise without
any property qualification.
The president and vice-president of the upper House were
nominated by the king. As in the case of the Austrian repre-
sentative bodies, so also in the case of the Hungarian, the king
convened and opened, and might close, adjourn, or dissolve
them.
THK <;<>\ FJtNMENTS OF AUSTRIA-HUNGARY. 505
Local Government. For purposes of local government
Hungary was divided into shires, self-administered cities, and
Communes. The organization was throughout substantially the
same. In each area, the Commune excepted, there was a
president who represented the central government ; in each, with-
out exception, there was an administrative committee which was
the executive representative of the local body and an assembly,
in part representative and in part primary (inasmuch as those
who are most highly taxed are entitled to be present), with which
rested the general direction of affairs.
Croatia-Slavonia. There was not in Hungary the pro-
vincial organization which existed in Austria. Croatia-Slavonia
was the only constituent part of the Hungarian lands which had
its own separate Landtag. The organization of this territory
was in all respects exceptional. It was given legal rights which
could not be taken away from it without its own consent ; and it
had a distinct administration responsible to the king and to its
own Landtag. It was, nevertheless, an integral part of the Hun-
garian monarchy.
Revolution and the Breaking Up of the Austro-Hnngarian
Empire. 1 The war has brought the long-anticipated dissolution
of the power of the Habsburgs and the proclamation of a number
of independent republican states. The Emperor Charles II. has
abdicated and the Union of Austria and Hungary has been dis-
solved. Hungary has been proclaimed a republic and will doubt-
less be greatly reduced in size through the loss ,of territories that
will become independent or that will join with Rumania and Serbia.
The Czecho-Slovaks in Bohemia and Slavonia have proclaimed
themselves independent and are establishing a republic, as have
the Jugo-Slavs in the South. The fate of the German Austrians
is not yet determined. The Austrian Poles will doubtless join
in the new Republic of Poland ; Transylvania will probably unite
with Rumania, since they are of the same nationality. The Croats
and Serbians in Bosnia and Herzegovina have proposed a union
with Serbia, and Italia Irredenta will return to Italy.
Whatever the exact territorial arrangements may be, the Aus-
trian and the Hungarian power over the subject races in the
i Written December 1, 1918.
506 THE GOVERNMENTS OF AUSTRIA-HUNGARY.
Empire has been broken, and out of the disruption of the Empire
will come a number of small, national states in which the national
aspirations for independence will be realized.
SOME REPRESENTATIVE AUTHORITIES.
On Austria-Hungary :
Andrassy, J., Development of Hungarian Constitutional Liberty, Lon-
don, 1908.
Arnold-Foster, F., Francis De"ak, A Memoir, London, 1880.
Borgeaud, Charles, The Adoption and Amendment of Constitutions in
Europe and America. Translated by C. D. Hazen and J. M. Vincent.
KY. and London, 1895.
Demonibynes, G., Les Constitutions Europeennes, II., pp. 167-304, 2 vols.,
Paris, 1883.
Dickinson, Reginald, Summary of the Constitution and Procedure of
Foreign Parliaments, 2d ed., 8vo, London, 1890.
Dodd, W. F., Modern Constitutions, 2 vols., Chicago, 1909.
Gumplowicz, Das Oesterreichische Staatsrecht, 3d ed., Vienna, 1907.
Knatchbull-Hugessen, C. M., The Political Evolution of the Hungarian Na-
tion, London, 1908.
Leger, Louis, A History of Austro-Hungary from the Earliest Time to
the Year 1889. Translated by Mrs. Birkbeck Hill London, 1889.
Levy, D., L'Autriche-Hongrie, ses Institutions, etc., Paris, 1872.
Lowell, A. L., Governments and Parties in Continental Europe, Vol. II.,
Chaps. VIII.-X., 2 vols., Boston, 1896.
Ogg, F. A., The Governments of Europe, N.Y., 1913.
Patterson, Arthur J., The Magyars : Their Country and Its Institutions,
2 vols., 8vo, London, 1870.
Ullrich, J., Das Staatsrecht der oesterreichisch-ungarischen Monarchic,
in Marquardsen's Handbuch des oeffentlichen Rechts der Gegenwart,
Freiburg im B., 1884.
Von Ferdinandy, G., Staats und Verwaltungsrecht des Konigreichs Un-
garn, Hanover, 1909.
Vdmbery, Arminius, and Heilprin, Louis, Hungary (Stories of the Nations
Series), N.Y. and London, 1886.
Whitman, C. S., The Realms of the Hapsburgs, London and N.Y., 1893.
Worms, Baron H. de, The Austro-Hungarian Empire, 8vo, London,
1877. Historical and descriptive.
Zuylen de Nyevelt, Baroness, Austria: Its Society; Politics, and Re-
ligion, National Review, October, 1891.
XV.
THE GOVERNMENT OF SERBIA
THE struggle for Serbian independence began in 1804 and con-
tinued until by the Treaty of Adrianople in 1829 the pachalik of
Belgrade was erected into an autonomous and tributary princi-
pality under the suzerainty of Turkey and the protection of
Russia. Miloch Obrenovitch was proclaimed hereditary prince
by the national Skupshtina and was recognized as such by the
Porte in 1830. Under him a constitution was prepared and after
approval by the Grand Skupshtina was promulgated in 1835. It
created a Council of State charged with the duty of preparing
the laws, but as it met for only two days a year it could not per-
form its function and became merely a chamber for enrolling the
laws. This constitution was of short duration and was succeeded
by another, called the Oustav, or Statute, which went into effect
in 1839. For twenty years the Statute was the fundamental law
of the principality. By the Treaty of Paris in 1856, the Russian
protectorate of the principality was abolished, and Serbia was
recognized as a semi-independent state. In 1861 the functions
of the Skupshtina were by law determined in some detail and a
distinction made between the ordinary Skupshtina and the Grand
Skupshtina which had no stated meetings. The Skupshtina was
a sort of popular assembly, whose origin lay in very remote time.
In 1878, by the Treaty of Berlin, the complete independence
of the principality was recognized, and in 1882 the national
Skupshtina proclaimed the principality a kingdom and Prince
Milan Obrenovitch IV took the title of Milan I, King of Serbia.
In 1869, following the assassination of Prince Michel, the
Grand Skupshtina had, through a committee, prepared and pro-
507
508 THE GOVERNMENT OP SERBIA.
claimed a constitution. This lasted until 1888 when King Milan
yielded to the oft-repeated demands for a revision, and appointed
a committee of seventy, composed of members of the different
parties. The work of the committee was ratified by a Grand
Skupshtina and the new constitution was promulgated in Febru-
ary, 1889. Its existence was brief, for it was suspended by a
royal proclamation in May, 1894, and the constitution of 1869
was again put into effect. Seven years later this constitution
was again repealed and a new one was proclaimed in April, 1901.
The constitution of 1901 was elaborated in conjunction with
the leaders of the radical and progressive parties and contained
an innovation in the form of a senate. Following the assassina-
tion of King Alexander and Queen Draga in 1903, the Skupihtina
revived the constitution of 1888 and proclaimed Peter Kara-
georgevitch king, with the title of Peter I.
According to the constitution the kingdom is an hereditary
and constitutional monarchy combined with representation of the
people. The state religion is that of the Orthodox Greek Church.
For purposes of administration the kingdom is divided into
departments (okroug), the departments into arrondissements
(srez), and the arrondissements into communes (opchtina).
The constitution contains a statement of the rights of citizens :
all are equal before the law and no titles of nobility can be
granted or recognized ; individual liberty is guaranteed and no
one can be tried except by a competent tribunal ; private domi-
cile and private property are inviolable ; freedom of conscience
is absolute and instruction is free in so far as it is not contrary
to public order and morality ; primary instruction is obligatory
and free in the public schools ; liberty of speech and of the press,
freedom of assembly and of association, and the right of petition
are guaranteed.
The King. The executive power is vested in the King
and is exercised through responsible ministers who are appointed
and dismissed by the King. He is the head of the state and his
person is inviolable ; he cannot be held responsible ; he sanctions
and promulgates the laws ; he appoints the officers of the state
and they exercise their authority in his name and under his super-
vision ; he is commander-in-chief of the army ; he conducts the
THE GOVERNMENT 9F SERBIA. 509
foreign affairs of the state, declares war, makes treaties of peace,
of alliance, and of all other sorts and communicates them to the
Skupshtina as soon as national interests permit ; treaties of com-
merce and those which require the expenditure of money or a
modification of the laws or which affect the rights of citizens
must be approved by the Skupshtina before they become binding ;
he convokes the Skupshtina in ordinary or extraordinary sessions ;
he opens and closes its sessions ; he may prorogue it, but not for
a longer period than two months and not oftener than once in
the same session without its consent ; he may dissolve it, but
new elections must be held within two months and the new
assembly must meet within three months. The decree of disso-
lution must be countersigned by all the ministers.
No act of the King touching state affairs is valid unless
countersigned by a competent minister who thereby assumes
the responsibility. In case the throne becomes vacant, the Grand
Skupshtina shall determine the question of a successor.
The Skupshtina. The national Skupshtina, which repre-
sents the country, is ordinary (obitchna) or grand (velikd) ; it is
composed of deputies freely chosen by the people in accordance
with the provisions of the constitution. The election is direct
and voting is secret and by ballot. There are one hundred and
sixty-six deputies, chosen by districts ; the electors comprise all
Serbian citizens twenty-one years of age and over who pay an
annual direct tax to the state of five dollars.
No one can be elected who is not qualified to vote, and in
addition he must, if a naturalized citizen, have been a resident
for five years, and must be at least thirty years of age, enjoy full
political and civil rights, be a permanent resident and pay at
least six dollars direct tax a year. Deputies who enter the
service of the state, except ministers, lose their membership but
may stand for reelection. The term is four years and there is
an annual session which cannot end until the Budget is passed ;
its sessions are public unless a secret session is demanded by the
president or ten members, in which case the Skupshtina decides.
All proposed laws, except those relating to the Budget, must
first be considered by the Council of State, and all bills must be
referred to a committee and cannot be considered unless favorably
510 THE GOVERNMENT OF SERBIA.
*
reported by the committee. Every deputy has the right to
address questions and interpellations to ministers, who must
answer before the close of the session.
The Grand Skupshtina is composed of twice as many members
as the ordinary Skupshtina and is summoned when it is necessary
to decide the succession to the throne, to appoint a Council of
Regency, to decide upon amendments to the Constitution, to de-
termine upon the alienation or exchange of national territory,
and when the King deems it necessary to consult it.
Ministers. The ministers are the heads of the executive
departments, except the president of the council of ministers,
who may be without portfolio. They are appointed and dis-
missed by the King. They have the right of free access to the
Skupshtina, but may not vote unless they are members ; the
Skupshtina may demand their presence at its sittings. They
are responsible to the King and to the Skupshtina for all official
acts ; and may be tried by a special court composed of members
of the Council of State and the Court of Cassation.
Council of State. The Council of State is composed of six-
teen members, eight of whom are appointed by the King and eight
by the Skupshtina; the King sends to the Skupshtina a list of six-
teen names from which the Skupshtina chooses eight and it in
turn sends a similar list to the King from which he chooses eight.
They are appointed for life. The chief functions of the Council
are to draft, at the invitation of the government, proposals for
laws, to give its advice upon questions submitted by the gov-
ernment, and to examine all proposals for laws introduced by
the government or initiated by the Skupshtina, and no discussion
of any proposed law may take place until the Council has given
its opinion. The Council may appoint one or more of its
members to defend its report before the Skupshtina.
The Courts. The courts are declared independent and it
is forbidden to the executive or to the legislative departments to
interfere in judicial matters. No special tribunals or commissions
to exercise judicial functions may be created.
There is a Court of Cassation for the whole country which de-
termines solely questions of law ; it also has jurisdiction in cases
of Conflict between the judicial and the administrative authorities.
THE GOVERNMENT OF SERBIA. 511
Below the Court of Cassation are courts of appeal and courts of
first instance.
Judges are appointed by the King ; they are not liable to re-
moval except by a judgment of a regular tribunal or by the Court
of Cassation for a disciplinary offence, nor can they be transferred
without their consent.
Amendment of the Constitution. The proposal for an
amendment, revision, or interpretation of the Constitution may
originate with* the King or with the Skupshtina; if with the King
it shall be communicated t<p the Skupshtina which shall at once be
dissolved and the Grand Skupshtina summoned within four
months ; if the proposal originates with the Skupshtina, it must be
passed by that body by an absolute majority of the deputies twice
at an interval of ten days ; thereupon the Skupshtina is dissolved
and the Grand Skupshtina must be summoned within four months.
The decision in each case by the Grand Skupshtina shall be by
an absolute majority of the members, and its decisions, when
sanctioned by the King, become binding.
SOME REPRESENTATIVE AUTHORITIES.
Church, L. F., Story of Serbia, London, 1914.
Crawford, H., The Balkan Cockpit, London, 1915.
Ci-ijic, J., Questions Balkanesques, Paris, 1916.
Dareste, F. R., Les Constitutions Modernes, 3d ed., Paris, 1910.
Demombynes, G., Constitutions Europeennes, 2d ed., Paris, 1883.
Peritch, J., La Xouvelle Constitution au royaume de Serbie, Paris, 1903-
1904.
Petrovitch, V. M.. Serbia; Her History and Her Customs, London, 1905.
Sentupery, L., L'Europe Politique, 3d ed., Paris, 1895.
Temperly, H. W. V., A History of Serbia, London, 1907.
Ubicini, Constitution (de 1869) de la principaute de Serbie, Paris, 1871.
XVI.
THE GOVERNMENT OF RUMANIA.
BY the treaty of Adrianople of September 14, 1829, Moldavia
and Wallachia acquired the title of Principalities and became
vassal territories of Turkey. With the cessation of the military
occupation in 1834, two organic laws, prepared under the influence
of Russia, were put into effect and served for twenty-seven years
as the bases of the organization of the Principalities, which during
that period were under the protection of Russia. By the Treaty
of Paris of 1856, the Russian pretectorate was abolished and the
Principalities were recognized as semi-independent states, each
with its separate Prince ; but in 1859 - Colonel Cuza was elected
1 Hospodar,' or Lord, by each and took the title of Prince Alexander-
Joan I. The union of the Principalities under the name of Ru-
mania was formally proclaimed at Bucharest and at Jassy on
December 23, 1861.
In July, 1864, a statute was promulgated by which a Senate and
a Council of State was created and in 1866 as a result of a revo-
lution Prince Alexander-Joan abdicated ; a few months afterward
Prince Charles of Hohenzollern-Sigmaringen was called to the
throne by popular vote and took the name of Charles I. The
Sultan confirmed this choice and conferred on him the title of the
hereditary prince. Charles summoned a constituent assembly for the
purpose of framing a constitution which on June 30, 1866, was pro-
claimed, and, with modifications, is the constitution in force to-day.
As a result of the Russo-Turkish war of 1877, Rumania was
recognized as an independent state by the Treaty of Berlin in 1878,
but upon condition of a modification in the constitution which
should remove all distinctions and incapacities arising out of re-
ligious beliefs. In 1881 Rumania became a kingdom and its
Prince took the title of King.
512
THE GOVERNMENT OF RUMANIA. 513
Constitution. The constitution of 1866, as amended in
1879 and 1884, is divided into eight titles dealing with the territory,
the rights of Kumanians, the powers of the state, finances, the
army, general provisions, amendment, and temporary and sup-
plemental provisions.
Rights of Rumanians. The declaration of the rights of
Rumanians contains the usual provisions upon liberty of conscience,
of speech, of the press, of meeting and upon individual freedom,
protection from arbitrary arrest and prosecution except as pro-
vided by law, inviolability of residence and property, and the right
of peaceable assembly and of association. In a number of respects
the exercise of these rights is subject to the provisions of law.
The Powers of the State. All power emanates from the
people and can be exercised only by delegation and in the manner
prescribed in the constitution. The legislative power is exercised
by the King and the national assembly, which is composed of two
houses. The King and each house is a separate part of the legis-
lative power and each can initiate legislation. The interpretation
of the law belongs solely to the legislative power. The executive
power is in the hands of the King, and the judicial, of the courts.
National Assembly. The national assembly is composed
of two houses, the members of which represent the nation and not
merely the district from which they are chosen. Members of
either house, except ministers who accept a salaried post from the
government, cease to be members but may again become members
by a new election. The houses enjoy the ordinary rights and
privileges of constitutional assemblies.
Chamber of Deputies. The chamber is composed of 183
members, chosen for a term of four years. Members must be
twenty-five years of age, Rumanian citizens enjoying full civil
and political rights and domiciled in the country. The electors
are all male citizens of full age who pay taxes. The electors in
each district are divided into three colleges ; the first comprises
all owners of property producing an income of at least two hun-
dred and fifty dollars, the second those domiciled and resident in
urban (Communes and paying direct taxes to the state of at least
four dollars a year, and those who exercise the liberal professions,
ollic.ers, state pensioners and those who have been through the
514 THE GOVERNMENT OF RUMANIA.
primary course ; the third, all others who pay taxes. Within
this last college those who can read and write and have an
income of at least sixty dollars from rural land, priests, and
village schoolmasters vote directly ; all the rest vote indirectly.
Every fifty indirect electors choose a delegate and the delegates
vote with the direct electors of the colleges. The first college elects
seventy-five deputies, the second seventy, and the third thirty-eight.
The Senate. The Senate is composed of one hundred and
twenty members, of whom two represent the universities, eight
are high ecclesiastical dignitaries, and one hundred and ten are
elected. The electors in each district are divided into two col-
leges ; in the first are all electors having property yielding an
annual income of at least $400, and in the second those having
property yielding from $160 to $400. In each college certain
individuals are enrolled irrespective of the property qualification.
In general they include the high officials of state, of the army and
the courts, members of the professions, professors, and teachers.
The first college elects sixty senators and the second fifty.
Senators must be at least forty years of age, E-umanian citizens
enjoying full civil and political rights, domiciled in Rumania,
and have an assured income of about $1800. The property quali-
fication is dispensed with in the case of a number of high officials.
The heir to the throne has a right to membership at eighteen
but no right to vote until he is twenty-five. The term of senators
is eight years, and one half are elected every four years. In case
of dissolution the entire Senate is renewed.
The King and the Ministers. The constitution declares
that " the constitutional powers of the King are hereditary " in
the House of Hohenzollern-Sigmaringen according to the Salic
law. In the event the throne becomes vacant, choice of a new
King devolves upon the two Houses sitting together ; they must
meet at once and choose a successor within eight days. During
the vacancy the Houses united shall choose a commission of three
who shall exercise the royal power until a King is chosen. The
person of the King is inviolable. The ministers are responsible,
and no act of the King is valid unless countersigned by a minister
who thereby assumes responsibility for it.
The King appoints and dismisses the ministers ; sanctions and
THE GOVERNMENT OF RUMANIA. 515
promulgates the laws, and may refuse his sanction ; he may issue
ordinances to aid in carrying out the laws but cannot suspend
them ; he is chief of the army and he concludes treaties, but to
become binding they must be approved by the legislative power.
He summons and closes the sessions of the Houses, though the
Houses must meet annually on a given date if not previously
summoned by the King ; he may adjourn the Houses, but not for
longer than a month and not oftener than once in a session with-
out the consent of the Houses ; he may dissolve either or both of
the Houses, but in case of dissolution, the Houses must be con-
voked within three months.
Ministers have the right to appear in either chamber and take
part in the debates but can vote only in the House of which they
are members. At least one minister must be present before the
Houses can deliberate, and the Houses can demand the presence
of ministers. Every member of both Houses has the right to
interpellate the ministers.
The judicial power is established by law and no commissions
or extraordinary courts can be created on any pretext. There is
a Court of Cassation established by the constitution and inferior
courts by law. Jury trials are assured for criminal cases and for
political and press offences.
Finances. The Budget is prepared annually by the
Chamber of Deputies and must be passed by it and sanctioned by
the King. If the Budget is not passed in time, the executive
power may expend for the public service in accordance with the
Budget of the previous year, but no Budget can be extended more
than a year beyond the year for which it was passed.
SOME REPRESENTATIVE AUTHORITIES.
Bellesort, A., La Roumanie contemporaine, Paris, 1905.
Benger, G., Rumania in 1900. Translation, London, 1901.
Blaramberg, N., Essai compart sur les institutions et les lois de la Rou-
manie, Bucharest, 1886.
Dareste, F. R., Les Constitutions Modernes, Paris, 3d ed., 1910.
Disown. C. G., Cursul de drept public roman, Bucharest, 2d ed., 1909.
Milh-r, W., The Balkans, London, 1896.
Pointe, H. Le, La Roumanie Moderne, Paris, 1910.
XVII.
THE GOVERNMENT OF BULGARIA.
BY the Treaty of Berlin of 1878 Bulgaria was severed from
the Turkish Empire and established as an autonomous and tribu-
tary principality under the suzerainty of the Sultan. During the
Russo-Turkish War of 1877 the Russians took possession of Bul-
garia and established an imperial commissioner. This commis-
sioner summoned an assembly composed of representatives in part
appointed by himself, in part chosen by the people and in part
by virtue of their official positions. The assembly was composed
of 233 members and met at Tirnovo in February, 1879, and on the
16th of April proclaimed a constitution. In April of the same
year the great Sobranje assembled for the choice of a ruler.
Prince Alexander of Battenberg was chosen and assumed the
direction of the new principality. He regarded the constitution
with disfavor, and following a number of dissolutions of the
assembly he issued a proclamation on the 27th of April, 1881, in
which he declared that he would resign his throne unless extraor-
dinary power should be conferred upon him for a period of seven
years in order to reform the administration and to create new
institutions, particularly a Council of State composed of Bul-
garians ; he also demanded the cessation of the annual meeting
of the Sobranje and the extension of the current budget to the
following year with provision for the summoning of a great
Sobranje at the end of the seven years.
These conditions were accepted by the Sobranje and until
September, 1883, Alexander ruled as an absolute prince ; it then
became necessary for him to declare the constitution of 1879
again in operation but upon condition that it should be amended
516
THE GOVERNMENT OF BULGARIA. "> 1 7
by a great Sobranje. The revision of the constitution was pub-
lished in December, 1883. The principal change was in the
establishment of a second Chamber which should be composed of
members in part appointed by the Prince, in part elected by the
people, and in part of members attending by virtue of their
offices. This provision for a second Chamber was never accepted
by the ordinary Sobranje and, therefore, never became effective.
For the next ten ydars it could hardly be said that the govern-
ment of Bulgaria was conducted in accordance with constitutional
provisions.
By the Treaty of Berlin, the province of East Rumelia was
constituted a separate principality under the suzerainty of the
Sultan, but the separation between Bulgaria and East Rumelia
was an artificial one and was brought to a close in 1885 when
Rumelia rebelled against Turkish domination, drove out the gov-
ernor, and proclaimed Alexander as Prince. Rumelia thereby
became a part of Bulgaria.
In 1893 the Bulgarian constitution was revised and by the
revision it was provided that there should be a representative
chosen for every twenty thousand inhabitants. From that time
on Bulgaria may be said to have been, in form at least, governed
in accordance with the constitution. In October, 1908, Prince
Ferdinand proclaimed Bulgaria an independent kingdom and
assumed the title of Czar. In October, 1918, he abdicated in
favor of his son Boris, who likewise abdicated within a month,
and Bulgaria was proclaimed a republic.
The principal features of the constitution of 1879 were the
existence of an hereditary prince in a state called a constitutional
monarchy with popular representation and a popular assembly.
The Prince, later the Czar, was the head of the state ; his person
was sacred and inviolable ; he conducted foreign affairs ; was
commander-in-chief of the military forces in war and in peace,
and he had the right of refusing his sanction to laws passed by
the popular assembly.
The Sobranje. Popular representation existed in two
bodies : the ordinary Sobranje and the great Sobranje. Both were
elected directly by the people in accordance with the same elec-
tion laws and procedure. The great Sobranje was composed of
518 THE GOVERNMENT OF BULGARIA.
twice as many members as the ordinary Sobranje ; it met only
on special occasions, which were determined in the constitution
as follows : for the consideration of the question of the cession
or exchange of territory, for amendment or revision of the con-
stitution, and for the filling of a vacancy in the succession to the
throne and to receive the oath from a new Prince when he
ascended the throne. The ordinary Sobranje was elected for a
period of four years on the basis of universal and direct suffrage
and consisted of one deputy for every twenty thousand inhabit-
ants. It was the legislative body of the kingdom and was en-
dowed with the ordinary rights and privileges of legislative
bodies. The executive power was exercised by ministers ap-
pointed and dismissed by the Czar and they were responsible by
counter-signature for all his acts ; also they could be held legally
and politically responsible by the Sobranje which controlled the
executive by means of the necessity for an annual approval of the
budget.
SOME REPRESENTATIVE AUTHORITIES.
L'Annuaire, 1880, p. 774 ff., and 1894, p. 682 ff., contain French transla-
tion of the Constitution of 1879 and the revision of 1893.
British and Foreign State Papers, vol. 70, 1878-1879, p. 1303 ff., contains
French translation of the Constitution of 1879.
De Cauny, L., La Bulgarie, d'hier et de demain, Paris, 1914.
Forbes, N., The Balkans, Oxford, 1915.
Fox, F., Bulgaria, London, 1915.
Murray, W. S., The Making of the Balkan States, London, 1913.
Rankin, R., The Inner History of the Balkan War, London, 1914.
XVIII.
THE GOVERNMENT OF GREECE.
GREECE was a Turkish province from the latter part of the
15th century until its independence was achieved in the revolu-
tion of 1821-1829. During the revolutionary period several con-
stitutions were framed but they were never put into effect. At
the conference of London in 1830 Greece was declared a kingdom
and put under the protection of Great Britain, France, and Russia.
Prince Otto of Bavaria was accepted by Greece as king by the
treaty of 1832 and ascended the throne January 25, 1833. He
ruled for eleven years without a constitution but assisted by a
council of state which had, however, only advisory powers. Fol-
lowing a revolution in 1843, a constituent assembly was sum-
moned at Athens which adopted a constitution in February, 1844,
modeled on the French constitution of 1830 and the constitution
of Belgium.
King Otto was expelled in October, 1862, and in the following
year Prince George of Denmark was elected and became King
George the First. This election was made under the guidance of
the three protecting powers. In the following year a general re-
vision of the constitution was undertaken by the national assem-
bly which had elected the new King, and the constitution thus
framed was adopted in October, 1864. This is the constitution
which is in force at the present time, it contains provisions
regarding the rights of Greek subjects, the powers of the state,
the King, the ministers, the legislative branch, and the judicial
power.
Rights of Greek Subjects. The constitutional provisions
touching the rights of Greek subjects provide for equality of all
519
520 THE GOVERNMENT OF GREECE.
Greeks before the law and a contribution by them without dis-
tinction, in accordance with their wealth, to the expenses of the
state ; titles of nobility may neither be conferred nor recognized ;
individual liberty, freedom from arrest and imprisonment except
in pursuance of the forms of law, the right of peaceable assembly,
of association, and of petition are established ; private domicile
and private property are inviolable and private property may not
be taken for public use without payment. Likewise there is free-
dom of speech and of the press.
Powers of the State. All power emanates from the nation,
and can be exercised only in the manner established by the consti-
tution. The legislative power is exercised jointly by the King and
by the chamber (Boule). Laws may be initiated either by the
chamber or by the King, who exercises his initiative through min-
isters. Proposals relating to increase of public expense for the
establishment of pensions, or in general for any individual inter-
est, must be originated by the chamber. Authoritative interpre-
tation of the laws belongs to the legislative authority.
Executive power belongs to the King, who exercises it through
responsible ministers appointed by him.
The judicial authority is exercised by the courts, whose judg-
ments are executed in the name of the King.
The King. The King cannot be held responsible and his
person is inviolable. Eesponsibility rests upon his ministers, and
no act of his is valid unless countersigned by a competent minis-
ter who thereby assumes the responsibility. Ministers are ap-
pointed and dismissed by the King.
The King is the supreme head of the state ; he commands the
military and naval forces ; declares war ; makes treaties of peace,
of alliance and of commerce ; he must give information to the
chamber, with the necessary explanations concerning these
treaties, as soon as the safety of the state permits. Treaties of
commerce and other treaties containing provisions which require
the sanction of the law, or which affect the Greeks individually,
must receive the consent of the chamber before they become
binding. The King has the power to issue ordinances necessary
to carry out the laws but an ordinance may never suspend the
operation of a law.
THE GOVERNMENT OF GREECE. 521
Laws must be sanctioned and promulgated by the King. A bill
passed by the chamber which does not receive the sanction of
the King within a period of two months following the close of a
session is regarded as rejected by the King.
The King must convoke the chamber at least once a year in
ordinary session and he may summon extraordinary sessions as
often as he deems it necessary ; he opens and closes each session
and has the right to dissolve the chamber, but the ordinance of
dissolution, countersigned by the ministers, must contain a pro-
vision for an election within two months and for a re-assembling
of the chamber within three months ; the King has the right to
adjourn or to prorogue a session of the chamber but not for a
period longer than forty days nor more than once in the same
session without the consent of the chamber. In the event of a
vacancy in the succession to the crown an assembly composed of
twice as many members as the chamber chooses a King by a vote
of a two-thirds majority of all the members.
Ministers. The ministers, appointed and dismissed by
the King, have free access to the chamber and have the right to
be heard at any time they choose, but they may not vote unless
they are members. The chamber in turn may require the pres-
ence of ministers. The ministers may not be relieved of their re-
sponsibility by any written or verbal order of the King ; they may
be accused by the chamber and tried before a special court.
Ministerial political responsibility to the chamber is secured
by convention rather than by law, though the numerous constitu-
tional provisions relating to the relations between the chamber
and the ministers, combined with the unquestioned supremacy
of the popular will, would make any other result out of harmony
with the entire constitutional arrangements.
The Chamber. The chamber meets annually on the first
of November for a session which may not^ be less than three
months nor longer than six. It deliberates in public but may,
upon the demand of ten members, decide by a majority vote to
hold a secret session. No taxes may be levied or collected unless
previously voted by the chamber and sanctioned by the King.
The naval and military contingents and the budget must be
passed annually. Members of the chamber enjoy the ordinary
522 THE GOVERNMENT OF GREECE.
immunity from arrest and freedom from responsibility for what
they may say in the chamber. The number of deputies in each
province is fixed at the ratio of one to every 16,000 inhabitants.
At present there are 332 members in the chamber, who are elected
for a maximum period of four years. Qualifications of a deputy
are Greek citizenship, enjoyment of full civil and political rights
for a period of two years previous to the election, at least twenty-
five years of age and the qualifications of an elector. The elector-
ate is based upon universal manhood suffrage.
Council of State. By an amendment to the constitution
in 1911 a council of state was established as a substitute for a
second chamber of the legislative body. It has the duty of ex-
amining all proposals for laws and of annulling official decisions
and acts contrary to the law.
The Judicial Power. Judges are appointed by the king
in accordance with the law. There are a supreme court, courts of
appeal, and courts of first instance. Judges hold office for life
and may not be removed save by judicial sentence. The consti-
tution forbids the creation of judicial commissions and extraordi-
nary tribunals. The sessions of the court are ordinarily public
and the decisions must be accompanied by statement of the
reasons therefor, and must be pronounced in public.
The constitution contains a prohibition against a total revision,
but revisions that are not fundamental in character may be pro-
posed after a lapse of ten years from the promulgation of the con-
stitution if the necessity arises. Such a revision must be de-
manded by the chamber in two votes passed by two-thirds ma-
jority, providing the second vote is taken at least one month after
the first and that the revision shall be carried out by a newly
elected chamber.
SOME REPRESENTATIVE AUTHORITIES.
Cassavetti, D. J., Hellas and the Balkan Wars, London, 1914.
Dareste, F. K, Les Constitutions Modernes, 3d ed., Paris, 1910.
Demombynes, G., Les Constitutions Europeennes, 2d ed., Paris, 1883.
Deschamps, G., La Grece d'aujourd'hui, Paris, 1910.
Martin, P. F., Greece of the Twentieth Century.
Saripolis, X. K., Das Staatsrecht des Konigreichs Griechenland, Vol. 8
of Das offentliche Recht der Gegenwart.
XIX.
THE GOVERNMENTS OF RUSSIA AND TURKEY.
RUSSIA.
AUTOCRACY reached its highest development in Russia, where
the power of the Czar was, until 1906, unlimited by law. Pre-
vious to that time certain fundamental laws had been issued but
they had been issued by an imperial ukase and could be with-
drawn or modified at the pleasure of the Czar. Following the
war with Japan a revolution broke out in 1905, and in February,
1906, there appeared two imperial ukases, by one of which a
Council of the Empire and by the other, a Douma, or popular
house, was created. The Czar, however, retained the " supreme
autocratic power" of all the Russias, though he exercised the
legislative power in conjunction with the Council of the Empire
and the Douma.
All executive and administrative functions rested with the
Czar ; he appointed and dismissed the ministers ; he was head
of the army and navy ; he declared war and concluded peace and
made treaties, but all of his acts must be countersigned by a
minister.
The Council of the Empire was composed of members, partly
appointed by the Czar and partly elected, but the number ap-
pointed could not exceed that of the elected members. The latter
were chosen by a variety of organizations, including the church,
the nobles, chambers of commerce, the universities and the zem-
stvos, for a term of nine years, one third retiring every three
years.
The Douma was composed of 442 members elected by the
people under a complicated system of indirect election for a term
523
r-
524 THE GOVERNMENTS OF RUSSIA AND TURKEY.
of five years, but could be dissolved by the Czar. The Council of
the Empire and the Douma had equal rights in the matter of
legislation, and each might propose laws ; but the initiative of
all laws amending the fundamental laws rested with the Czar.
In the matter of the Budget, credits necessary for the payment
of the public debt and the other obligations contracted by the
government could not be refused or lessened and the expenses of
the ministry of the court were not subject to consideration by
the Council and the Douma unless they exceeded the Budget of
1906.
In the event the Budget was not adopted by the beginning of
the budgetary year, the last Budget remained in force with such
additions as were necessary by reason of laws subsequently
adopted.
The Douma never acquired a position of influence and control,
but survived until the revolution in 1917. As a result of the
military disasters and scandals, including the betrayal of the
army to the Germans, the Czar was deposed in March, 1917, and
a republic proclaimed under a provisional government. A con-
stituent assembly was to be chosen to determine a constitution,
but before it assembled the Bolshevik regime was inaugurated..
Soldiers and Workmen's Councils were established in Petrograd
and other places and the radical Socialist element secured control
of the machinery of the central government. Lenine, as presi-
dent of the Council, and Trotzky, as Foreign Minister, have been
the controlling forces in what government there has been.
A condition bordering on anarchy has existed for more than a
year. The Ukraine proclaimed its independence as a republic ;
other parts of the Empire broke away from the central authorities
and proclaimed republics, notably Murman in the north and
Siberia, and more recently an All-Eussian government has been
proclaimed with the object of reuniting the separate parts.
The Lenine-Trotzky government made peace with the Central
Empires by the Brest-Litovsk Treaty, by which several of the
western provinces passed under German control. The United
States and the Allies have from the first taken the position that
this treaty was secured by treachery and bad faith and as victors
they have compelled the Central Powers to abandon it.
THE GOVERNMENTS OF KUSSIA AND TURKEY. f)--~>
It is not possible to tell what the outcome in Russia will be,
but it is not probable that autocracy will be reinstated. It is
equally unlikely that the Bolsheviki will much longer retain the
power.
TURKEY.
The government of Turkey has always been regarded as an ab-
solute monarchy despite the fact that it at times has had the
form of constitutional arrangements. In 1856 at the Conference
of Paris, following the Crimean War, Turkey was recognized as
a member of the Family of Nations and it was anticipated that
internal reforms would be carried out, assuring equality before
the law, respect for private property, liberty of religious beliefs,
equality in taxation, public trials and the abolition of confiscation
and torture, but the promised reforms were not realized.
Under pressure from the European powers, Sultan Abdul
Hamid II. proclaimed a constitution in 1876 providing for a
Senate whose members were appointed for life and a Chamber of
Deputies. The first parliament met on the 19th of March, 1877,
but the war with Russia of that year led to the indefinite pro-
roguing of that body in 1878. From that time until 1908 the
constitution was a dead letter, but under the influence of the
Young Turk party, which then came into power, the constitution
of 1876 was again proclaimed and in the following year was re-
vised. Though the Parliament met thereafter, the government
remained autocratic. No real control was exercised by the
Chamber of Deputies.
XX.
THE GOVERNMENT OF JAPAN.
THE constitution of Japan was promulgated by the Emperor
on February 11, 1889, and in accordance with its preamble came
into force with the opening of the iirst session of the Diet on
November 29, 1890. In an imperial rescript of October 12, 1881,
the Emperor had declared his intention of promulgating a con-
stitution so soon as the country was ready for it ; and when it is
recalled that Japan was opened to foreigners only twenty-one
years before the constitution was promulgated, some conception
may be gained of the rapidity with which the country had pro-
gressed and some allowance be made for the inexperience shown
in the early attempts at constitutional government. To under-
stand the government of Japan it must be borne in mind that for
centuries the country had been under the rule of an Emperor in
whom was vested in theory the supreme power. During several
centuries, to be sure, the Emperors enjoyed no actual authority,
the government being in the hands of the Shoguns. Nevertheless
there centered about the Emperors a feeling akin to religious awe
and reverence, and when the last of the Shoguns in 1868 volun-
tarily gave back his power into the hands of the Emperor, the
combination of veneration and power made him the most absolute
of rulers. But the Emperor pursued an enlightened and liberal
policy and sought to adapt the Japanese government along with
the rest of the national life to Western models. Accordingly,
following the rescript of 1881, a commission was appointed, of
whom Prince Ito was the most conspicuous member, to study the
constitutions of the European countries and the United States,
and to frame a constitution for Japan.
The effects of the centuries of absolutism and feudalism through
which Japan had passed could not be thrown off in the brief
526
THE GOVERNMENT OF JAP A \ . 527
space of a generation, and the constitution must be viewed in the
light of this history. The remarkable fact is not that the con-
stitution of Japan is less liberal than tfhe most advanced constitu-
tions of the Western world, but that a constitution should have
been given at all within so brief a space of time.
When one takes into consideration the steady progress toward
a greater liberalism in the government and the equally steady de-
velopment of democracy among the people, no surprise will be
felt on finding that custom has greatly modified the spirit of the
government if not the letter of the constitution in the twenty-
nine years of its existence.
The Emperor. It was natural in view of the history of
Japan that the sovereignty of the Empire should be regarded as
in the Emperor ; but the constitution provides that it shall be
exercised in accordance with its provisions. The Emperor is
proclaimed sacred and inviolable ; he exercises the legislative
power .with the consent of the Diet ; he sanctions the laws and
orders them promulgated and executed; he convokes, opens,
closes and prorogues the Diet, and he may dissolve the House of
Representatives; when the public safety demands, or to avert
public calamities, he may, if the Diet is not sitting, issue im-
perial ordinances in place of laws, but such ordinances must be
submitted to the Diet at its next session and if not approved by
the Diet, they are invalid for the future. He has also the right
to issue ordinances to carry out the laws, to preserve the public
peace and order, and to promote the welfare of the people, but
these ordinances shall not in any way alter the existing laws.
The Emperor determines the organization of the different
branches of the administration, the salaries of all civil and mili-
tary officers, and appoints and dismisses the same. He is com-
mander-in-chief of the army and navy and determines their
organization and peace standing ; he declares war, makes peace
and concludes treaties : he confers titles of nobility, rank, orders,
and other marks of honor, and has the right to grant pardons,
amnesty, and commutation of punishments. This is a formidable
list of powers and were they exercised directly by the Emperor
would make him the most powerful monarch ruling to-day, but
all laws, imperial ordinances, and imperial rescripts that relate to
528 THE GOVERNMENT OF JAPAN.
state affairs must be countersigned by a minister of state. The
constitution provides that the ministers of state shall give advice
to the Emperor and shall be responsible for it. To whom they are
to be responsible the constitution does not state but the custom may
be regarded as established that they are responsible to the Diet.
The Privy Council. An imperial ordinance of 1888,
amended in 1890, provided that the Privy Council should consist
of a President, a Vice-President, twenty-five Councillors, a Chief
Secretary, and five Secretaries. Among the Councillors are ex
officio the ministers of state who form the Cabinet. The Council
may advice the Emperor upon doubtful points relating to articles
of the constitution and to laws and ordinances dependent upon
the constitution, upon proclamations of a state of siege, certain
imperial ordinances, treaties, the organization of the Privy Coun-
cil and other matters specially called for. It may be consulted
in times of political crises concerning the organization of the
cabinet and all cabinet measures may be referred to it, either
before presentation to the Diet or after acceptance by the Diet.
It is the highest body of constitutional advisers to the Emperor
and in this respect has taken the place, in part, which the Cabinet
would naturally fill. Those who have been seeking to establish
complete parliamentary government and ministerial responsibility
to the Diet regard the power of the Privy Council as a usurpa-
tion and wish to see it limited. The so-called Elder-Statesmen,
the Genro, composed of the survivors of the men who brought
about the Restoration of 1868, are an extra-constitutional body
which has occupied a position of influence next to the Emperor
and the Privy Council. These men have rendered great service
to their country, but they and their position are not in harmony
with the development of constitutional government and popular
institutions. They have been the power behind the throne, who,
without official position, have nevertheless been called upon for
advice in political crises. Death has already removed all but
two or three of them and this anomaly will soon vanish entirely.
The Cabinet. The Cabinet as such is not mentioned in
the constitution, which speaks only of Ministers of State who are
ten in number ; the Minister President of State, the Ministers of
Foreign Affairs, of Home Affairs, of Finance, of War, of the Navy,
THE GOVERNMENT OF JAPAN. 529
of Justice, of Education, of Agriculture and Commerce, of Com-
munications. There is also a Minister of the Imperial Household,
but he is not a member of the cabinet.
The ministers may be members of either House of the Diet and,
whether members or not, have the right to speak in either House.
The earlier view and practice was that the ministers were
responsible to the Emperor alone, who had the right to appoint
and to dismiss them at pleasure, but this view has begun to give
way before the demand for the control by the Diet ; in 1914 Count
Okuma dissolved the House of Representatives and appealed to
the people in a general election in which he obtained a large
majority. Party government may be regarded as an established
fact, but the change from ministerial responsibility to the Emperor
to responsibility to the Diet has not yet been fully accomplished,
although the tendency is in this direction and the present state of
affairs may be regarded as transitional. Nowhere outside of
Japan is there an upper house, not popular in character, which
has maintained it supremacy over the lower popular house ; and
it is reasonable to suppose that with the further development of
popular control of the government, Japan will prove no exception
to the rule. For the first time in its history, a real Liberal party
is at present in power in Japan and further increase in the power
of the House of Representatives may be expected.
The Diet. The Imperial Diet is composed of the House
of Peers and the House of Representatives. Though the consti-
tution vests the legislative power in the Emperor with the con-
sent of the Diet, the development of parliamentary government
has deprived the Emperor of the power formerly attributed to
him of vetoing laws passed by the Diet.
Bills may be initiated by the government and by each of the
Houses and the two Houses have the same rights with respect to
all measures except that the Budget must be first laid before the
House of Representatives. The House of Peers, however, has
won the right to reinsert in the Budget items which have been
stricken out in the House of Representatives.
The Diet meets annually and the session lasts three months,
but may be prolonged by imperial order. Extraordinarjr sessions
may be summoned by the Emperor. The deliberations of the
530 THE GOVERNMENT OF JAPAN.
Houses are public, but secret sittings may be held upon the de-
mand of the government or upon resolution of the House. No
member of either House may be held responsible outside the
respective Houses for any opinion expressed or for any vote
given in the House, but for his opinions expressed in public
speeches or in writing a member is amenable to the general law.
Members are free from arrest during the session for all ordinary
offences, not of a flagrant character and not connected with internal
disorder or foreign trouble, unless with the consent of the House.
The Emperor appoints the President and the Vice-President of
the House of Peers from among the members for a period of
seven years, and the President and Vice-President of the House
of Representatives from among the three candidates respectively
elected by the House for each office.
The Presidents of the Houses receive an annual allowance of
5000 yen, the Vice-Presidents 3000 yen, while the elected and
appointed members of the House of Peers and the members of
the House of Representatives receive 2000 yen. 1 They also re-
ceive a certain allowance for travelling expenses but members
who are in the service of the government do not receive such
annual allowance.
Sections and Committees. Each House divides itself into
sections by lot and the sections elect, from among the members
of the House, an equal number of members to the standing com-
mittee, which is divided into branches according to the require-
ments of business. Special committees are chosen by the House
for the examination of particular matters.
House of Peers. The constitution provides merely that
" the House of Peers shall, in accordance with the ordinance con-
cerning the House of Peers, be composed of the members of the
Imperial Family, of the orders of nobility, and of those persons
who have been nominated thereto by the Emperor."
By the Imperial ordinance of February 11, 1889, the composi-
tion of the House of Peers was determined as follows : The mem-
bers of the Imperial family ; princes and marquises ; counts,
viscounts, and barons who have been elected thereto by the mem-
bers of their respective orders ; persons who have been elected,
1 A yen equals about fifty cents.
THE GOVERNMENT OF JAPAN. 531
one member for each city and prefecture, by and from among the
tax payers of the highest amount of direct national taxes on land,
industry or trade therein, and who have afterwards been nomi-
nated thereto by the Emperor.
The members of the Imperial family take their seats upon
attaining their majority, the princes and marquises at the age of
twenty-five, the members of the orders of counts, viscounts and
barons at the age of twenty-five ; the latter are elected by the
orders for a term of seven years, and their number shall not
exceed one-fifth of the entire number of the respective orders.
The Emperor may appoint for life any man thirty years of age on
the ground of meritorious services to the state, or for his learning.
One member is elected in each city and prefecture by and from
among the fifteen male inhabitants thereof above the age of
thirty who pay the highest amount of direct national taxes on
land, industry, or trade. Those so chosen must be appointed by
the Emperor and serve for a term of seven years. The number
of members appointed by the Emperor for meritorious services,
for their learning and from among the highest tax payers, shall
not exceed the number of members having the title of nobility.
The number of members of the House of Peers is variable and
at present is 374. The House of Peers has been a very conserva-
tive body. Having an equal voice with the House of Representa-
tives in all legislation it has blocked progressive and radical
legislation ; being secure of its tenure of office, since it cannot be
dissolved, it has proved stronger than the House of Representa-
tives. With the further development of parliamentary govern-
ment and a firmer establishment of ministerial responsibility, it
will be indeed strange if the House of Representatives does not
become the stronger.
House of Representatives. The only constitutional pro-
vision respecting the House of Representatives is that it shall be
composed of members elected by the people according to the pro-
visions of the Law of Election.
Any male Japanese subject of thirty years of age is eligible for
election except the heads of noble families, men in the active
service of the army or navy ; students ; Shinto priests, ministers,
priests and teachers of religion of all kinds ; certain government
532 THE GOVERNMENT OF JAPAN.
officials, government contractors, and persons suffering from legal
disabilities.
Qualifications for electors are the age of twenty-five, permanent
residence in the district for not less than one year previous to the
date of drawing up the electoral list, and payment of direct national
taxes to the amount of not less than ten yen. Inasmuch as voting is
by secret ballot and the elector must write the name of the candidate
upon his ballot, the ability to write is really a qualification.
There are at present 381 members who are chosen in electoral
districts, but each elector votes for one person only. The term of
members is four years unless sooner terminated by dissolution of
the House.
Rights and Duties of Subjects. Fifteen articles of the
constitution deal with the rights and duties of Japanese subjects,
but in almost every instance the rights are to be enjoyed subject
to the limits provided by law and in many instances these limits
have set very great restrictions from the standpoint of American
ideas of individual rights. The constitution in fact affords no
absolute guarantees of civil rights and liberties. There has been,
however, a constant and rapid extension of popular liberties through
legislative enactment. The extension of the suffrage, greater
liberty of the press and of speech, of public meeting and political
association and reform of the criminal law are evidence of the
growth of popular rights.
Political Parties. When the constitution was promul-
gated there were no political parties for there had been no oppor-
tunity or occasion for their development. The intervening period
has witnessed at least the beginning of party organization and
for the past ten years parties have assumed somewhat of the
position and functions of parties in other constitutional states.
The development of parties has gone hand in hand with the es-
tablishment of a system of cabinet responsibility.
The weakness of Japanese parties lies in the fact that they
have centered around individuals rather than principles. The
feudal conception of personal allegiance has lingered on into the
new era, but with the passing away of the generation that knew
the old regime and the coming into power of the younger men the
character of parties is becoming less personal ; policies, not men,
THE GOVERNMENT OF JAPAN. 533
are forming the cohesive element. All of which is but further
evidence of the complete acceptance by the Japanese of the
political conceptions and arrangements of the Western world.
The Judiciary. Justice is administered by the courts
according to law in the name of the Emperor. He is the fountain
and source of law and of justice. The organization and jurisdic-
tion of the courts is left entirely to the law. The constitution
affords protection to judges through the provision that " no judge
shall be deprived of his position, unless by way of criminal sen-
tence or disciplinary punishment," and to individuals by requiring
that trials and judgments shall be public, but this requirement may
be suspended by law or by the court if publicity might be prejudi-
cial to peace and order or to the maintenance of public morality.
Suits relating to rights alleged to have been infringed by
illegal measures of the executive authority come before the court
of Administrative Litigation and not before the ordinary courts of
law. The courts have no power to interpret the constitution ; that
function belongs exclusively to the Emperor who was its author.
Amendment of the Constitution, In consonance with its
origin as a gift from the Emperor, the power of initiating amend-
ments rests with him ; he must submit a proposed amendment to
the Diet. The amendment cannot be debated in either House un-
less two-thirds of its members are present nor can an amendment
be passed by either House unless approved by two-thirds of the
members present.
SOME REPRESENTATIVE AUTHORITIES.
Clement, E. W., Constitutional Imperialism in Japan, Proceedings of
the Academy of Political Science, Vol. VI., No. 3, N.Y., 1916.
I to, Commentaries on the Constitution of Japan, Tokyo, 1889.
./v -nfif/Oj The Constitutional Development of Japan, Baltimore, 1891.
Kawakami, K. K., The Political Ideas of Modern Japan, Tokyo, 1903.
McLaren, Japanese Government Documents, Asiatic Society of Japan,
Tokyo, 1914.
Masoaka, Japan to America, N.Y., 1914.
Satoh, Evolution of Political Parties in Japan, Tokyo, 1914.
Uyehara, The Political Progress of Japan (1867-1909), X.Y., 1910.
XXI.
SUMMARY: CONSTITUTIONAL AND ADMINIS-
TRATIVE DEVELOPMENTS.
Continuity of Development. From the dim morning
hours of history until now, the law of coherence and continuity
in political development has suffered no serious breach. Human
choice has in all stages of the great world-processes of politics
had its part in the shaping of institutions ; but it has never been
within its power to proceed by leaps and bounds : it has been
confined to adaptation, altogether shut out from raw invention.
Institutions, like morals, like all other forms of life and conduct,
have had to wait upon the slow, the almost imperceptible forma-
tions of habit. The most absolute inonarchs have had to learn
the moods, observe the traditions, and respect the prejudices of
their subjects ; the most ardent reformers have had to learn that
too far to outrun the more sluggish masses was to render them-
selves powerless. Revolution has always been followed by re-
action, by a return to even less than the normal speed of political
movement. Political growth refuses to be forced ; and institu-
tions have grown with the slow growth of social relationships ;
have changed in response, not to new theories, but to new circum-
stances.
The Order discoverable in Institutional Development is
not, indeed, the order of perfect uniformity : institutions, like
the races which have developed them, have varied infinitely ac-
cording to their environment. Climate, war, geographical situation,
have shaped them : the infinite play of human thought, the infinite
many-sidedness of human character have been reflected in them.
But the great stages of development have remained throughout
534
SUMMARY. 535
clear and almost free from considerable irregularities. Tested
by history's long measurements, the lines of advance are seen to
be singularly straight.
Course of Development in the Ancient World. If the
bond of kinship was at first clear and unmistakable, it must ere
long have become much less defined in the broadened Family.
When the Family became merged in the still wider Community,
solidarity remained and a strong sense of kinship, but the reality
of kinship had no doubt largely departed, and law had begun to
take on a public character, to bear the sanction of all rather than
the sanction of a single supreme person. Kinship was typified
still in the hereditary character of the kingship; but the king
was now the representative of the community rather than its
master. The Community developed into the city-state: and
further than this the ancient peoples did not go. In Rome and
in the great city-states of Greece the conception of citizenship
supplanted the idea of kinship. The state became virtually
personified in the thought of the time. It was the centre of
civic affection and the object of all civic virtue. The public
officer ruled not in his own name but in the name of the State.
Around Rome at last there grew up a vast Empire ; but it was
Rome's Empire, the world had fallen into the hands of a city,
and the only citizenship that Caracalla could bestow was the
citizenship of Rome. This city-statehood was the last word of
the ancient world in politics.
The Feudal System and the Modern Monarch. When
the Germans emerge upon the European field we have the State
in a new aspect. Nations are f moving in arms, and the Host
is the State. Commanders of Hosts are the kings of the new
order of things. The Host settles on the lands of the old Roman
dominions, and that military tenure is developed which we have
learned to call the Feudal System. This Feudal System, when.it
has worked its perfect work, in such countries as France and
Germany, brings forth still a third type of kinship : we presently
have the king who owns his kingdom as supreme feudal lord: the
king who, having absorbed fief after fief, at last possesses his king-
dom by a perfected legal title ; the king whose realm is his estate.
This is the king who becomes the sole source of law and of justice,
536 SUMMARY.
the king who, in our day, has granted out of his abundant grace
rights and constitutions to his people.
England's Contribution. Where the Feudal System fails
of its full fruitage, as in England, where freehold estates are not
entirely blotted out, where tenure of the king as overlord is a
theory but never a reality, and where local self-government obtains
a lasting rootage in the national habit, political development takes
another course. There political liberty abides continually, in one
form or another, with the people, and it is their operative power
which gives to liberty expansion, and which finally creates the
constitutional state, the limited monarchy, the free self-governing
nation. Out of the fief grew the kingdom ; out of the freehold
and local self-government grew the constitutional state ; out of
the constitutional state grew that greatest of political develop-
ments, the free, organic, self-conscious, self-directing nation, with
its great organs of popular representation and its constitutional
guarantees of liberty.
The Romans and the English. In the general history of
European development two nations stand forth preeminent for
their political capacity : the Roman nation, which welded the
whole ancient world together under one great organic system of
government, and which has given to the modern world the ground-
work of its systems of law; and the English nation, which gave
birth to America, which has " dotted over the whole surface of
the globe with her possessions and military posts," and from
which all the great nations of our time have borrowed much of
their political thought and more of their political practice. And
what is most noteworthy is this, that these two nations closely
resemble each other, not only in the mental peculiarities which
constitute the chief element of their political strength, but also in
the institutional foundations which they have successively laid
for their political achievements.
Likenesses between the Two Imperial Nations. Both
have been much stronger in creating and working institutions than
in explaining them : both of them have framed such a philosophy
as they chose to entertain ' after the fact ' : neither has been too
curious in examining the causes of its success or in working out
logical sequences of practice. Above all, neither has suffered any
SUMMARY. 537
taint of artificial thoroughness to attach itself to its political
methods. Slowly, and without much concern for theories of gov-
ernment, each has made compromise its method, adaptation its
standing procedure. Illogical, unimaginative their mode of pro-
cedure must be said to have been throughout, a mode for slow,
practical men, without speed or boldness. Revolution has never
fallen within their calculations ; even change they have seldom
consciously undertaken. If old institutions must perish, they
must perish within the Koman or English system by decay, by
disuse, not by deliberate destruction : if new institutions must be
constructed, they must be grafted on the old in such wise that
they may at least seem to be parts of the same stock, and may
partake as largely as may be of that one vitalizing sap, old cus-
tom. As the Roman Senate, from being the chief motive power
of the state, came at last to exercise only such prerogatives as the
people and the people's officers suffered it to retain, so the Eng-
lish House of Lords, from being the single coadjutor of the king
in legislation, has been reduced to a subordinate part which it
plays only upon a sort of sufferance, and all without any sudden
or premeditated step of revolution. As the consular power in
Rome was slowly pared down to be dealt out in parts to plebeian
officials, so has the royal power in England been piece by piece
transferred to the hands of ministers, the people's representatives.
The whole political method of the two peoples is the same : the
method of change so gradual, so tempered with compromise and
discretion, so retarded and moderated by persistent habit that
only under the most extraordinary pressure is it ever hastened
into actual revolution.
Popular Initiative in Rome and England. Doubtless
much of this likeness of temperament and method is due to the
fact that both in Rome and in England it has been the nation, and
not merely a small governing class, which has been behind politi-
cal change. The motive power was popular initiative : the process
of change was the labored process of legislation, the piece-meal
construction which is to be compounded out of the general
thought. Measures have had in both cases to be prepared for the
general acceptance ; and popular action, wherever it is the wont
for the people to act, is always conservative action. A king's law-
538 SUMMARY.
making is apt to be rapid, thorough, consistent ; but a nation's
law-making, devised and struggled for piece by piece, cannot be.
The plebeians in Rome fighting inch by inch towards the privi-
leges which they coveted, the people in England making their
way by long-protracted efforts towards the control they desired
to exercise, have had to advance with painful slowness, and to
be content with one piece at a time of the power they strove
for.
Rome's Change of System under the Empire. With the
full establishment of imperial forms of government Home lost the
conservative habit of her republican period. The methods of
the first emperor, indeed, were slow and cautious in the highest
degree : Augustus avoided all show or name of imperial power.
Carefully regardful of republican sentiment and spirit, which he
knew to be not yet extinct, he simply accumulated to himself one
by one every republican office, professing the while merely to
exercise for somewhat extended periods, periods which steadily
lengthened from terms of years to tenure for life, but by free
gift of the Senate and people, the old offices of self-government.
But later emperors were by no means so careful or so considerate
of popular prejudices : their power was open, bold, oftentimes
even wanton. And with these changes in the nature of the
government came radical changes in political method : there
came the wilful creation of new offices known to no Roman
custom, the constant breach of old practices hallowed by imme-
morial Eoman habit, the whole familiar process, in brief, of
arbitrary power. What Rome gained thus in discipline, in mili-
tary efficiency, she lost in political capacity. For that capacity
so characteristic of the Romans and the English, the capacity
namely for political organization, is beyond question inseparably
connected with popular initiative, with national self-direction,
with self-government.
Fundamental Contrast between English and Roman
Political Method. The most striking contrast between the
English and the Romans consists in a vital and far-reaching
difference in political organization. What I have said touching
the national action of the two peoples, the slow, conservative
concert of the people as a whole in the origination and effectua-
SUMMARY. 539
tion of policy must be understood in different senses in the t\\<>
cases. It was true of the Romans only during the period of
the Republic and while the Roman people could take a direct
part in affairs. The Teuton brought into force, particularly in
England, the principle of representation, that organization by
representative assemblies which enabled the people to act over
wide areas through trusted men elected to speak and act in
their stead, and which thus enabled the organization of the
nation to extend without loss of vitality. Of such methods the
Roman knew nothing. Only the people of the city of Rome had
any part in Roman legislation, for the Roman had conceived of
no way of acting by a delegation of the law-making power on
the part of the people. The equal and concerted action of
widely diffused populations through the instrumentality of
representation was utterly unknown to the ancient world. The
county court with its reeve and four selected men from each
township, the parliament with its knights from the shire and
its burgesses from the towns, instrumentalities so familiar every-
where now that the world has gone to school to the English in
politics, were for a long time peculiar to England in their best
features. They were the peculiar fruit of Teutonic political
organization where that organization had grown most apart from
the Roman influence, in England, not on the Continent, pene-
trated as the continental lands were everywhere by the Roman
example. Rome had had no similar means of holding her vast
populations together in active political cooperation and living
union. Therefore, as her conquests spread, her system became
more and more centralized and autocratic. The English could
hold populations together, however large they might be, by
means of representative assemblies ; but the Roman, who knew
no method of admitting scattered peoples to a part in the central
government, who knew no popular assemblies except those in
which all citizens should be actually present and vote, could
nold an extended empire together only by military force and
the stern discipline of official subordination.
The Development of Legislatures. Perhaps the most
distinguishing feature of modern as compared with ancient
politics is the difference between the sphere, the mode, and the
540 SUMMARY.
instrumentalities of legislation now, and the character and
methods of legislation among the classical nations. Repre-
sentative law-making bodies are among the common-place insti-
tutions of the political world as we know it: but no such
assembly was ever dreamed of by any ancient politician, Greek
or barbarian. Every citizen either took direct part in legislation
or took no part in it at all. Aristotle believed, consequently,
that no free state could exist with a wide territory or a popula-
tion so scattered as to be unable to attend the assemblies. But
what the Greeks and Romans did not know at all the Teuton
seems to have known almost from the first: representation is
one of the most matter-of-course devices of his native polity,
and from him the modern world has received it.
Our early colonial history furnishes at least two very curious
examples of a transition from primary to representative assemblies. The
earliest legislature of Maryland was a primary assembly composed of all
the freemen of the colony ; to the next assembly some were allowed to
send proxies ; and before representation was finally established there
appeared the singular anomaly of a body partly representative, partly
primary, at least one freeman insisting upon attending in person (Doyle,
I., pp. 287-290). The other example is to be found in the history of
Rhode Island, whose citizens for some time insisted upon meeting at New-
port in primary assembly for the purpose of electing the persons who were
to represent them in the colonial legislature, thus as it were jointly inau-
gurating the session, to use Mr. Foster's words, and then leaving the legis-
lature u to run for itself for the remainder of the time " (W. E. Foster,
Town Government in Rhode Island, p. 26).
The Powers of a Representative. But only very
modern times have settled the theory of a representative's
power. The strong tendency among all vigorously political,
all self-reliant self-governing peoples has been to reduce their
representatives to the position and functions of mere delegates,
bound to act, not under the sole direction of their own judg-
ments, but upon instruction from their constituents. The better
thought of later times has, however, declared for a far different
view of the representative's office, has claimed for the represent-
ative the privilege of following his own judgment upon public
questions, of acting, not as the mouthpiece but rather as the
fully empowered substitute of his constituents.
SUMMARY. 541
Scope of Modern Legislation. The question is of the
greater importance because of the extraordinary scope of legisla-
tion in the modern state, and of the extreme complexity nowa-
days attaching to all legislative questions. Time was, in the
infancy of national representative bodies, when the representa-
tives of the people were called upon simply to give or refuse their
assent to laws prepared by a king or by a privileged class in the
state ; but that time is far passed. The modern representative
has to judge of the gravest affairs of government, and has to
judge as an originator of policies. It is his duty to adjust every
weighty plan, preside over every important reform, provide for
every passing need of the state. All the motive power of govern-
ment rests with him. His task, therefore, is as complex as the
task of governing, and the task of governing is as complex as is
the play of economic and social forces over which it has to
preside. Law-making now moves with a freedom, now sweeps
through a field unknown to any ancient legislator; it no longer
provides for the simple needs of small city-states, but for the
complex necessities of vast nations, numbering their tens of
millions. If the representative be a mere delegate, local inter-
ests must clash and contend in legislation to the destruction of
all unity and consistency in policy ; if, however, the representa-
tive be not a mere delegate, but a fully empowered member of
the central government, coherence, consistency, and power may
be given to all national movements of self-direction. 1
The Making, Execution, and Interpretation of Law.
The question of the place, character, and functions of legislation
is in our days a very different question from any that faced the
ancient politician. The separation of legislative, judicial, and
executive functions is a quite modern development in politics,
and we have questions to settle concerning the integration of
these three functions which could not have arisen in any ancient
state. In the early days when the family was the state ; in the
later days when the political organization, although it had lost
the father's omnipotent jurisdiction, still rested upon the idea of
1 The introduction of the initiative and the referendum is evidence of
the distrust felt by the people for their representatives, often not their
representative, but that of special interests.
542 SUMMARY.
kinship ; and even in still later times when forms of government
inherited from these primitive conceptions still persisted, all the
functions of government were vested in a single individual or in
a single body of individuals, in a father-king or in an assembly
of elders. Even in highly developed free states like Athens no
adequate or complete recognition of any essential difference in
the character of the several duties of the judge, the executive
officer, and the law-maker is discoverable. It was a very modern
conception that governmental functions ought to be parcelled out
according to a careful classification. The ancient assembly made
laws, elected officers, passed judgment upon offenders against the
laws, and yet was conscious of no incongruity. It was before the
day when any one could be shocked by such a confusion of powers.
Modern politicians are, however, greatly shocked by such
confusions of function. They insist, as of course, that every con-
stitution shall separate the three ' departments J of government,
and that these departments shall be in some real sense inde-
pendent of each other ; so that if one go wrong the others may
check it by refusing to cooperate with it. In no enlightened
modern system may the legislator force the judge, or the judge
interfere with the privileges of the legislator, or judge or legis-
lator wrongly control the executive officer.
Charters and Constitutions. This division of powers
between distinct branches of government has been greatly em-
phasized and developed by the written constitutions so charac-
teristic of modern political practice. These constitutions have
by no means all had the same history, and they differ as widely
in character as in origin ; but in every case they give sharp defi-
niteness to the organs and methods of government which illus-
trate the most salient points of modern political development.
Our own constitutions, as we have seen (page 283), originated in
grants from the English crown, for which were substituted, in
the days following the war for Independence, grants by the
people. Originally royal, they are now national charters : and
they have been kept close to the people, firmly based upon their
direct and explicit sanction. The constitutions of Switzerland
bear a like character : proceeding from the people, they rest in
all points upon the people's continuing free choice.
SUMMARY. 543
In France, on the contrary, the people have as yet
had no direct part in constitution-making. French constitu-
tions have in all cases been both made and adopted by con-
stituent assemblies, at no stage are the people directly called
upon for their opinion, not even after the constitution has
been formulated. Its adoption, like its construction, is a matter
for the constituent assembly alone : it is given to the people,
not accepted by them. The present constitution of the Kepub-
lic was even framed and adopted by a convention which
could show no indisputable right to act as a constituent
assembly (page 148).
Creation vs. Confirmation of Liberties by Constitution.
This process, of the gift of a constitution to the people by
an assembly of their own choice, may be said to be interme-
diate between our own or the Swiss practice, on the one hand,
and the practice of the monarchial states of Europe, on the
other, whose constitutions are the gift of monarchs to their
people. In many cases they have been forced from reluctant
monarchs, as Magna Charta was wrung by the barons from
John : but whether created by stress of revolution, as in so
many states in 1848 (page 445), or framed later and more at
leisure, as in Prussia (page 445), they have been in the form
of royal gifts of right, have not confirmed but created liberties
and privileges.
Our own charters and constitutions have, on the con-
trary, been little more than formal statements of rights and
immunities which had come to belong to Englishmen quite in-
dependently of royal gift or favor. The Acts of Parliament
upon which the governments of such modern English colonies
as Canada and Australia rest do scarcely more, aside from
their outlining of forms of government, than extend to the
colonists the immemorial privileges of Englishmen in England.
And so our own colonial charters, besides providing for gov-
ernors, courts, and legislatures, simply granted the usual rights
of English freemen. Our constitutions have formulated our
political progress, but the progress came first. European con-
stitutions, on the other hand, have for the most part created
the rights and immunities, as well as the popular institutions,
544 SUMMARY.
which they embody : they institute reform, instead of merely
confirming and crystallizing it.
The Modern Federal State : contrasted with Confeder-
ations. In no part of modern political development have
written constitutions played a more important, a more indis-
pensable role than in the definite expression of the nice balance
of institutions and functions upon which the carefully adjusted
organism of the modern federal state depends. The federal
state, as we know it, is a creation of modern politics. Ancient
times afford many instances of confederated states, but none
of a federal state. The mere confederations of ancient and of
modern times, however long preserved, and of however distin-
guished history, were still not states in the proper sense of the
term. The most prominent example of a confederation in ancient
times was the celebrated Achsean League. In modern times we
have had the early Swiss confederation, the several German con-
federacies, and our own short-lived Confederation.
They were composed of states, and their only constituent law
was treaty. They were themselves, as confederacies, without
sovereign power: sovereignty remained unimpaired with their
component states. Their members did not unite : they simply
agreed, as equals, to act in concert touching certain matters of
common interest.
The modern federal state, on the contrary, is a single and com-
plete political personality among nations : it is not a mere rela-
tionship existing between separate states, but is itself a State.
Confederation and federal state have this peculiarity in common,
that they are both constituted by the association of distinct, inde-
pendent communities : but under a confederation these com-
munities practically remain distinct and independent, while
within a federal state they are practically welded together into
a single state, into one nation.
Under both forms, however, it has proved possible to make pro-
vision for the association, upon the best terms of mutual help and
support, of communities unlike in almost every feature of local
life, and even of communities diverse in race, without any sur-
render of their individuality or of their freedom to develop each
SUMMARY. 545
its characteristic life. Nothing could well be conceived more
flexible than a system which can hold together German, French,
and Italian elements as the Swiss constitution does.
Distinguishing Marks of the Federal State. The federal
state has, as contrasted with a federation, these distinguishing
features : (a) a permanent surrender on the part of the constituent
communities of their right to act independently of each other in
matters which touch the common interest, and the consequent
fusion of these communities, in respect of these matters, into a
single state. As regards other states they have merged their
individuality into one national whole : the lines which separate
them are none of them on the outside but all on the inside, (b)
The federal state possesses a special body of federal law and a
special federal jurisprudence in which is expressed the national
authority of the compound state. This is not a law agreed to by
the constituent communities : it is the spoken will of the new
community, the Union, (c) There results a new conception of
sovereignty. The functions of political authority are parcelled
out. In certain spheres of action the authorities of the Union are
entitled to utter laws which are the supreme law of the land ; in
other spheres of action the constituent communities still act with
the full autonomy of independent states. The one set of authori-
ties is sovereign ; for it presides, and the range of its powers is,
in the last resort, determined by itself ; but the other set of
authorities exercises full dominion, though in a narrower sphere.
Its powers are independent and self-sufficient, neither given nor
subject to be taken away by the government of the Union, origina-
tive of rights, and exercised at will.
All modern federal states have written constitutions ; but a
written constitution is not an essential characteristic of federal-
ism, it is only a feature of high convenience ; such delicate co-
ordinate rights and functions as are characteristic of federalism
must be carefully defined ; each set of authorities must have its
definite commission.
It is not certain that the federal state, as at present established,
is not a merely temporary phenomenon of politics. It is plain
from the history of modern federal states, a history as yet ex-
546
SUMMARY.
tremely brief, that the strong tendency of such organization is
towards the transmutation of the federal into a unitary state.
After union is once firmly established, not in the interest only
but also in the affections of the people, the drift would seem to be
in all cases towards consolidation.
Existing Parallels and Contrasts in Organization. The
differences which emerge most prominently upon a comparison
of modern systems of government are differences of adminis-
trative organization chiefly and differences in the relationship
borne by Executives to Legislatures.
Administrative Integration : Relation of Ministers to the
Head of the Executive. One of the chief points of interest
and importance touching any system of administration is the
relation which the ministers of state bear to the head of the
Executive. Of course much of the consistency and success of
policy depends upon the presence or absence of a single guiding
will : if ministers be without real leadership, they are apt to be
without energy or success in policy, if not actually at odds with
each other.
Under our own system the heads of departments are
brought together into at least nominal unity by their common sub-
ordination to the President. Although they are, as we have seen
(page 374), rather the colleagues than the servants of the Presi-
dent, his authority is yet always in the last resort final and
decisive: the secretaries have had very few powers conferred
upon them by Congress in the exercise of which they are not
more or less subject to presidential oversight and control. The
President is in a very real sense head of the Executive. In
France and England, on the contrary, the nominal head of the
Executive is not its real head. Not the President or the sov-
ereign but the Prime Minister speaks the decisive word in
administration and in the initiation of policy, and the Prime
Minister only so far as he can carry his colleagues with him.
The headship of the President and the sovereign is in large part
formal merely, being real only in proportion to the influence
given them by their interior position as regards affairs. The
influence of the Prime Minister is the vital integrating force.
SUMMAKY. 547
Perhaps it is safe to say that only in Germany, among constitu-
tional states, has there been an example of a really sovereign
guiding will in administration. The Emperor's own will or that
of the vice-regent Chancellor was the real centre and source of
policy, and the heads of department were ministers of that will.
And there is under such a system an energy and coherence of
administrative action such as no other system can secure. The
grave objection to it is the absorption of so much vitality by the
head of the state that its outlying parts, its great constituent
members, the people, are apt to be drained of their political
life.
Relations of the Administration as a Whole to the Min-
isters as a Body. Scarcely less important from an administra-
tive point of view than the relations of the ministers to the head
of the Executive is the relation of the administration as a whole,
both central and local, to the ministers as a body. We have seen
(pages 330, 335, 336) that in the commonwealths of our own
Union there is in this regard practically no administrative
integration ; that the central officers of administration do not as a
rule constitute a controlling but only a superior sort of clerical
body. In our federal organization we have the President as
supreme chief, but the cabinet as a body does not usually exercise
any concerted control over administration taken as a whole. Its
conferences as a body are confined for the most part to political
questions: administrative questions are decided separately, by
each department for itself, the only real central authority in
administrative matters being the President's opinion, not the
counsel of his ministers. As regards points of administrative
policy each department is a law unto itself. In England we find
a slightly greater degree of administrative control exercised by
the Cabinet as a body. A "Treasury minute," for instance, is
required for any redivision of business among the departments,
and such redivisions are presumably matters of agreement in Cabi-
net council. But even in England the administrative control of
the Cabinet is rather the result of the political responsibility
of the Cabinet than of any conscious effort to integrate adminis-
tration by the constitution of a body which shall habitually regu-
late, by semi-judicial processes, the main features and when
548 SUMMARY.
necessary even the details of executive management. In France
and Prussia, on the contrary, such an effort is made, and is made
with effect. In France, besides a Cabinet of ministers whose
function is wholly political, there is a Council of ministers whose
single office is systematic administrative oversight, the harmoniz-
ing of methods, the proper distribution of business among the
departments, etc. (page 158) ; and above this Council of ministers,
again, there is a Council of State, a judicial body whose part it is
to accommodate all disputes and adjust all conflicts of jurisdic-
tion between the departments, as well as to act as the supreme
administrative tribunal (page 173). In Prussia there was a like
system : a Staatsministerium which to a certain extent combined
the duties given in France to the Council of Ministers and to the
Council of State, and also a Council of State which was by de-
grees being elevated to high judicial functions.
The Administration and the Legislature. The relations
borne by the Administration, the branch which executes the laws,
to the Legislature, the branch which makes the laws, touch
the very essence of a system of government. Legislation and
administration ought under every well-devised system to go hand
in hand. Laws must receive test of their wisdom and feasibility
at the hands of administration : administration must take its
energy and its policy from legislation. Without legislation ad-
ministration must limp, and without administration legislation
must fail of effect. The vital connection between the two is well
illustrated in the matter of money appropriations for the support
of administration. Legislators hold, and properly hold, the
purse-strings of the nation : only with their consent can taxes be
raised or expended. Without the appropriations for which they
ask, administrators cannot efficiently perform the tasks imposed
upon them : but without full explanation of the necessity for
granting the sums asked and of the modes in which it is proposed
to spend them legislators cannot in good conscience vote them.
A perfect understanding between Executive and Legislature is,
therefore, indispensable, and no such understanding can exist in
the absence of relations of full confidence and intimacy between
the two branches.
The absence of such a cooperative understanding has
SUMMARY. 549
led in France to the gravest financial impotency on the part of
the government. The Chambers trust almost nothing concerning
appropriations to the authoritative suggestion of the ministers.
The great Budget Committee (page 162) not only examines and
revises but also at pleasure annuls or utterly reverses the financial
proposals of the ministers : the ministers are for the most part
left entirely without power, and therefore entirely without re-
sponsibility, in the matter, and appropriations follow the whim
of the Chambers rather than the necessities of administration.
In England the ministers are allowed to insist upon the appropri-
ation of the sums they ask for, because they are held strictly
responsible to Parliament for the policy involved in every finan-
cial proposal. The means of raising the money desired Parlia-
ment is to a certain extent at liberty to suggest without implying
distrust of the ministers ; but the amounts the ministers ask for
must be voted unless Parliament wishes the ministers to resign.
Confidence and responsibility go hand in hand (pages 196, 197).
Under our own system there is practically no commerce between
the heads of departments and Congress : the administration sends
in estimates, but the Appropriations Committees of the houses
decide without ministerial interference the amounts to be
granted.
The relations existing between the Executive and the Legis-
lature equally affect every other question of policy, from mere
administrative questions, such as the erection of new departments,
increases of clerical force, or the redistribution of departmental
business, to the gravest questions of commerce, diplomacy, and
war. The integration or separation of the Executive and the
Legislature may be made an interesting and important criterion
of the grade and character, in this day of representative institu-
tions, of political organization in the case of existing governments.
Thus in England we have complete leadership in legislation in-
trusted to the ministers, and to complete leadership is added
complete responsibility (pages 196, 197). In France we have
partial leadership (financial matters being excluded) with entire
responsibility (page 160). In Prussia, leadership without re-
sponsibility (pages 460, 461) ; and in Switzerland the same
(page 403). Under our own system we have isolation plus irre-
550 SUMMARY.
sponsibility, isolation and therefore irresponsibility. At this
point more widely than at any other our government differs from
the other governments of the world. Other Executives lead ; our
Executive obeys. 1
1 In recent years the President has steadily gained in his influence to
direct legislation, but it is only through his ability to act as the spokesman
of public opinion. So-called " administration measures " now constitute the
leading features of the legislative programme, but the Executive still lacks
the true position of leadership.
XXII.
AFTER THE WAR.
THE governments of all the powers actively participating in
the war have experienced important changes. Germany, Austria-
Hungary and Russia are in the midst of revolution ; in place of
kingdoms and empires, republics have been proclaimed ; in place
of autocracy, democracy has been enthroned. The governments
of the other belligerent countries have not escaped the growing
sense of popular supremacy, but have everywhere been brought
into closer contact with the people.
An important result of these changes will be a greater unity
among the states of the world ; competing forms of government,
with their different ideals, will, we believe, be replaced by govern-
ments organized on the common basis of popular representation
and control : dynastic rivalries will no longer vex the world with
wars nor will it be possible again for ambitious rulers to plunge
the world into warfare for the accomplishment of their personal
ends. A surer basis for peace has been laid in the -common and
universal control of governments by their peoples.
Though it be true that democratic government will make wars
less likely, it will not eliminate all causes of conflict between
nations, and if the enormous sacrifices of this war are not to be
made in vain, not merely must democracy triumph in the indi-
vidual states, but in the society of states as well.
The development of modern democracy has meant two things :
equality of rights and the assurance of those rights through popu-
lar control of government. Within the individual states special
privilege has steadily been replaced by equality of all men before
the law, and the right of a few to administer government as their
651
552 AFTER THE WAK.
private possession has made way for the conception that the
whole people has the right to direct government for the welfare
of all. To put it in another way, democracy may be regarded as
the realization of human rights through the agency of government
in channels determined by the popular will.
In the field of international relations all states have been re-
garded theoretically as equal ; this has been the basis upon which
international law has rested, yet outside the realm of theory this
equality has been confronted by a doctrine of state action directly
in conflict with it. The modern state is a territorial state and in
the realm of international politics the possession or lack of terri-
tory has largely determined the influence and importance of states.
Consequently the acquisition of territory came to be regarded as
a necessity in the expansion of national life. But new territory
could be acquired only at the expense of some other power.
Here was a frequent source of animosities and wars. In this
struggle for territory no small state could successfully compete,
but worse still no small state could feel itself safe from the
menace of imperialism. Moreover every large state was jealous
of the extension of the power of every other and each bit of ter-
ritory brought within the control of one, excited both the antag-
onism and the greed of every other whose relative position of
power and influence was thereby affected. The logical result was
deep-seated distrust and a fear of being overreached, accompanied
by standing armies and powerful navies on whose existence the
peace of Europe was said to depend. Over against this whole
conception of armed imperialism there arose the movement to
do away with armies and navies and the oppressive tax burdens
which they uselessly imposed. Many different motives animated
the people who sympathized with this idea ; some adhered to it
out of antagonism to war as in itself a brutal and unreasonable
thing ; some because they desired to see the expenditures hitherto
directed to preparation for war diverted to improving the social
well-being of humanity.
The stages in the development of this idea are clearly marked
by the means which were to replace war in the settlement of
international difficulties. Following the adjustment of the Ala-
bama claims by arbitration at Geneva in 1871, this method of
AFTER THE WAK. 553
settlement was eagerly taken up and pressed upon the attention
of the world. The First Hague Conference in 1899, summoned
to consider the question of disarmament and heralded as a Peace
Conference, was unable to agree upon any measures whatever
looking toward disarmament, but in behalf of peace it adopted a
plan providing a general scheme of arbitration and a so-called
permanent court of arbitration available for any states desiring
to make use of it. The establishment of the permanent court of
arbitration was received as a great achievement and stimulated
to renewed activity those who looked upon arbitration as the
means by which peace could be maintained. Numerous arbitra-
tion treaties were concluded but as they almost universally
excluded questions touching national honor and interests, little
was accomplished by them.
Arbitration, moreover, did not seem adequate to many who
were seeking a peaceful settlement of international disputes and
the judicial settlement of such disputes was advocated by indi-
viduals and societies. At the Second Hague Conference in 1907
an international prize court was provided but due to a failure to
agree upon the law which this court should enforce, it remained a
dead letter. Finally in 1914 the great European conflict, so long
anticipated, became a reality through the wanton aggression of
Germany and Austria. The doctrine of imperialism became in
the hands of Germany a demand for "a place in the sun," a
demand for a conquest as the right of the strong over the weak,
as the supremacy of might over right, and a determination to ex-
tend her boundaries and acquire territory at the expense of her
neighbors and in utter disregard of international law, of right,
and of humanity. The sentiment aroused in the United States
by Germany's violation of the neutrality of Belgium in complete
disregard of solemn treaty obligations, the terrible atrocities
committed by her armed forces upon the civilian population of
Belgium and northern France, her defiance and disregard of neu-
tral rights, and the menace of her conduct to the existence of the
society of states led to the establishment of a society for the ad-
vocacy of a League to Enforce Peace. The fundamental principle
of the society was to secure the establishment among the nations
of a League, the members of which would bind themselves to use
554 AFTER THE WAR.
economic pressure or military force against any state which
should go to war without first resorting to peaceful means, in-
cluding arbitration, for the settlement of the difficulty. It was
the application to the society of nations of the principle in force
in every individual state. The law-breaker who violates the
rights of another finds the combined force of the society arrayed
against him.
The success of such a League must depend upon the whole-
hearted acceptance by its members of the obligations it imposes.
The small states will find in it a source of protection that will
free them from the fear of aggression and conquest and their
acceptance of it may naturally be anticipated ; but the large and
powerful states will be equally benefited through the prevention
of a repetition of another world-war. It will mean, however, a
certain limitation upon their freedom of action ; they must re-
nounce any claim to overcome the weaker by their superior
strength, and they must forego the right in any dispute to resort
straightway to force ; they must be prepared to use their power
in behalf of the established law though their own rights be not
immediately endangered. Secret treaties and alliances must be
forbidden, and disarmament be brought about.
President Wilson has declared that the United States can
never again be a neutral in a great European war. The world
has become too closely knit together for us to pursue in the future
the policy of isolation.
The hope of such a League and the possibility of its realization
have been immeasurably advanced by the destruction of autoc-
racy and the universal establishment of democracy.
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Wilson, W.
The state; elements
of historical and
practical politics*
JC11
W5
1918
LIBRARY
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