THE STATE
Wilson, Woodrow
    
Preface

	The scope and plan of this volume are, I trust, self-evident; but a word or two of 
comment and suggestion may be useful to those who shall use the book in class 
instruction.  In preparing it I labored under the disadvantage of having no model.  So 
far as I was able to ascertain, no text-book of like scope and purpose had hitherto 
been attempted.  I was obliged, therefore, to put a great deal into this volume that I 
might have omitted had there been other compact and easily accessible statements of 
the details of modern governmental machinery.  Had there been other books to which 
the student might easily resort for additional information, I should have confined myself 
much more than I have felt at liberty to do to the discussion of general principles and 
the elaboration of parallels or contrasts between different systems.  As it was, I saw no 
way of doing adequately the work I had planned without making this a book of facts.

	The volume, as a consequence, is very large.  Realizing this, I have put a great 
deal of matter, containing minor details and most of my illustrations and parallels, into 
small print, in order that any part of such matter that the teacher saw fit to omit in class 
work might be omitted without breaking the continuity of the text.  At the same time, 
the small print paragraphs are integral parts of the text, not separated from it as foot-
notes would be, but running along with it as continuously as if they were in no way 
distinguished from the main body of it.

	In the historical portions I have been greatly straitened for space, and must 
depend upon the active and intelligent assistance of the teacher. Picking out 
governmental facts, as I have done, from the body of political history, and taking for 
granted on the part of the reader a knowledge of the full historical setting of the facts I 
have used, I have, of course, been conscious of relying upon the teacher who uses the 
volume to make that assumption good as regards his own pupils.  Large as the book 
is, it will require much supplement in the using.  I trust that it will on that account prove 
sufficiently stimulating to both pupil and teacher to make good its claim to be the right 
sort of a text-book.

	The governments I have chosen for description were selected as types of their 
several kinds.  A knowledge of the constitutions of the states of classical antiquity must 
always go before a study of modern politics; the government of France serves 
excellently as an example of a unitary government of one kind, and Great Britain 
equally well as an example of a unitary government of another kind; Germany exhibits 
a federal empire, Switzerland a federal republic of one sort, the United States a federal 
republic of another; Austria-Hungary and Sweden-Norway show the only two existing 
European types of dual monarchies.  Russia no doubt has a place apart in European 
politics, and deserved a chapter in such a survey as I have here undertaken; but I 
could not in conscience make the volume any bigger.  Even two volumes like this 
could hardly contain the chapters that might be written about the various administrative 
and constitutional arrangements to be found in Europe.

	In hoping that the book will be acceptable to teachers I have relied upon that 
interest in comparative politics which has been so much stimulated in the English-
speaking world in very recent years.  I have meant that it should be in time to enter the 
doors of instruction now in all directions being opened wider and wider in American 
colleges to a thorough study of political science. I believe that our own institutions can 
be understood and appreciated only by those who know other systems of government 
as well, and the main facts of general institutional history. By the use of a thorough 
comparative and historical method, moreover, a general clarification of views may be 
obtained. For one thing, the wide correspondences of organization and method in 
government, - a unity in structure and procedure much greater than the uninitiated 
student of institutions is at all prepared to find, - will appear, to the upsetting of many 
pet theories as to the special excellencies of some one system of government.  Such 
correspondences having been noted, it will be the easier to trace the differences which 
disclose themselves to their true sources in history and national character.  The 
differences are in many instances nation-marks; the correspondences speak often of 
common experiences bringing common lessons, often of universal rules of 
convenience, sometimes of imitation.  Certainly it does not now have to be argued that 
the only thorough method of study in politics is the comparative and historical.  I need 
not explain or justify the purpose of this volume, therefore: I need only ask indulgence 
for its faults of execution.

	The work upon which I have chiefly relied in describing modern governments is 
the great Handbuch des oeffentlichen Rechts der Gegenwart, edited by the late 
Professor Heinrich Marquardsen of the University of Erlangen.  This invaluable 
collection of monographs on the public law of modern states, which began to appear in 
1883, is almost complete.  In most cases it embodies the latest authoritative 
expositions of my subjects accessible to me, and I have used it constantly in my 
preparation of this work.

	To some of my friends I am under special obligations, of which I gladly make 
grateful acknowledgment, for that most self-sacrificing of services, the critical reading 
of portions of my manuscript.  This kindness was extended to me by Professor Herbert 
B. Adams and Dr. J. M. Vincent of Johns Hopkins University, Professor J. F. Jameson 
of Brown University, and Professor Munroe Smith of Columbia College.  To these 
gentlemen I make my public acknowledgments, together with my public condolences, 
for their connection with this work.  I am sure that they are responsible for none of its 
inaccuracies and for many of its excellences.

     Woodrow Wilson.

     Middletown, Conn.,
     August 8, 1889.

     Princeton, N.J.,
     March, 31, 1897.



THE STATE
Wilson, Woodrow
The Earliest Forms Of Government
    
Part I.

	1. Nature of the Question. - The probable origin of government 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 perplexing as such means of reconstructing history may be, 
they repay patient comparison and analysis as richly as do the materials of the 
archaeologist and the philologian. The facts as to the origin and early history of 
government are at least as available as the facts concerning the growth and 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 history might plausibly be 
read backwards.

	2. Races to be studied: the Aryans. - For purposes of widest comparison in 
tracing the development of government it would of course be desirable to include in a 
study of early society not only those Aryan and Semitic races which have played the 
chief parts in the history of the European world, but also every primitive tribe, whether 
Hottentot or Iroquois, Finn or Turk, of whose 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 incongruous 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 notable 
progress in civilization, it is essential to know the political history of the Greeks, the 
Latins, the Teutons, and the Celts principally, if not only, and the original political 
habits and ideas of the Aryan and Semitic races alone.  The existing governments of 
Europe and America furnish the dominating types of to-day.  To know other systems 
which are defeated or dead would aid only indirectly towards an understanding of 
those which are alive and triumphant.

	3. Semitic and Turanian Instance. - Even Semitic institutions, indeed, must 
occupy only a secondary place in such inquiries.  The main stocks of modern 
European forms of government are Aryan.  The institutional history of Semitic or 
Turanian peoples is hardly part of the history of European forms of 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 organization.  Each, consequently, furnishes illustrations in its history, 
and in those social customs and combinations which have most successfully survived 
the wreck of change, of probable early forms and possible successive stages of 
political life among the others.  Aryan practice may often be freed from doubt by 
Semitic or Turanian instance; but it is Aryan practice we principally wish to know.

	4. Government rested First upon Kinship. - What is known of the central nations 
of history clearly reveals the fact that social organization, and consequently 
government (which is the visible form of social organization), originated in kinship.  The 
original bond of union and the original sanction for magisterial authority were one and 
the same thing, namely, real or feigned blood-relationship.  In other words, families 
were the original units of social organization; and were at first, no doubt, in a large 
degree separate. The man and his wife and offspring lived generally apart.  It was only 
by slow stages and under the influence of many changes of habit and environment that 
the family organization widened and families were drawn together into communities.  A 
group of men who considered themselves in some sort kinsmen constituted the first 
State.

	5. 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 definitely 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 of
     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.

	6. The Evidence. - It is of course impracticable to set forth 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 throughout 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 derivation.  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.

	7. The Warrantable Conclusion. - The evidence of more confused 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 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 confusion; 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, 
which man shares with all the higher orders of beasts, has tended to exclude 
promiscuous or multiplied sexual connections, and to build up a distinct family order 
round about monogamous marriages.

	[Footnote 1: Westermarck, History of Human Marriage, pp. 538, 549.]

	[Footnote 2: Id., 548.]

	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 fullness of time as the prototype and model for the State.

	8. 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 exercise.  All that they possessed, their lives even and the lives 
of those dependent upon them, were at the disposal of this absolute 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 membership 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 
representation in the action of the State.

	9. 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 legitimate 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 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 connection and authority 
in which government took its rise.

	10. The State and the Land. - How is it possible, for instance, for the modern 
mind to conceive distinctly a travelling political organization, a State without territorial 
boundaries or the need of them, composed of persons, but associated with no fixed or 
certain habitat?  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-land. 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 feudalization (secs. 313, 323, 351, 352), sovereignty then found at last a 
local habitation and a name.

	11. 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 sustenance.  When 
the migratory life was over, especially, and the 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.

	12. 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 distance or the intervention of mountain or stream.  The 
original governments were knit together by bonds closer than those of geography, more 
real than the bonds of mere contiguity.  they were bound together by real or assumed 
kinship.  They had a corporate existence which they regarded as inhering in their blood 
and as expressed in all their daily relations with each other.  They lived together 
because of these relations; they were not related because they lived together.

	13. Contract versus Status. - Scarcely less necessary to modern thought than the 
idea of territoriality as connected with the existence 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 conceptions 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 who is born a slave, let him remain a slave; the 
artisan, an artisan; the priest, a priest, - is the command of the law of status.  Excellency 
cannot avail to raise any man above his 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, however cruel or incapable that father may be; or make any alliance which will 
in the least degree draw him away from the family alliance and duty into which he was 
born.  There is no thought of contract. Every man's career is determined for him before 
his birth.  His blood makes his life.  To break away from one's birth station, under such a 
system, is to make breach not only of social, but also of religious duty, and to bring upon 
oneself the curses of men and gods.  Primitive society rested, not upon contract, but 
upon status.  Status had to be broken through by some conscious or unconscious 
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 efficiencies," says Mr. 
Spencer, "we may call the principle of change in social organization."

	14. Theories concerning the Origin of the State: the Contract Theory. - Such 
views of primitive society furnish us with destructive 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
     Ecclesiastical Polity, Hobbes' Leviathan, Locke's Civil Government, and
     Rousseau's The Social Contract.

	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.'" All its chief commentators considered it the abstract standard to which human law 
should conform. Into this Law primitive men were born.  It was binding upon their 
individual consciences; but their consciences were overwhelmed by individual pride, 
ambition, desire, and passion, which were strong enough to abrogate Nature's Law.  
That Law, besides, did not bind men together. Its dictates, if obeyed, would indeed 
enable them to live tolerably with one another; but its dictates were not obeyed; and, 
even if they had been, would have 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, therefore 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 
consequently 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 and 
make one body politic." (Locke.) This agreement meant submission 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.

	[Footnote 1: For the natural history of this conception of a Law of Nature, see 
Maine, Ancient Law, Chap. III.  Also post, secs. 269-271.]

	[Footnote 2: Ecclesiastical Polity, Book I., sec. 10.]

	15. Traditions of an Original Lawgiver. - Ancient tradition had another way of 
accounting for the origin of laws and institutions.  The thought of almost every nation of 
antiquity went back to some single 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 Numa; 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.

	16. 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 construction, and possibly inspired by divine suggestion, is that more modern 
idea which attributes human government to the immediate institution of God himself, - to 
the direct mandate of the Creator. This theory has taken either the definite form of 
regarding human rulers as the direct vicegerents of God, or the vague form of regarding 
government as in some way given to man as part of his original make-up

	17.  The Theories and the Facts. - Modern research into the early history of 
mankind has made it possible to reconstruct, 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 supported 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 assuming kinship, that groups widened into States, - not by 
contract, but by adoption.  Not deliberate and reasoned respect for law, but habitual and 
instinctive respect for authority, held men together; and authority did not rest upon 
mutual agreement, but upon mutual subordination.



THE STATE
Wilson, Woodrow
The Earliest Forms Of Government
    
Part II.

	18. Of the theories of the origination of government in individual 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.

	19. 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 development.  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 
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.

	20. 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 
existence by the sociability inherent in man, and were developed by man's 
spontaneous search after convenience.  The statement that while the constitution of 
man is the work of nature, that of the state is the work of art, is as misleading as the 
opposite statement that governments are not made, but grow.  The truth lies between 
them, in such propositions as that 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." ^1

	[Footnote 1: John Morley, Rousseau, Vol. II., pp. 183-4.]

	21. 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 
government.

	22. 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 constitute the earliest communities were not individual men, as 
Locke and Locke's co-theorists would lead us to believe, but individual families; and 
the organization of these families, whether singly or in groups, furnished the ideas in 
which political 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 
conceivable, except this single bond of blood- relationship.  A man out of this circle of 
kinship was outside the boundaries of possible friendship, was as of course an alien 
and an enemy.

	23. Persistence of the Idea of Kinship. - 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.

	24. 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 less real a member of the family than was he who 
was natural-born.  His admittance to the sacred, the exclusive religious mysteries of 
the family, at which no stranger was ever suffered even to be present, and his 
acceptance of the family gods as his own gods, was not less efficacious in making him 
one with the household and the kin than if he had opened his veins to receive their 
blood.  And so, too, Houses could grow by the adoption of families, through the 
engrafting of the alien branches into this same sacred stock of the esoteric religion of 
the kindred.  Whether naturally, therefore, 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 communion, and therefore no 
community, at all.

	25. Kinship and Religion. - In this development kinship and religion operated as 
the two chief formative influences.  Religion seems in most instances to have been at 
first only the expression of kinship.  The central and most sacred worship of each 
group of men, whether family or tribe, was the worship of ancestors.  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 ceremonial bore 
impressive witness.

	26. The Bonds of Religion and Precedent. - The results of such a system of life 
and thought were most momentous.  It is commonplace now to remark upon English 
regard for 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 measure canonized our own forefathers of the 
revolutionary era, worshipping them around fourth of July altars, to the great benefit 
both of our patriotism and of our political morality.  But the men of '76, we are all willing 
to acknowledge, were at their greatest only men.  The ancestor of the primitive man 
became, on the 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 
practices of these potent ancestors.  To do so was to run in the face of the deities.  It 
was to outrage all religious feeling, to break away from all the duties of spiritual 
kinship.  Precedent was under such circumstances imperative.  Precedent of course 
soon aggregated into custom, - such custom as it is now scarcely possible to conceive 
of, - a supreme, uniform, imperious, infrangible rule of life which brought within its 
inexorable commands every detail of daily conduct.

	27. The Reign of Custom. - This reign of customary law was long and decisive.  
Its tendency was to stiffen social life into a formula.  It left almost no room at all for the 
play of individuality.  The family was a despotism, society a routine.  There was for 
each man a rigorous drill of conformity to the custom of his tribe and house.  
Superstition strengthened every cord and knot of the network of observance which 
bound men to the practices of their fathers and their neighbors.  That tyranny of social 
convention which men of independent or erratic impulse nowadays find so irksome, - 
that 'tyranny of one's next-door neighbor' against which there are now and again found 
men bold enough to rebel, - had its ideal archetype in this rigid uniformity of custom 
which held ancient society in hard crystallization.

	28. 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 
tendency, of course, was for custom to become fixed in a crust too solid ever to be 
broken through.  In the majority of cases, moreover, 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 majority of mankind have remained 
stationary in one or 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 exception.  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 making out of the primitive practices 
with which the greater part of the world has remained per force content.

	29. Changes of System outrun Changes of Idea. - The original likeness of the 
progressive races to those which have stood still is witnessed by that persistency of 
idea of which I have already spoken.  Progress has brought nations out of the primitive 
practices vastly more rapidly than it has brought them out of the primitive ideas of 
political society. Practical reform has now and again attained a speed that has never 
been possible to thought.  Instances of this so abound in the daily history of the most 
progressive nations of the world of to-day that it ought not to be difficult for us to 
realize its validity in the world of the first days of society.  Our own guilds and unions 
and orders, merely voluntary and 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 Crown any less the central object of the 
theoretical or lawyerly conception of the English constitution.  Every day witnesses 
important extensions and even alterations of the law in our courts under the 
semblance of a simple application of old rules (secs. 258, 1421, 1422).  Circumstances 
alter principles as well as cases, but it is only the cases which are supposed to be 
altered.  The principles remain, in form, the same.  Men still carry their brides on 
wedding journeys, although the necessity for doing so ceased with the practice, once 
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 
thousand ways we are more advanced than we think we are.

	[Footnote 1: Maine, Early History of Institutions, p. 232.]

	30. 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.

	31. Differences of Custom. - In the first place, it is not probable that all the groups 
of men in that early time had the same customs.  Custom was doubtless as flexible 
and malleable in its infancy as it was inflexible and changeless in its old age.  In 
proportion as group separated from group in the restless days of the nomadic life, 
custom would become differentiated from custom.  Then, after first being the cause, 
isolation 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.  
There would be a Trojan war.  The Greeks had themselves come, it may be, from 
these very coasts of Asia Minor; the Trojans were perhaps their forgotten and now 
alien kinsmen.  Greeks, Romans, Celts, had probably once been a single people; but 
how unlike did they become!

	32. Antagonism between Customs. - We need not specially spur our 
imaginations to realize how repugnant, how naturally antagonistic, to each other 
families or tribes or races would be rendered by differences of custom. "We all know 
that there is nothing that human beings (especially when in a low state of culture) are 
so little disposed to tolerate as divergencies of custom," says Mr. Hamerton, who is so 
sure of the fact that he does not stop to illustrate it.  How 'odd,' if not '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.

	33. 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 whenever 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.

	34. 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 forgotten 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 ceremonial, by the 
engrossing observance of times and seasons, having greater confidence in their gods, 
would have greater confidence in themselves, would be freer to win fortune by their 
own hands, instead of passively seeking it in the signs of the heavens or in the aspects 
of nearer nature; and so would be the surer conquerors of the earth.  Religion and the 
family organization were for these early groups of kindred men the two indexes of 
character.  In them was contained inferiority or superiority.  The most serviceable 
customs won the day.

	[Footnote 1: For the best development of the whole idea of this paragraph and 
others in this connection, see Bagehot, Physics and Politics, Chap. II.]

	35. 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 outlying 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 history of India.  That 
same competition of custom with custom which took place elsewhere, also took place 
there.  But the tribes which pressed into China were probably from the first much of a 
kind, with differing but not too widely contrasted customs, which made it possible for 
them to assume at a now very remote period a uniformity of religion and of social 
organization never known amongst the peoples that had gone to the West; so that, 
before the history that the rest of the world remembers had begun, China's wall had 
shut her in to a safe stagnation of monotonous uniformity. The great Indian castes 
were similarly set apart in their vast peninsula by the gigantic mountains which piled 
themselves between them and the rest of the continent.  The later conquests which 
China and India suffered at the hands of Oriental invaders resulted in mere 
overlordships, which changed the destination of taxes, but did not touch the forms of 
local custom.

	36. 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 from the interior of Asia Minor.  We can dimly see them beginning a new life there 
on those fertile coasts.  Slowly they acquired familiarity with their new neighbor, the 
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 with which their 
name was to be forever afterwards associated.  And they reached this new country 
changed men, their hearts strengthened for bolder adventure, their hands quick with a 
readier skill, their minds open to greater enthusiasms and enriched with warmer 
imaginings, their whole nature profoundly affected by contact with Father Aegeus.

	37. 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 
conquests 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 conquerors.  Insensibly, it may be, but deeply, they are 
affected by the character of the subdued or absorbed races.  Norman does not merge 
with Saxon without getting Saxon blood into his own veins, and Saxon thoughts 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.

	38. 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 unrecorded wars, have forced themselves to learn the customs in order that 
they might equal the success of rival races.

	39. 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.

	40. 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, as has been said (sec. 34), 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 "most-
competed-for" parts of the earth.  They did come to be the chief, the central races of 
history.  But race aggregations, through conquest or adoption, must have worked 
considerable changes in the political bearings of the patriarchal principle.  The direct 
line of male descent from the reputed common progenitor of the race could hardly 
continue indefinitely to be observed in filling the chieftainship of the race.  A distinct 
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.

	41. 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.  Political had at least begun to grow away from 
domestic authority.

	42. Summary. - It will be possible to set forth the nature of these changes more 
distinctly when discussing Greek and Roman institutions at length in the next chapters.  
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 majority of mankind 
it preserved itself against all essential change; how with the favored minority of the 
race it was broken by war, altered by imperative circumstance, modified by imitation, 
and infringed by individual initiative; how change resulted in progress; and how, at last, 
kinsmen became fellow-citizens.

Some Representative Authorities. 

     Bagehot, Walter, "Physics and Politics," N.Y., 1884.

     Coulanges, Fustel de, "The Ancient City," Boston, 1882.

     Darwin, Charles, "The Origin of Species," 2 vols., London, 1888.

     Draper, J. W., "History of the Intellectual Development of Europe."

     Freeman, E. A., "Comparative Politics," London, 1873.

     Hearn, W. E., "The Aryan Household," London, 1879.

     Huxley, T. H., "Evidence as to Man's Place in Nature," London, 1863.

     Lang, Andrew, "Custom and Myth," London, 1885; and article "Family," in
the Encyclopaedia Britannica.

     Lecky, W. E. H., "History of European Morals."

     Letourneau, Ch., "The Evolution of Marriage," N.Y.

     Lubbock, Sir John, "The Origin of Civilization and the Primitive
Condition of Man," London, 1889; and "Prehistoric Times," London, 1890.

     Lyall, Sir A. C., "Asiatic Studies, Religious and Social," London, 1882.

     McLennan, J. F., "The Patriarchal Theory," London, 1885; and "Studies in
Ancient History," London, 1886; "Studies in Ancient History," Second Series,
London and N.Y., 1896.

     Maine, Sir H. S., "Ancient Law," N.Y., 1885; "Early Law and Custom,"
N.Y., 1883, especially Chap. VII.; "Early History of Institutions," N.Y.,
1875; and "Village Communities in the East and West," N.Y., 1880. Maurer, G.
L. von, "Einleitung zur Geschichte der Mark-, Hof-, und Dorf-, und
Stadt-Verfassung und der offentlichen Gewalt," Munich, 1854.

     Mayne, J. D., "Hindu Law and Custom," Madras, 1888.

     Morgan, L. H., "Ancient Society."

     Peschel, O., "The Races of Man," trans. London, 1876.

     Smith, W. Robertson, "Marriage and Kinship in Early Arabia," Cambridge,
1885.

     Spencer, H., "Principles of Sociology," Vol. I., Part III.; "Ceremonial
Institutions," and "Political Institutions."

     Starke, C. N., "The Primitive Family," N.Y., 1889.

     Tylor, E. B., "Early History of Mankind," London, 1878; "Primitive
Culture," London, 1871, 3rd ed., 1891.

     Westermarck, Edward, "History of Human Marriage," London, 1891.

     The classical statements of the contract theory of the origin of
government will be found in

     Hooker, "Ecclesiastical Polity."

     Hobbes, "Leviathan."

     Locke, John, "Essays on Civil Government."

     Rousseau, J. J., "The Social Contract."



THE STATE
Wilson, Woodrow
The Governments Of Greece
    
Part I.

	43. The Evolution of Government. - At no one of the various stages of their 
development may we photograph the ancient classical governments and say that we 
have an adequate picture of Greek or Roman political practice. We cannot speak of 
the governments of Greece and Rome instructively except as evolutions.  Their history 
is of course never complete at any one period. Moreover, each stage of their 
development illuminates the processes which we have just been discussing, the 
processes by which the primitive constructions of government were modified and 
modern systems of government approached.  We may study modern governments as 
they are; but in order to understand modern governments as they are it is necessary to 
know ancient and mediaeval governments in their chief successive periods of 
development.

	44. The Patriarchal Presidencies: Legislation. - We get our earliest glimpse of 
Greek governments from Homer.  When the Iliad and Odyssey were written, monarchy 
was universal throughout the Greek world.  But not such monarchy as grew up in the 
later times of classical political development with which we are more familiar.  It was 
monarchy of a kind which no longer exists. It would be more in keeping with the 
modern meaning of words to describe it as a Patriarchal Presidency.  The kings of 
Homer's songs were not often supreme rulers who gave law and singly administered 
justice to their subjects.  They were chief nobles, rather, 'the first among equals,' 
presidents of councils of peers.  The early monarchies of Greece were not constituted 
of single cities, like the later republics, but probably of groups of communities 
acknowledging a common government.  The centre of that government was the 
council of Elders (Gerontes), heads of the noble families.  That council was the 'king's 
council' only because it convened at the king's summons.  He called his peers to a 
feast.  To speak modernly, the dinner-table was the council-board.  State affairs were 
discussed over the wine and the viands, after a manner which suggests to the reader 
of to- day Friedrich Wilhelm's "Tobacco Parliament," where imperial business shaped 
itself as it might through the laconic speech of king and councillors uttered amidst the 
smoke of fuming pipes.  Here the purposes and plans of government originated.  
Prussian plans, however, were seldom formally announced, while Greek plans were 
almost always made publicly known.  The king summoned an assembly of the people 
(an assembly, that is, of the gentes, the members of the recognized immemorial 
kinship) to hear the decrees of the elders.  The presidency of this assembly, like the 
presidency of the council, belonged to the king; or, rather, the council itself, as it were, 
presided, under the headship of the king.  The elders sat before the assembled 
tribesmen about the person of the king.  The king announced the business to be 
considered, and the elders, if they chose, addressed the people concerning it.  No vote 
was taken.  The assembly freely made known its sentiments concerning the utterances 
of the noble orators by noisy demonstrations of agreement or by a cold silence of 
disagreement; and on critical occasions its feelings no doubt counted for something; it 
had no choice, however, but to acquiesce in the decisions of the council, previously 
fixed upon at dinner.

	45. Tribal Justice. - Such was ancient Greek legislation.  Judicial proceedings 
were not radically different.  In some instances, doubtless, the king dispensed justice 
as sole magistrate.  He was generally the richest, as well as officially the first, of the 
noblemen of the kingdom, and as such must have adjudged many differences between 
his numerous personal retainers, even if he did not often act as sole judge between 
other litigants.  But most cases arising between men of different family groups were 
heard by the king and his council in the presence of the people, much as public 
business was considered, each councillor being entitled to deliver an opinion in his 
turn, and a majority of voices probably controlling.

	46. Patriarch and Priest. - I have called this presidency of the king in state affairs 
a 'patriarchal' presidency because it belonged to him by hereditary right, as chief elder 
by direct descent from the first preferred elder of his people.  The family once chosen 
by the gods to preside in council and command in war was not often set aside; and the 
usual succession by primogeniture was seldom departed from.  This president-king, 
besides, had other prerogatives typical of a patriarchal headship.  He was the high 
priest of his people, performing all those sacrifices and leading in all those ceremonials 
which spoke the family oneness of the nation.  He was the representative of the nation 
in its relations with the gods.  He was also commander-in-chief in war, here again 
representing the unity of the people over whom he presided.

	47. Not Lord, but Chief. - But here the kingly prerogatives ended. These 
presidential and representative functions of the early Greek king contained the sum of 
his powers.  Aside from his presidency in legislation and in adjudication, his high-
priesthood, and his command in war, he had little power.  There was no distinct idea 
as yet of personal allegiance to the monarch on the part of the people at large.  He 
received gifts from the people and had the usufruct of the public domain for his 
support; but these were accorded him rather as father and typical head of his nation 
than as master. The services rendered him were largely voluntary.  He was not lord, 
but chief of his people.

	48. The Primitive. - In one sense the king was not chief of a people at all.  The 
Homeric demos was not a 'people' in the modern sense of the term. It was not an 
association of individuals, but an association of families, of families which had widened 
into gentes, but which lived apart from each other in semi-independent groups, each 
possibly clustering about its own village and living its own separate cantonal life. The 
king was the head of these confederated 'houses,' and the seat of his authority was 
that 'city' about which their confederate life centred.

	49. The Antique 'City.' - This city was as unlike as possible to those centres of 
population and industry which are the cities of our own time. It was very different even 
from those Greek cities of historical times of which Athens may be taken as a type, 
and which were the actual homes of the ruling numbers of the population.  The city of 
Homer's day doubtless contained the dwellings of the king and his assistant priests, 
but not many besides king and priests, with their families and attendants, lived in it. It 
was generally a citadel upon a hill to which the confederated families living in the 
country round about it resorted in times of actual or threatened invasion.  It contained 
the temples of the gods and was the seat of the common worship.  In it was the market 
place, also, in which the trade of the country-side centred. It saw the festivals, the 
sacrifices, the councils, the courts, the armed musterings of the people.  But it did not 
see their daily life.  That was not lived in common, but apart in clans.  Each 'house' 
was a complete independent organism in itself, with a very vital corporate existence.  It 
"had its assemblies; it passed laws which its members were bound to obey, and which 
the city itself respected." ^1 These assemblies were presided over by an hereditary 
chief who was priest, judge, and military commander of his house - its king, a chief 
among the heads of its branches.  Throughout the gens there was the closest 
brotherhood.  It had its common family worship, its religious festivals, its common 
burying place.  Its members could inherit from each other, and were ultimately 
responsible for each other's conduct and debts. They could not accuse one another 
before any tribunal but that of their own kindred. They stood together as one family 
under a complete family government.

	[Footnote 1: Coulanges, The Ancient City, p. 137 (Am. ed.).]

	50. Confederate Growth of Family Groups. - The monarchical city had not 
originated directly from a confederation of families.  It had been developed through a 
series of other combinations, which, in their religious functions at least, continued to 
exist after the city had come into being. Gentes had first of all united, for the 
celebration of some common worship, into Phratries. Phratries had combined, from 
like motives, into Tribes. It was by a coming together of Tribes that the city had been 
formed.  Each Phratry and Tribe had realized the family idea by the worship of the 
same gods, and the canonization of some common hero as their eponymous ancestor; 
and each had elevated a chief to its presidency and high-priesthood.  Each had its 
assemblies and its festivals.

	51. The 'City' a Confederacy of Gentes. - But though the city was the next step of 
confederation after the tribe, it was not tribes, nor yet phratries, but gentes which were 
represented in the council of the king. There had been, so to say, a subsidence of 
political organization upon this older foundation of the family.  In the city the tribe 
continued to be a unit of worship, the phratry a unit of worship and of military 
organization; but only the gens was a unit of civil organization.  The army was grouped 
by phratries, but government was constituted by families.

	52. "The city was not an assemblage of individuals; it was a confederation of 
several groups, which were established before it, and which it permitted to remain.  We 
see, in the Athenian orators, that every Athenian formed a portion of four distinct 
societies at the same time; he was a member of a family, of a phratry, of a tribe, and of 
a city.  He did not enter at the same time and the same day into all these four," like an 
American, who at the moment of his birth belongs at once to a family, a county, a 
state, and a nation.  "The phratry and the tribe are not administrative divisions.  A man 
enters at different times into these four societies, and ascends, so to speak, from one 
to the other.  First, the child is admitted into the family by the religious ceremony, 
which takes place six days after his birth.  Some years later he enters the phratry by a 
new ceremony. . . .  Finally, at the age of sixteen or eighteen, he is presented for 
admission into the city.  On that day, in the presence of an altar, and before the 
smoking flesh of a victim, he pronounces an oath, by which he binds himself, among 
other things, always to respect the religion of the city.  From that day he is initiated into 
the public worship, and becomes a citizen.  If we observe this young Athenian rising, 
step by step, from worship to worship, we have a symbol of the degrees through which 
human association has passed.  The course which this young man is constrained to 
follow is that which society first followed." ^1

	[Footnote 1: Coulanges, The Ancient City, pp. 169, 170.]

	53. Religion: the Priesthood. - The key to the whole composition of this early 
society was its religion.  The functions of father, chief, and king; the constitutions of 
family, phratry, tribe, and city, - all hung upon certain deep-lying religious conceptions.  
The father was first of all high priest of his house, the chief first of all high priest of his 
phratry, the king first of all high priest of his city.  Their other functions rather flowed 
from the authority of their priesthood than were added to it.  Religion was the one 
conclusive motive and sanction of all social order in that early time, as it continued to 
be for many centuries afterwards; and the heads of religion were of course the rulers 
of society.

	54. It was the leading peculiarity of the religion of that time that each father, chief, 
and king represented gods whom no one else represented. The gods of one family 
were never the gods of another family, the gods of one phratry or city, never those of 
another phratry or city.  Gods were in that day private, not common, property, and 
were owned inalienably.  Each high priest of the series, therefore, had a peculiarly 
sacred and distinctive character within the group over whose worship he presided, and 
in that character were contained the seeds of all his other prerogatives. He was chief 
of the religion of his group; and that religion was the supreme rule of its life.  The 
sacred priesthood of the father could be transmitted only by natural succession.  
Priests could not be made, unless, in the providence of the gods, they were not born.  
Then human choice must be resorted to; but that choice must keep itself as close to 
the direct line of the priestly stock as possible.  It must select within the chosen family.

	55. Primogeniture. - It is because of the rule of such conceptions of civil 
magistracy, as an authority resulting from the priestly functions of the head of each 
social group, that we find primogeniture the ruling order of succession alike to 
eldership, to chieftainship, and to kingship; and it is because of this same rule of 
religious thought in social organization that we find every magistrate, even those of the 
later times when magistrates were elected, exercising some priestly function, as if to 
supply a necessary sanction for his civil powers.  The magistrate was always next to 
the gods, was always their interpreter and servant.

	56. The City's Religion. - In every way the political life of the city spoke of religion.  
There was a city hearth in the prytaneum on which a fire, sacred to the city's gods, was 
kept ceaselessly burning; there were public repasts at which, if not the whole people, 
at least representatives daily sat down to break the sacred cake and pour out the 
consecrated wine to the gods; the council-feast to which the king invited the Elders 
(sec. 44), though also a social feast, was itself first of all a sacred, sacrificial repast 
over which the king presided by virtue of his priestly office.  There were festivals at 
stated times in honor of the several deities of the city; and the Council always 
convened in a temple.  Politics was a religion.

	57. Decay of the Antique City. - Such seems to have been the universal first 
model of completed political society in the Greek world.  When it comes within our view 
in the Homeric songs, however, it is already old and near its end.  It was the complete 
and singularly logical result of that widening from family to tribe which had filled the 
ages of human life which had gone before it.  It was the true offspring of its long 
ancestry: a greater family descended from a long line of families.  But when we catch 
our first glimpse of it, the end of the pure family state is at hand.  A series of 
revolutions is about to change the whole organization of political society.

	58. This change did not proceed everywhere with uniformity.  Similar changes 
were effected, indeed, everywhere; but differing circumstances gave to change a 
different speed and a varying form and sequence in separated localities.  It was not so 
much a continued development as a differentiation. It will be best, therefore, to 
continue our examination of the further modification and expansion of Greek 
institutions by studies of the histories of the particular cities of Greece; and it is almost 
unavoidable that the particular cities chosen for this purpose should be Athens and 
Sparta, inasmuch as it is only of these two masterful cities that we have anything like 
adequate knowledge.

	59. The City absorbs its Constituent Parts. - There is, however, one uniform 
process first to be noted amongst all the governments of historical Greece.  City life 
continued everywhere; but the government did not remain cantonal.  It became 
municipal.  A 'city' was no longer merely the confederate centre of separated family 
cantons in which the real life of the people still dwelt.  That life had become much more 
largely and truly a united life.  The city no longer received its vitality from the family 
governments round about it; they, rather, derived their significance from their 
connection with the city.  The city was now, instead of a mere compound or aggregate, 
a whole, of which tribes, phratries, and families were parts.  The confederation had, so 
to say, swallowed up the confederates.  The city, a child of family government, had 
subordinated family government to itself; had usurped a full supremacy, making its 
parents its subjects.

	60. Decline of the Elders' Separate Powers. - We have not the historical 
materials for making quite plain the causes of this notable transformation in political 
order; but we can see some of the forces which may have brought it about.  By coming 
together under the early city organization the aforetime sovereign family governments 
necessarily lost much of their importance. Confederation inevitably lessens the 
individual importance of the confederates.  They have no longer their accustomed 
separate prominence; that has been swallowed up in their aggregate weight. However 
small might have been the power of each family group when it was dissociated from its 
neighbors, its independence gave it a dignity, a cohesiveness, an individuality, and a 
self-sufficiency of which close association with others robbed it.  After the 
independence of the family had been curtailed by confederation, the strongest motives 
for preserving family organization intact would be displaced by wider interests.  The 
generation which saw the 'city' formed would of course not dream that family 
importance had been in any wise impaired.  The Elders of the first councils would 
abate not a jot of their pride of blood and of authority, but would deem themselves as 
great kings as ever.  And in those times of reluctantly changing thought scarcely an 
element of altered conception in regard to these matters would enter for generations 
together.  But, whether sensibly or insensibly, profound modifications both of social 
thought and of social practice would at length take place.  Relegated to a subordinate 
rank in the political order and no longer obliged to preserve that constitution which had 
been essential to it while it continued itself an independent government, the gens 
would by degrees lose its close integration and compact organic structure.  A kingdom 
within a kingdom is a difficult thing to keep alive.  Its members are confused by a 
service of two masters, and end by really serving only one, - and that the stronger.

	61. Political Disintegration of the Gens. - The family died, therefore, as a political 
organization, for lack, no doubt, of sufficiently important functions to keep it interested 
in itself.  It was gradually disintegrated. In religion, indeed, it steadily kept its unity for 
centuries, formally at least, if not vitally; but in other things it fell slowly apart.  Its 
branches became by degrees more and more independent of each other.  Its property 
was no longer held in common, but was divided with greater and greater freedom, and 
with less and less regard for that law of primogeniture which had formerly made the 
eldest-born son of the direct line the sole proprietor, as trustee for his kinsmen, of the 
family lands and goods.  In the end, this eldest son got not even the largest share of 
the property, but divided it equally with his brothers.

Hellas. 

	62. Greece not Hellas. - In our modern thought of the Greeks we are too apt to 
make Athens and Sparta the centres and epitome of the whole life of a various nation 
throughout a long age; forgetting that great Hellenic cities lay far and wide upon almost 
every Mediterranean shore; that there had been a great civilization in Greece, at 
whose antiquity we can only guess, long before Athens and Sparta were founded; that 
the Greeks called themselves Hellenes, rather, and thought of themselves as 
inhabitants, not of narrow Greece only, but of wide Hellas, of all the spreading coasts 
that held the scattered settlements of their race.  Wherever Greeks established 
themselves in independence, setting up their own civilization and characteristic forms 
of government, there was a piece of Hellas; wherever there was an Hellenic people, 
there was a portion of the Hellenic land. Neither on the mainland of Greece, nor upon 
the islands of the Aegean, nor upon the coasts of Asia, nor in Sicily or Italy or Africa, 
had the Hellenes drawn together under any common political organization; nowhere 
had their race known any national unity. Hellas named a region, not a nation.

	63. The Migration of the Greek Peoples. - The Greeks called themselves 
Hellenes because they traced the lineage of their race to Hellen, prince of the 
Thessalians, who had led the first great movement of the men of their kin to their 
modern seats of power.  It was he who had led his people, a great host, into the 
northeastern region of classical Greece, to make it 'Thessaly,' driving the Aeolians 
already settled there into new homes further south, in Boeotia.  In like manner the 
Dorians had made their conquering movement southward into Peloponnesus, 
displacing there the Aeolian Achaeans, who, thus ousted, in their turn expelled an 
Ionian population from the narrow, sheltered, southern strip of the Corinthian Gulf 
coast to which they were to give its historical name - Achaia.  Many of the Ionians, thus 
expelled from their early seats in Peloponnesus, passed northward to join kinsmen in 
Attica. Thus was that distribution of peoples effected in Greece which was to 
characterize the classical period of Greek history.

	64. But these were not the first movements of Greek history.  They stand out 
bolder to our view, run clearer in the old tradition of the race, usher in the history of 
which we have some authentic record; but they only changed the old face of affairs in 
the little world that lay about the Aegean.  Greece was full of barbarous tribes, settled 
up and down all her varied coasts, and within all the pocketed valleys that lay snug 
among her mountains, long ere these disturbing conquerors came out of the north; and 
not of barbarous tribes only, but of stately cities here and there, where were to be seen 
the ancient monuments of a great civilization come out of the East.  The Phoenicians 
had, time out of mind, traded upon these coasts. They had unwittingly taught these 
Aegean tribesmen to follow the sea, and seek a commerce of their own.  There were 
native seamen on the Aegean, we know, as early as the thirteenth century before 
Christ.  They made bold rivals, it turned out, appropriating first the trade of their own 
seas, and then pushing out, age by age, into the broad Mediterranean itself, to meet 
and compete with the seamen of Phoenicia in their oldest haunts and most familiar 
havens.

	65. Upon the western coast of Asia Minor also, and on all the islands that fringed 
the Aegean upon either hand, or shut it in from the broader seas to the southward, 
there lay, in those earliest days, a population like this of Greece.  Whether these 
primitive peoples whom the Phoenicians had found were of their own Grecian kin or 
not, the men of the later age who called themselves Hellenes, could not clearly tell.  
There were several strains of differing blood, no doubt, among the several peoples of 
that time.  Some seemed like the Greeks, and mingled with them as kinsmen; others 
showed an alien cast, as if of an aboriginal people who must have known the land 
before ever the Greek came.  It may be that the migrations of Hellen and his 
Thessalians, of the Dorians, and of all the peoples they sent afield, were but 
repetitions of what had taken place more than once before, to be quite forgotten.  
Possibly earlier Greek migrations, conquests, and settlements had filled the Aegean 
upon either coast with a people like those of the historic time.  The Trojans may, after 
all, have been elder kinsmen of the men who fought in the hosts of Agamemnon.

	66. The Phoenician Influence. - The Aegean peoples did not forget what the 
Phoenicians had taught them; and the Hellenes reaped the harvest, building their 
civilization upon the foundations already laid in the earlier time.  The Phoenicians were 
already old when the peoples of the northern Mediterranean coasts were yet in their 
first youth.  They had been traders ever since the sixteenth century before Christ; were 
elders among the nations of their time. It was of course inevitable that the unformed 
Greeks should learn from them as from masters.  And they learned much. They 
probably learned from these first lords of the Mediterranean not only navigation and 
shipbuilding, but also the use of weights and measures, their alphabet, and much 
antique taste and knowledge in the fields of art and science.  This eastern culture 
became at length an integral part of Hellenic thought and habit, hardly to be 
distinguished as of foreign origin, so completely did they appropriate it, so greatly did 
they enrich and perfect it by their own genius.

	67. The Known Settlement of the Aegean. - The movements set afoot by Dorian 
and Thessalian conquests did not stop with readjustments of population upon the 
Grecian peninsula.  Attica could not easily contain the Ionian immigration which came 
to her from the southern coasts of the Corinthian Gulf when the Achaeans thrust 
themselves in there to escape the Dorian conquerors. Many, therefore, passed on 
from Attica across the sea, to found Ionian settlements upon the central Aegean 
coasts of Asia Minor. Yet earlier, bodies of Achaeans, still under the impulse, perhaps, 
which they had received from the Dorians, had gone from Achaia to occupy the 
northwest regions of the same Asiatic coast.  Even the Dorians passed on into Asia 
from Peloponnesus, taking possession of the southwestern coasts of Asia Minor, and 
establishing themselves in the islands of Crete, Cos, and Rhodes.  The Dorians, 
indeed, had become supreme only in the southern and eastern portions of the 
Peloponnesus, only in Messenia, Laconia, and Argolis.  The settlements in the 
southern islands of the Aegean archipelago and on the southwestern coasts of Asia 
Minor symmetrically completed their geographical position as a sort of southern fringe 
to classical Hellas.

     It is, possibly, to this period of the resettlement of Asia Minor by
     the European Greeks, thus returning, it may be, upon the original lines of
     Greek movement, that we owe the legend of the Trojan war.

	68. The Greek Mediterranean. - Nor was even this the last of movement and new 
settlement.  The Greeks were yet to add to a Greek Aegean a Greek Mediterranean.  
This they effected by means of the notable colonization of the eighth and seventh 
centuries before Christ.  Foremost among the colonizers stood Ionian Miletus, in Asia 
Minor, and Ionian Chalcis, in Euboea.  Miletus became the mother of more than eighty 
colonies, sending companies of her people to found Naucratis on the Nile delta, Cyzicus 
and Sinope, and a score or two of other towns, on the Propontis; making settlements 
further away still, where she did so much of her trading, on the shores of the Euxine. 
Chalcis contributed thriving Greek communities to Sicily, created the 'Chalcidici,' and 
founded Rhegium in Italy.  Others were scarcely less busy in colonization.  Dorians 
created the notable city of Tarentum, in Southern Italy; Achaeans built upon the same 
coast the rival cities of Sybaris and Croton; Corinthians established Corcyra off the coast 
of Epirus, and lusty Syracuse in Sicily.  The Ionian Phocaeans ventured still further west 
and built that Massilia which was to become French Marseilles.  Massilia, in her turn, 
sent colonists to the eastern coasts of Spain; and these were kept back only by the 
power of Carthage from spreading wider still Greek settlement and dominion in the west.  
In brief, it was a distinguishing characteristic of the whole process by which the 
Mediterranean was at this time so largely Hellenized that towns begat towns in prolific 
generation.  Each colony was sure to become itself a mother city.  The process was of 
two centuries' duration, extending from about 750 B.C. to about 550 B.C.  But so rapidly 
did it move, so much faster did the colonies develop in all respects than the mother cities 
of the central Greek lands, that in the first century after the beginning of the Olympiad 
reckoning (776-676 B.C.) the "centre of gravity of the Hellenic world" had already shifted 
from Greece proper to the lusty colonial states.  In Cicero's phrase, an Hellenic hem was 
woven about the barbarian lands of the Mediterranean.  From far eastern Naucratis, on 
the Nile, to far western Massilia, in Gaul, throughout almost all the chief islands of the 
sea, skirting the shores of Propontis and Euxine, as well as on every Mediterranean 
coast not dominated by Phoenicians, thronged busy Hellenic colonies, impressing 
everywhere upon the life of that early time their characteristic touch of energy, of ordered 
government, of bold and penetrating thought and courageous adventure, and 
everywhere keeping themselves separate, in proud distinctness, from the barbarian 
peoples round about them.

	69. Race Distribution. - The distribution thus effected of the various branches of 
the Greek race is not without its historical interest.  The Aegean is circled, east, north, 
west, and south, by Ionian settlements, only Thessaly and the Aeolian colonies on the 
northwestern coast of Asia Minor breaking their continuity from Euboea round by the 
Chalcidici and Thrace, down the eastern coast of the Aegean, through the islands of 
Samos, Icaria, Naxos, Paros, Tenos, and Andros, to Euboea again.  South of this Ionian 
circle is the Dorian semicircle, which runs through Crete, Carpathus, and Rhodes to the 
islands and coasts of Southwestern Asia Minor. Italy is occupied, for the most part, by 
Aeolian settlers, though a Dorian city stands at one end, an Ionian city at the other, of 
the line of Aeolian colonies there.  Sicily is shared by Dorians and Ionians.

	Everywhere, however close they may live to each other, these several tribes 
retain their distinctness, conscious of kinship and using substantially the same speech, 
but persisting in noticeable differences of character and rivalries of aim.

	70. The Greek Colonial System. - There was little or no political unity even 
among cities of the same division of the race.  No common system of government bound 
the towns of any coast together; everywhere, on the contrary, they stood aloof from each 
other, organically separate and self- directive. Greek colonization was radically different 
from the colonization which the modern world has seen, and even from that which the 
Roman world saw.  A mother city seldom kept any hold upon her colonies whatever, 
except a very vague hold of religious sentiment which even very slight strains of adverse 
circumstance often sufficed to destroy.  Colonies went out to become cities, in the full 
antique sense of that term, completely independent, self-governing communities.

	The mother city sent out each colonizing company that left her as if she were 
sending out a part of herself.  The emigrants took with them fire kindled at the public 
hearth (prytaneum), wherewith to furnish their own altars with the sacred flame kept alive 
from of old in the religious rites of their kinsmen.  The mother city supplied them with a 
leader whom the colonists recognized as their founder; the approval of the Delphic 
oracle was often sought by the emigrants; and they generally awaited, too, the consent 
of the city's gods.  If, moreover, in after times, a colony contemplated sending out from 
its own midst another colony, it commonly sought a leader and founder at the hands of 
its own mother.  Many ties of sentiment and tradition bound it to the community from 
which it had sprung. But it none the less became, immediately upon its birth, a 
sovereignly separate state, no less its own mistress in all things than the city from which 
it had come out.  The Mediterranean was fringed, not by a few Grecian states, 
aggregates of Aeolian, Dorian, or Ionian settlements, but by scores of separate city 
communities as independent, for the most part, and often as proud, as Athens, - for a 
long age as powerful also as she.

	71. Colonial Constitutions. - It was natural that each colony should retain in its 
political arrangements the main features of the constitution of its mother city; and in the 
earlier periods of colonization the Greek world may be said not to have known any 
political organization but the aristocratic. The earliest periods of colonization, it is true, 
were the periods of monarchy; but of monarchy already in decay.  An aristocratic 
organization was, accordingly, at first, almost everywhere either produced or reproduced 
in the colonies.  But it was destined from the nature of the case to undergo in these 
newer communities much more rapid changes than overtook it in the states of the older 
Hellenic lands.  The men who founded the colonies of the eighth and seventh centuries 
had most of them left the mother city to be rid of the tyranny of an oligarchical minority 
and find a free life.  Among colonists settling in regions as yet untouched by their own 
civilization there necessarily obtained an equality of condition, and presently an absence 
of clear traditional authority, which made democracy grow as if it were a natural product 
of the soil, and of the new atmospheric conditions.  Neither did Tradition bind: everything 
was to be attempted.  Accordingly democracy was developed in the outlying parts very 
much sooner than in the central lands of Hellas.  Athens waited till the end of the sixth 
century B.C. to see it in the reforms of Clisthenes (secs. 141-151); but many of the 
newer states had witnessed its introduction quite a century earlier.



THE STATE
Wilson, Woodrow
The Governments Of Greece
    
Part II.

	72. Although they outran the mother cities of Central Greece, however, in their 
haste of constitutional change, the colonial cities generally went through just the same 
phases and stages of revolution that were afterwards to characterize the slower history 
of Athens.  Democracy was generally approached through Timocracy, through 
arrangements, that is, such as Solon introduced in Athens, by which political privilege 
was graded according to wealth (secs. 128, 129).  Often, too, changes of this nature 
were accompanied in the colonies, as in Rome (XII. Tables) and in many of the central 
Greek communities, by a codification and publication of the law. Commonly 
democracies gave place to tyrannies, which were often, like that of Pisistratus in 
Athens (sec. 138), erected as a bulwark against aristocratic reaction.  Either some 
man of the people pushed himself forward, by fair means or by foul, and checked 
aristocratic domination by reducing all alike to submission to his own power; or it was a 
member of the aristocratic class who made use of a favoring opportunity to destroy 
aristocracy by a concentration of authority in himself; or else a constitutional king threw 
aside the restraints of law and ruled as he willed.  In almost every case the tyranny 
answered a useful purpose.  It generally compacted and facilitated resistance to 
outside aggressions upon the independence of the city; it usually advanced, by the 
maintenance of steadied civil order, the material interests of the community; it not 
infrequently bridged safely over the gulf which separated aristocratic privilege from 
popular sovereignty, preparing the levels of status upon which alone democracy could 
be firmly built.

	73. Law of Constitutional Modification in Hellas. - We have, thus, the same forces 
of constitutional change everywhere operative in the Greek world; everywhere 
substantially the same changes take place in substantially the same order.  Monarchy 
in all cases gives place to aristocracy; aristocracy very often shades off into timocracy; 
all exclusive privileges in the long run give way before the forces of democracy; but 
democracy is seldom secured in its final triumph without the intervention of the tyrant, 
the man who rules without the warrant of the law.  In some of the greater Hellenic 
cities the period of tyranny is the period of highest power and prosperity, and 
democracy comes afterwards only to mark decline and loss of separate independence.  
Many Peloponnesian communities cling as long almost as Sparta herself to their 
aristocratic constitutions: in them class privilege dies exceeding hard.  There is by no 
means a perfect uniformity in Hellas either in the speed or in the character of political 
change; but everywhere, unless outside circumstance commands otherwise, the same 
tendencies, the same leaven of plebeian discontent, the same ferment of personal 
ambition, are operative to work out within each little, self-centred city similar 
modifications of organization and authority.

	74. Union and Nationality among the Greeks. - Despite the separateness of 
Greek city life and its jealous negation of all political power save only that of the 
citizens of each community acting independently and for themselves, there was a 
distinct consciousness in the minds of all Greeks alike of a common Hellenic blood, 
common traditions, a common religion and civilization. A sense of nationality which, 
though vague, was nevertheless persistent and on occasion decisive of great issues, 
pervaded the Hellenic cities of the ancient Mediterranean world and gave to the history 
of the Greeks some features of homogeneity and concert.  A common Hellenic 
character everywhere distinguished Greek communities from all others.  But their 
inbred political habit and their wide geographical extension effectually barred, sooner 
or later, every movement towards national governmental union.

	75. Religious Community: the Delphic Amphictyony. - In religion more than in 
anything else the Greeks made show of union and gave evidence of a spirit of 
nationality.  In many quarters of Hellas cities lying round about some famous shrine of 
Zeus, Apollo, Poseidon, or other national deity, came together into an Amphictyony, or 
League of Neighbors, for the purpose of worthily maintaining and enriching the worship 
of the divinity and of defending his shrines against pollution or dishonor.  The most 
famous and influential of these associations was that which gathered about the shrine 
of Demeter Amphictyonis at Thermopylae and the temple of Apollo at Delphi. It 
included, at one time or another, almost every tribe, great or small, of Central Greece; 
and in its later development admitted to membership Dorian states also of 
Peloponnesus.  Its history runs back beyond the beginnings of authentic tradition; but it 
is probable that it had at one time considerable political influence.  Its primary purpose 
was to superintend the common worship of Apollo, to guard the oracle at Delphi in its 
sacred independence, to maintain against invasion the territory round about the shrine 
which was consecrated to the uses of religion.  It had regular assemblies composed of 
delegates from the several states in the league, a permanent official organization, fixed 
rules of procedure, and ancient prestige.

	At the semi-annual meetings of the league, held spring and autumn at 
Thermopylae and at Delphi, vast concourses of Greeks swarmed from all parts of the 
central states of Hellas to take part in the festivals held in honor of the god, and to get 
gain out of the opportunities for trade thereby afforded.

	76. But the equal voice accorded to large and small tribes alike in the votes of the 
Amphictyonic Council speedily robbed its conclusions of binding force in even the 
international politics of the states concerned. The powerful members of the 
Amphictyony naturally would not heed the dictation of its insignificant members.  Rules 
there were by which each state in the league was bound under oath not to destroy any 
Amphictyonic town, not to turn away from it at any time its running waters, to join 
heartily in every duty which looked to the protection of the Delphic temple, and in other 
respects to observe, at least within the limits of the league, humane standards of 
conduct both in war and in peace as well as faithful standards of cooperation in all 
matters touching the worship of the divinity in whose name the association was 
formed. There were germs in the constitution of the Delphic Amphictyony on the one 
hand of national unity, and on the other of international comity and morality. But these 
germs were never developed.  The disintegrating forces of Greek politics were too 
strong to be stayed by the mild forces of religion.

	The Amphictyonic bond was never, perhaps, a close one.  During the central, 
most celebrated period of Hellenic history the influence of the league utterly 
disappears from politics; and, when in later times it again emerges, it is only to plunge 
Greece into "sacred wars" which afford Macedonia her opportunity for the destruction 
of Greek independence, and in the conduct of which almost every humane and 
religious purpose of the Amphictyony is flagrantly neglected.

	77. The Delphic Oracle: its Influence. - None the less, the oracle at Delphi, 
whose shrine the Amphictyony had been organized to protect and honor, exercised an 
abiding influence upon Greek life throughout the length and breadth of Hellas.  Its 
shrine has been called "the common hearth of Hellas," the centre towards which the 
faith and reverence of the great Greek family turned as towards the home of their 
religion, the symbol of their oneness. The Romans, - even the Romans of the time of 
the Empire, - consulted the oracle, so great was its fame and authority; and in the 
Greek world almost every considerable undertaking awaited its sanction.  Its 
responses were generally, in cases of difficulty or of controversy between two powerful 
states, given with great wisdom and circumspection.  Those who acted as the 
mouthpieces of the god acquired a facility and felicity in the utterance of double, as 
well as of sage, meanings which saved the reputation of the oracle in all cases by 
virtue of a possible twofold interpretation of its response. Though the influence of the 
oracle waned, like all other influences of the older religion, in the later periods of 
Hellenic history, its power was very slow indeed to disappear altogether. Its formative 
authority must be put prominently forward in any estimate, however slight, of the 
nationalizing forces operative in the history of the Greeks.

	78. Political Aggregation: Achaean Supremacy. - Such political cohesion as the 
cities of Hellas here and there had was given them, not by community of religious 
feeling, but by the compelling power of some dominating ruler or strong, aggressive 
city aristocracy.  The story of the Trojan war supplies us with a type of the only sort of 
empire that Greek politics was ever to produce: the supremacy of one city over many 
others. Agamemnon, king of Mycenae, was leader of the Greeks against Troy because 
Mycenae was the leading state of Greece.  Mycenae, lying inland in the northwestern 
portion of the great peninsular plain of Argolis, and Tiryns, placed just at the head of 
the Argolic Gulf, were the seats of the dominant forces of Greek politics in that antique 
time.  Built, doubtless, by immigrants direct from Phrygia, they nevertheless figure in 
the Homeric songs as the regnant cities among the Achaeans of the Peloponnesus.  
So controlling is the part played by Achaeans in the Trojan expedition that Homer 
again and again uses 'Achaean' as synonymous with 'Greek.' Tribes from every 
quarter of the central Greek lands recognized the king of Mycenae as their natural 
leader: for Mycenae dominated Sparta, Argos, Corinth, and every other Peloponnesian 
community, and these Achaean communities of Peloponnesus were the prevalent 
powers of Greece.

	79. Cretan Power. - Of a like pattern was the supremacy said to have been 
established in Crete by the mythical king and lawgiver, Minos.  At some time in that 
heroic period to whose events no definite dates can be assigned, Minos, ruler of 
Cnossus in Crete, was thought by the Greeks, not only to have brought within his 
power many of the other Hellenic cities of the island, but also to have constructed 
something like an empire out of the numerous island states of the southern Aegean, 
establishing a naval force which swept the sea of pirates, and giving to the cities under 
his sway a system of laws which was a prototype of the later and more famous laws of 
Sparta.

	80. The Supremacy of Argos. - Later, Argos gained a like temporary ascendency 
in the Peloponnesus.  Under Phidon, a lineal successor of the Heraclidae, and 
therefore a rightful representative of Dorian supremacy, a man of imperative initiative 
and commanding ability, Argos dominated the cities of Argolis, and even led for a time 
the whole of the Peloponnesus. Phidon used his power to substitute Argos for Elis in 
the presidency, for a single occasion, of the Olympian games.

	81. Games and Festivals: the Hellenic Spirit. - To preside at Olympia was to 
preside, for the nonce, over all Hellas: for nowhere did the pan- Hellenic spirit speak 
with so plain and so impressive a voice as at Olympia.  There every four years Greeks 
gathered from all quarters of the Hellenic world to hold games in honor of Zeus, their 
national deity.  With equal frequency the Greek world sent its crowds of spectators, its 
picked athletes, its poets, historians, and musicians to the great Pythian festivals, in 
honor of Apollo, at Delphi.  Every third year the Ionian Poseidon was celebrated with 
almost equal splendor in the Isthmian games, held under Corinth's presidency.  Zeus 
had his famous games and rites every third year at Nemea also, in Argolis. But no 
festival had quite the celebrity and influence enjoyed by those which every fifth year 
witnessed at Olympia, in Elis.  The Greeks reckoned time by 'Olympiads,' by the four- 
year periods, that is, which elapsed between festival and festival at Olympia.  To win a 
prize in the Olympian games was to win immortality. Thither poets went to publish their 
poems to all who would listen. Embassies came from every Greek city of 
consequence, on the mainland of Greece at any rate, to take solemn part in the 
ceremonies by which the religious motives of the gathering were proclaimed.  Those 
who were not Greeks could be present as spectators; but no one who could not prove 
himself of pure Hellenic blood and free from all taint of sacrilegious crime could take 
part in any contest.  The period of the games was made a period of peace, of truce: 
war stood still while the Greeks thus gave token of their common national spirit, of their 
race unity in religion and in standards of achievement.  It is scarcely possible to 
exaggerate the influence, both political and moral, of these festivals.  The persistency 
and enthusiasm with which they were celebrated throughout fully a thousand years 
gives impressive evidence of their significance in Greek national history.

	Still although they spoke a national spirit, they did not secure political unity.  
Nothing but strength, nothing but arms or self-interest, furnished means sufficient for 
even those temporary, ephemeral unions of Greek cities which once and again 
seemed for a moment to be bringing sections of the Hellenic world into the possession 
of better, because more national, political methods.

	82. The Delian Confederacy. - The most celebrated, and in its early days most 
promising, of the combinations by means of which a certain degree of Hellenic union 
was secured was the Delian Confederacy.  In resisting the Persian invasions of B.C. 
490 and 480 the cities of European Greece had looked to Sparta as their leader.  But 
the two campaigns resulted in bringing Athens forward as the most effectual 
representative of Greek independence; and the turn which the contest with the 
Persians took, so soon as Marathon, Salamis, and Plataea had thrust the invaders out 
of Greece, made Athens the only possible leader.  Immediately after these victories 
the Hellenic states of the Aegean joined the states of the mainland in following up the 
military advantages already gained and in driving the Persians back from Asiatic as 
well as from European Hellas; and in this movement, as in the earlier defence of the 
peninsula, Sparta led. But Sparta soon found that such leadership threatened to result 
in the breeding of generals whose personal power would be full of peril to her 
aristocratic constitution.  She was, besides, not fitted, either by position or by political 
constitution, to play the part of a naval state: and yet it must be a naval state that 
should lead the Aegean and Asiatic communities in their contest with the common 
enemy.  Sparta, therefore, withdrew, and Athens became her natural successor in the 
hegemony.

	83. The result was the re-formation of the league; or, rather, the formation of a 
new league.  This league was the Delian, formed about B.C. 475. It embraced most of 
the Ionian states of the archipelago and of the Asiatic coast.  Delos was chosen as the 
seat of its treasury and the meeting-place of its assemblies, not only because of its 
convenient central location, but also because it possessed one of the most ancient and 
revered of the shrines of Apollo and could therefore furnish for the league that religious 
background which was indispensable to Greek thought in the construction of 
confederacies. About the shrine in Delos the confederates gathered as an 
Amphictyony. Organization was effected under the wise and eminently conservative 
guidance of Aristides: and that organization promised to be effectual.  The league had 
a treasury filled by stated contributions from all those members of the organization who 
could not themselves furnish men and vessels to the confederate fleet; that treasury 
was administered by permanent officials (Hellenotamiae) trained for their functions in 
Athens; its assembly met statedly; it maintained a great fleet constantly upon the seas: 
in all respects it was the most compact, most energetic, most promising political 
combination that Hellas had yet seen.

	84. Athenian Empire. - But the confederate features of this combination speedily 
disappeared.  From the first Athens had had, not the presidency only, but also the 
control, of the league.  Her citizens administered its treasury; she commanded the 
confederate fleet; both in material power and in political capacity she immeasurably 
excelled all the other confederates.  Many of the confederate states, too, played into 
her hands.  They preferred to pay money into the treasury rather than be at the trouble 
of supplying men and ships, - and Athens made no objection to the change.  Presently 
she transferred the funds to her own coffers, and did not scruple to use them to pay for 
the magnificent buildings and the matchless works of art with which, Pericles being 
master of her policy, she adorned herself.  In every way, indeed, the money of the 
confederacy was made to simplify Athenian finance.  When members of the league 
tried to withdraw from it, they found themselves coerced by Athens into remaining, 
being obliged either to pay a heavy tribute for their recalcitrancy or to submit to be 
ruled direct from Athens.  The later days of the league saw Athenian officers of 
oversight established in many of the towns which had once been equal members with 
Athens in the confederacy, and in some, Athenian garrisons.  When necessary or 
expedient, Athens strengthened her control by new and separate treaties with the 
stronger towns under her hegemony.  The Delian Confederacy had become an 
Athenian Empire.

	It was the resources wrung from this empire that rendered the finances of Athens 
so easy of management in the time of Pericles; and it was the success of the finances, 
probably, which gained for his policy of making money payments to the people (sec. 
155) the tolerance of the richer classes of the citizens, and prevented the fatal 
consequences of that policy from making themselves at once manifest.

	85. The Peloponnesian War: Oligarchies vs. Democracies. - This empire had 
hardly been secured when Spartan jealousy brought about its downfall. The 
Peloponnesian war was fought nominally because Athens took Corcyra's part against 
Corinth, Corcyra's parent city, but really because the power of Athens had become too 
great to be longer brooked by the Peloponnesian states.  Most of the more powerful 
states of the Peloponnesus, besides, had oligarchic or aristocratic constitutions, and 
Athens was the representative and embodiment of democracy.  That Peloponnesus, 
with Sparta at its head, should strike at Athenian supremacy was inevitable.

	The result of the war was to make Sparta supreme.  But she used her supremacy 
to humiliate, not to unite, Greece.  She put garrisons and military governors (harmosts) 
in every city convicted or suspected of disaffection towards her.  It was impossible that 
Aegean Hellas should long be held together by the hateful methods of her drastic 
tyranny. Accordingly, Sparta steadily lost her ascendency.

	Athens, on the other hand, gradually recovered much of the ground she had lost; 
gathered about herself a new and more extensive league, including not only many of 
her old allies, but also Dorian and Euboean commonwealths not a few, and even, for a 
time, Macedonian and Thessalian princes; conducted herself with an unwonted 
moderation, dictated by sad experience; and had the satisfaction of seeing 
Peloponnesian fleets again and again driven from the Aegean.  Sparta was forced to 
be content to be the chief among oligarchies and to leave the principal role in Greece 
to democrats.

	86. Meantime Thebes was brought to a sudden and short-lived supremacy by the 
genius of Epaminondas, utterly defeating the Spartans at Leuctra (B.C. 371) not only, 
but also making forcible and radical readjustments in the politics of the Peloponnesus.

	87. Macedon. - But nothing that any Greek city could do proved effectual in 
uniting the Greeks: confederacies and hegemonies alike were ephemeral.  It remained 
for Macedon and Rome to do for them what they could not do for themselves.  The 
Macedonians were cousins to the Greeks, having much Hellenic blood in their veins, - 
though just how much we cannot say. They were quite near enough of kin to 
understand Greek character and politics thoroughly, and to make their assumption to 
lead Greece seem not altogether unnatural.  Philip of Macedon knew his object 
perfectly, easily divined the means of attaining it, and advanced towards it with 
consummate craft, energy, and success. First, he conquered the outlying Greek cities 
nearest to his hand; next he intervened in a "sacred war" - a war among the 
Amphictyons concerning Delphi - by which Greece was torn, and won a place in the 
Amphictyony itself, as a Greek power; and then, turning to the completion of his 
designs, he crushed Athens (Chaeronea, 338), reduced the power of Sparta, and, 
establishing himself in the presidency of the Amphictyony, brought the states of 
European Greece together into a nominal league which was in reality a Macedonian 
empire.  Central Greece was at last compacted for a national undertaking, - the 
Hellenization of the East.

	88. The Hellenization of the East. - That Hellenization followed the conquests of 
Alexander the Great.  Alexander moved against Persia as the leader and 
representative, because the master, of the European Greeks.  His armies were Greek, 
in large part pure Greek, and the regions which he conquered were regions opened 
thereby to the Greeks.  Alexander himself did not live long enough to do much more 
for the permanent alteration of eastern civilization than clear away obstacles to the 
spread and predominance of western arts and ideas, and create the highways of 
political organization upon which Greek influences were to advance into Syria and 
Egypt.  The great changes which were to make the East Hellenic took place under his 
successors, the Diadochi, amidst the wars by which they sought to establish upon firm 
foundations their series of independent Graeco-barbarian kingdoms.  The process was 
easiest, of course, in Asia Minor, and most nearly resulted there in a veritable 
Hellenization; but even in Syria and Egypt it made notable strides, leaving Greek cities 
like Antioch and Alexandria to attest its vigor, and subduing to Greek influences much 
important Mediterranean coast country.

	89. The East was by no means, however, made Greek in any such sense as that 
in which the Aegean coasts of Asia Minor had so long been Greek.  The Greeks, 
though they became exceedingly numerous and easily dominant in the new kingdoms, 
did not anywhere, probably, constitute a majority of the population. Nor were they 
Greeks, for the most part, who would have been permitted to contend in the games at 
Olympia.  Macedon's supremacy and eastern conquests had produced a new Greek 
race, with deep infusions of Macedonian and barbaric elements both in its blood and in 
its manners.  It was on that very account the better adapted to establish a new 
civilization, which knew little of the old Greek liberty or variety, - an orientalized Greek 
civilization.  It was not stiffly retentive of exclusive characteristics, like the pure 
Hellenic; it was receptive of outside influences, open to compromise, submissive to 
rulers.

	90. The Macedonian kingdoms amalgamated the East and gave it that 
individuality which, after Roman dominion had spread to it, was to enable it still to 
occupy a place apart in the Roman system, and was to cause it ultimately to emerge 
from that system a distinct, separate, self-sufficing whole, the Eastern Empire (secs. 
239, 240).

     When Constantine transferred the capital from Rome to Byzantium, he of
     course shifted the centre of gravity from the Latin-Teutonic to the Greek
     side of the Empire.  In the time of Justinian Greek was the prevailing
     language and the chief imperial officials were Greeks.

	91. The older Greek cities of the Aegean coast of Asia Minor had been prepared 
by their earlier history to fall easily into a system like that established by Macedon.  
Denying themselves the strength that lies in union, they had singly succumbed, first to 
semi-barbarian Lydia, and afterwards to wholly barbarian Persia.  It was no new thing 
with them, as it was with Athens and Thebes and Sparta, to become material in the 
hands of a conqueror, constituent parts of an empire.

	92. The Achaean League. - The period of Macedonian supremacy, period though 
it was of the final decline of Greek liberty, nevertheless witnessed one of the most 
brilliant attempts at national action on the part of the Greeks.  The Achaeans, who ever 
since that heroic age of the Trojan expedition when they had been leaders of all Greece 
(sec. 78) had stood in the background of Hellenic history, working out their own quiet 
developments in comparative peace and prosperity in secluded Achaia, now again, in 
the closing age of Greek history, stepped forward to a new leadership and initiative.  The 
cities of Achaia had from time immemorial acted together under some form of political 
association; but their union did not become significant in the history of Greek politics until 
the year B.C. 280.  In that and the previous year several Achaean towns took heart to 
cast out their Macedonian masters, and, having liberated themselves, drew together for 
mutual assistance, making a common cause of their liberty.  The spirit of other towns 
kindled at the example, and the movement spread.  Presently all the Achaean towns had 
become free, and the league sprang into importance.  Sicyon, which was not an 
Achaean town, threw in her lot with it and gave it, in the person of her own gallant 
Aratus, a leader who was speedily to make it famous and powerful.  Under his 
leadership it became instrumental in delivering Corinth and other neighbors from their 
tyrants.  Year by year saw fresh accessions to its membership till it included Megara, 
Troezen, Epidaurus, Megalopolis, and even Argos.  For half a century it served as an 
admirable organ for the national spirit of the Greeks; for a full century it retained no small 
degree of credit; but finally, of course, it was drawn, like all else, into the vortex of 
Roman conquest.  It may be said to have been the last word of Greek politics.

	93. And in its constitution it spoke a rather notable word for the politician.  That 
constitution brought the world within sight, perhaps, of a workable confederate 
arrangement.  The league acted through an assembly which met twice every year and to 
which was entrusted, not only the election of all confederate officials, but also the 
supreme direction of every affair which affected the foreign relations of any city in the 
league, even though it were an affair not of general but only of local interest.  The 
business of the assembly was prepared by a Council (boule) which was probably 
permanent.  Its officers were, at first two Generals (strategoi), afterwards one general 
and a chief of cavalry known as Hipparchus, as well as certain subordinate general 
officers; a Public Secretary (grammateus); and a permanent executive committee of ten 
known as Demiurgi.  The board of executive officers, it is believed, presided over the 
sessions of the Assembly.

	94. Here, certainly, was a better framework than the Greeks had ever known 
before for concerted national action.  Its chief defects lay in the composition and 
procedure of the Assembly.  That body was composed, in theory, of every freeman of 
the cities of the league who had reached the age of thirty years.  In fact, of course, it 
consisted of the whole body of the freemen of the town where it met (usually Aegium, or, 
in later days, Corinth), and of such citizens of the other towns as had the leisure or the 
means to attend. The ancient world knew nothing of the device of representation which 
has solved so many problems of political organization for the Teuton.  And the votes in 
the Assembly were taken by towns, not decided by the major voice of the freemen 
present.  The few chance attendants from some distant city within the league spoke 
authoritatively for their fellow-townsmen: the smallest delegation had an equal vote with 
the largest; and yet there was no fixed plan which would make the vote of one 
delegation as representative as that of another.

	95. The Aetolian League. - The same period saw another league spring into 
rivalry with Macedonia on the one hand and with the Achaean towns on the other, whose 
constitution bears so close a resemblance to that of the Achaean confederation as to 
suggest the prevalence in Greece of common conceptions, or at least of common habits, 
of political association.  The Aetolian League, like the Achaean, had its general 
assembly of freemen; the business of that assembly was prepared by a committee 
whose functions resemble those of the Achaean Council; the chief executive officer of 
the league was a Strategus; his associate in command was dubbed Hipparchus; and a 
Public Secretary (grammateus) served the league in its formal transactions.

	96. But these likenesses ought not to be too much insisted upon.  We know less 
of the actual confederate life of the Aetolian League than of that of the Achaean, and 
what we do know reveals certain important differences between the two associations.  
The Aetolian League was not a confederation of cities, but a confederation of tribes.  Nor 
was the leadership which the Aetolians acquired through their league like the leadership 
which fell to the Achaean towns.  The Aetolians inhabited a country backed by 
impenetrable mountain fastnesses to which they could retire, to the defeat of all outside 
coercion. Their aggressive and lawless natures led them to make of their neighborhood 
to the sea an opportunity for wide and successful piracy.  Their power and their 
energetic initiative created for them a sort of empire: at one time all of Southern Epirus, 
Western Acarnania, Thessaly, Locris, Phocis, and Boeotia were included in the league, 
and it even had allies in Asia Minor and on the Propontis.  It "assumed entire control of 
the Delphic oracle and of the Amphictyonic assembly." Its leadership was a purely 
military leadership, presenting salient points of contrast to the association by means of 
which the Achaean Confederates sought to secure themselves in the enjoyment of 
peace and liberty.

	97. Every freeman of thirty years of age was entitled to membership of the 
Assembly of the League.  That assembly met, not twice, but once a year, in the autumn, 
at Thermum, and was attended, of course, only by those who could afford to attend: that 
is, by the dominant few.

	The Assembly did not select the Strategus of the League, but a list of nominees 
for the office, - from which a Strategus was picked out by lot.

	The Strategus, not a board of magistrates as in Achaia, presided over the 
meetings of the Confederate Assembly; and to him were entrusted, besides his military, 
certain general civil and representative functions.

	The Aetolian, like the Achaean League, was eventually, of course, swept into the 
Roman vortex.

	98. Rome and the Western Greeks. - Western Hellas, after having been at some 
points touched by Carthage, had been absorbed by Rome before the imperial city had 
sent her armies to intervene in the factional fights of Greece proper.  The cities of Magna 
Graecia Rome acquired when she completed her conquest of the Italian peninsula, B.C. 
272.  Sicily, with its Greek and Carthaginian settlements, she acquired in B.C. 241, and 
organized as a province in B.C. 227.  The other western homes of the Greeks she made 
her own along with Spain and the coasts of Gaul.

	99. After Roman Conquest. - Rome neither undid the work of the Macedonian 
princes in Asia Minor and Syria, nor thoroughly Romanized there the systems of 
government.  The vitality and self-direction of the semi- Greek municipalities of the East 
in large measure weathered Roman rule, as did also the Greek speech and partially 
Hellenized life of Asia, Syria, and Egypt.  The compound of oriental, Greek, and Roman 
methods in government which was effected by the later emperors, when Greek 
Byzantium had become the imperial capital Constantinople, may be best discussed in 
direct connection with Roman political development (secs. 228-240).

	The Greek settlements of Sicily, Italy, Gaul, and Spain were much more 
completely swallowed up and assimilated by Roman organization.

Sparta. 

	100. Greek Constitutions. - It would no doubt be possible, by piecing together 
such details as have come down to us concerning the various governments of scattered 
Hellas, to construct something like a general picture of Greek politics and administration.  
But those details are not many: the lines of the picture would be everywhere too broad 
and vague, and we should bring away from it hardly more than a body of conjecture.  We 
shall better serve our object by a study of the governments of Sparta and Athens, 
concerning whose constitutions we have very definite and reasonably complete 
information.  Sparta cannot, indeed, be taken as a type, for her constitution seems to 
have stood almost if not quite unique in the Hellenic world.  It deserves study for its 
singularity, its stability, its persistent efficiency. The constitution of Athens, on the other 
hand, may fairly enough be taken as typical of Greek life and politics.  The two 
constitutions together supply a sufficient range and variety of institutional arrangement to 
enable us to appreciate the versatility of the Greek political genius, - a genius at once 
subtle and practical, with a touch too much, it may be, of nice invention, and yet steady 
withal and sagacious.

	101. Fixity of the Spartan Constitution. - It was the circumstances of her history 
which gave to the constitution of Sparta a character in many respects unique, and 
secured to it an immunity from change which provoked at once the wonder and the envy 
of the rest of Greece.  Throughout almost all of that chief period of Greek history with 
which the Greek writers have made us familiar, - from the time of Solon, namely, till the 
decline of Athenian power and independence, - the Spartan constitution retained 
substantially the very form it had had when Sparta first emerged into the field of history.  
All its features are at once ancient and perfectly preserved.

	102. The Spartans a Garrison of Conquerors. - The Spartans had come as 
conquerors into the valley of the Eurotas.  They were of the number of those Dorians 
with whose invasion of Peloponnesus visible Greek history may be said to begin, and 
their hold upon their kingdom had been gained only after many decades - it may be only 
after several centuries - of hard fighting advanced inch by inch.  Their numerical strength 
was not great, probably at no time exceeding fifteen thousand; they lived in the midst of 
a forcibly subjected population, from eight to ten times more numerous than themselves; 
and they had, consequently, to maintain their supremacy rather as a garrison than as 
hereditary heads of a normal body politic.

	103. Slaves and Helots. - There was no considerable body of domestic slaves in 
Sparta.  Slaves there were, indeed, but their number was never large; there being 
probably only enough to supply the wealthier families with household servants and the 
state with drudges.  The burden of all the other services that were required in the simple 
life of the Spartan state fell upon a body of serfs called Helots.  The Helots constituted 
the lowest rank of the subject population of Laconia.  They were, doubtless, 
descendants of the original inhabitants of the country, and owed their degradation to 
what, had fortune favored them, would have been accounted a reason for giving them all 
honor, - their desperate resistance to the advance of the conquering Dorians. They are 
said by some, indeed, to have received their name, of Helots, from a town called Helus 
which had been the last to yield itself to the conquerors, or the most stubborn in revolt 
against their dominion when that dominion was young.  Their punishment had consisted 
in being chained, not to masters, but to the land which had once been their own.  They 
were slaves of the soil, rather than of the soil's usurping masters.  Though absolutely 
without freedom, they were not personal property, to be sold or exchanged in the market 
like the poor creatures who thronged the slave-pens of Delos and Byzantium.  They 
could not change service save as inseparable appendages of the lands upon which they 
served.  They were, consequently, not at the mercy of the individual caprice of their 
masters, but had themselves something of the inviolability of the property to which they 
were attached.  They passed with it, as part of it, and could not pass otherwise without 
special legislative warrant. Neither could they be killed or misused by their masters 
without public authority, or at least some colorable pretext of the public safety.  And, 
inasmuch as they were thus a part of the real estate of the country, - its motive part, its 
machinery of production, - and hedged about by the same laws that regulated the 
usufruct of the land, they were allowed to retain, for their own sustenance, a certain 
portion of the products raised by their labor, that, as servants of the land, they might 
derive their support from it.  In a sense, they belonged to the state; for the state 
controlled, as itself supreme owner, the ownership of the land to which they were 
attached. They looked to the state alone, therefore, for any measure which was to affect 
their condition for better or for worse: for new restrictions in consequence of their 
turbulence or threatening discontent, or for emancipation in return for such services as 
they were occasionally able to render in war.



THE STATE
Wilson, Woodrow
The Governments Of Greece
    
Part III.

	104. The Perioeci. - Sparta was not the lonely mistress of an empty land, where 
there were only Helots and their taskmasters living upon scattered farms.  Inland 
towns stood about her on either hand, up and down the spreading valley of the 
Eurotas; the coast was dotted all the way from Argolis round about to Messenia with 
cities that showed a busy trade, and wrought at iron and other stuffs which the world 
stood ready to buy; Arcadians, Ionians, Achaeans, men of the various branches of the 
old race, made up the tale of their population; and they were not Helots.  They were 
not Spartans, indeed, but Perioeci, neighbors, native provincials, of whom the 
Spartans had made subjects, but to whom freedom was left, if not political privilege.  
Not all stood upon the same footing; they had been conquered at different times, and 
had, no doubt, made different terms of submission.  Some, perhaps, were obliged to 
receive Spartans into their chief offices; all had to pay a stated tribute; all were bound 
to supply troops in time of war; some found a hard discipline put upon them if they 
were not always submissive enough; none dared resist encroachment; but in the main 
their people were free, though dependent. Their municipal affairs were, for the most 
part, and at all ordinary seasons, in their own hands. They might enrich themselves 
with trade and manufactures as they pleased, so long as they yielded Sparta her full 
tribute.  Their lot grew steadily worse, no doubt, as Spartan power hardened in the 
face of difficulty; but, for the rest, they lived their own lives, throve modestly, and 
earned for Laconia the title of "the land of a hundred towns." Without them, Sparta, 
with her garrisoned citizens, would have lacked, not troops only, but money, and many 
a needed source of supply.

	Other inferior classes there seem to have been, occupying positions intermediate 
in point of privilege and consideration between the dependent Helots and Perioeci on 
the one hand, and the supreme Spartiatoe on the other; but of them we know little that 
is satisfactory or significant. Such glimpses as we get of them add almost nothing to 
our knowledge of Spartan life and politics.

	105. The Spartiatae: Property Laws and State Guardianship. - The Spartiatoe 
were the only citizens.  The Perioeci outnumbered them three to one, the Helots 
probably twenty to one; but only blood counted for aught in the Spartan state, and 
nowhere was a dominant class more successful in maintaining a rigorously exclusive 
privilege.  Throughout all that period of Sparta's history which is best known and best 
worth knowing, no democratic revolution made any headway against this active, 
organized, indomitable band of Spartiatoe, who held the state as an army would hold a 
fortress.  Among themselves Spartans were Homoioi (Equals); and in the earlier days 
of their government every means was employed to make and keep their equality a 
reality. In nothing was this purpose more apparent than in the system of land tenure. 
There was private property in land among the Spartans; but the state was, as I have 
said, regarded as the original proprietor of the land, and individual tenure was rather of 
the nature of a usufruct held of the state and at the state's pleasure than of a complete 
ownership.  The purpose of the early legislation was to make the division of the land 
amongst the Spartan families as equal as possible; and the state frequently resumed 
its proprietary rights and reapportioned estates when grave inequalities had crept in, 
without a suspicion in any quarter of confiscation.  It was a primary care of the state to 
keep its citizens rich in leisure, in order that they might live entirely for the service of 
the state and feel no necessity to engage in a pursuit of wealth, which would not only 
withdraw them from their bounden political duties, but also rob them of social 
consideration.  It accordingly undertook the patriarchal duty of administering the wealth 
of the country as trustee for the citizens.  It not only redistributed estates; it also 
compelled rich heiresses to marry men without patrimony, and grafted the poor upon 
good estates by prescribed adoption.  It followed, of course, from such laws, that 
adoption was not permitted to swell the numbers of any family without state sanction 
being first obtained, that wealthy heiresses were not allowed to throw themselves 
away on rich youths, and that landed estates could be alienated from the family to 
which the state had assigned them neither by sale nor by testamentary bequest.  
Citizens were both wards and tenants of the state.

	106. Doubtless, however, it was only in the earlier periods of this constitution that 
this patriarchal guardianship and proprietorship of the state was freely and effectively 
exercised for the purposes intended.  It is certain that in later times great inequalities of 
condition did spring up among the so-called Equals; so much so that they fell at last 
into two distinct classes, the Few who were rich, and the Many who were 
comparatively or utterly poor.  All Spartiatoe were no longer upon the same political 
level even, but some were Homoioi and some Hupomeiones (Inferiors).

	107. The Two Kings. - The government which the Spartiatoe conducted is at 
every point in broad contrast to the governments of which Athens was a type. Fortune 
had given Sparta two kings.  Tradition held that the Dorian invaders had, upon entering 
the Peloponnesus, allotted its various districts to their several Heraclid leaders; that 
Aristodemus, to whom Laconia had been assigned, died before conquering his 
kingdom, leaving twin sons, Eurysthenes and Procles; that the mother of the boys 
declared herself ignorant which of the two was born first; that the Delphic oracle, when 
called upon to arbitrate the claims of the brothers, commanded that they should both 
be crowned and given joint and equal authority; and that from these two brothers had 
sprung the two royal houses which reigned in Sparta. Whatever the origin of this 
double kingship, Sparta continued to have two kings till she had gone far in that 
decline which preceded Roman conquest. Their nominal functions were not widely 
different from those which we have seen the Homeric kings exercising.  They "were 
representatives of the state in its dealings with the gods, deliberative and judicial 
heads of the people in time of peace, and commanders in time of war." ^1 The very 
great limitations by which their prerogatives were in fact surrounded will appear in what 
remains to be said of the other institutions of the state.

	[Footnote 1: Schomann, p. 227.]

	108. The Council of Elders. - In deliberation and legislation they were, still after 
the manner of the Homeric constitution, associated with a Gerusia , or Council of 
Elders.  The members of the Gerusia, however, unlike the Elders of the more ancient 
Council, were elected by the popular Assembly (sec. 110).  They were twenty-eight in 
number (constituting with the kings, a body of thirty); only those who were of noble 
blood and who had reached the age of sixty (the age at which liability to military 
service ceased) were eligible to membership; and those who were elected held office 
till death.  As a court of justice, the Gerusia had jurisdiction over the kings, over capital 
and other grave criminal offences, over all state trials, and over cases of atimia, or 
attainder.  As a legislature, its functions were in part sovereign, in part probouleutic; it 
acted finally upon most administrative matters of importance, and prepared by 
preliminary decree the legislative measures which were to be submitted to the vote of 
the popular Assembly.  It stands in character and functions half-way between the 
Athenian Senate of the Areopagus and the Athenian Senate of Four Hundred (secs. 
131, 134).

	109. The 'Apella,' or Assembly. - The Apella, or Assembly, consisted of all 
citizens (that is, all Spartiatoe) over thirty years of age.  The matters which were 
referred to its vote were, disputed successions to the throne, the appointment of 
generals, the election of magistrates and Gerontes (Elders), war and peace, treaties 
with foreign states, and, perhaps, all changes of law. I have said only that these 
matters were referred 'to the vote' of the Assembly because they were not referred to 
its consideration.  No place was given in the Assembly to real deliberation; only the 
kings, the ephors, and the Gerontes could either make a motion or take part in debate.  
Indeed, debate was a thing hardly known in Sparta, where every man was taught to 
despise the talker and to admire the man whom later times were to dub the 'laconic' 
man.  The utterances of the magistrates and senators in the Assembly were probably 
curt opinions packed into a few scant sentences.  And the voting was as informal as 
the debating.  A division was never restorted to; a viva voce vote decided.  It lay with 
the ephors, moreover, who presided in the Apella, to declare upon which side the 
preponderant voice had spoken in the vote; and it is not to be doubted that they often 
heard as they chose.  It was within the choice of the Gerusia, besides, to take the vote 
of the Apella as decisive or not as they chose, - at any rate in all administrative and 
political matters.

	110. Election of Elders. - Only in the election of Gerontes was a different and 
more elaborate procedure observed.  Then, after the Assembly had convened, several 
persons selected for the purpose stationed themselves in a building near the place of 
assembling, from whence they could get no view of the Assembly, but where they 
could hear the voices of the assembled people. Upon the completion of this 
arrangement, the candidates for the Gerusia passed through the Assembly, in an order 
determined by a lot whose result was unknown to the listening committee near by, and 
the choice of the Assembly was ascertained by the decision of the concealed 
deputation as to which of the successive shouts of applause that had greeted the 
candidates as they made their appearance had been the most spontaneous and full-
throated.  This election by applause was, of course, just an elaborate form of viva voce 
voting.

	111. The Ephors. - The most notable and powerful office known to the 
constitution of Sparta was the office of Ephor.  It was an office, there is reason to 
believe, of great antiquity; but development had hurried it very rapidly away from its 
early form and character.  The five Ephors (or Overseers, for such is the meaning of 
the title) were originally mere deputies of the kings, appointed to assist them in the 
performance of their judicial duties, to act as vice-regents in the absence of their royal 
principals, to supervise in the name of the kings the other magistrates of the state, to 
superintend, under the same authority, the public discipline, and to summon, by royal 
warrant, the Gerusia and the Assembly; in short, to serve in all things as the kings' 
assistants.  But gradually, through the operation of causes for the most part hidden 
from our view, but possibly in part because they sympathized more with the citizens 
from whose ranks they were yearly drawn than with the kings who appointed them, 
and in part because they were chosen by two kings not always harmonious in their 
counsels or purposes, and were thus kept out of sympathy with the royal 
administration as a whole, the ephors drew steadily away from the control of the kings, 
until at length their power was not only independent of the authority of the throne, but 
even superior to it.  There is no clear evidence to show when the choice of the five 
ephors passed from the kings to the Assembly; but the ephors certainly exchanged 
their character of representatives of the kings for that of representatives of the state 
and virtual masters of the kings, - overseers of the chief magistrates as well as of all 
others.  The kings were obliged every month to take an oath to this supreme board of 
five to exercise their prerogatives according to the laws; the ephors, on their part, 
undertaking, on behalf of the people, that so long as this oath should be observed the 
kings' power should pass unchallenged.  Every nine years the ephors asked of the 
gods a sign from the heavens as to whether anything had been done amiss by the 
kings, and if the heavens showed any sinister omen, the conduct of the kings was, 
upon the initiative of the ephors, investigated by the Gerusia.  Private individuals, 
besides, could bring charges against the kings to the notice of the ephors, and it rested 
with them to dismiss the charges (to answer which they could summon the kings 
before them), or to push them in the Gerusia.

	112. Of course, if masters of the kings, the ephors were masters of all others in 
the state also.  They could interfere, with full power to investigate and to punish, in 
every department of the administration; the supervision of the public discipline, and 
consequently of the private life of every individual, rested with them as overseers of 
the special officers of the discipline; they presided both in the Gerusia and in the 
Assembly; could summon either body when they wished, and lay before them any 
matters they pleased.  They were the treasurers also of the state.  In everything they 
were the supreme authority.  The limitations of their power lay in the fact that they 
were a board of five men and could do nothing of importance except by a unanimous 
resolve, and that, their power lasting but a single year, they would presently become 
private citizens again, liable to accusation and punishment by their successors.  They 
could no doubt determine, however, who their successors were to be by exercising 
arbitrarily, when they dared, their power to interpret the viva voce vote of the electing 
Apella.

     One of the board, like one of the Athenian archons, was Ephor
     Eponymus, giving his name to the civil year.

	113. The Administration of Justice. - With reference to the administration of 
justice in Sparta we are not able to say much more than that the law was interpreted and 
applied by the kings in cases relating to the family, to inheritances, or to the 
redistribution of property by marriages between rich and poor (the kings being, so to say, 
Chancellors, and families wards in Chancery); that cases affecting the kings themselves 
or involving the graver sort of crimes were heard by the Gerusia; and that all other cases 
were determined by the ephors or by lesser magistrates. There were no popular jury-
courts.

	114. The State Discipline. - But the feature of their constitution which chiefly 
preserved the supremacy of the Spartiatoe over the subject population of Helots and 
Perioeci, and made Sparta Sparta in the eyes of the rest of the world, was the State 
Discipline.  Every Spartan lived the life of a soldier in garrison.  He did not belong to 
himself, but to the state.  He was taken from his parents at seven years of age, and from 
that time until he was sixty lived altogether in public, under a drill of muscle, appetite, 
and manners such as not even a modern professional athlete could well imagine.  From 
seven to thirty (thirty being the age of majority in Spartan law) he was schooled to 
endure the roughest fare, the scantiest clothing, the poorest lodging, and the completest 
subordination to his elders.  After thirty he acquired certain political and social privileges: 
he was then a citizen, and he could marry; but even then he was permitted no essential 
change of life.  He was expected to keep up his athletic habit of body, he must still eat at 
the public messes, could have no home life, but must see his wife only infrequently for a 
few minutes, or by stealth.  He must marry, - the state required that of him, - and must 
consequently maintain a household.  He must also contribute his share of money and 
supplies to the public messes (Syssitia).  Only when he had passed his sixtieth year 
could he in any measure lead his own life or follow his own devices.

     It was probably failure to comply with the requirements of this
     discipline or to contribute the required quotas to the Syssitia, that
     degraded Spartiatoe from 'Equals' to 'Inferiors' (sec. 106).

	115. This discipline included the women only during their youth; girls had to 'take' 
gymnastics as the boys did; but they did not go into the discipline of the men.  All 
education which we should account education was excluded from the system.  Only 
music of a rude sort, the use of simple stringed instruments and a taste for the songs of 
war, softened the constant training of sense and sinew.  The product was a fine soldiery 
and capital soldiers' mates, - shapely, coarse, sturdy women, and lithe, laconic men.

	116. Principles of Growth in the Spartan Constitution. - The constitution of 
Sparta, for all it is so symmetrical, is not to be looked upon as a creation, any more than 
is that of any other Hellenic city.  The mind must not be misled by the fact that in 
describing it we are under the necessity of taking it at some one moment of complete 
crystallization into supposing that such was exactly its form at every period of its history. 
It was, like every other constitution, a slowly developed organism.  It early took a 
peculiar form, and long preserved it, because of the peculiar situation of the Spartans, 
who were few and had to hold their power against a hostile subject population greatly 
superior to them in numbers.  They could not venture to relax for a moment their internal 
discipline; and so it happened that throughout the period during which history is most 
concerned with Sparta her constitution remained fixed in a single form. But afterwards it 
passed through the same stages of tyranny and democracy that had long ago come to 
Athens. The non-citizen classes eventually broke their way in large numbers into the 
constitution, and the Romans found Sparta not unlike the other cities of Greece.

	117. Lycurgus. - The Spartans themselves, however, as I have said in a previous 
chapter (sec. 15), regarded their constitution as a creation, and the creation of one man, 
Lycurgus (B.C. 820).  To him was ascribed a rearrangement of the three tribes which 
constituted the state, a division of land between Spartiatoe and Perioeci, the institution of 
the Gerusia, a provision that there should be monthly meetings of the Assembly, and, 
above all, the creation of the celebrated system of state discipline.  It is not at all 
improbable that he was in fact very largely instrumental in giving to the constitution the 
particular form in which we have seen it.  But it is extremely improbable, if not 
intrinsically impossible, that he can have done much more in the way of effecting actual 
fundamental changes than did Solon or Clisthenes at Athens. The Spartan constitution 
had probably made no leaps or bounds; Lycurgus, doubtless, only guided its course at a 
very critical, because consciously formative, period.

Athens. 

	118. The City of Solon: Kingship gone. - We get our first distinct view of Athenian 
affairs in the time of Solon, to whom Athens attributed her first great reform code.  The 
Solonian constitution is by no means so well known as historians could wish; but its main 
features may be said to be beyond dispute, and these features speak very plainly of a 
society quite unlike that of the primitive Greek 'city.'

	Solon was put in charge of the city's affairs by being chosen 'Archon.' The 
ancient kingship had disappeared, the archonship was one of its fragments. The 
abolition of the kingship had doubtless come about through an aristocratic revolution, 
such as Aristotle afterwards noted as altogether a normal movement in Greek politics.  
The 'kings' of the Council had grown by degrees quite intolerant of the authority of the 
king, their patriarchal president.  He stood for the growing state; they, only for the 
disintegrating gentes.  His hereditary headship was threatening to overshadow 
permanently their individual part in affairs.  They therefore determined to control his 
office, to make it dependent upon themselves. Codrus, the last king of Athens, is said to 
have sacrificed himself in a war with Peloponnesian foes, because of a prophecy that 
the enemies of Athens would be victorious unless the life of her king were yielded up in 
the contest, and it is added by the tradition that the Athenians thereupon abolished 
hereditary kingship by way of emphasizing their belief that no one was worthy to 
succeed Codrus.  Possibly we are not at liberty to discredit all of the pretty story; it is 
such a story as we would not discredit if we could.  But we may feel assured that there 
were other potent reasons in the minds of the ruling men of the city why Codrus should 
be the last of her kings, and that they were quite clear in their determination that, if not 
Codrus, then some early successor of his should be the last of the hereditary monarchs 
of Athens.

	119. The Archonship. - They did not, however, transform the office at once into 
an elective magistracy.  They could not.  Both unreasoning religious belief and 
calculating policy would have forbidden any such violent breach in the ancient order of 
the family-state.  The kingship was put into commission. The heirs of Codrus continued 
to bear the title and enjoy the sacred precedence of kings for more than three hundred 
years; but their military powers were transferred to a Polemarchus, their chief civil duties 
to an Archon.  They were no longer the real, but only the titular heads of the state.  The 
king had been given colleagues holding office for life; and the monarchy had become a 
limited monarchy.

	120. Nine Archons. - In the year 752 B.C. radical changes set in.  The hereditary 
principle was abolished, along with tenure for life.  King, polemarch, and archon were all, 
it was arranged, to be chosen for a term of ten years.  The office of Polemarch had 
hitherto, there is reason to believe, like that of the King, been hereditary in a single noble 
family. But henceforth both king and polemarch were to be elective magistrates. Both, 
moreover, were to be subordinated in dignity to the archonship whose incumbents had 
from the first been freely chosen from the whole body of nobles.  The king was still to be 
chosen from the royal family, the polemarch from the household which had held the 
office since its institution; but the archon was to be the official head of the state, and 
every magistracy was to be elective.  Change could not stop there. Scarcely forty years 
went by ere it was necessary to open all three offices alike to every man of noble blood 
who could command the suffrages of the Council of the Areopagus.  Another generation 
and the three offices were made annual, and a board of nine archons was instituted.  Of 
this body, one was still chief; the old dignity still lived in the Archon Eponymus, from 
whom the year took its name in all official records.  The second archon was still Archon 
Basileus, the state's high priest and the heir of kingly functions. An Archon Polemarchus 
carried still the authority of polemarch.  These three were still, no doubt, the chief officers 
of the public administration.  But six Thesmothetoe were added; at first, it may be, only 
as scribes and secretaries to enroll decrees and keep record of the law, assistants, no 
doubt, to the three chief magistrates; but finally as judges with certain definite magisterial 
functions of their own.

	All nine archons, indeed, were judges.  Upon the chief archon devolved the 
weighty duty of determining cases of family law and inheritance; the king-archon 
(Basileus) adjudicated the then numberless cases which religious law controlled; the 
archon polemarch heard all cases between metics and foreigners; to the six 
Thesmothetoe fell the general oversight of the laws and the conduct of such cases as 
belonged to the jurisdiction of none of the three principal archons, - all cases not 
otherwise assigned. There were, moreover, certain judicial functions which the nine 
archons exercised jointly, such as the punishment of banished persons who had broken 
their banishment, the oversight of the balloting for certain minor judgeships, the 
presidency of certain meetings of the people, etc.

	121. Solon Archon Eponymus: the Crisis. - Such was the changed magistracy of 
Solon's time.  Solon was chosen Archon Eponymus, but with powers such as no archon 
ever regularly possessed.  He was chosen at a crisis, - a crisis which by its very 
existence reveals a society radically unlike the society of kinship described by Homer.  
There are three contending parties in the state, - the men of the mountain, the men of 
the shore, and the men of the plain. Neither the men of the mountain nor the men of the 
shore would have been so much as counted in the Homeric state. They were not of the 
immemorial kinship at all.  They were the tillers of the soil, holding their lands of the 
noble families who lived in and about Athens, and who constituted the third party, of the 
plain.  They were outsiders to the state.  The noble families were the state; these men of 
the mountain and the shore were their subjects, bearing every burden, and sharing not a 
single privilege.  Every movement which they had made towards even a partial 
independence had compelled them to borrow capital of their masters and so had 
clinched their slavery.  The men of the shore, the men, that is, who tilled the lands which 
lay upon the eastern coast or stretched across the southernmost portion of the Attic 
peninsula to famous Sunium, and who plied a quiet trade as fishermen as well as 
farmers, were much better off than the goatherds of the mountain, who had both the 
exclusiveness of the law and the niggardliness of nature to contend with, in the 
mountainous districts to the north; but both hated the privileges of the Eupatrids, and 
were ready to combine in order to wreck them.  The one could not, the other would not, 
any longer abide content with a lot which forbade them all independence and all hope of 
a voice in the determination of their own destinies.  The men of the coast would have 
accepted moderate concessions; the poor peasants in the mountains clamored for 
radical measures; but both would have something done.  The Eupatrids, with their 
submissive retainers on the plains about the city and the port, were in a numerical 
minority, though doubtless strongest in resource, and deemed concession unavoidable.  
Solon was a man of advanced age and of established reputation, alike for courage, for 
honesty, and for wisdom.  All parties turned to him with hope and trust.  He was chosen 
archon, invested with extraordinary legislative powers, and bidden make a constitution 
just to all alike.  This was in the year 594 B.C.

	122. The Draconian Legislation. - The discontent was of long standing and had 
already led to radical constitutional changes.  Even upon the Plain, where the broad 
acres of the Eupatrids lay in the genial air, there was keen distress.  The land was 
worked by tenant farmers, Hektemoroi, 'Sixthers,' who undertook to live upon a sixth part 
of the produce of their farms, and yield the other five-sixths by way of rent to their 
masters, the owners of the soil. The austere law of the land made their very persons 
liable for the fulfillment of the hard agreement; if they failed in it they were sold into 
slavery in the markets of Egypt and Lydia.

	123. But constitutions do not change for metayers; their distress simply added an 
item to a great sum total.  It was of more immediate consequence that a body of 
independent peasant proprietors stood at the doors of the state moved by a deep 
distemper.  It was hard for such men to maintain an independent standing upon a small 
scale where the soil was shallow and the yield uncertain.  It was time and again 
necessary to borrow; and to borrow money might mean, not the loss of his land merely 
by a delinquent borrower, should his crops fail, but the loss of his independence also.  
He must become a 'Sixther' and set out upon the road, it might be, to slavery at last.

	124. Moreover, changes of another sort had come, which the Eupatrids could 
neither foresee nor prevent.  Methods of warfare changed.  The field was no longer to be 
won only by mounted knights and men in chariots.  The day of the foot soldier had come, 
and privileged knights found themselves dependent upon the common soldier, the heavy 
armed hoplite, drawn from the ranks of those to whom political privilege had not yet been 
accorded.  The state could not long safely depend upon men whom it drove to the wall, 
of whom it required everything, to whom it granted nothing.  It had even become well-
nigh impossible for such men to know what the law was.  The Council of the Areopagus 
haled whom it willed before it, and could punish as it pleased any action which it chose 
to define as an offence against the state.  The archons were at no pains to observe 
consistency in their judgments, and "no one could ever foresee the end of a suit." In their 
hands the law was both harsh and uncertain.

	125. One attempt at reform had been made already.  Draco had been called in a 
generation ago (B.C. 621) to do what Solon was now about to attempt again.  Draco had 
not hesitated to admit to political privilege every independent yeoman who owned a yoke 
of oxen and could fit himself out as a hoplite.  The archons and those who held chief 
command in the field, he left still to be chosen from the ranks of the wealthier nobles; but 
all other magistracies he threw open to the general body of citizens without distinction of 
rank, yeomen (Zeugitai) included, and some of these were to be chosen by the impartial 
lot.  He added to the existing constitutional machinery a Council of Four Hundred and 
One, to be made up by lot out of the general body of citizens past thirty years of age.  
The principal judicial powers of the Areopagus he took away, - transferring them chiefly 
to the Prytaneis, a standing committee of the new Council, - and the elder body was left 
with hardly more than authority to oversee the magistrates in the performance of their 
duties.  The uncertain law was reduced to writing and published, that no man need doubt 
any more what the sentence of the law would be.

	126. Such changes may well have seemed enough to create the proper forms 
whereby to give effect to the altered life of the state.  But they did not go to the root of 
the matter.  Draco's code had made the old laws definite and public rather than rendered 
them equitable.  Their very definiteness may have added a touch of harshness, by 
making them stiffer and more inexorable than ever.  And his political reforms hardly 
justified themselves in practice.  It was one thing for a yeoman to be made eligible for 
office, but quite another for him to secure it, even by the lot. Nothing had been done to 
prevent the selling of 'Sixthers' into slavery. Yeomen (Zeugitai) might still grow too poor 
to own a yoke of oxen or equip themselves as hoplites; might still drop to the rank of 
'Sixthers,' and come some day to see the slave pens.  Something more was needed, 
and Solon was to undertake it.

	127. Solon's Economic Reforms. - Solon was of Eupatrid blood, but in fortune 
ranked with the middle class in the state.  Of a temperament at once ardent and 
balanced, he was suited alike by station and by inclination to hold an even hand 
between factions.  No man doubted his honesty or his fervent patriotism; all looked to 
him with confidence to bring the state out of its troubles; and he certainly proceeded with 
courage and thoroughness.  He instituted both economic and constitutional reforms, 
conservative enough to force no too rude or sudden break with the past, yet decisive 
and timely enough to assure, if they could but be observed, the future of the state.  It 
was indispensable that economic reforms should go before constitutional changes.  It 
was necessary to enfranchise the poor; but it was necessary to free them before 
enfranchising them.  Solon's first step, accordingly, was to cancel all outstanding debts, 
set free those condemned debtors who had been retained as slaves in Attica, and clear 
the farms of the yeomen farmers of the mortgage pillars which stood everywhere upon 
them.  He took these drastic measures with the less scruple because he believed the 
great mass of the debts thus arbitrarily struck away to have been unrighteously, if not 
unlawfully, imposed, and deemed his policy in the matter for the most part one of just 
restitution.  He recast the law of debt also, henceforth forbidding the pledging of any 
man's person for debt. He sought also to restrict all estates, for the future, within a 
certain fixed maximum, and so still further prevent the ousting of peasant proprietors.

	128. From negative measures of relief Solon turned to originative measures of 
amelioration.  Hitherto the struggling merchants of Attica had used the clumsy coins and 
the antiquated weights and measures of the Boeotian and Peloponnesian states, and 
had followed the lead of Aegina in their trade. Solon turned them toward the quicker 
commerce of the Ionian cities of the Aegean, by substituting the weights and coinage of 
the great centres of trade in Euboea, used round about all the great circle of Hellenic 
cities that stretched to the farthest settlements of the bold Miletans.  He took steps, too, 
to encourage handicrafts and diversify industry.  He redistributed the incidence of 
taxation.  The Attic population had long been divided into four property classes based 
upon an assessment of income.  At the top of the scale stood the pentacosiomedimni, 
those wealthier Eupatrids whose incomes were not less than five hundred measures 
(medimni) of corn, oil, or wine drawn from their estates; the second class, the Hippeis or 
knights, consisted of those whose incomes were not less than three hundred measures; 
the third, the Zeugitai or yeomen, of those whose incomes did not fall below two hundred 
measures, - owners of oxen, men able to equip themselves as hoplites; the fourth, of the 
dependent manual laborers, the Thetes, standing at the bottom of the scale. Amongst 
the first three classes Solon sought to effect an equitable division of taxation; and they 
alone were to be subject to regular military service.  The Thetes were exempt alike from 
taxation and from ordinary military duty.

	129. Only landed property was reckoned in this classification. Probably it 
constituted the mass of property in Attica at that time, though there were traders in the 
community, and Athens had never had the contempt for commerce and the trades which 
so long prevailed at Sparta and Rome. Solon himself had bettered his fortunes by 
merchandising.  He had been a merchant before he became a statesman.  It was his 
knowledge of the world, acquired in his travels as a merchant, indeed, which constituted 
a large part of his qualification for the task now assigned him.  But personal property was 
not an important enough element in the wealth of Athenians at that day, it would seem, 
to be accorded political weight.  The Eupatrids were, of course, the chief landowners.  
Theirs was still, consequently, to be the chief part in the management of the state.

	130. Solon's Political Reforms. - Solon also took the four property classes, to 
which the city had long been accustomed, as the basis for his political reforms.  Every 
freeman of Attica who was subject to the laws was to have some part also in their 
administration; all were to be citizens. That he deemed an indispensable condition of 
order, good feeling, and efficiency in the state.  But not all were to share in an equal 
degree. Solon was no democrat.  He sought to set up, not government by the populace, 
but a rightly restrained government by men of wealth and position.  He did not greatly 
depart from the model set for him by Draco, except in respect of the means which he 
provided for making the restraining action of the commons real and effectual in the 
popular assembly and the jury courts.  The archons (who were to act henceforth, not 
separately, but as a judicial board), all stewards and farmers of the revenue, all officers 
of police and prisons were to be chosen exclusively from the pentacosiomedimni, the 
wealthiest class in the state. They were to be chosen, however, in part by lot.  In the 
case of the nine archons, for example, each of the four tribes into which the people of 
Attica had from of old been divided was to choose ten whose names should go into the 
urn, and out of the forty thus nominated nine were to be picked out by lot. The other 
magistracies were also filled by lot, no doubt in the same manner. All minor magistracies 
were open to be filled from any of the three property classes.



 
THE STATE
Wilson, Woodrow
The Governments Of Greece
    
Part IV.

	131. The Council. - The Council of Four Hundred, instituted by Draco, found its 
suitable place in the arrangements of Solon.  All citizens except those of the lowest 
property class were made eligible to be chosen to its membership; but here again the 
lot was to supply its impartial office.  The Four Hundred "were to be chosen by lot from 
among a larger number of candidates elected by vote by each separate tribe." ^1 The 
term of membership was but a single year, and no man could serve a second time until 
the lot had fallen once upon all the other eligible men of his tribe. The functions of the 
Council were pro-bouleutic.  All business to be brought before the popular assembly 
was first digested and prepared by the Four Hundred; without its decree, no business 
at all (aside from the impeachment of public officials against whom charges were 
preferred) could be submitted to the subordinate body.  Many administrative matters 
the Council could itself finally dispose of.  It had attained to a place of authority midway 
between the Assembly and the Senate of the Areopagus.

	[Footnote 1: Gilbert (Eng. trans.), p. 137.]

	132. The Assembly. - To the Ecclesia, the general Assembly of the city, came all 
citizens alike, of whatever class, Thetes no less than pentacosiomedimni; and in it 
Solon found his appropriate organ of popular control.  Here any man might bring a 
magistrate to book at the close of his year of office by formal impeachment.  Here was 
the people's engine of self-defence, should need arise.  The Assembly was also, no 
doubt, accorded the right of final decision in all questions of war or treaty.  It certainly 
voted upon such proposals as the Council felt bound to lay before it.  Its noisy 
democracy stood back of all the action of the state.

	133. The Heliaia. - Little formal change was made by Solon in the duties of the 
archons; but he effected a very radical curtailment of their power in making their 
judgments in most cases subject to revision by a thoroughly democratic tribunal, the 
Heliaia.  The Heliaia was a great jury court.  Every year a large body of jurors was 
made up by lot from among the general body of citizens, of whatever class, any and all 
persons being included in the drawing who were thirty years of age and offered 
themselves for the service; and to this body, acting no doubt in sections, many cases 
of the first importance could now be taken by appeal which had hitherto lain within the 
exclusive jurisdiction of the archons.  The archonal court thus became for the most 
part only a court of first instance.  In the hearing of criminal cases, moreover, the 
Heliaia was often the first and only tribunal.  Here was certainly a very much 
popularized judiciary.

	134. The Senate of the Areopagus. - In the case of the Areopagus Solon showed 
that he meant to preserve the old as well as to advance to what was new and better.  
He restored to the ancient Senate substantially the same powers it had had before the 
legislation of Draco.  It was not only to retain the power which it had all along 
exercised, of supervising the law and the constitution, superintending the magistrates, 
and preserving the public morals; it was in addition "invested with increased judicial 
powers, which made it again competent to inflict fines and even death upon those 
whom it adjudged offenders against the state.  More especially cases of homicide or 
arson, and of attempts to overthrow the constitution, were placed under its jurisdiction." 
^1 Once more it had its ancient place of guidance.  Its membership, as before, was 
each year recruited "from those outgoing archons who had held their office without 
blame." It was still a chief instrument of the aristocratic constitution.

	[Footnote 1: Gilbert (Eng. trans.), p. 137.]

	135. The New Principles introduced. - Such was the constitution of Solon. Many 
as were the changes of form which it introduced, important as were the changes of 
principle which it effected, it was throughout wrought in a conservative spirit.  It 
promised profound alteration, but it did not threaten rapid alteration; and it forced no 
revolution at all.  It left the noble families in power; but it placed their authority upon a 
foundation of popular consent, and bounded it on its judicial side by an appeal to 
popular jury courts.  It sanctioned wealth as a standard of political privilege, and so 
gave potency to a principle which would inevitably antagonize and in the end oust the 
idea of hereditary right; but for the present men of the old blood were the only men of 
wealth.  It was to require still other generations of slow change and still another 
recasting of the laws to see privileges of blood done away with and ended.

	136. Fate of the Solonian Constitution. - Solon's legislation no doubt pointed out 
the way to all subsequent successful reforms; but it satisfied no one, and for the time 
lived for a little only by the sufferance of its enemies.  Solon had, in the eyes of the 
Eupatrids, done too much.  They saw an end to their exclusive privileges in accepting 
the principles of his reforms. In the eyes of the upland herdsmen he had done too little: 
they had hoped to see him attempt an equalization of property.  Only the peasant 
farmers of the shore lands saw themselves freed and aggrandized by the cancellation 
of mortgages, and were inclined to deem themselves well off. For ten years after his 
work was done Solon quitted Athens, to give factions time to cool, to escape appeals 
to undertake further change, to give the new order time to settle quietly into habit.  
"Another man," said he, "placed in my position would not have held the factions, nor 
reposed until he had churned the butter from the milk." But the churning went hotly on 
without him, and the butter was separated at last.  For thirty years and more did his 
constitution stand, indeed, substantially unaltered; for he had at least put hope and 
energy into every element in the state and rendered change difficult.  But hot strife 
filled all the time with quick recurrent troubles, and revolution became at length 
inevitable.

	137. The chief archonship had become the principal prize of politics, and the 
Eupatrid factions fought bitterly for its possession, seeking by intrigue to secure it even 
through the uncertain lot.  Twice did the office remain vacant for a whole year (590 and 
586 B.C.), the struggle of parties having led to a total failure of the constitutional 
machinery.  Once (582 B.C.) a certain Damasius defied the law and kept the office for 
two years, leaving it only when put out by force.  Thereupon (580 B.C.) a compromise 
was tried: the number of archons was increased to ten; five, it was agreed, should be 
elected from the Eupatrids, three from the party of the rustics, two from the Eupatrids, 
three from the party of the rustics, two from the artisan class; and for twenty years 
more affairs were kept at an uneasy balance.

	138. Peisistratus. - And then revolution came at last, through one of Solon's own 
kinsmen.  The old factions which Solon had meant to stamp out, were too vital, too 
much of the very structure of the community, to be held permanently at an equilibrium 
by the mere sentences of the law, or even by the matching of strength with strength.  
The Eupatrids themselves, by their own factional divisions, supplied their opponents of 
the uplands and the shore with leaders out of their minority.  Peisistratus, one of their 
own number, determined to make use of the situation to make himself master. 
Proclaiming himself a partisan of democracy, he drew about him the hardy men of the 
mountain districts not only, but those also who were ruined by the abolition of debts 
and all those whose citizenship was questionable: all who were poor and all who were 
afraid, - whom change might help and could not injure.  Solon early perceived his 
designs and bluntly uttered his intrepid protest against them.  He was, he said, "wiser 
than those who could not see that Peisistratus meant to make himself tyrant, braver 
than those who saw it and held their tongues." But no one heeded or had force or 
address enough to balk the usurper; and Peisistratus got the power he coveted (560 
B.C.).

	139. Here was an end, it must have seemed, to all progress and to the just 
movement of reform; and it was infinitely sad that Solon should have lived to see and 
end his days amidst such scenes.  But, in reality, it was probably the success of 
Peisistratus that kept the Solonian constitution alive for the peaceful uses of later 
times.  Amidst the clash of factions it would probably have been trodden into the 
ground, to be forgotten, had not Peisistratus, willing to preserve so much of its 
machinery as suited his own purposes, upheld it by his own despotic power.  Its forms 
were more popular than those of the constitution it had been meant to supersede; he 
was, professedly, the champion of the popular cause; it was politic that he should 
retain the most liberal institutions at hand.  He therefore affected only to preside, with 
certain supreme and extraordinary powers, over the constitution set up by his uncle.

	140. Peisistratus proved himself a statesman, self-possessed not only and 
capable of holding the mastery he had won, but a genuine friend of the people also 
and a wise guide in affairs.  Twice he was expelled from his place of power and driven 
forth from the country by the factions he had ousted; but both times he returned 
stronger than before, - for the city found the rule of the factions impossible, and the 
same conditions that had induced Peisistratus' usurpation made the bulk of the citizens 
willing that it should be perpetuated.  The old councils continued to sit; the officers of 
the Solonian constitution continued to be chosen, - though the uncertain lot was 
probably abandoned.  Peisistratus himself offered to stand trial before the Areopagus 
upon a charge of murder and submit to the old responsibilities of citizenship.  He saw 
to it that the small farmers of the country-side got money, when it was needed, on easy 
terms; he sent magistrates among them to settle disputes upon the spot and keep 
them away from the city courts: he exercised a dominion of influence and guidance 
rather than any tangible kingly power, content if men of his own blood or following 
found their way always into the chief offices.  "His usurpation had the assent both of 
the nobles and the commons.  The former he conciliated by social intercourse, the 
latter by pecuniary aid; and nature had endowed him with the arts of charming all." ^1 
He no doubt determined what taxes should be taken, and how the public moneys 
should be spent; but did all in moderation and with a purpose to serve the state; and 
ordinary men were fain to be content.  He lived to a ripe age, and died quietly "of some 
infirmity, in the archonship of Philoneus (527 B.C.), thirty-three years after he first 
became ruler;" and so the Solonian constitution was handed on.  When Peisistratus' 
sons, forgetting his prudence and failing to imitate his wisdom and moderation, were 
driven from the place of power he had established for them (511-510 B.C.), enough of 
Solon's work remained to serve as the basis and model for permanent reforms.

	[Footnote 1: Aristotle, "Const. of Athens," 16.]

	141. Cleisthenes. - Athens had won peace by submitting to the usurpers. Civil 
strife sprang up again, almost upon the instant, when they were gone, fomented by 
their own partisans.  Isagoras, who was of the party of the expelled rulers, sought to 
prevent the establishment of a democratic polity, and found himself face to face with 
Cleisthenes, of the great clan of the Alcmaionids, time out of mind leaders in affairs, 
and in these latter years steadfast opponents of the party of the Peisistratids. Isagoras 
did not scruple to call upon Sparta, whose king was his friend, for aid, and would have 
put a council of three hundred, named by himself, into the place of the guiding body of 
the Solonian constitution, to the perpetuating of oligarchy and the jeoparding of all 
popular rights.  But the city rose against him; and Cleisthenes was bidden complete 
the work Solon had begun.  It was close upon fifty years since the usurpation of 
Peisistratus; a whole generation had come and gone; the city was used to peace and 
desired its continuance; the power of a single family had brought all men alike to one 
level of privilege; and all were now ready to see a fair balance struck in affairs.

	142. New Citizens. - Cleisthenes' first act was to broaden the basis of citizenship.  
Athens had begun to draw to herself of recent years not a little of the trade of the 
Aegean, and strangers had become numerous in her markets, setting themselves up 
in trade at her port and in the city itself, and identifying themselves with her life.  
Slaves, too, bought out of foreign markets, were generously treated in Athens, were 
given, indeed, so great a practical freedom that they were many of them enabled to 
earn independent incomes, and finally to buy their legal emancipation. Cleisthenes did 
not hesitate to sweep all these within the new franchise by means of which he meant 
to create a new democracy and generate a new spirit in affairs.  He conferred 
citizenship upon "all free inhabitants of Attica, not only Athenians who until then had 
not been in possession of full citizenship, but also the strangers domiciled in Athens, 
and those slaves even who by emancipation had attained the standing of metics," or 
privileged denizens (see sec. 157).  It was essential the old factions should be 
swallowed up.

	143. The Demes. - Solon had not meant to provide a democratic constitution; 
Cleisthenes saw that it was necessary to do so.  Nothing less would check faction or 
quicken the life of the country as a whole. Eupatrids must take their chances of political 
preferment in competition with all other citizens.  Solon had reserved the chief offices 
for the rich, and had constituted the Senate of Four Hundred of representatives of 
those four tribes of immemorial origin which, being aggregations of the sacred gentes 
and phratries which were the strongholds of Eupatrid kinship, were themselves, in a 
sense, exclusive aristocratic associations. Moreover, he had left untouched the 
factions of the localities, had left the men of the hill country, and those of the coast 
hamlets contrasted with each other in point of privilege, and neither united in any 
common interest or enterprise with the richer landowners of the plain.  The men of the 
plain were most of them, probably, pentacosiomedimni and hippeis; those of the shore 
region were hardly more than Zeugitai; those of the hills were doubtless Thetes wholly.  
These several elements it was obviously Cleisthenes' task to unite, in order that the 
state might be single and undivided in organization.  He determined, therefore, to 
strike at the root of the old tribal arrangements, and effect a new basis of organization 
altogether.  It was a radical thing to do; but there was, fortunately, a conservative way 
to do it.  Attica had from of old been divided into little districts, Demes they were called, 
centring in villages or hamlets throughout all the country-side.  Many of these were 
more ancient than Athens herself, were the original sites, indeed, of independent 
communities, and carried memories that ran back to the first settlement of the land.  
We do not know how many demes there were in Cleisthenes' day, - Herodotus says 
one hundred; but, whatever their number, Cleisthenes united or grouped them into 
thirty larger districts, trittyes.  Here was an old name, but a new thing. There had been 
twelve trittyes all along under the Solonian arrangements; but twelve was a multiple of 
four; a trittys had hitherto been a subdivision of one of the four immemorial tribes, and 
Cleisthenes was breaking with the organization that represented the Eupatrid 
supremacy.  He increased the number of trittyes, accordingly, to thirty.  Ten he formed 
from the demes of Athens and the plain, ten from the demes of the coast country, ten 
from the demes that lay within the hills. ^1

	[Footnote 1: Gilbert, p. 146-148.]

	144. The New Tribes and the Council. - From these materials he constructed, not 
four, but ten new tribes out of hand, taking care, in their make-up, not to separate but 
to unite the three regions which had hitherto bred their distinct factions in the state.  To 
each of the new tribes he assigned three trittyes, chosen by lot, one out of the plain, 
one lying in the hills, one upon the coast.  The factions were thus stripped of their 
political organization, and the several parts of the country were bound together in a 
new union.  A tribe could act henceforth only through the cooperation of men of the 
plain, the mountain, and the shore.  The four ancient tribes continued to exist, but only 
as fraternal and religious organizations.  They ceased to form part of the political 
structure of the state, and lost their political significance altogether.  The membership 
of the Council which Draco had instituted and Solon had reorganized, was increased 
from four hundred to five hundred, fifty to be taken from each of the new tribes, and the 
demes to serve as electoral districts.  The demes lying within Athens itself, belonged, 
under the new constitution, to no less than six of the tribes: the city was bound to the 
country, and the life of the state took on a new aspect.

	145. New Phratries. - The plan was undoubtedly quite artificial, though the 
materials out of which the new tribes were made were old and familiar; but it could not 
well have been otherwise than artificial. Religion and its imperative prejudices forbade 
any dilution of the genuine Attic gentes, which were the core of the old tribes, by the 
introduction of new citizens of no birth at all.  The old organizations could not be 
radically popularized without committing something very like sacrilege; and since they 
could not be reformed, the only thing left to do was to replace them.  The way to do 
that was to create entirely new political materials. The new tribes, however, were given 
their own ecclesiastical status and functions.  There could be no organization without 
its special priesthood and religious observances; the old organizations could not 
readily be made to open their sacred mysteries to any not of the real or adopted kin.  
The best thing to do, therefore, was to put aside the old gentile family unions 
altogether, and make up a new congeries of associations with their own worship and 
their own internal governments, which, if artificial at first, might be expected in time to 
acquire a vitality and a dignity as substantial and as lasting as those of the Eupatrid 
dispensation. This, accordingly, was done.  The new tribes adopted eponymous 
heroes; the statues of their patrons were set up in the Agora, where their tribes might 
gather about them when assembled for consultation; and politics was asked to forget 
the Eupatrids.

	146. At one point, moreover, Cleisthenes was able to find a place for his new 
citizens within even the religious organization of the old order. Though he could not 
force an entrance for them into the clans, with their common hearth and altar, their 
common burial grounds, and their common festivals, the phratries, the larger religious 
associations into which the clans were grouped for a more public worship and 
ceremonial, were more like political bodies and could be recruited.  He accordingly 
drew the new citizens together into religious societies ("Thiasoi"), or gave official 
recognition to such as he found already in existence, and either gave them a place 
within the old phratries, or formed new phratries to serve as their bond of union, as 
local circumstances dictated, seeking in all cases, so far as possible, to unite the 
members of each deme within one and the same phratria.  It was thus that he 
completed the religious incorporation of the new order, and secured for his political 
arrangements an adequate sanction, as if of custom and religion.

	147. Expansion of the Popular Jury Courts. - The next step in the popularization 
of the constitution was a still further extension of the jury court system.  The number of 
Heliasts was increased, and it was provided that they, like the senators, should be 
chosen proportionally from the ten new tribes.  Since the new tribes contained many 
who had never before been citizens and some who had once been slaves, this 
expansion of the popular jury system must, of course, have been of great 
consequence as a step towards democracy.

	148. Ostracism. - As a finishing touch, Cleisthenes supplied the new democracy 
with an efficient means of self-defence.  He was determined that no Peisistratus 
should use the new constitution for his own ends.  He therefore completed his work by 
adding the law of Ostracism.  This is a law much scorned by commentators of our own 
modern times, when democracies are too strong and self-possessed to fear the wiles 
of demagogues; it is condemned even by Aristotle; but there can be no question about 
its utility as a temporary expedient.  Its provisions were not harsh.  It provided that 
whenever it appeared that some one statesman was gaining such an ascendency over 
the people that he might, if he chose, use it unlawfully for his own advantage, as 
Peisistratus had done, or employ it to raise his rivalry with some opponent to a 
dangerous pitch of bitterness, the Assembly might call upon the people to declare their 
opinion as to whether any one should be temporarily banished from the state.  When 
such a preliminary resolution was voted, no names were put in nomination.  There 
were no forced candidates for ostracism.  The question was simply, Is there any one in 
Athens of whom it would be to the advantage of her peace and tranquillity to be rid for 
a season?  Each voter made up his own ballot.  If six thousand ballots contained the 
name of the same man, that man must leave Attica and her possessions for ten years.  
Six thousand votes were probably more than a third of the total vote of Athens. 
Although a minority, therefore, could compel the retirement of any public man, it must 
have required a very strong and well-grounded movement of public opinion to bring 
about the concerted action of six thousand voters against one man.  A very evident 
propriety in banishing him must have existed before so many people would see it and 
declare it.  That ostracism was not a weapon easy to use is shown by the striking 
infrequency of its use, and by the steady decline in its employment.  It was a vital 
element of the constitution at first, but as that constitution gained greater and greater 
assurance of permanence and stability, it more and more decisively cast aside an 
instrument which, after all, was an instrument for the weak and not for the strong; and 
ostracism fell at length into utter disuse.  Not, however, before it had done its 
appointed work.  It had unquestionably given the new constitution time and assured 
peace in which to grow.  It had afforded the people an opportunity to acquire a steady 
political habit and an habitual "constitutional morality" such as they might never have 
attained to had the rivalries of party leaders had no check placed upon them, and had 
political intemperateness had no punishment to fear.  That it was intelligently 
understood, as a means of peace and not of strife, was shown by its end. It was 
abolished, after ninety years of occasional employment, because it had been used at 
last as an instrument of partisan warfare by those who could effect strong factional 
coalitions against opponents whose rival power had grown to inconvenient proportions.

	149. Effect of the Cleisthenian Reforms. - The work of Cleisthenes proved 
definitive: he had found for the constitution a sound basis which it could keep.  The 
only new magistrates he created, it seems, were certain Apodectai, receivers of 
revenue, through whom he effected a slight alteration in the management of the city's 
finances.  But his establishment of ten tribes carried with it indirectly a change in all the 
official structure of the state.  Every administrative board was sooner or later given ten 
members, one to be taken from each tribe.  Even the archons came to be regarded as 
a board of ten, the tenth member being found in the person of their official secretary.  
The number of Strategoi, general officers of the army, among the rest, was increased 
to ten (501 B.C.), each tribe choosing the commander of its own contingent.  The 
polemarch held, still, the formal presidency in military matters; the Strategoi were in 
theory only his associates in command. In practice, however, this board of generals 
tended, as it turned out, to overshadow him, if not in dignity, certainly in power, and 
was destined afterwards to oust him, and indeed others of the nine archons, from 
many other duties of administration.

     The relations of the Strategoi to one another are illustrated in an
     interesting way in connection with the battle of Marathon.  They took
     turns, day by day, in the command when in the field.  It was on the day of
     Miltiades' command that Marathon was fought, though the others are said to
     have yielded their commands to him on the days which preceded the battle.

	150. Local Administration. - More important than such formal changes was the 
strong local rootage of the new institutions in the demes, their administrative unit.  The 
demes had been given a real vitality: their several demarchs were the real instruments of 
the state in the local conduct of affairs.  Solon had districted Attica into forty-eight 
naucraries, four within each of the old trittyes, to carry the burden of supplying a navy.  
Each naucraria was responsible for furnishing a single ship, and in each there was a 
naucrarius ('ship furnisher'), whose duty it was to collect the necessary taxes and take 
command of the ship supplied by his district, upon its completion.  This older division 
naturally disappeared with the abolition of the old trittyes and tribal organizations as 
administrative unions.  The deme took the place of the naucraria, and the demarch 
succeeded to the functions and duties of the naucrarius.  The demarchs, appointed 
annually by lot, were also officers of their communes as well as officers of the state.  
Each was president of the assembly of his deme, and its ministerial officer in carrying 
out its purposes of local self-government.  It was through him that the new political life of 
these ancient communes in all things expressed itself.

	151. The Power of the People. - The real character of the new constitution 
showed itself, however, not in the demes, but in the Assembly and in the popular jury 
courts.  The centre of power had shifted.  It lay henceforth, not in the Areopagus or the 
Council, but in the people's Ecclesia and in the people's tribunals.  Events, indeed, 
delayed this consummation; but they also assured it.  Cleisthenes' work was hardly done 
before sharp menace of invasion by the Persians had put a new aspect upon affairs.  In 
493 B.C. Mardonius came, to be frightened back by the opportune fury of stormy Athos. 
Three years later came the anxious decade (490-480) which began with Marathon and 
ended with Salamis.  During the stress of such times it was impossible affairs should be 
guided by the people's Assembly or a numerous Council, and the Areopagus once more 
became the one efficient governing power in the state. For seventeen years (479- 462 
B.C. [?]) it ruled as it had not since the days of Draco.  But it was under the stress of 
those very years of effort that the Persian wars had brought in their train that Athens 
came to her full vigor and the Athenian people to a full self-consciousness and national 
purpose.  War brought discipline and administrative concentration; success at last 
brought empire: the cities of the Aegean paid tribute to Athens, as to the mistress of their 
league (secs. 83, 84).  The result was, that the business of governing grew enormous for 
Athens, and the democracy learned to assert itself in affairs.  It is estimated that in the 
time of Pericles (444-429 B.C.) no less than twenty thousand Athenians found 
employment in the service of the city, as soldiers, jury-men, councillors, or magistrates. 
Slaves toiled while citizens flung themselves into the immense undertakings of the 
imperial city; and the popular Assembly became the centre of the city's life.

	152. The Economic Effects of the Persian Wars. - The Persian wars wrought 
important changes in the economic condition of Athens.  The country had more than 
once been laid waste by the Persians, and such ruin had resulted to the owners of land 
that probably very many who had once had rank in the first of the property classes had 
sunk to the last.  Landed estates, the only estates hitherto reckoned in the census of 
wealth, had been, temporarily at least, rendered almost barren of income.  Personal 
property gained in trade had, on the contrary, much increased, and had been in large 
part saved from the clutches of the invaders.  Athens, in short, had become a 
commercial state, and because a commercial state naturally a naval state also.  There 
unquestionably grew up among her citizens a very considerable and influential body of 
merchants possessed of much wealth, and yet by reason of their lack of real estate, 
ranking no higher than the poorest Thetes.  We can understand the considerations, 
therefore, which, soon after the battle of Plataea, led Aristides to propose, and the city to 
consent, that eligibility to office should be based upon an assessment which should 
include property of all kinds (479 B.C.).

	153. In 487 B.C., in the very midst of the Persian terror, the archons had once 
more been made subject to choice by lot, out of five hundred candidates selected in the 
several demes.  But the Strategoi drew to themselves the chief magisterial functions of 
that troubled time, and the Areopagus the chief place of guidance.  It was not until 462 
that the democracy gave its rule final reality.  It was then that, probably under the 
leadership of Ephialtes, the Assembly once for all asserted itself, stripping the 
Areopagus once again of its extraordinary powers, reducing its criminal jurisdiction to 
cases of blood-guiltiness, and itself assuming the principal role in the direction of affairs.  
In 453 Peisistratus' system of local justices, which he had used for political purposes, 
was resumed for administrative convenience.  In order to relieve the Heliaia of the 
burden of petty cases, thirty deme judges were appointed, to go circuit among the 
demes, and give final judgment in all causes in which the amount in controversy was not 
more than ten drachmae.

     The introduction of election by lot was probably rendered
     comparatively innocuous by the fact that the functions of the ordinary
     magistracies had been greatly curtailed in importance by the institution
     of the popular jury courts and the concentration of administrative duties
     in the hands of the generals.  Any man not lacking ordinary sense might
     now fill a magistracy without serious fault.

	154. The Reign of Pericles. - When Pericles came to the front of affairs in Athens 
(444 B.C.) the constitution wore the features of a complete democracy.  Not a little of the 
business of the state was prepared and sent down to the Assembly by the Council of 
Five Hundred; a few immemorial duties of supervision still lingered in the hands of the 
Areopagus; but the Assembly decided everything.  Its decrees originated administrative 
measures as well as initiated policies in the field of politics.  The heat, the vacillation, the 
dangerous ardor of the popular will played through all its action as the moment 
determined.  It was strong when strongly led, weak when left to itself, terrible in every 
season of passion.  The world had probably never seen before such freedom of speech 
and of action as characterized its stirring sessions when questions of moment pressed.  
It was every freeman's right to speak as he willed; cries of coarse humor or hot 
impatience, of raillery and of enthusiasm, broke constantly from the heady crowd; it was 
a school of oratory and of resource in action, and the masterful man who had won a 
place of confidence among the people had there his uneasy power at its full.

	155. Pericles was such a master.  His influence, though permanent almost 
beyond example in the politics of democratic states in that changeful day, rested, not 
upon usurpation, but upon his commanding influence with the people; and the whole of 
his policy was directed, by intention at least, towards the education of the people in the 
tasks of government and the standards of conduct which belonged to Athens as the 
leading state of Greece not only, but of Hellas as well.  He was never archon; but almost 
every other post of authority fell to him that the people could give.  He was Strategus, 
master of the finances, superintendent of public works; and through these offices 
wrought his will. It was under his inspiration that Athens was filled with the splendid 
monuments of art and architecture which have given a special distinction to the 'Age of 
Pericles.' It was at his suggestion, it is said, that the people were voted small payments 
for their attendance at the jury courts and the assemblies, besides a largess to enable 
them to attend the exhibitions in the theatre.  The theatre played a large part in Pericles' 
plans for the education of the populace; no means were to be neglected which might 
serve to quicken the judicial and political activities of the people, or strengthen Pericles 
in their favor.

	The policy of thus paying the people to perform their duties and to be amused 
was, nevertheless, in the end a fatal one.  So long as a Pericles dominated, all went 
well; but so soon as the city lost Pericles and forgot the fashion of statesmanship which 
he had set, much began to go ill.  The majority of the citizens soon came to prefer paid 
service in civil offices to the necessary service in the field of battle.  They were not long 
in becoming mere lethargic pensioners of the state.

	156. Decline of Athens. - Such was the constitution of Athens when the 
calamities came which marked the close of the Peloponnesian war and the beginning of 
the final decline of Athenian power and independence (secs. 85-87).  This time of 
decline, - ending with the victory of Macedonia at Chaeronea in 338 B.C., - witnessed 
one or two temporary returns to oligarchy, and many proofs of a sad decline in political 
morality on the part of the people.  Their pay for service and their largesses for pleasure 
were, of course, increased, constant depredations were made upon the rich, and the 
naval and military reputation of the city was given over into the keeping of mercenaries.  
But the Cleisthenian constitution was retained in substance to the end.

	157. The Metoici. - Our view of Athens will be complete enough for our present 
purposes when we shall have noticed the non-citizen classes, - the slaves and the 
metoici.  The Athenian democracy illustrated the character of all ancient democracies in 
confining the franchise at its widest to a body consisting of little more than half of her 
population.  Besides her citizen population, which may be placed at one hundred and 
thirty thousand, she had a slave population almost as great (namely, about one hundred 
thousand), and a population of resident aliens (metoici) which was, in prosperous 
periods, about one-third as great (forty-five thousand).  The class of metoici was 
composed principally of foreigners, among whom were Lydians, Phrygians, Syrians, and 
Phoenicians, as well as Greeks from other Hellenic cities, who had come to Athens to 
take advantage of the exceptional facilities afforded for trade in consequence of her 
situation and policy, though many manumitted slaves were also reckoned of their 
number.  It was from the ranks of the metoici that Cleisthenes had recruited the body of 
citizens, and in later times great numbers of them were often naturalized for democratic 
purposes. But so long as they remained metoici their disabilities were many.  Without a 
special vote of permission they could not acquire property in land in Attica. They were 
obliged, under pain of a criminal prosecution, followed on conviction by possible slavery, 
to choose a patron (Prostrates) from among the citizens as an intermediary between 
them and the state.  It was only through this patron that they could approach the courts 
to enforce their rights or in any way deal with the state.  They were mulcted in taxes as if 
they were citizens, besides paying a special protection tax and a special fee for market 
privileges.  They had, moreover, to suffer the mental weight of that contempt which, 
though less pronounced at Athens than elsewhere, all Greeks felt for foreigners.  But 
that their disabilities were not too heavy, and that their privileges were of great moment, 
is abundantly proved by their numbers alike in times of peace and in seasons of war.

	158. The Athenian Slaves. - The Athenian slaves were either barbarians taken in 
war or slaves bought in the slave markets of Delos, Chios, and Byzantium.  The vast 
majority were bought slaves.  They not only served as domestics, but also constituted 
the bulk of the agricultural laborers, miners, artisans, factory hands, overseers, and day-
laborers.  They also often carried on retail trade, and were sometimes superintendents 
of larger undertakings, money-changers, etc.  Their domestic service often included 
private secretaryships and the like.  The state itself owned slaves whom it employed as 
armed police, and even upon occasion as soldiers.  "Further, the lower servants of the 
public officials - accountants, clerks, criers, bailiffs, prison attendants, executioners, and 
the like - were for the most part, the latter invariably, public slaves, as also the workmen 
in the mint." ^1 Slaves and metoici supported, the citizens conducted, the state.

	[Footnote 1: Schomann, p. 352.]

Greek Administration. 

	159. We are without detailed information with regard to the methods and 
machinery of administration in the Greek cities.  The little of universal applicability that 
we can say of the conduct of the government in the smaller particulars of the everyday 
application and execution of the law, is of a very general sort, which does not describe 
exactly the administration of any one city, but gives in bare outline functions performed, 
doubtless, by a multiplicity of officers in the larger cities, but in the smaller cities by only 
a few officers saddled with a multiplicity of duties.  Aristotle gives us a list of the tasks 
commonly considered proper to administration in Greece, and it is chiefly upon this list 
that we must rely for a general view of the subject.  From it we learn that the 
governments of the Greek cities usually undertook the superintendence of trade and 
commerce, particularly within the city markets, the inspection of public buildings, "a 
police supervision over houses and streets," and the oversight of fields and forests; that 
they had receivers and treasurers of the public moneys, officers whose duty it was to 
draw up documents relating to legal business and judicial decisions, to hear complaints, 
and to issue warrants for the institution of legal processes, bailiffs, jailers, etc.  Besides 
these officials, there were the officers of the naval and military administration, at whose 
head stood such dignitaries as the Athenian Archon Polemarchus or the later Athenian 
Strategoi; the functionaries whose duty it was to audit the accounts and review the 
proceedings of those who handled the revenues of the state; and the superintendents of 
the public worship, - those officers who still in most cases bore the ancient royal title, 
long since banished from secular politics, but retained in the religious hierarchy in 
memory of a kingly function too much revered by men, and thought to be too much 
esteemed by the gods themselves, to be exercised by any save those who bore this 
oldest and most hallowed of titles (sec.  120).

	In states like Sparta, where civil life was a rigorous discipline, there were, of 
course, special officers to superintend the training of the young and the conduct of the 
adult of both sexes.  Sparta had, too, her public cooks to prepare the coarse diet of the 
Syssitia, and her superintendents of the public messes.

Representative Authorities. 

	On Greek Institutions:


     Aristotle, "The Constitution of Athens." Translated and edited by E.
Poste.  London and New York, 1891.

     Bluntschli, J. C., "Allegemeine Staatslehre." Book I., Chaps. III. and
VI.  Stuttgart, 1875.  There is an American translation of this work.

     Coulanges, F. de, "The Ancient City." Translated by Willard Small.
Boston, 1882.

     Cox, Rev. Sir Geo. W., "Lives of Greek Statesmen." (Harper's.) Chaps. on
Solon and Kleisthenes.

     Fowler, W. Warde, "The City State of the Greeks and Romans." London and
New York, 1893.

     Gilbert, Gustav, "Handbuch der Griechischen Staatsalterthumer." 2 vols.,
Leipzig, 1881-5.  2d ed. of Vol. I., revised 1893.  Revised edition of the
portion on Sparta and Athens translated by E. J. Brooks and T. Nicklin, under
title, "Greek Constitutional Antiquities." London, 1895.

     Greenidge, A. H. J., "A Handbook of Greek Constitutional History." London
and New York, 1896.

     Harper's "Dictionary of Classical Literature and Antiquities." Edited by
H. T. Peck.  New York, 1897.

     Kuhn, E., "Ueber die Entstehung der Stadte der Alten.  Komenverfassung
und Synoikismos." Leipzig.

     Schomann, G. F., "The Antiquities of Greece: The State." Translated by E.
G. Hardy and J. S. Mann.  London, 1880.

     Smith, "Dictionary of Grecian and Roman Antiquities," 1858.

     On points of Greek History:

     Curteis, A. M., "Rise of the Macedonian Empire." (Series of Epochs of
Ancient History.)

     Curtius, Ernst, "History of Greece."

     Droysen, J. G., "Geschichte des Hellenismus." For the Macedonian period.
2d ed., 1877-88.

     Grote, Geo., "History of Greece." Very full for the cities of Hellas
outside the classical mainland.

     Holm, Adolf, "The History of Greece from its Commencement to the Close of
the Independence of the Greek Nation." 4 vols., English translation. London
and New York.

     Oman, C. W. C., "A History of Greece from the Earliest Times to the Death
of Alexander the Great." Fifth edition.  The best succinct account prepared
since the discovery of Aristotle's "Constitution of Athens." London and New
York, 1895.



THE STATE
Wilson, Woodrow
The Government Of Rome
    
Part I.

	160. The Ancient Roman Kingdom. - At no period before that of the Empire was 
the government of Rome radically unlike the governments of Greece; in their earliest 
stages the resemblance between Grecian and Roman governments was a 
resemblance of details as well as of general pattern. Homer's account of the 
patriarchal presidencies of Greece may serve as a sufficiently accurate picture of the 
primitive Roman monarchy.  Kingship, it is true, was much less strictly hereditary in 
Rome than in Greece; the Roman kings were not only of several families, but even, 
tradition says, of different nationalities: and they were elected, not born, to their 
function.  The functions of the Roman kings, however, and the government over which 
they presided, would have seemed most natural and regular to a contemporary Greek 
observer.  The king was high priest of the nation, its general, and its judge.  He was 
associated with a council, - a Senate, - composed of heads of families; for the Roman 
state, like the Greek, was a confederation of gentes, curies, and tribes; and the 
decisions of king and council were heard by a general assembly (comitia) of all the 
men of the curies.  There is nothing in all this to call for new comment; we have seen it 
all in Greece (secs. 44-52), - except the method of succession to the throne.  Upon the 
death of a king, in Rome, a council of all the fathers of the gentes chose an interrex, 
who was to hold office for five days; the interrex named a successor; the successor, 
taking counsel with the fathers, named a king; and the comitia confirmed the choice.

	161. Leading Peculiarity of Roman Constitutional Development. - This primitive 
constitution completed its resemblance to those of Greece by beginning very early to 
fall to pieces.  But the way Rome took to alter her institutions was in some respects 
peculiarly Roman.  The Romans never looked revolution straight in the face and 
acknowledged it to be revolution.  They pared their constitution down, or grafted upon 
it, so that no change was sudden, but all alteration apparently mere normal growth, 
induced by thoughtful husbandry.  They could always fancy that the original trunk was 
still standing, full of its first sap.  No one was ever given leave to reconstruct the 
constitution like a Solon or a Cleisthenes. Reforms, however, were planted in the seed 
at various times which we can now see very clearly to have been the beginnings of 
slow changes destined to be entirely accomplished only in the fulness of time.

	162. The Reforms of Servius Tullius. - Thus a change such as Solon brought 
about in Athens was set afoot in Rome by the military policy of Servius Tullius, one of 
the latest and greatest kings of the ancient city. It was necessary to strengthen the 
army, which had been drawn hitherto from the three antique tribes which made up the 
full citizenship of privilege within the city, a thousand from each tribe.  It was impolitic 
to attempt to add to the number of tribes; a very jealous sense of privilege on the part 
of the patrician classes stood in the way of that; and yet it was not sufficient to add to 
the force each tribe must supply.  The city had drawn to itself, as time went by, new 
elements of population: in addition to the patrician (the offspring of the patres, or 
fathers, of the ancient citizenship), growing numbers of 'plebeians,' outsiders attracted 
to the city by its commerce, besides men a great many, derived one can hardly say 
whence, who, because not of the old blood of the citizenship, were ranked as 'clients,' 
dependents upon the greater families.  Above all, there was the already quite 
numerous body of those who had once been the free citizens of neighbor towns now 
conquered and incorporated within the Roman state.  These non-patrician classes 
must be included if the full force of the state was to be put into its array; and Servius 
resolved to found the organization of the armed levy no longer upon the old tribes and 
patrician privilege, but upon the economic basis of wealth. It seemed to him wise not 
only to increase the public force, but also to make a place of service, and, if might be, 
of privilege too, for the plebeians.

	163. The Centuries. - He divided the people, accordingly, whether patricians or 
plebeians, into five property classes, to each of which he assigned military duties 
proportioned to its means for self-equipment for the field.  From the first class were to 
be drawn eighteen centuries (hundreds) of horsemen and eighty centuries of footmen; 
from the second, third, and fourth twenty centuries each, of footmen; from the fifth 
thirty centuries.  Those who did not have property enough to come within the 
classification at all were drawn upon for five centuries of mechanics, musicians, and 
servants.  The centuries of the several classes differed in their armament and 
equipment. Every citizen was liable for military service from his seventeenth to his 
fiftieth year; but the levy was equally divided into seniores and juniores: the older men 
formed the city's guard, the younger made up the army destined for the field.

	Having fixed the basis of wealth upon which the military levy should be made, 
Servius gave the new organization a territorial arrangement also, separating the city's 
territory into four districts, the Palatine, the Esquiline, the Suburan, and the Colline, 
each a district lying in part within the city, but embracing also rural areas as well.  To 
these territorial districts he did not hesitate to give the name Tribes.  Outside their 
limits the people were set apart into a number of smaller rural districts (pagi), to which 
subsequently the name Tribes also fell: and these as well as the Tribes of the city 
henceforth served as very important units in the administration of the little state's 
affairs.

	164. The Ancient Constitution. - The primary object of these administrative 
changes was no doubt military efficiency.  Servius wished to draw the whole strength 
of the city to its army, and all its wealth to the payment of the military tax.  But a deeper 
purpose lay underneath, and in the end a radical constitutional change was effected.  
The new districts more and more became the habitual units of administration; and the 
host of armed centuries became a governing assembly.  Until Servius thus 
reorganized the army, the Roman constitution had known but two authoritative bodies, 
the Senate and the Comitia curiata.  The Senate was the great Council of the 'Fathers,' 
- from each gens a representative.  The king chose, indeed, whom he should call from 
each gens to a seat in the Senate; but custom and every force of opinion made it 
incumbent upon him to choose men of ripe years and men who were really leaders in 
their several gentes, and the constitution of the Senate still bore distinct traces of the 
old days in which it had been made up of chieftains and had served no king.  The king 
and the Senate constituted the administration of the city- state, the people had no 
assembly save that of the curies, to which all might come, even plebeians, no doubt, 
as lookers on, but in which only men of patrician blood could vote, and in which there 
could be no voting except upon such matters as came ready from the Senate.  The 
curies were the immemorial sub-divisions of the ancient tribes, for each tribe ten 
curies. Their assembly was called only to sanction the election of a king, already made 
by the interrex and the Senate; to approve radical changes of law; to vote upon 
treaties and declarations of war, witness such solemn legal transactions as the 
adoption of heirs into patrician houses, or to receive foreigners into the Roman body.  
Only the king or the interrex could summon it; it could vote only upon business 
prepared for it by the Senate; its vote could be only Aye or No; it was only the 
witnessing people, and had no initiative part in shaping the affairs of the state: king 
and Senate constituted the government, the king master, the Senate a council whose 
advice he must ask even though he should not heed it.

	165. The Comitia Centuriata. - The Servian reforms added another assembly, 
and a more democratic.  The centuries came together, upon the summons of the 
trumpet, not within the city but without its walls, upon the Campus Martius, as if for the 
field, with banners lifted and with arms in their hands.  But they were the picked men of 
the city and they were drawn from all classes, plebeians as well as patricians; it was 
not to be expected of them as free men that they should fight without taking counsel, 
and Servius himself was not loath that they should have a voice in affairs. He had 
looked to see the plebeians enabled by this new organization to act like burgesses as 
well as like soldiers, and it was no doubt a thing he had foreseen that the centuries 
should come in time to constitute one of the authoritative bodies of the state, a new 
assembly.  So it turned out.  They became a part of the machinery of election and 
legislation, as the Centuriate Assembly, the Comitia Centuriata, beginning very 
promptly to absorb important functions of many kinds, - the choice of magistrates, the 
decision of questions of war and peace, and the regulation of many another matter 
hitherto left with the elder and less democratic assembly of the curies.  A new political 
power had sprung up with the reform of the army and revision of the tax roll.

	166. Beginnings of the Republic. - The line of Roman kings came to an end, and 
the Republic was inaugurated at almost the very moment when Cleisthenes was 
effecting his popular reforms in the institutions of Athens. But it ought to be kept clearly 
in mind that a republic was inaugurated in Rome in 509 B.C., not in an Athenian or 
modern, but only in a Roman, sense. As I have said, the Romans never made 
revolutions out of hand; they only grew them, from very slowly germinating seed.  The 
change made in 509 was scarcely greater than was the change effected in Athens 
some two centuries earlier by substituting annual archons for life archons. Two 
consuls, to be chosen annually by the Comitia Centuriata, were substituted for the 
kings, who had grown insolent in the person of Tarquin; and a newly created high 
priest, dubbed Rex Sacrorum, received the religious prerogatives of supplanted 
royalty, - that was all.  The regal functions quietly passed to the joint exercise of the 
consuls, and the right of electing to the chief magistracy passed away from the curies, 
who had elected the kings.  In all other respects the constitution kept close to the lines 
of its original forms, only the Senate receiving increase of power.

	167. The Consuls. - That the change was slight the powers of the consuls bore 
abundant witness.  Two consuls were chosen, and doubtless a practical division of 
duties was arranged between them from the first; but each consul was in fullest 
measure king, and master of the state.  The consuls were selected by the Comitia 
Centuriata, but they received their imperium, their unstinted gift of kingly authority, 
from the Comitia Curiata, as the kings had received it before them.  The limitation of 
their power lay only in its division and in the shortness of their term of office.  Each 
consul was supreme, and the power of the one offset that of the other.  Since each 
could check and defeat the purposes of the other by the exercise of an absolute 
authority, they could act only by agreement. Neither could indulge his personal whim 
or safely pursue any private aim. Their term, moreover, was but for a single year.  
They might, indeed, being sovereign, refuse to quit their office or resign their imperium; 
no man could gainsay them while they kept it; but it was neither politic nor safe to defy 
their fellow burgesses in such a fashion, and once out of office they were amenable to 
the law.

	168. Like a king, or rather like an interrex, a consul could name his own 
successor; but the Comitia Centuriata claimed and exercised the right to decide upon 
whom the choice should fall, and consuls had to content themselves with an 
occasional veto upon its selections.  The imperium, moreover, had its civil side, and its 
military.  Upon the absolute power of the consul at the head of the army and in the field 
the law did not venture to impose any restraint; but upon his civil power this limitation 
was laid, almost from the first, that with regard to every sentence he should utter in the 
plenitude of his power against the life or legal status of any citizen, an appeal should 
lie to the people in their assembly.  His complete mastery lay in this: either consul 
could, with the consent of the Senate, name a Dictator, who for six months should be 
the state's absolute monarch, his imperium restrained in nothing, both consuls ousted 
for the time from their power, the state and all its resources, the lives and fortunes of 
its citizens, put at his disposal in all things.  It was in this way a crisis might be met, if 
the consuls came to a deadlock, or the dangers to the state be avoided, should turmoil 
or insurrection or invasion threaten it.

	169. Quaestores parricidii were early associated with the consuls, at first as their 
nominees, afterwards by popular election, to assume a practically independent 
exercise of the criminal jurisdiction included in the imperium, and to undertake the care 
of the state chest.

	170. Patrician Control. - There was here no democratic structure of government.  
The patrician classes practically controlled in all things. The Comitia Curiata, which 
conferred the imperium, was a patrician assembly.  The Comitia Centuriata, which 
chose the consuls, voted by centuries; and a majority of the centuries were drawn from 
the patrician classes, - at any rate from those who had wealth and were in the patrician 
interest, - so that only patricians were chosen magistrates.  Above all, the Senate, the 
very seat of patrician privilege, kept upon all things a hand of control which could not 
be shaken off.  It assumed to supervise all choices of the more popular assemblies, 
and in the field of administration was at all times practically supreme.

	171. The Senate. - The Roman Senate is singular among bodies of its own kind 
in having had no clearly defined province.  From the time when consuls were first 
chosen till the end of the second Punic war (B.C. 509- 201) it was virtually, so far as 
the conception of policy went, the government of Rome. Its counsels determined the 
whole action of the state. And yet not by any very tangible legal right.  It remained till 
the last what it had been from the first, - only a consultative body whose advice any 
magistrate might ask, but whose advice no magistrate was bound to take. It was 
associated with the consuls as it had been with the kings, - to give them such counsel 
as they should call upon it to give.  Its powers were, strictly speaking, powers of 
consent rather than of origination.  It exercised auctoritas, the power to forbid 
legislation of which it did not approve, and consilium, the right to act, whether by way 
of approval or amendment, upon executive proposals.  It had full control, moreover, of 
the public finances, having the right to determine the taxes and the manner of their 
collection, to vote the appropriations, and to audit the accounts of the treasury officials.  
It at first claimed and exercised the right to approve or disapprove, as it chose, all laws 
and all elections upon which the people's assemblies acted.  It had a hand in all things, 
in periods of stress or peril setting all laws aside, and for the rest giving shape and 
consistency to the business of the state, and the restraint of old practice.  And yet its 
only real authority was that of opinion.  It was strong only so long as it went with the 
mos majorum.

	172. Composition of the Senate. - The number of senators was, throughout most 
of Roman history, limited to three hundred, the complete number of gentes under the 
kings.  Their tenure was for life, provided they were not deprived of their rank by the 
censor.  In the regal period they were chosen by the king, his summons constituting 
them members (sec. 164); and when consuls succeeded to the kingly functions, they, 
like the kings, filled vacancies in the Senate.  A law of about B.C. 351, however, gave 
the right to a seat in the Senate to every one who had been consul, praetor, or curule 
aedile; and vacancies over and above the number which such ex- officials sufficed to 
fill, were thereafter filled by appointment of the censor.

	173. Senate's Character and Influence. - Until the comparatively late times when 
the Senate had been corrupted by the temptations incident to the administration of a 
vast empire, and had proved itself as incapable as any other advisory debating club of 
managing foreign conquests, it had many distinct advantages over any other authority 
that might have felt inclined to compete with it.  Magistrates held their offices only for 
one year, and were generally drawn from the classes strongest in the Senate; the 
various assemblies of the people (secs. 165, 181, 186, 205, 206) had no permanent 
organization, and met only occasionally, when the proper magistrate saw fit to 
summon them; the Senate alone had continuous life and effective readiness for action.  
With its life membership it was immortal; containing the first statesmen, lawyers, and 
soldiers of the state, it had a knowledge of affairs and traditions of authority, of 
achievement, and of sustained and concerted purpose such as magistrates, who held 
their offices but for a twelvemonth, and meetings of the people, which came together 
but for a day, could not possibly have.  It was compact, practised, clear of aim, 
resolved, confident.  The vagueness of its functions was, therefore, an advantage 
rather than a drawback to it.  It undertook every task that others seemed disposed to 
neglect; it stretched out its hand and appropriated every function that was lying idle. If 
its right to any particular function was seriously challenged, it could quietly disclaim it, - 
to take it up again when the challenger had passed on. The consuls and other 
magistrates could ignore its determinations at will, and follow their own independent 
purposes or the wishes of the popular assemblies. The Senate was in theory only their 
servant, to speak when bidden.  But the Senate's advice was commonly indispensable; 
nowhere else were such coherent views or such informed purposes to be found; 
nowhere else so much experience, wealth, influence.  It was too serviceable to be 
decisively quarrelled with: it would jeopard their own careers to defy it.  In all seasons 
of quiet in home affairs it accordingly had its own way with undisturbed regularity.

	174. Presidency of the Senate in Constitutional Change. - The Roman 
constitution was, by its own slow processes, to undergo many radical changes, but the 
Senate was to remain, the while, almost unchanged.  New magistracies were to be 
created, old magistracies altered; new assemblies were to come into existence, old 
assemblies were to lose or change their roles in the state; the body of the law was to 
experience many a transformation, but the Senate was all the while to preside, 
mediate, control, - the most elastic, and therefore the most durable part of the singular 
constitution.  All the strains were to come upon it, but it could take them without 
serious injury, and was arbiter in all things.

	175. The Oppression of the Plebeians. - Change came first from the just 
discontent of the plebeians, and came before the republic had been in operation so 
much as sixteen years.  The kings had at least been sovereigns alike of patricians and 
of plebeians, masters, but not always partisans; and once and again, a king like 
Servius Tullius had sought to strengthen the whole state by the elevation of the 
plebeians to a proper place of influence.  But the new government was the government 
of a class, and was systematic in making the most of its power, whether in the Senate 
or through the magistracies, for the benefit of a single order in the state. No one but a 
freeholder could be enrolled in a tribe and vote in the assemblies, and the patricians 
saw to it that the body of freeholders should not be added to.  There was land enough, 
and that at the disposal of the state.  For Rome was already steadily making 
conquests about her, and the conquered land became in large part ager publicus, 
subject to be allotted as the state chose.  But poor men not of the privileged order 
were not given their share.  The wealthy families who ruled in the Senate and through 
the magistracies, themselves took up the new lands not only, - forgetting to pay the 
legal rent, - but even enclosed the pastures hitherto common, and left the peasant 
farmer neither arable land enough nor any food for his beast.

	War, moreover, constantly drew the able-bodied of every class away from home, 
and the small farmer was only too apt upon his return to find his house burned and his 
fields laid waste by the enemy, and debt staring him in the face.  Debt meant slavery, - 
slavery to some patrician to whom he must resort for money.  The law of debt in Rome 
was as harsh and pitiless as that which Solon had undertaken to reform in Athens 
(secs. 127- 129).  A man who did not pay his debt became his creditor's prisoner and 
slave; and patrician magistrates were quick and inexorable in their execution of the 
utmost penalties.  The law, moreover, was nowhere to be read or learned, save in the 
judgments of patrician magistrates or the warnings of patrician priests, and its 
execution was daily made arbitrary as well as harsh.  There was no private right, - at 
any rate among plebeians, - to offset the terrible public power that lay in the imperium 
of the consuls.  The fortunes alike of war and of politics brought nothing but loss upon 
the plebeian, nothing but gain, it sometimes seemed, to the patrician; and the 
plebeians were not slow to perceive that it was time to have done with submission.

	176. Strength of the Plebs. - That the plebeians had long been growing to 
formidable numbers with the growth of the city itself there is abundant proof in the 
uneasy movements of politics long ere the power of the kings had reached its term.  
Whether or not it be true that Rome, because seated in a district which was neither 
fertile nor healthful enough to have been chosen for any other purpose, was at first an 
asylum for the outlawed and desperate characters of Italy, it is reasonably certain that 
her population had from the beginning a very miscellaneous, heterogeneous 
composition. Possibly the gentes which claimed to be the only gentes that had fathers 
(patres), and consequently the only patricians, were themselves of rather artificial 
make-up; and it is quite conceivable that those who came later into the Roman circle, 
although not less naturally but only more recently formed into families of the orthodox 
pattern, were relegated to a rank of inferior dignity in the state, even if not excluded 
from a place in the curies alongside of the patricians, and so ranked as plebeians.  
There were also many who had come to Rome as aliens, content at first to live there 
as outsiders for the sake of certain advantages of trade to be had only on the banks of 
the Tiber, and who had in time given birth to a non-citizen class, which had forgotten 
its alien extraction and had become identified with the city, but which had made little 
advance beyond the threshold of the state. These, too, were plebeians.  The chief part 
of the class, however, was derived from the conquered Latins settled in Roman 
territory since the times of Tullius Hostilius and Ancus Martius.  By one process or 
another the city had become mistress of a great body of people from whom she drew 
no small part of her strength and her wealth, and who were yet not citizens but 
outsiders in every point of privilege.  Servius Tullius had enrolled them in the army, 
made them subject to the military tax, and given them a place in the Comitia 
centuriata; and so long as the throne had stood they had found neither their burdens 
nor their disabilities intolerable.  But now they felt full service without full privilege to be 
irksome beyond measure.  Economic distress proved a very enlightening teacher; and 
they were both too numerous and too certain of their wants to hesitate to act.

	177. Secession of the Plebs (B.C. 494). - They found their opportunity in a time 
of war.  Returned from a field of victory over the Volscians, they remained armed and 
encamped outside the city's walls until their demands for protection against the savage 
law of debt and the pitiless rigor of the magistrates should be laid before the Senate by 
their commander, who agreed to be their spokesman.  When the Senate refused their 
petition, they broke into open revolt, turned their backs upon their general, withdrew to 
the "Sacred Mount," which lay between the Anio and the Tiber, and declared that they 
would there establish an independent and rival commonwealth of their own.  The 
Senate speedily came to its senses, opened negotiations once more, and quickly 
enough entered into a binding covenant which should bring the people to their 
allegiance again.

	178. Tribunes of the People. - It was stipulated that land should be provided out 
of the public domain upon which to place colonies of the poor farmers who had hitherto 
been left to starve or else accept the slavery of debt.  But that was a mere measure of 
temporary relief.  The defence of the plebeians against the tyranny of the patrician 
magistrates was provided for in a much more effectual manner, which had in it, as 
usual, the seeds of radical constitutional change.  It was agreed that a new office 
should be created: that the plebeians, voting in their own curies, should elect two 
tribunes whom the law should recognize as their authoritative protectors against all 
magistrates, of whatever rank or power.  The tribunes were to be invested with the 
right to suspend the judgment of any magistrate upon a plebeian by peremptory veto, 
should they regard the judgment as in any way a breach of plebeian privilege.  That 
their persons were to be inviolable was made the subject of a special compact (the lex 
sacrata) which denounced a curse upon any one who should interfere with them in the 
discharge of their functions.

	179. The concession seemed a small one: the tribune's right of authoritative 
"intercession" was meant to prevent nothing more than violations of the just privileges 
of any plebeian who might seek redress or resort to him for succor.  But a very great 
authority lurked in that.  The tribune was himself to judge when he should intervene, 
and his veto was imperative against any, even the proudest, consul.  It was as if the 
plebeians had actually established their independent community after all, within the 
city instead of on the Sacred Mount, if not for action, at any rate for defence and self-
protection.  The power of the tribunes, moreover, grew as they used it. They were 
prompt to claim judicial prerogatives: the right to impose fines upon those who crossed 
their authority, and the right to arrest, imprison, it might be condemn, even to death, 
the consul himself.  The law gave them no such powers, and they, of course, did not 
begin by exercising them; but such rights presently came to seem a natural enough 
inference from the powers the law did confer; it became more and more difficult to 
withstand the tribunes as the pretensions of the plebeians advanced from step to step 
in the long constitutional struggle which ensued; and a slow usurpation brought the 
tribunes what they wished.

	180. The tribune's authority did not extend beyond a mile from the city's limits.  
Beyond that the imperium of the consul was as absolute as ever.  A tribune's 
intercession, moreover, could be uttered only in person: it was necessary, therefore, 
that a tribune should be always at hand within the city, and that the door of his house 
should stand unlocked day and night, in order that no man might fail of his succor 
when it was needed.

	The name tribune was not a new one.  The old patrician tribes had had each its 
tribune, its representative in all civil, religious, and military affairs, its magistrate and 
commander.  The tribes formed by Servius, too, and the country districts which 
resulted from the alterations which he instituted, had in their turn been put under 
tribunes, who acted a chief part in many important matters of administration.  But the 
tribunes of the people bore an old name with a new meaning.

	181. A New Assembly. - Another momentous consequence of the changes thus 
effected showed itself in the springing up of a new assembly which the tribunes 
assumed the right to summon, - an assembly of exclusively plebeian make-up, a 
Concilium plebis, in which the tribunes were elected, to which appeals could be taken 
in the matter of the fines imposed by the tribunes, and in which counsel could be held 
upon any matter the plebeian magistrates chose to propound.  The plebeians had long 
had their own tribes and curies. Their curies had, no doubt, been reckoned with those 
of the patricians in the Comitia curiata since the coming in of the Republic.  But in this 
new body they drew apart and completed their separate organization as a distinct 
order in the state.  It was the beginning of a new series of changes.  For a time the 
resolutions of these assemblies bound no one but the plebeians themselves; but, as 
plebeian power grew, an authority which was virtually legislative accrued to their tribal 
council, and the balance of power in the state was definitively shifted.

	182. The Public Land. - But these changes within the city did not settle the 
question of the public lands.  The poor farmer was still shut in to his petty farm of an 
acre and a quarter, and denied his ancient right of common and of wood; patricians 
and their clients continued to take possession on all hands of what should have been 
fairly allotted amongst all; and poverty looked as inevitable a thing as ever.  For 
twenty-seven years after the great secession to the Sacred Mount did the tribunes of 
the people press a persistent agitation against the unjust system, deterred neither by 
intimidation nor by force, seeing one man done to death under the forms of law and 
another assassinated outright for their boldness in urging a juster way, and then (B.C. 
467) obtained only a gift of lands to some of the poorer Roman farmers upon the 
establishment of a Latin colony at Antium.  It required eleven more years of agitation to 
get an apportionment of building lots for the lower classes, upon the Aventine (B.C. 
456); and there the matter rested for a little, other things taking precedence.

	183. The Plebeians and the Publication of the Law (B.C. 462-451).  The struggle 
between the orders, it turned out, was to be the moving cause of almost all legal and 
constitutional change.  The assignment of building lots on the Aventine to men of the 
poorer classes had been agreed to by the Senate as a concession to stave off much 
graver matters, which the tribunes were pressing.  Since the year 462, they had been 
urging the appointment of a commission, - and a commission of plebeians at that, - to 
codify and publish the laws, so that all men might certainly know with what privileges 
and under what penalties they lived.  The law was known only to the patricians.  Its 
rules and practices were a sacred tradition, mixed of religious belief and civil usage, 
and handed on, like a secret cult, through magistrates and priests.  There could be no 
systematic or effectual defence of the plebeians against an arbitrary and tyrannous 
administration of the law so long as only the magistrate, and he the representative of a 
class, knew what the law was. The publication of the law was the condition precedent 
to any due establishment or observation of rights, at any rate for those who were not of 
the privileged order to which the law privately belonged.

	184. The Decemvirs (B.C. 451-449). - For ten years the Senate fought the 
reasonable project, granting first an increase in the number of the tribunes, then an 
allotment of land on the Aventine, and finally, a limitation of the amount of the fines 
which a consul could impose; but the steady agitators, whom they were opposing, 
forced them at length to yield. It was agreed that a commission of ten should be 
appointed, for the usual term of a year, to codify and publish the law.  All other 
magistracies were to be for the time suspended, in accordance with the usual Roman 
custom in such matters of extraordinary action, in order that the decemvirs should be 
supreme in all things until their special task should be accomplished.  The plebeians, 
on their part, agreed to give up the tribunate in exchange for a determinate code of 
law.  The patricians managed to exclude plebeians from the commission, and filled it 
with men of their own order; but its work was undertaken and executed in good faith.  
Within their term they completed ten Tables of the law, which were approved by the 
assembly of centuries, engraved upon brazen tablets, and set up in the Forum.  But 
that did not finish the work of codification: the year had not sufficed to complete the 
task.  It was necessary to renew the arrangement for still another year. It was 
necessary to renew the arrangement for still another year.  But the second year did not 
prove like the first.  Appius Claudius had tasted absolute authority with a keen relish as 
president of the first commission, and now, a patrician turned demagogue, leagued 
himself with certain of the less scrupulous plebeian leaders to perpetuate his power.  
He obtained the selection of men of a subservient sort to be his colleagues on the 
second year's commission, - three of them (some say five) plebeians, - and led them, 
when once they were safely installed in office, to turn despots with him, in despite of 
law and right. When their year of office was out, they declared that their work was not 
done, and refused to give place to the regular magistrates of the constitution. They 
had, in fact, completed the two additional tables which the law had lacked; but they 
had not submitted them to the people, and they did not mean to govern by any law at 
all.

	185. Second Secession of the Plebs. - It did not take such men long to carry 
things to such a pitch as to provoke rebellion.  The army gathered in its camp without 
the city, marched thence to the Aventine, and there elected tribunes once more to be 
their leaders, instead of the decemvirs. When they saw that even then the Senate 
made no move to oust the decemvirs, they marched a second time to the Sacred 
Mount and again threatened to build a city there for themselves alone.  They were not 
won back to their allegiance until the tribunate had been formally restored, the 
decemvirs brought to a reckoning, the right of appeal from all magistrates once more 
guaranteed, and a full amnesty accorded.  Nor did change end there. Through L. 
Valerius Potitus and M. Horatius Barbatus, whom the Senate had commissioned to 
treat with them, the plebeian leaders forced the adoption of more radical measures 
than the mere restoration of what they had resigned to secure the publication of the 
law. Not only was the right of appeal restored: it was strengthened, and made to apply 
even as against a dictator.  Not only was the tribunate set up again, and the 
inviolability of the tribunes secured by the solemn sentences of a law binding upon all 
classes alike, but the tribunes were given the right to attend the debates of the Senate, 
and began, as it turned out, before many years went by, to use their right of 
intercession even against its decrees. More significant still, the people were henceforth 
to have legislative power: the resolutions of the people were to have the binding force 
of law, - not the resolutions of the plebeians alone, indeed, but the resolutions of the 
whole body of freemen, reckoned without distinction of class, in which the plebeians 
were to be secure of a safe preponderance of numbers.  Such were the Valerio-
Horatian laws of B.C. 449.



THE STATE
Wilson, Woodrow
The Government Of Rome
    
Part II.

	186. The Comitia Tributa. - That meant the creation of a new assembly. The 
tribunes were still to have the right to summon Concilia plebis, in which the distinctive 
officers of their order, the tribunes, and the aediles and judges who were their 
subordinates, were to be chosen, and to which appeals from the judicial decisions of 
these officers were still to be carried; but there was to be another assembly besides, in 
which the whole people was to be gathered, assembling in its tribes, and which was to 
be known accordingly as the Comitia tributa.  Over its sessions a patrician magistrate 
was to preside. It was to elect the quoestors to whom the care of the city's treasury 
was committed.  Its resolutions were to have the force of law.  And so still another 
piece was added to the complex machinery of the singular constitution.

	187. The XII. Tables. - The law of the XII. Tables, which came from the hands of 
the two decemviral commissions, contained provisions both new and old, being 
marked throughout by a spirit of compromise and concession. The original proposal of 
the plebeians that the law should be written and published had involved no avowed 
purpose of change; but the work as actually accomplished, though it contained the old 
law, showed it modified at many points.  There was even distinct evidence of Greek 
influence, and there always lingered at Rome a very definite tradition that two years 
before the appointment of the first decemviral commission, an embassy had been sent 
to Greece to examine the famous laws of Solon at Athens, and that Hermodorus, a 
learned Ephesian, had returned with the ambassadors to assist at the codification.

	188. The Tables borrowed the very words of the laws of Solon in some matters of 
detail, for example with regard to the restriction of expense at funerals, and throughout 
followed Greek forms in the statement of the law; but no constitutional arrangements 
were borrowed, and the stiff fibre of Roman practice showed itself the whole code 
through.  Apart from such matters as the right of appeal from the decisions of 
magistrates, the punishment of judicial corruption by death, the prohibition of laws 
directed against private individuals, the assignment of criminal cases to the jurisdiction 
of the Comitia centuriata, and the regulation that magistrates, in citing resolutions of 
the people in justification of what they sought to do, should cite the latest and not 
choose as they liked among new and old, its text was given up, for the most part, to 
private law.  Insolvent debtors were to be at the mercy of their creditors as before, but 
interest was not to exceed ten percent., and usury was to be punished.  The absolute 
power of heads of families over their households (patria potestas) was a little softened.  
Intermarriage between patricians and plebeians was forbidden, as it had always been, 
but a process of civil marriage was added to the once exclusive ceremonial in which 
the family religion of the patricians had so long been embodied.  Wills, it was provided, 
could henceforth be made, not only by declaration in the assembly of the curies, as 
heretofore, but also by means of a form of fictitious sale. Libel and false witness were 
to be punished with death.  It was significant, too, that voluntary associations 
(collegia), such as plebeians were wont to form, were secured in the right to make their 
own rules of self-government, provided only they did not transgress the law of the city. 
This also was a law drawn from Solon's legislation.

     The XII. tables and the genesis and development of Roman law will be
     further and more particularly discussed in the next chapter.

	189. War and Its Constitutional Effects. - Rome was denied the exclusively 
municipal life for which her forms of government fitted her, and which was vouchsafed to 
Athens, Sparta, and the other cities snugly ensconced within their little valley nests 
among the mountains of Greece. She could not live a separate life.  There were rival 
towns all about her on the plains of Latium, and beyond the Tiber in Etruria, which she 
was obliged either to conquer or submit to.  When they had been brought under her 
supremacy, she had still only gained new hostile neighbors, to whom her territory was 
equally open.  She seemed compelled for the sake of her own peace to conquer all of 
Italy.  Italy subdued, she found herself separated by only a narrow strait from Sicily.  
Drawn into that tempting island by policy and ambition, she came face to face with the 
power of Carthage.  In subduing Carthage she was led to occupy Spain.  She had been 
caught in a tremendous drift of compelling fortune.  Not until she had circled the 
Mediterranean with her conquests and had sent her armies deep into the three 
continents that touch its international waters, did she pause in the momentous 
undertaking of bringing the whole world to the feet of a single city.  And her constitutional 
life itself felt every stroke of these conquests.  This constant stress of war was of the 
deepest consequence to her politics, - especially in enabling the plebeians to break into 
the pale of political privilege much earlier than they might otherwise have done so.

	190. The Equalization of the Orders. - During the struggle which had resulted in 
the establishment of the tribunate, the creation of a plebeian assembly and an assembly 
of tribes, and the publication and amelioration of the law in the XII. Tables, the fortunes 
of war had ebbed and flowed unsteadily.  It was because they could not afford to have 
the army discontented or rebellious that the Senate had felt at every crisis the need to 
yield to the demands of the plebeians, who constituted so indispensable a part of its rank 
and file.  It was because war devastated their fields and accentuated their poverty that 
the plebeians moved so persistently and oftentimes so turbulently for relief against the 
tyranny of the magistrates and for a just share in the use of the public lands.  At length 
sixty years of struggle had brought them at least an independent corporate standing and 
privilege in the state and a clear law to live under.  They could act in their own 
assemblies, rely upon the protection of their own officers, and deem themselves a 
recognized party to every great transaction of politics. Moreover, within five years of the 
decemviral legislation they had laid the axe at the very root of the principle upon which 
patrician ascendency rested. In the year B.C. 445 the Senate found itself obliged to 
assent to a vote of the Comitia tributa (a plebiscitum, such a vote was called) that 
henceforth intermarriages between patricians and plebeians should be lawful.  At one 
blow such a law struck away the pretence that religion forbade any but men of the pure 
and ancient blood of the city's fathers to serve in the great and intimate offices of the 
state or approach the gods in the taking of the auspices.  The law was henceforth to 
know nothing of pure patrician blood.

	191. The Contest for Political Office. - The rank and file of the plebeians, being 
poor men, not likely in any case to gain great place or power in the state, would have 
rested content with such a conclusion to their contest with the patricians, could they 
have got, besides, an assured economic equality in respect of the usufruct of the public 
domain.  The richer plebeians, on the contrary, seeing themselves shut out from nothing 
but power, desired that above all things, and set themselves to get it. The very year the 
restriction upon marriage between the orders was removed (B.C. 445) they wrung from 
the Senate a concession which seemed to promise a great deal.  Each year, it was 
agreed, the Senate should determine by a special vote whether the chief administration 
of the city should be entrusted to consuls or to a board of six military tribunes, - and, if to 
tribunes, plebeians were to be eligible for the office.  But for nearly sixty years, though 
the new board was frequently put in the place of the consuls, the election of plebeians 
was prevented.  In the year B.C. 443 a new office was created, the office of censor, to 
be open only to patricians, so fearful were the privileged order that the plebeians might 
make their way into the military tribuneship in spite of them.  There were to be two 
censors, and they were to have charge of the numbering and enrolling of the citizens.  In 
B.C. 441, besides, the consular right to manage the military chest was transferred to a 
board of four patrician quoestors, lest that matter should fall into the hands of plebeian 
magistrates.  But such precautions proved for a long time unnecessary.  Not until B.C. 
400 did the plebeians secure a majority upon the board of military tribunes, who were 
elected by the Comitia centuriata; and they had got three out of the four quaestorships 
nine years earlier (B.C. 409) in the elections held in the Comitia tributa.  In each 
assembly a patrician magistrate presided.  The presiding magistrate had the right to 
refuse to receive votes for certain candidates, and could use the power very 
unscrupulously for personal or partisan purposes when he dared.  The Senate reserved 
the right to disallow elections of which it disapproved.  In the last resort the priests could 
declare an election irregular and void, alleging some breach of religious observance or 
some sinister aspect of the portents.  By subtlety, trick, or power, plebeians had been 
kept out the fifty odd years through, - war, meanwhile, constantly intruding its 
interruptions and drawing off the strain of internal excitements.

	192. The Licinian Laws (B.C. 367). - The sack of the city by the Gauls (B.C. 390) 
interrupted the normal course of politics for a little; the lack of union among the plebeians 
threatened to turn it aside altogether.  The poorer classes wanted only economic 
reforms, and were indifferent about the offices; the richer plebeians wanted political 
power, in addition to the social equality already won, and felt that they had economic 
advantage enough.  The tribunes C. Licinius Stolo and L. Sextius had the statesmanship 
to draw the two elements of their party together to the support of a set of measures 
which promised to advance the claims of both. They demanded that a limit be put by law 
upon the amount of the public land which any one citizen could hold, in order that there 
might be some for all, to the breaking down of the hateful monopoly of the patrician 
landowners; that the number of cattle and sheep which any one owner could put upon 
the common pastures should also be definitely restricted; and that henceforth, instead of 
the makeshift of occasional boards of military tribunes, there should be consuls chosen 
every year, as of old, one of whom should in every case be a plebeian.  For ten years 
the Senate stubbornly resisted (B.C. 377-367).  When at last it saw itself obliged to yield, 
it took care (B.C. 366) to curtail the power of the consular office still further by taking 
from it yet another piece.  They created the office of proetor, and transferred to it the 
administration of justice, hitherto one of the chief prerogatives of the consular office, 
providing at the same time that none but patricians should be eligible to be chosen to the 
new office.  Within a generation, however, the praetorship too had been won by a 
plebeian (B.C. 337).  The dictatorship had been given to a plebeian in 356, and the 
censorship in 351.

	193. Subdivision of Offices. - There had been throughout but one method of 
defence against the growing pretensions of the plebeians: as they approached complete 
access to a coveted office the importance of that office had been deliberately curtailed, 
by paring away its prerogatives and bestowing them upon officers newly created.  But in 
the end this proved no defence at all.  One by one, each in its turn, the new offices were 
filled by plebeians, until even the sacred colleges of the priesthood were no longer 
exclusively in patrician hands (B.C. 300, lex Ogulnia), and the Pontifex Maximus was 
himself a plebeian (B.C. 253).  A second Appius Claudius (the same who made the 
Appian Way), as censor, enfranchised tradesmen and artisans, assisted a mere clerk of 
the public service to a curule oedileship (B.C. 304), and joined this same clerk in the 
publication of the legal calendar and the lists of legal formuloe, knowledge of which had 
hitherto been safely guarded confidential matter of tradition within the college of priests.

	194. Supremacy of the Senate. - The subdivision of offices tended, singularly 
enough, to restore something like the original constitution of the Republic, by renewing 
the supremacy of the Senate.  Other assemblies had multiplied and grown in function 
and power.  By a law of the year B.C. 339 the assent of the Senate to the resolutions of 
the people's assembly was made a mere formality; by a law of the year B.C. 287 (the lex 
Hortensia) a like independent and binding force was given to the actions of the concilium 
plebis; and by a law of 286 the Senate was obliged to agree beforehand to confer the 
imperium upon whatever officers the Comitia should elect.  But the very multiplicity of 
assemblies and the mere subdivision of functions amongst them only gave the more 
consequence to the great administrative council.  The multiplying of offices had the 
same effect: business so divided needed the systematic supervision of a permanent 
council of state.  The censors had been given the right (about B.C. 350) to fill out the roll 
of the Senate upon the occurrence of vacancies in its life membership (a power which 
had until then belonged to the consuls), and even to remove those who seemed 
unworthy; but a vote of the tribes (the lex Ovinia) had commanded that choice be made 
by the censors only from among the best men of the state.  This had been interpreted to 
mean those whom the people had chosen to occupy the higher magistracies. And so it 
happened that as the Senate came once more into its old functions it tended to become 
more exclusively than ever an assembly of ex-magistrates; and the permanent council of 
state to which the acting magistrates looked for guidance was made up of those 
seasoned to the work of government by experience.  Towards such a council the acting 
magistrates, with their now limited powers, their minutely subdivided imperium, 
necessarily stood related, not as masters, but as servants; and a great day of power 
came again to the Senate.  Even the tribunes became its instruments.  They were, 
indeed, given the right at last themselves to convoke the Senate like any magistrate, and 
their right of intercession operated when they chose against it; but the Senate, in its turn, 
used the tribunes' right of intercession to check the magistrates, and their right to call 
together the popular assemblies to guide and influence the action of the people.  The 
Senate's opportunity had come back again, and, now that patrician pretension was 
killed, the opportunity could be greatly used.

	195. "The Senate alone could deal with the grave problems of war, foreign 
relations, and the provincial empire.  The management of finance drifted naturally into its 
hands, for the untaxed burghers had no interest in controlling expenditure.  Nor was it 
unworthy of its high position; the Senate was the author of Roman greatness.  Superior 
to the House of Lords, for it was not, in theory, hereditary or exclusive, superior to the 
Athenian Boule in its independence and authority, it represented at first no one class, 
generation, or set of principles.  As it consisted mainly of ex-magistrates, it was based 
indirectly on popular choice.  It was, in fact, the fine flower of that great aristocracy which 
resulted from the fusion of the orders, and concentrated in itself the experience, the 
traditions, and the statesmanship of Rome.  Its consistent and tenacious, if narrow-
minded, patriotism had saved the state and built up the fabric of empire.  Its members 
had served an apprenticeship in arms and politics, by land and sea, in the provinces and 
in the forum.  They were called to their places by the selection of the censors from 
among the chosen officers of the Republic.  Debarred from commercial pursuits (218 
B.C.), restricted to the holding of land and the public service, they formed that 
professional governing class demanded at once by ancient political thinkers and the 
increasing complexity of national business." ^1

	[Footnote 1: A History of Rome, by W. W. How and H. D. Leigh, p. 299.]

	196. Though it in fact ruled, the Senate remained in theory merely an advisory 
body.  It met upon the call of a magistrate, when its advice was wanted.  The magistrate 
who had summoned it and who wished its advice presided over its session, and asked 
either for its vote upon a definite proposition, or for the individual opinions of the several 
senators present, calling upon them by name and in the order of their one-time official 
rank.  While it was greatest, until the end of the Republic indeed, the Senate had neither 
secretary nor records.  Its decisions were formulated and written out in each case by the 
presiding magistrate, a committee of senators assisting.

	197. The Government of Italy. - Rome had conquered Italy and come face to face 
with the Carthaginian at the straits of Sicily while her republican constitution took shape 
and the plebeians made their way to political privilege.  She held her conquests together 
by no constitutional system, but by such bonds of interest or of fear or of power as she 
could devise in each case as it arose.  Each conquered town or people obtained its own 
terms of submission.  Roman military colonies dotted the country here and there like 
garrisons.  Roman armies moved quickly upon any threat of revolt.  Senate and 
magistrates interfered as they pleased.  All were obliged to make their contribution to the 
Roman treasury.  But for the rest the subjugated towns and communities kept their own 
life and government, generally, as if they had been still independent.  Rome did not send 
them governors, but only requisitions. Some, indeed, had been utterly reduced and 
brought to a condition of virtual slavery; but most were left measurably free, and some 
enjoyed a sort of qualified Roman citizenship. There were very few made utterly 
dependent.  They were dependencies, but not provinces.  Many stood in the honorable 
place of allies.

	198. It grew to be a danger, indeed, and a source of menace to the state that the 
Italian communities had no definite place either of privilege or of subordination in the 
constitution.  Their citizens came to be a new sort of plebeians, - a new class which was 
less than free, - members of the Roman State so far as burdens were concerned and 
every sort of service, and yet not enfranchised, held off from the privileges and the 
power which ought to go along with the duties of membership.  Their grievances, it 
turned out, were to be a new ferment, a new leaven of agitation, restlessness, and 
change.

	199. The Provinces. - For the city's possessions outside Italy it was found 
necessary to devise a new system of oversight and government, - and yet not a system, 
either, for Rome never invented systems, but a new set of practices and 
accommodations.  A way to control each province was found as it was needed.  Rome 
did not plan an empire; she drifted into her world- wide sway.  It was her first thought, as 
her conquests began to extend beyond the bounds of Italy, simply to attach the 
conquered states to herself by treaties of subordination or alliance or service, after the 
manner she had followed in Italy itself.  The actual annexation and administration of 
foreign territories as provinces was only slowly forced upon her by circumstances.  It 
was a policy, however, which she came more and more to relish as her ruling classes 
came to a full appreciation of the spoils and the power it brought them, and the erection 
of provinces came at length to be the rule and not the exception. A confusing variety, 
indeed, continued to exist in the provinces, as elsewhere, in respect of the status of the 
several communities which had been brought under her sway.  Some were suffered to 
retain a separateness and freedom which had but slight trace of subordination in it; and 
there were cities not a few whose privileges expressly exempted them from the direct 
jurisdiction of the provincial authorities.  Others retained very considerable powers of 
self- government, notwithstanding the fact that taxes and burdens of many kinds marked 
their subjection to the imperial city.  Not many had, while the Republic lasted, a position 
of outright vassalage thrust upon them, unless they were merely barbarous or utterly 
recalcitrant.  But everywhere Rome had her officers of provincial administration: the 
governor of the province, the quoestor who acted as his colleague in the interest of the 
treasury, and the publicans to whom the collection of the taxes was farmed out, besides 
a great retinue of the lesser officials who served these.  The tendency was always 
towards more and more harsh exactions, greater and greater restrictions, more and 
more frequent and arbitrary interference. The system was practically anything the 
governor chose to make it.

	200. Organization of Provincial Administration. - "Province" meant, in the official 
usage of Rome, a range of power rather than a subjected district. It meant the sphere of 
a sovereign magistrate, and only gradually came to mean the region within which a 
magistrate exercised his rule.  Each province had its own characteristic districts and 
arrangements for local self-administration, fixed upon by a committee of senators 
appointed for the purpose.  The governor had his staff of military and civil assistants, his 
lieutenants, secretaries, clerks, attendants, interpreters, messengers, engineers, 
physicians, and priests, whose services were paid for out of the public chest; besides 
clients and slaves as many as he pleased, whom he took out at his own expense, - that 
is, at the expense of his subjects in the province.  The quoestors who were charged with 
the financial administration were not his nominees like the rest, but officers elected in 
Rome itself and sent to the provinces instead of being kept for duty in the city.

	201. It was an attempt to stretch the constitution of the city itself to cover the 
administration of distant possessions.  At first it had been arranged, simply that there 
should be additional praetors chosen in Rome, some of whom should be sent to act as 
governors of provinces, while the rest were kept at home as usual for their accustomed 
administrative service.  Then, when provinces multiplied, the Senate adopted the 
practice of extending the terms of consuls and praetors, from one year to two, and 
sending them for the second year to the provinces, as pro-consuls and pro- praetors.  
They carried with them to their new field of authority the absolute imperium with which 
they had always, in theory, been invested at home, and were restrained only by the 
general administrative arrangements which the Senate had fixed upon their several 
provinces, and by their sense of justice or of policy.  Their government looked most like 
a system in the field of the administration of the law.  In his power to punish crimes, the 
governor was very absolute; but in the enforcement of civil obligations very steady 
precedents grew up, and something like a system of law was woven out of the legal 
notions of the nations, amongst whom successive Roman governors had presided.

	202. Character of Provincial Administration. - The radical vice of the system was 
its irresponsibility and the spirit of plunder to which it gave leave.  Each governor was 
expected, so cynical did opinion grow at Rome, to make his fortune in his province, and 
that within the single year his authority lasted.  Once away from the supervision of the 
tribunes and the criticism of assemblies and Senate, provincial governors were 
absolutely irresponsible; save only that they were liable to trial for malfeasance in office, 
after the expiration of their terms of service, by jury-courts at Rome, which were, of 
course, out of sympathy with provincials and notoriously open to be bribed.  In the city 
itself consul and praetor were theoretically independent of the conclusions of Senate or 
people; out of the city, commissioned as pro-consuls or pro-praetors, they were actually 
independent. They were city officers far away from home and from all city oversight, 
among subjects instead of among fellow-citizens.  In Rome justice was administered by 
the magistrate, always subject to appeal in all cases which were not in the first instance 
heard in jury-courts, and well- known law governed all decisions.  But in his province the 
pro-magistrate was a final judge restrained by no law but his own edict, issued on 
entering upon his provincial command, and by so much of the rules observed by his 
predecessor as he had chosen to adopt in that edict.  And so throughout provincial 
administration. There being no way of collecting taxes in the province by means of any 
stretched municipal instrumentality, the taxes were farmed out to publicans. There being 
no way known to Roman municipal method of bringing local government in the provinces 
into any sort of systematic cooperation with the general administration, towns and 
districts were usually suffered to retain their own local organization, but subject to the 
constant harassment of Roman interference.  Force cured the want of system; arrogant 
domination served instead of adequate machinery; a genius for intrigue and for open 
subjugation took the place of wise legislation.  The world was made use of rather than 
administered.

	203. Causes of Failure. - This attempt to make a city constitution serve for the 
government of a whole empire failed, therefore, for the double reason that it was 
impossible to provide masters for the magistrates who had gone out nominally as 
servants of the city without giving the provincials a share in the government, and 
impossible to give the provincials part in a system which knew nothing of representative 
assemblies, and consequently nothing of citizenship save in the shape of privileges 
which could be exercised only in Rome itself.  The provinces could not be invited to 
Rome to vote and sit in the assemblies and the jury-courts.  And it was not citizenship in 
Rome that the provincials wanted, but Roman citizenship in the provinces, if such a thing 
could be invented, with power to curb magistrates and condemn publicans on the spot.

	204. Constitutional Tendencies. - Within Rome herself, the admission of the 
plebeians to the magistracies, and the granting of practically conclusive legislative 
authority to the resolutions of the popular assemblies, had virtually completed the history 
of formal constitutional change.  Henceforth, the changes which took place were not 
changes of form, but went on, rapidly enough, though almost unobserved, at the heart of 
the constitutional structure.  It was the growth of the empire which was hereafter to work 
transformations in affairs.  The Senate had charge of foreign affairs, and the people took 
little heed of the provinces, except when colonies were to be planted and poor men 
might get provided for.  The spoils of conquest and dominion lifted the burden of taxation 
from the shoulders of the burgesses at home, and made them indifferent how the Senate 
managed the finances.  The army grew to be a professional body, no longer a levy of 
farmers, and the absence of stern effort in the field added its own element to easy-going 
indifference at home.  The city was full of those who had grown rich through the city's 
conquests and trade, and of those who had grown idle and lived upon the public bounty.

	205. As she waxed strong, the city unwisely grew less and less liberal towards 
her Italian subjects, and more and more jealous to restrict political privilege to her own 
immediate citizens.  Nominally there were four assemblies: the Comitia centuriata, the 
Comitia curiata, the Comitia tributa, and the concilium plebis.  In effect there were but 
two: the Comitia centuriata, which had come to be hardly more than an elaborate piece 
of electoral machinery, and the Comitia tributa, of which the concilium plebis was, in fact, 
a mere subdivision, hardly to be distinguished from the whole assembly of the tribes, 
now that the orders were at last combined.  The Comitia curiata had now little more than 
a formal existence and function.  The Comitia centuriata was presently somewhat 
radically reformed and popularized. It was no longer the army in assembly (secs. 162, 
163, 165), for the army had long since ceased to be in fact a levy of the centuries, and it 
was no longer feasible to base a popular electoral organization upon it.  The somewhat 
regular gradations of wealth which had once characterized the city, had disappeared 
along with the decay of the substantial middle, farmer class, which had once been the 
backbone of the community, and it was no longer just or convenient that the few who 
were rich should have as many votes as the many who were without riches.  A reform 
was accordingly effected by combining the division by property classes with the division 
into tribal districts upon which the Comitia tributa was based.  A division into five 
property classes was arranged within each tribe, and within each class the old division 
into seniores and juniores; the right to vote first in the assembly was taken away from 
the noble and exclusive equites, who still nominally supplied the horsemen of the 
census, and bestowed upon each occasion by lot; the basis upon which the property 
classification was reckoned, was made to include free capital and cash as well as land; 
and the old prerogatives of mere wealth and rank were largely levelled away.

	206. Notwithstanding their nominal authority in all electoral and legislative 
matters, the assemblies were really falling off in power and influence.  The Comitia 
tributa by no means retained the significance it had had while the two orders still 
struggled for ascendency in the state, and the concilium plebis no longer served as an 
advantageous forum for constitutional agitation.  The tribunate lost by degrees its first 
character and old-time importance, until the tribunes had come to be, not officers of the 
people, but officers of the general administration merely, taken, as all other officers 
were, from amongst the ruling persons in the state, the men for whom ability, or 
influence, or wealth opened a way into the Senate, amongst whom no distinction 
between patrician and plebeian was any longer to be traced, but who were none the less 
to be distinguished as a sort of official order, their families par excellence the "senatorial 
families" of the city.  The young men of this class went through a regular course of 
promotion from office to office until the consulship was attained.  The law presently fixed 
the cursus honorum, an established order and age of promotion (Lex Villia Annalis, B.C. 
180); and the tribuneship was open with the rest.  There was no such individual initiative 
in the Roman assemblies as was permitted in the assembly at Athens.  Only magistrates 
could propose legislation.  The tribunes of these later days proposed, most often, no 
doubt, what the Senate wished, or the official class.  There were ten tribunes, and some 
one of them could be found upon occasion who would exercise his old power of the veto 
upon the action of another magistrate whom the Senate wished to check.  The whole 
machinery of initiative and of control had passed into the hands of the Senate.  It was 
supreme so long as, with moderate prudence, it kept an eye upon opinion; and opinion 
grew fitful at last and lost its weight as the population of Rome lost character and 
steadiness of habit.

	207. The Oligarchy. - Such changes in the whole spirit, structure, and condition 
of politics produced at length what was nothing less than an oligarchy, whose distinction 
was not patrician blood, but wealth, social position, and a monopoly of the offices which 
led to the Senate.  There were in the ascendency of this oligarchy, moreover, all the 
subtle elements of demoralization.  The offices upon which its power rested were one 
and all electoral offices: the favor of the people had to be won in order to obtain them, 
the arts of the demagogue assiduously practised, or else trickery and the corrupting 
power of wealth had to be resorted to.  The curule aedileship lay, with the rest, in the 
cursus honorum, - the office whose charge it was to exercise jurisdiction and oversight in 
the markets, maintain the public works of the city, and keep its ways clean, superintend 
the public baths, and see to the proper sanitation of the capital, and conduct the public 
games; and it was necessary to spend money, and favors, and services very freely in 
this office in order to obtain the praetorship which lay beyond it.  And yet the candidate's 
object was not that of the democratic but that of the aristocratic demagogue, who meant 
to use his power in all its higher kinds, in the praetorship and consulship, to advance the 
interests of his own wealthy and self-seeking order.  It was a system which surely, 
though slowly, bred that worst of aristocracies, a hypocritical oligarchy.

	208. Decay of the Republic. - It was the selfish and arrogant, and in the end 
incapable, rule of this oligarchy that brought about the decay and permitted the collapse 
of the Republic, and made the establishment of the Empire inevitable.  For the peoples, 
the interests, the dominions, the magistracies which these men sought to direct and 
govern were become, ere long, too varied, too complex, too disordered, too vast both for 
the constitutional machinery and for the political intelligence with which they sought to 
control them.  It was necessary henceforth, if government was to be effectual, to draw 
together again and combine the powers of a now discordant magistracy: "(1) to restore 
the basis of the military and political system by revising agriculture and replacing the 
yeomanry on the land; (2) to provide for the relief of the poor and the police of the 
capital; (3) to enfranchise the Italians and develop local government; (4) to consolidate 
the provinces by upright rule and gradual Romanisation; (5) to reorganize the army and 
navy on a professional basis, with adequate checks on the action of the officers; and (6) 
lastly, to establish a defensible frontier, a systematic budget, and easy communication 
within the empire." ^1 The magistrates of the city were the mere agents of a council in 
which personal and party interests had full play; the magistrates of the provinces had no 
common master whom there was any need to fear; the armies of the Republic had only 
a debating society to look to for control and plan of discipline; Italians found themselves 
hardly less provincials and subjects than the men of the provinces, whose spoils and 
slaves poured yearly into the city, to the demoralization of the markets and the 
degradation and impoverishment of the small Roman farmer.  The Senate had lost its 
old grasp upon affairs, and had neither the inclination nor the ability to apply the only 
possible remedy: an administrative centralization and reform which would have robbed it 
of its own ascendency.

	[Footnote 1: How and Leigh, p. 325.]

	209. An Emperor the Remedy. - It turned out, in the slow process of revolution 
which the rule of the oligarchy brought upon the city, that the only means of 
accomplishing the administrative changes which yearly became more and more 
necessary was to concentrate power in the hands of one man, at first under the forms of 
the old constitution, at length in open disregard of those forms, - and this was the 
establishment of the Empire. By making all men subjects, it practically made all men 
citizens.  It brought Rome, indeed, very soon to the level of the provinces; but it also 
brought the provinces to the level of Rome by giving her and them a common master 
who could unify administration and oversee it with an equal interest in the prosperity of 
all parts of a consolidated domain.  That is what Caesar attempted, and what the 
overthrow of the Republic and the establishment of the Empire accomplished. Under the 
consuls and the Senate, the provinces had been administered as Rome's property, as 
the estate of the Roman people; under the emperors, who combined in their single 
persons consular and pro-consular, praetorian and pro-praetorian, tribunician and 
quaestorian powers, the provinces very soon came to be administered as integral parts 
of Rome.  The Senate still stood, and many provincial officers were still formally elected 
by the people of the city; but the city became, scarcely less than the provinces, bound to 
perfect obedience to the emperor; provincial officers, and even city officers, were 
recognized as only his deputies; the Empire was unified and provincials brought to an 
equality with their former masters by a servitude common to all. Caracalla's act of 
universal enfranchisement, whatever its immediate purpose (A. D. 212), was a logical 
outcome of the imperial system.  All were citizens where all were subjects.

	210. Genesis of the Empire. - It is not possible to understand either the 
processes or the significance of the establishment of the Empire, without first 
understanding also the discipline of disorder and revolution by which Rome was 
prepared for the change from republican to imperial forms of government.  The Empire 
was not suddenly erected.  The slow and stubborn habit of the Roman, degenerate 
though he had become by reason of the dissipations of conquest and the growth of a 
professional military spirit, would not have brooked any sudden change.  That habit 
yielded only to influences of almost one hundred and fifty years standing.  The changes 
which transmuted the Republic into the Empire began with the agrarian legislation of 
Tiberius Gracchus, B.C. 133, and can hardly be said to have been completed at the 
death of Augustus, A.D. 14.

	211. Tiberius Gracchus to Augustus. - The first stages of the change which was 
to produce the Empire had, indeed, preceded the time of the Gracchan legislation.  The 
strength of the Republic had lain in the body of free, well-to-do citizens, in a race of free 
peasants as well as of patriotic patricians, in a yeomanry of small farmers rather than in 
a nobility of great landholders.  But the growth of the Roman dominion had radically 
altered all the conditions of Rome's economic life.  She had not only spent the lives of 
her yeomen in foreign wars, but had also allowed them to be displaced at home by the 
accumulation of vast estates in the hands of the rich, and by the introduction of slave 
labor.  The small farm was swallowed up in the great estates about it; the free laborer 
disappeared in the presence of the cheap slaves poured in upon Italy as the human 
spoils of foreign conquest. Presently the cheap and abundant grain of the provinces, too, 
rendered agriculture unprofitable in Italy, and even farming on a vast scale by means of 
slave labor ceased.  The great estates were converted into pastures for the rearing of 
flocks and herds.  The pressure of these changes upon the peasant classes was 
somewhat relieved from time to time, indeed, by the establishment of colonies in various 
parts of Italy upon lands acquired by conquest; but such relief was only partial and 
temporary.  When Carthage was finally overthrown and the greater strains of war 
removed from Rome, the economic ruin of the home state became painfully evident, the 
necessity for reform painfully pressing.  The poor who were also free had no means of 
subsistence: all the lands once owned by the state were in the hands of the rich, and 
with the rich rested all the substance of power, for they filled the Senate, and there made 
their riches tell upon public policy.  The indispensable economic foundations of 
republicanism had crumbled utterly away.

	212. It was this state of affairs that Tiberius Gracchus essayed to remedy, by 
reviving the Licinian laws of B.C. 367 (sec. 192), in violation of which the rich senatorial 
families had absorbed the public lands.  By enactments which he proposed as Tribune in 
133 B.C., the public lands illegally occupied were reclaimed for distribution by a 
retroactive enforcement of the old limitations as to the amount of public land which each 
person should be allowed to hold, and, although the senatorial party accomplished the 
murder of Tiberius and the temporary defeat of his party, his measures were in large part 
put into operation, in deference to the clamors and demands of the people.  Ten years 
later, Tiberius' younger brother, Gajus Gracchus, received the tribuneship and vigorously 
renewed the same policy.  He forced to enactment laws providing for the sale of grain at 
low prices to the people, for the establishment of colonies outside of Italy in the 
provinces, for the admission of certain classes of the citizens outside the Senate to a 
participation in the judicial functions then being monopolized by the senatorial oligarchs, 
and for a new method of bestowing provincial commands. But once more the oligarchy 
crushed its enemies and regained its de facto ascendency in the state. Slaves, besides 
displacing the free yeomen on the farm lands, crowded them in the city, where they were 
given domestic service not only, but filled also all the smaller sorts of trades and 
handicrafts, instructed their masters' children, acted as their masters' secretaries and 
confidants, and executed even the meaner sorts of public office.  Freedmen were 
enrolled in the census and made their way into the assemblies, to swell the number of 
those who were ready to do the work of the oligarchs; and the streets of the city filled 
with restless mobs.



THE STATE
Wilson, Woodrow
The Government Of Rome
    
Part III.

	213. It was the rule of the oligarchy which produced Marius and Sulla and the 
cruel civil wars between the respective parties of these rival leaders. Both parties alike 
threw, now and again, a sop to the commons, but neither seriously undertook any 
reform of the evils which were sapping the state of every element of republicanism.  
The Italian allies went into revolt, and forced their way into the privileges of the 
franchise; but intrigue effected their real defeat in the struggle for substantial power, 
and their success did not touch the economic condition of Italy.  Sulla was able to carry 
reactionary legislation which turned the constitution back in some respects as far as 
the times of Servius and established control of the oligarchy upon a basis of definite 
law.  The extreme policy of the oligarchs produced reaction; but reaction did not 
strengthen the people; it only developed factions.  The time of healthful reaction had 
passed, and the period of destroying civil war had come.  Civil war opened the doors 
to Caesar and the several triumvirates, and finally Rome saw her first emperor in 
Octavian.  The stages of the transformation are perfectly plain: there had been (1) the 
decay of the free peasantry and the transfer of the economic power from the many to 
the few; (2) the consolidation of oligarchic power in the Senate; (3) reactions and 
factional wars; (4) the interference of Caesar, fresh from great successes in Gaul and 
backed by a devoted army; (5) the formal investiture of a single man with controlling 
authority in the state.  Disorder and civil war had become chronic in the degenerate 
state, and had been cured in the only feasible way.

	214. Transmutation of Republican into Imperial Institutions under Augustus. - But 
even in the final stage of the great change all appearance of radical alteration in time-
honored institutions was studiously and circumspectly avoided.  The imperial office 
was not created out of hand, but was slowly pieced together out of republican 
materials; and the process of its creation was presided over by Octavian, the best 
possible man for the function, at once a consummate actor and a consummate 
statesman.  Of course there was and could be no concealment of the fact that 
predominance in the state had been given to one man; but the traditions of the 
Republic furnished abundant sanction for the temporary investiture of one man with 
supreme authority: the dictatorship had been a quite normal office in the days of the 
Republic's best vigor.  What it was possible and prudent to conceal was, that one man 
had become permanent master and that republican institutions had been finally 
overthrown.  Even the time-honored forms of the dictatorship, therefore, were avoided: 
the dictatorship was an office raised above the laws and rendered conspicuous in its 
supremacy, and had, moreover, been rendered hateful by Sulla.  All that was desired 
was accomplished by the use of regular republican forms.  The framework of the old 
constitution was left standing; but new forces were made to work within it.

	215. In the year B.C. 43 Octavian had formed with Antonius and Lepidus the 
second triumvirate and had received along with these colleagues, by decree of the 
people, supreme authority in that capacity for a period of five years; at the end of those 
five years (B.C. 38) the powers of the triumvirate were renewed for another term of the 
same length.  This second period of the triumvirate witnessed the steady advance of 
Octavian in power and influence at the expense of his colleagues.  His own powers 
survived the expiration of the five years (B.C. 33).  In B.C. 31, exercising the military 
imperium conferred upon him in 32, he met and defeated Antonius at Actium, 
pretending to meet him, not as if he were a rival, but as if he were a leader of the 
revolted East; and after Actium he was supreme.  But he still made no open show of 
any power outside the laws.  The years 28 and 29 B.C. saw him consul, with his close 
friend Agrippa as colleague.  By virtue of the censorial powers originally belonging to 
the consular office, and now specially conferred upon him, he effected a thorough 
reformation of the Senate, raising the property qualifications of its members, 
introducing into it fresh material from the provinces, purging it of unworthy members, 
and otherwise preparing it as an instrument for the accomplishment of his further 
purposes.  In B.C. 28 he formally resigned the irregular powers which he had retained 
since 33 by virtue of his membership of the triumvirate, declaring the steps which he 
had meantime taken as triumvir illegal, and pretended to be about to retire from the 
active direction of affairs.  Then it was that the process began which was to put the 
substance of an empire into the forms of the Republic.

	216. In the year B.C. 27 he suffered himself to be persuaded by the senators to 
retain the military command for the sake of maintaining order and authority in the less 
settled provinces, and over these provinces he assumed a very absolute control, 
appointing for the administration of their affairs permanent governors who acted as his 
lieutenants, and himself keeping immediate command of the forces quartered in them.  
The other provinces, however, remained 'senatorial,' their affairs directed by the 
Senate's decrees, their pro-consuls or pro-praetors appointed by the Senate, as of old. 
Avoiding the older titles, which might excite jealousy, Octavian consented to be called 
by the new title, sufficiently vague in its suggestions, of 'Augustus.' Presently, in 23 
B.C. and the years immediately following, he was successively invested with 
tribunician, with pro- consular, and with consular powers, accepting them for life.  In 19 
B.C. he was formally entrusted with supervision of the laws, and in 12 B.C. he became 
Pontifex Maximus.  His powers were at length complete.  But his assumption of these 
powers did not mean that the old republican offices had been set aside.  He was not 
consul, he simply had consular powers; he was not tribune, but only the possessor of 
tribunician powers.  Consuls, tribunes, and all other officers continued to be elected by 
the usual assemblies as before, though, in the case of the consuls, with shortened 
terms.  The emperor was in form only associated with them. Above all, the Senate still 
stood, the centre of administration, the nominal source of law, 'Augustus' sitting and 
voting in it like any other senator, distinguished from the rest neither in position nor in 
dress, demeaning himself like a man among his equals.  In reality, however, he was of 
course dictator of every step of importance, the recognized censor upon whose will the 
composition of the Senate depended, the patron to whose favor senators looked for 
the employment which gave them honor or secured them fortune. Long life brought 
Augustus into the possession of an undisputed supremacy of power, in the exercise of 
which he was hampered not at all by the republican forms under which he forced 
himself to act.  He even found it safe at length to surround himself with a private 
cabinet of advisers to whom was entrusted the first and real determination of all 
measures whether of administration or of legislation.  The transmutation of republican 
into imperial institutions had been successfully effected; subsequent emperors could 
be open and even wanton in their exercise of authority.

	217. No nation not radically deficient in a sense of humor, it would seem, could 
have looked upon this masquerade with perfect gravity, as the Romans did.  One 
constantly expects in reading of it to learn of its having been suddenly broken up 
amidst a rude burst of laughter.

	Of course the order secured by the new regime must have been very welcome 
after so long a period of civil strife and anarchy; and the men of courage and initiative 
who would have organized resistance or spoken open exposure of the designs of 
Augustus had perished in the wars and proscriptions of previous revolutions.  The 
state wanted rest and order as France did in the days of Louis Napoleon, and lacked 
leaders who would have resisted the purchase of order or rest at too great a cost to 
liberty. Octavian had at least given a centre to the once headless system, "a chief to 
the civil service, a head to the army, a sovereign to the subjects, a protector to the 
provinces, and peace to the world." Octavian had, moreover, since Actium, been at the 
head of about two score veteran legions, "conscious of their strength, and of the 
weakness of the constitution, habituated, during twenty years of civil war, to every act 
of blood and violence, and passionately devoted to the house of Caesar." ^1 It might 
have been dangerous to laugh at the farce.

	[Footnote 1: Gibbon, Chap. III. (Vol. 1., p. 36, of Harper's edition, 1840).]

	218. The Completed Imperial Power. - The Emperor, thus created as it were a 
multiple magistrate and supreme leader in all affairs of state, though nominally clothed 
with many distinct powers, in reality occupied an office of perfect unity of character.  
He was the state personified.  No function either of legislative initiative or of magisterial 
supervision and direction was foreign to his prerogatives; he never spoke but with 
authority; he never wished but with power to execute.  The magistrates put into the old 
offices by popular choice were completely dwarfed in their routine of piecemeal 
functions by the high-statured perfection of his power, rounded at all points and entire.  
Such minor powers as were needed to complete the symmetry of his office were 
readily granted by the pliant Senate.  A citizen in dress and life and bearing, he was in 
reality a monarch such as the world had not seen before.

	219. The New Law-making. - The only open breach with old republican method 
was effected in the matter of legislation.  Even the forms of popular legislation ceased 
to be observed; the popular assemblies were left no function but that of election; the 
Senate became, in form at least, the single and supreme law-making authority of the 
state.  The Senate was, indeed, the creature of the Emperor, senators being made or 
unmade at his pleasure; but it had an ancient dignity behind which the power of the 
sovereign took convenient shelter against suspicion of open revolution. Its supreme 
decrees, as Gibbon says, were at once dictated and obeyed. "Henceforth the emperor 
is virtually the sole source of law, for all the authorities quoted in the courts are 
embodiments of his will.  As magistrate he issues edicts in accordance with the old 
usage in connection with the higher offices which he held, as did the praetors of the 
earlier days.  When sitting judicially he gave decrees; he sent mandates to his own 
officials, and rescripts were consulted by them.  He named the authorized jurists 
whose responses had weight in the nice points of law.  Above all he guided the 
decisions of the Senate whose Senatus consulta took the place of the forms of the 
republican legislation." ^1

	[Footnote 1: The Early Empire (Epochs of Ancient History series), by W. W. 
Capes, p. 181.]

	220. The elective prerogatives of the popular assemblies survived only the first 
imperial reign.  During the reign of Tiberius the right to elect officers followed the 
legislative power, passing from the assemblies to the Senate.  Singularly enough the 
diminished offices still open to election were much sought after as honors.  Though 
filled for the most part with candidates named by the Emperor, they solaced the civic 
ambitions of many a patrician.

	221. Judicial Powers of the Senate. - What principally contributed to maintain the 
dignity and importance of the Senate in the early days of the Empire was its function 
as a court of justice.  In the performance of this function it was still vouchsafed much 
independence.  Some belated traditions of that ancient eloquence which the Senate of 
the Republic had known and delighted in, but which could live only in the atmosphere 
of real liberty, still made themselves felt in the debate of the great cases pleaded in the 
patrician chamber.

	222. Growth of New Offices. - As the imperial office grew and the constitution 
accommodated itself to that growth, a new official organization sprang up round about 
it.  Praefects (proefecti) there had been in the earlier days, deputies commissioned to 
perform some special magisterial function; but now there came into existence a 
permanent office of Praefect of the City, and the incumbent of the office was nothing 
less than the Emperor's vice-regent in his absence.  Praetorian cohorts were 
organized, under their own Praefect, as the Emperor's special body-guard. The city, 
too, was given a standing force of imperial police.  Procurators (proctors), official 
stewards of the Emperor's privy purse both at home and in the provinces, though at 
first well regulated subordinates, came presently into very sinister prominence.  And 
the privy council of the monarch more and more absorbed directive authority, 
preparing the decrees which were to go forth in the name of the Senate.

	223. The Provinces. - But it was the provinces that gave to the Empire a life and 
a new organization all its own.  If the Republic had proved a failure in Rome because 
of economic decay, and the too great strains of empire, how much greater had its 
failure been for the provinces!  No one had so much reason to welcome the 
establishment of the imperial government as had the provincials; and none so well 
realized that there was cause for rejoicing in the event.  The officials who had ruled the 
provinces in the name of the Republic had misgoverned, fleeced, ruined them at 
pleasure, and almost without responsibility; for the city democracy was a multitudinous 
monarch with no aptitude for vigilance.  But with a single and permanent master at the 
seat of government the situation was very different.  His financial interests were 
identified with the prosperity of the provinces not only, but also with the pecuniary 
honesty and administrative fidelity of the imperial officers throughout the Empire; with 
him it was success to keep his subordinates in discipline, failure to lose his grip upon 
them. That province might account itself fortunate, therefore, which passed from 
senatorial control and became an imperial province, directly under the sovereign's eye 
(sec. 216); but even in the senatorial provinces the Emperor's will worked for order, 
subordination, discipline; for regular, rigid control.

	224. Under the emperors, moreover, the Senate gained a new interest in the 
provinces, for its membership became largely provincial.  The notables of the 
provinces, men of prominent station, either for wealth or for political service, gained 
admission to the Senate.  There were at last champions of the provinces within the 
government, as well as imperial officials everywhere acting as the eye of the Emperor 
to search out maladministration, and as his mouthpieces to speak in his guiding will in 
all things.

	225. The Empire overshadows Rome. - In another and even more notable 
respect, also, the provinces were a decisive make-weight in the scale of government 
after the establishment of the Empire.  The first five emperors (Augustus to Nero) 
figured as of the Julian line, the line of Caesar, and under them the Empire was first of 
all Roman, - was Rome's; but for their successors, Rome, though the capital, was no 
longer the embodiment of the Empire.  The levelling of Rome with the provinces 
began, indeed, with Augustus; both the personal and the municipal privileges hitherto 
confined for the most part to the capital city and its people were more and more widely 
and liberally extended to the towns and inhabitants of the provinces.  Gradually the 
provinces loomed up for what they were, by far the greatest and most important part of 
the Empire, and the emperors began habitually to see their dominion as a whole.  
Under the successors of the Julian emperors this process was much accelerated.  
Presently Trajan, a Roman citizen, born, not in Italy, but in Spain, ascended the 
throne. Hadrian also came from a family long settled in Spain; so, too, did Marcus 
Aurelius.  Under such men the just balance of the Empire was established; the spell 
was broken; the emperors ruled from Rome, but not for Rome: the Empire had 
dwarfed the city.

	226. Nationality of the Later Emperors. - The later emperors, introduced during 
the regime of military revolution, were some of them not even of Roman blood.  
Elagabalus is said to have been a sun priest from Syria; Maximin was a Thracian 
peasant; Diocletian, with whom the period of military revolution may be said to have 
closed, and who was the reorganizer of the Empire, was born of a humble Dalmatian 
family.  Henceforth Latin blood was to tell for little or nothing.  The centre of gravity had 
shifted away from Rome.  After the second century even the Latin language fell into 
decay, and Greek became the language of universal acceptance and of elegant use.

	227. The Army. - The elevation of the provinces to their proper status within the 
Empire meant, however, most unhappily, the elevation of the provincial armies to 
political prominence.  Very early in the history of Rome's conquests her armies had 
come to be made up largely of provincial levies, and as the Empire grew the armies by 
which it was at once extended and held together became less and less Roman in 
blood, though they remained always Roman in discipline, and long remained Roman in 
spirit.  Gauls, Germans, Scythians, men from almost every barbarian people with 
which Rome had come in contact, pressed or were forced into the Roman service.  By 
the time the last days of the Republic had come, the government trembled in the 
presence of the vast armies which it had created.  Augustus studiously cultivated the 
indispensable good-will of his legions.  It was the praetorian guard that chose Claudius 
to be Emperor.  Very early the principle was accepted that the Emperor was elected 
"by the authority of the Senate, and the consent of the soldiers." Galba, Otho, and 
Vitellius were the creatures of the military mob in Rome.  Even the great Flavian 
emperors came to the throne upon the nomination and support of their legions.  And 
then, when the best days of the Empire were past, there came that dreary period of a 
hundred years, and more than a score of emperors, which was made so hideous by 
the ceaseless contests of the provincial armies, as to which should be permitted to put 
its favorite into the seat of the Caesars.

	228. Changes in the System of Government. - It was in part the violence of this 
disease of the body politic that suggested to the stronger emperors those changes of 
government which made the Empire of Constantine so different from the Empire of 
Augustus, and which exhibited the operation of forces which were to bring the 
government very near to modern patterns of absolute monarchical rule.  Even before 
military revolutions had compelled radical alterations of structure in the government, 
the slow developments of the earlier periods of the Empire had created a civil service 
quite unlike that which had served the purposes of the Republic. Noble Romans had 
time out of mind been assisted in the administration of their extensive private estates 
and their large domestic establishments by a numerous staff of educated slaves; and it 
was such a domestic and private machinery which the first emperors employed to 
assist them in public affairs.  One domestic served as treasurer, another as secretary, 
a third as clerk of petitions, a fourth as chamberlain.  It required many a decade of 
slow change to reveal to the eye of the free Roman that any honor lay in this close 
personal service of a sovereign master.  The free Roman of the days of the Republic 
had served the state with alacrity and pride, but would have esteemed the service of 
any individual degrading: domestic association with and dependence upon a leader, 
even upon a military leader, had never seemed to him what it seemed to the free 
Teuton (secs. 291-293), a thing compatible with honor; much less could it seem to him 
a source of distinction.  But the ministerial offices clustering about the throne and by 
degrees associated with great influence and power at last came to attract all 
ambitions.  From the first, too, patricians had stood close about the person of the 
Emperor as his privy councillors.  These councillors became the central figures of the 
monarch's court: they were his 'companions' (his comites, the word from which we get 
the modern title count). The later day when all service of the Emperor had become 
honorable to free men saw the name of comites transferred to the chief permanent 
functionaries of the imperial service.

	229. The domestic ministerial service of the early Empire was the same in germ 
as that organization of stewards, chamberlains, butlers, and the rest to be found in the 
courts of medieval Europe, out of which our modern ministries and cabinets have been 
evolved.  It was to come very near to its modern development, as we shall see, under 
Constantine (sec. 237).

	230. As the imperial system grew, offices multiplied in the provinces also.  
Provincial governors had at first little more than functions of presidency and 
superintendence.  Local autonomy was by the wiser emperors for a long time very 
liberally encouraged.  The towns of the provinces were left to their own governments, 
and local customs were suffered to retain their potency.  But steadily the direct imperial 
system grew by interference, sometimes volunteered, sometimes invited.  The usual 
itching activity took possession of the all-powerful bureaucracy which centralized 
government created and fostered.  Provincial governors were before very long 
surrounded by a numerous staff of ministers; a great judicial system sprang up about 
them, presided over often by distinguished jurists: Roman law penetrated, with Roman 
jurisdiction and interference, into almost every affair both of public and of private 
concern.  Centralization was not long in breeding its necessary, its legitimate, 
hierarchy.  The final fruit of the development was a civil service, an official caste, 
constituted and directed from the capital and regulated by a semi-military discipline.

	231. Constitutional Measures of Diocletian. - The period of revolution and 
transition, the period which witnessed the mutinous ascendancy of the half-barbaric 
soldiery of the provinces, lasted from the year 180 to the year 284.  In the latter year 
Diocletian ascended the throne, and presently demonstrated in the changes which he 
introduced the constitutional alterations made necessary by that hundred years of fiery 
trial.  All the old foundations of the constitution had disappeared.  There was no longer 
any distinction between Romans and barbarians within the Empire: the Empire, 
indeed, was more barbarian than Roman; the mixed provincial armies had broken 
down all walls of partition between nationalities.  With the accession of Diocletian the 
Empire emerges in its new character of a pure military despotism.  The Senate and all 
the old republican offices have disappeared, except as shows and shadows, 
contributing to the pageantry, but not to the machinery, of the government. The 
government assumes a new vigor, but dispenses with every old-time sanction.  The 
imperial rule, freed from old forms, has become a matter of discipline and organization 
merely.

	232. The measures of Diocletian were experimental, but they furnished a 
foundation for what came afterwards from the hand of Constantine. Diocletian sought 
to secure order and imperial authority by dividing the command of the Empire under 
chiefs practically independent of each other and of him, though acting nominally under 
his headship.  He associated Maximian with himself as co-regent, co-Augustus, with a 
separate court at Mediolanum (Milan), thence to rule Italy and Africa.  His own court he 
set up at Nicomedia in Bithynia, and he retained for himself the government of the 
East, as well as a general overlordship as chief or senior 'Augustus.' The frontier 
provinces of Gaul, Britain, and Spain he entrusted to the government of a 'Caesar,' for 
whom Augusta Trevirorum (Trier) in Gaul served as a capital; the control and defence 
of Illyricum to another 'Caesar,' who held court at Sirmium.  The two 'Caesars' served 
as assistants, and posed as presumptive successors, of the two 'Augusti,' ruling the 
more difficult provinces, as younger and more active instruments of government.  Each 
Augustus and each Caesar exercised supreme military and civil authority in his own 
division of the Empire, though each formally acknowledged Diocletian head over all.

     This system marks the abandonment of Rome as a capital and the
     recognition of a certain natural division between the eastern and the
     western halves of the Empire.

	233. Reforms of Constantine. - This division of authority brought about, after the 
retirement of Diocletian, a struggle for supremacy between many rivals; but that struggle 
issued, fortunately, in the undisputed ascendency of Constantine, a man able to 
reorganize the Empire.  The first purpose of Constantine was to recast the system 
altogether.  He meant to divide administrative authority upon a very different plan, which 
should give him, not rivals, but servants.  His first care was to separate civil from military 
command, and by thus splitting power control it.  There was henceforth to be no all-
inclusive jurisdiction save his own.  For the purposes of civil administration he kept the 
fourfold division of the territory of the Empire suggested by the arrangements of 
Diocletian, placing over each 'prefecture' (for such was the name given to each of the 
four divisions) a Praetorian Praefect empowered to act as supreme judge, as well as 
supreme financial and administrative agent of the Emperor, in his special domain, as the 
superintendent of provincial governors, and as final adjudicator of all matters of dispute: 
as full vice-regent, in short, in civil affairs.

	234. Under the arrangements of Diocletian each Augustus and each Caesar had 
had a praetorian praefect associated with him as his lieutenant, - as successors under 
much altered circumstances to the title of the oldtime praetorian praefect of Rome.  
Under Constantine there were the four praefects, but no Augusti or Caesars placed over 
them, no master but Constantine himself, and possessing functions utterly dissimilar 
from those of the older praetorian praefect in that they were not at all military, but 
altogether civil.

	The praetorian guards were finally abolished under Constantine.  For them the 
play was over.

	235. The four prefectures Constantine divided into thirteen 'dioceses' over which 
were placed vicars or vice-praefects; and these dioceses were in their turn divided into 
one hundred and sixteen provinces governed, a few by pro-consuls, a somewhat larger 
number by 'correctors,' many by 'consulars,' but most by 'presidents.'

     "All the civil magistrates," says Gibbon, "were drawn from the
     profession of the law." Every candidate for place had first to receive
     five years' training in the law.  After that he was ready for the official
     climb: employment in successive ranks of the service might bring him at
     last to the government of a diocese or even a prefecture.

	236. Such was the civil hierarchy.  Military command was vested in four Masters-
General superintending thirty-five subordinate commanders in the provinces.

     These subordinate commanders bore various titles; they were all
     without distinction dukes (duces, leaders); but some of them had attained
     to the superior dignity of counts (comites).

	237. The Household Offices. - Constantine emphasized the break with the old 
order of things by permanently establishing his capital at Byzantium, which thereupon 
received the name of Constantinople, a name whose Greek form still further points the 
significance of the shifting of the centre of the Empire.  Rome herself had, so to say, 
become a province, and the administration was in the Greek East.  The court at 
Constantinople, moreover, took on the oriental magnificence, treated itself with all the 
seriousness in points of ceremony, with all the pomp and consideration that marked the 
daily life of an Eastern despotism.  The household offices, created in germ in the early 
days of the Empire (sec. 228), had now expanded into a great hierarchy, centering in 
seven notable offices of state, and counting its scores and hundreds of officials of the 
minor sort. There was (1) the Great Chamberlain; (2) the Master of Offices, whom later 
days would probably have called justiciar, a magistrate set over all the immediate 
servants of the crown; (3) an imperial chancellor under the name, now entirely stripped 
of its old republican significance, of Quoestor; (4) a Treasurer-General, superintendent 
of some twenty-nine receivers of revenue in the provinces, overseer also of foreign trade 
and certain manufactures; (5) a treasurer called Count of the Privy Revenue of the 
monarch; (6 and 7) two Counts of the Domestics, new praetorian praefects, 
commanding, the one the cavalry, the other the infantry, of the domestic troops, officers 
who in later times would probably have been known as constable and master of the 
horse.

	238. We have thus almost complete in the system of government perfected by 
Constantine that machinery of household officers, military counts, and provincial 
lieutenants which was to serve as a model throughout the Middle Ages wherever empire 
should arise and need organization.  The 'companions' (comites) of the Teutonic leaders 
held a much more honorable position than did the domestic servants of the Roman 
Emperor, and their dignity they transmitted to the household officers of the Teutonic 
kingdoms; but the organization effected by Constantine anticipated that system of 
government which has given us our provincial governors and our administrative 
cabinets.

	239. The Eastern and Western Empires; Greek and Teuton. - The conquests 
within the Empire effected by the Teutonic peoples in the fifth century and the centuries 
immediately following cut away the West from the dominions of the Emperor at 
Constantinople.  The division between the East and West, which Diocletian had 
recognized in his administrative arrangements, at length became a permanent division, 
not merely an administrative, but a radical political separation, and the world for a while 
saw two empires instead of one: a Byzantine or Greek empire with its capital at 
Constantinople, and a Western empire with its capital at Rome or Ravenna.  When Italy 
fell again nominally to the Eastern Empire, in 476, she did not carry the rest of the 
Western Europe with her.  The West had fallen apart under the hands of the Germans, 
and was not to know even nominal unity again until the Holy Roman Empire should arise 
under Charles the Great (sec. 482).  Meantime, however, the Eastern Empire retained in 
large part its integrity and vigor, as well as its administrative organization also.  It was 
not to be totally overthrown until 1453.

	240. Religious Separation and Antagonism. - The political separation thus 
brought about between the Eastern Empire and the peoples of the West was 
emphasized and embittered by religious differences.  Christianity had been adopted by 
Constantine, and had practically continued to be the religion of the Eastern Empire 
without interruption; but the Christian doctrine of the East was not the same as the 
Christian doctrine of the West; the ecclesiastical party centering in the episcopate at 
Rome violently antagonized the doctrines received at Constantinople.  The world 
therefore saw two churches arise, with two magnates, the Pope at Rome and the 
Patriarch at Constantinople, the one virtually supreme because in the West, where he 
was overshadowed by no imperial throne, the other dominated by a throne and therefore 
partially subordinate.  This religious difference, accompanying as it did differences of 
language and tradition also, the more effectually prevented political unity and even 
political intercourse between the East and the West, and thus assisted in setting western 
Europe apart to a political development of her own.

General Summary Of Ancient Politics. 

	241. The City the Centre of Ancient Politics. - We are now in a position to 
understand how the full-grown Greek and Roman governments, which are so perfectly 
intelligible to our modern understandings, were developed from those ancient family 
states in which we saw government begin, and of which both Greek and Roman 
institutions bore such clear traces, but which it is so difficult for us now to imagine as 
realities. It is plain, in the first place, how that municipal spirit was generated which was 
so indestructible a force in ancient politics.  The ancient city was not merely a centre of 
population and industry, like the cities of the present day.  If merchants and 
manufacturers filled its markets, that was merely an incident of the living of many people 
in close proximity; and the existence of the city was quite independent of the facilities it 
offered for the establishment of a mart.  Life about a common local centre in compact 
social organization was a necessity to a patriarchal confederacy of families, phratries, 
and tribes.  And until Roman empire had trodden out local independence, compacted 
provinces, and so fused the materials and marked the boundaries for nationalities; until 
those nationalities had been purged by the feudal system, kneaded into coherent 
masses by the great absolute monarchies of the Middle and Modern Ages, vivified by 
Renaissance and Reformation, and finally taught the national methods of the modern 
popular representative state, the city, the municipality, - the compact, cooperative, free 
population of a small locality, - continued to breathe the only political life of which the 
world could boast. Politics, - the affairs of the (polis), the city, - divorced from municipal 
government was a word of death until nations learned that combination of individual 
participation in local affairs and representative participation in national affairs which we 
now call self-government.  The free cities of the Middle Ages are the links through which 
have been transmitted to us the liberties of Greece and Rome.

	242. The Approaches to Modern Politics: Creation of the Patriarchal Presidency.  
- Rome's city government, as we have seen, fell under the too tremendous weight of 
empire: the Greek cities went down under the destructive stress of unintermitted war 
among themselves and irresistible onset from Macedonia and Rome; but before they 
yielded to imperialism, they had come at many points very near to modern political 
practice.  And the stages by which the approach was made are comparatively plain.  It is 
probable, to begin with, that the governments depicted in Homer were not the first but 
the second form of the primitive city constitution.  The king had doubtless first of all been 
absolute patriarchal chief of the confederated tribes, and the king's council to be seen in 
Homer may be taken to represent the success of an aristocratic revolution whose object 
it had been to put the heads of the ancient families upon a footing of equality with the 
king.  He had thus become merely their patriarchal president.

	243. Citizenship begins to be Dissociated from Kinship.  - But this aristocracy 
contained the seeds of certain revolution.  As dissociated chieftains the Elders had 
maintained at least a distinct family authority, and so preserved the integrity of each 
separate family organization; but as associated councilors they in a measure merged 
their individuality, at least their solidarity; the law of primogeniture began to be 
weakened, and a drift was started towards that personal individuality, as 
contradistinguished from corporate, family individuality, which distinguishes modern from 
very ancient politics.  Men began to have immediate connection with the state, no longer 
touching it only through their family chief.  Citizenship began to dissociate itself from 
kinship.

	244. Influence of a Non-citizen Class.  - And by the time individual citizenship 
had thus emerged, a population alien to the ancient kin and unknown to the politics of 
the ancient city was at the gates of the constitution demanding admittance.  A non-
citizen class, alien or native in origin, plebs, clients, metics, or perioeci, assisted to riches 
by enterprise in trade or by industry in the mechanic arts, or else sprung into importance 
as the mainstay of standing armies, demanded and gained a voice in the affairs of states 
which they had wearied of serving and had determined to rule.

	245. Discussion determines Institutions.  - And they brought with them the most 
powerful instruments of change that politics has ever known.  The moment any one was 
admitted to political privileges because he demanded it, and not because entitled to it by 
blood, it was evident that the immemorial rule of citizenship had been finally overset and 
that thereafter discussion, a weighing of reasons and expediencies, was to be the only 
means of determining the forms of constitutions.  Discussion is the greatest of all 
reformers.  It rationalizes everything it touches.  It robs principles of all false sanctity and 
throws them back upon their reasonableness.  If they have no reasonableness, it 
ruthlessly crushes them out of existence and sets up its own conclusions in their stead.  
It was this great reformer that the plebs had brought in with them.  It was to be thereafter 
matter for discussion who should be admitted to the franchise.

	246. Politics separated from Religion.  - The results, though oftentimes slow in 
coming, were momentous.  Laws and institutions took on changed modes of life in this 
new atmosphere of discussion.  The outcome was, in brief, that Politics took precedence 
of Religion.  Law had been the child of Religion: it now became its colleague.  It based 
its commands, not on immemorial customs, but on the common will.  The principles of 
government received the same life. Votes superseded auguries and the consultation of 
oracles.  Religion could not argued; politics must be. Their provinces must, therefore, be 
distinguished. Government must be ward of discussion: religion might stay with the 
unchanging gods.

	247. Growth of Legislation.  - Nor was this the only consequence to law. Once 
open to being made by resolution of assemblies, it rapidly grew both in mass in 
complexity.  It became a multiform thing fitted to cover all the social needs of a growing 
and various society; and a flexible thing apt to be adjusted to changing circumstances.  
Evidently the legislation of modern times was not now far off or difficult of approach, 
should circumstances favor.

	248. Empire.  - Finally, the conquests of the Greeks under Alexander suggested, 
and Rome in here conquering might supplied, what has not been dreamed of in early 
Aryan politics, namely, wide empire, vast and yet centralized systems of administration.  
The first framework peoples under a single government.  Ancient politics were shading 
rapidly off into modern.

Representative Authorities. 

	On Roman Institutions:


     Arnold, W. T., "Roman Provincial Administration, to the Accession of
Constantine the Great." London, 1879.

     Bluntschli, J. C., "Allgemeine Staatslehre." Book I., Chap. III.

     Coulanges, F. de, "The Ancient City." Trans. by Willard Small, Boston,
1882.

     Fowler, W. Warde, "The City State of the Greeks and Romans." London and
N.Y., 1893.

     Harper's "Dictionary of Classical Literature and Antiquities," edited by
H. T. Peck.  N.Y., 1897.

     Herzog, "Geschichte und System der romischen Staatsverfassung." 1884-
1887.

     Madvig, "Verfassung und Verwaltung des romischen Alterthumer." 6 vols.
1871.

     Marquardt and Mommsen. "Handbuch der romischen Alterthumer." 6 vols.
1871.

     Mommsen, T., "Romisches Staatsrecht." 3rd. ed., 1887-1888.

     Smith, "Dictionary of Grecian and Roman Antiquities." 1858.

     On points of Roman History:

     Arnold, T., "History of Rome," to the second Punic war.  1846-1849.

     Capes, "The Early Empire." (Series of Epochs of Ancient History.)

     Gibbon, "Decline and Fall of the Roman Empire."

     How, W. W., and Leigh, H. D., "A History of Rome to the Death of Caesar."
London and N.Y., 1896.  Best short history based upon recent authorities.

     Ihne, "History of Rome." 3 vols.  1871.

     Merivale, "History of the Romans under the Empire."

     Mommsen, T., "History of Rome" and "Provinces of the Empire."

     Niebuhr, "Lectures on the History of Rome."



THE STATE
Wilson, Woodrow
Roman Dominion And Roman Law
    
Part I.

	249. Currency of Roman Law. - Roman law has entered into nearly all modern 
systems of jurisprudence as the major element in their structure not only, but also as a 
chief source of their principles and practice, having achieved perpetual dominancy 
over all legal conception and perpetual presidency over all legal development by 
reason alike of its singular perfection and its world-wide currency.  It was Roman 
empire which gave to Roman law both its quality and its universality.  The character of 
Roman law and the course and organization of Roman conquests are, therefore, 
topics which must run together.

	250. Character of Early Roman Law. - Until Rome had gone quite far in her 
career of conquest Roman law was, no doubt, little more noteworthy than Greek law or 
early Germanic custom.  In the early history of the city her law was only a body of 
ceremonial and semi-religious rules governing the relations of the privileged patrician 
gentes to each other and to the public magistrates. Solemn arbitration under complex 
symbolical forms was almost the whole of legal practice, outside private adjudications 
of law by family authorities. If any provision existed for securing the rights of a non-
patrician, he could know what it was only by putting his case to the test of a trial; and 
he knew that even when that case had been brought to a successful issue no 
precedent had been established; it was still a secret with the privileged classes what 
the general rules of the law were.  The proper procedure for the settlement of disputes 
was a state secret, from the knowledge of which the commonalty was entirely shut out.  
The College of Pontiffs directed these matters as they pleased, as the sole 
authoritative interpreters of the law; and the pontiffs were patricians.

	251. Rome's Lay Religion. - There was no distinction made in Rome between 
religion and politics.  Not that there existed a "union of church and state," to use our 
modern phrase; there was no difference between the two.  The state was bound to 
observe the obligations of religion, and to maintain priestly offices whose occupants 
should mediate between the gods and the city.  A College of Pontifices interpreted the 
sacred law, arranged the ceremonial calendar, gave out the formulae for suits, and 
preserved or adapted every ancient practice; the Quindecemviri kept the Sibylline 
books; the Augurs took the will of the gods from the signs of the heavens, the flight of 
birds, and the entrails of sacrificial beasts.  But there was no sacerdotal class.  The 
men put into these sacred offices were laymen and politicians, like any other officers of 
state.  The Pontifices were a college of lawyers; their power was political, not 
ecclesiastical.  The Roman had little sentiment in matters of religion.  He deemed 
himself bound to a definite service of the gods; but that service could be discharged by 
a definite ceremonial and an exact observance of times and forms, in scrupulously 
respecting which he fulfilled his whole duty and was quit of further obligation.  It was 
not unsuitable, therefore, that his lawyers should also be his priests.  His worship 
smacked of the performance of contract, and had no savor of love or devotion about it.

	252. And yet, though the priestly offices were in fact political, it was easy to make 
them seem more sacred than the rest, and the patricians were able to maintain their 
monopoly in the priestly colleges longer than anywhere else in the official make-up of 
the state.  It was an enormous advantage, of course, to keep these offices within their 
class.  The pontiffs alone interpreted the law and doled out its remedies; the sure 
dictation of prophecy rested with the priests; the augurs could postpone public 
assemblies, declare legislative bills out of order, hinder or permit action at will, in the 
interest, when they chose, of a party.

	253. Plebeian Discontent with the Law: the XII. Tables. - In the breaking up of 
this selfish and narrow system, as in the modification of all political practice, the 
imperative discontent of the plebeians was the chief force. They early demanded to 
know the law as well as to be admitted to the exercise of the magisterial power.  The 
first step upon which they insisted was the codification and publication of existing law. 
Accordingly, in 451 and 450 B.C. the now celebrated XII. Tables were prepared and 
made public by two successive special commissions of ten, the Decemvirs.  The first 
decemvirate commission consisted altogether of patricians, and is said to have 
prepared the first ten 'tables' of the law. The second included three plebeians and 
added two more tables to the code. Probably this was the first time that the legal 
practices of the city had been reduced to anything like systematic statement; and in 
being stated they must have been to a certain extent modified.  Written exposition was 
a thing almost entirely foreign to the habit of that primitive age; both because of the 
limitations imposed by mental habit, therefore, and of the difficulties created by the 
unwilling materials with which they had to write, the sentences of the law engraved 
upon the copper tablets set up in the Forum must have been brief and compact.  By 
being thus condensed the law must, moreover, have lost some of its original flexibility 
and have become the more rigid for being made the more certain.  (See secs. 126, 
183, 184.)

	254. Growth of the Law by Pontifical Interpretation. - The codification of the law 
by no means took its interpretation out of the hands of the pontifices.  The Tables did, 
indeed, give certainty to the general provisions of the law, but they did not impart 
certainty to its application to individual cases.  "The structure of the provisions of the 
Tables was not such as to enable the plain citizen to apply them to concrete cases, or 
know how to claim the benefit of them, without some sort of professional advice" 
(Muirhead).  It was necessary in each case, as before, to resort to some one who was 
familiar with the established interpretation; and to whom else could resort be had but to 
the pontiffs, the official lawyers of the state?  They alone could interpret with authority 
as well as with knowledge.  The forms of legal actions had not been made public in the 
Tables; and it was, after all, upon the knowledge of them that the patrician monopoly of 
justice chiefly rested. Not yet for two centuries and a half were these sacred formulas 
to be fully published, and not until they became common property could the science of 
interpretation pass from the priests to the common lawyers who were without office.

	255. The XII. Tables became the corner-stone of the whole structure of Roman 
jurisprudence.  Henceforth all legal interpretation was to begin with and be built upon 
them.  But their existence did not alter the principle of growth implanted from the first in 
the law of Rome.  It was to grow, in the future as in the past, by interpretation in all that 
concerned the rights of individuals, by adjustment rather than by legislation, not by the 
formulation of new principles so much as by the new application of old ones.  And the 
official source of this interpretation, so far as the meaning of the Tables themselves 
was concerned, was now, as before, to be the college of pontiffs. The pontifices had 
from the first been always the assessors, or professional associates, of those who 
administered justice. Questions of Quiritarian right went by their remits to the 
centumviral courts; all other questions to single lay judices or referees, with explicit 
direction how they should act, and upon what interpretation of the law.  The 
formulation of the Tables did not interrupt this pontifical function of authoritative 
reference and instruction. The College "appointed one of its members every year to 
give 'opinions' on questions of private law," and their interpretation continued to bind 
every court and every judex.

	256. They sought in their interpretations to bring everything under the letter of the 
law.  Their 'opinions' (responsa) were, nevertheless, a means of development, 
inasmuch as they sought in their setting forth of the applications of the law to arrive at 
a sort of "common-law equity" which should meet the case in hand and yet not violate 
the strict spirit of the law. They did not hesitate to stretch the letter of a provision to 
cover cases not explicitly contemplated in the strict text or tradition, and so slowly 
brought into practice what has very happily been called "an abstract equity immersed 
in matter." Until the Praetors came the official responses of the pontiffs were the law's 
only internal means of growth or amelioration; and the Praetors did not come for nearly 
a hundred years after the making of the Tables.

	257. The Praetor. - The office of Praetor was created in the year 366 B.C., to 
take the judicial functions of the consuls (see sec. 192); because the consular office 
had been thrown open to the plebeians, and the patrician Senate dreaded to see any 
but an officer chosen out of the privileged class entrusted with the authoritative 
application of the law. The consuls had inherited the general and indefinite judicial 
powers of the kings; the Praetor received the judicial powers of the consuls.  What had 
in their hands been one great function among many became in the hands of the 
Praetor the special power of a single office.  Like every other officer, the Praetor 
possessed the imperium of the magistrate; with the imperium went always a sovereign 
discretion in administration.  The law was henceforth to find a new soil in which to grow 
in the discretion of the Praetor.  To him all citizens might resort for the settlement of 
conflicting claims.  He did not himself settle the matter between them, but he laid the 
legal basis for its settlement. Having heard their statement of their case, he sent it for 
decision, according to old custom, to some private citizen whom he nominated judex, 
or arbitrator, for the occasion, accompanying his reference of the case with instructions 
to the arbitrator in which he not only set forth the question at issue, but also formulated 
the law to which the decision must conform.  Very many cases were referred thus each 
to a single judex; in many instances, again, they were sent to a number of judices who 
constituted a sort of board or jury to look into the merits of the controversy.  Always, 
however, Praetor and judices stood towards each other in much the same relation that 
the judge and jury of our own system hold towards one another: except that the 
Praetor and judices did not sit together and hear cases at the same time.  They acted 
separately and at different times.  But the Praetor interpreted the law, and the judices 
passed upon the facts.

	258. The Law and the Praetor's Application of it. - The law which the Praetor had 
to expound and apply in the formuloe or briefs which he sent down to the judices, as at 
once their warrant and their instructions, was not a law constantly advanced and 
adjusted by legislation.  It was, for the most part, only the XII. Tables, a small body of 
Senatus-consulta, or senatorial decrees, and a few legal principles introduced by 
popular agitation during the long struggle of the plebeians for political privilege.  Of 
formal law-making such as we are nowadays accustomed to look for there was almost 
none to help him. He himself, therefore, became to all intents and purposes a 
legislator.  The growth of the city, and the constant changes of circumstance and 
occasion for the use of his law functions which must have attended its growth, of 
course gave rise to cases without number which the simple, laconic laws of the early 
time could not possibly have contemplated.  To these, however, the Praetor had to 
apply, with what ingenuity or originality he possessed, such general rules and 
conceptions as he could discover in the ancient codes or devise for modern practice; 
and of course so great a development of interpretation insensibly gave birth to new 
principles.  The Praetor, consciously or unconsciously, became a source of law.

	259. Praetor vs. Pontiff. - Here was an officer sure to prove a very formidable 
rival to the college of pontiffs in giving shape to the law. The pontiffs were no less than 
before the official interpreters of code and ceremonial.  Their responses were still the 
only authoritative 'opinions': they were not to lose their legal place in the singular 
system of the complex state until the Republic itself came to an end.  But the Praetor's 
discretion in shaping remedies to meet wrongs, in the adoption of a new procedure, 
smacking of new principles, to meet new cases, none the less made strides towards 
usurping their place of guidance.  Plebeians were admitted to the praetorian office in 
337 B.C., not thirty years after its creation, and a full generation before a plebeian 
found his way into the pontifical college; and the change was not likely to slacken the 
Praetor's energy in drawing to himself a masterful control in the administration of the 
law.  The Praetor's 'equity,' moreover, had a natural advantage over the interpretation 
of a strict law to which the pontiffs were shut in.  He could find new principles and they 
could not.  The future was for him.

	260. The Praetor's Edict. - At the beginning of his year of office the Praetor 
published an Edict in which he formally accepted the principles acted on by his 
predecessors, and announced such new rules of adjudication as he intended to adopt 
during his year of authority.  These new rules were always, in form at least, rules of 
procedure.  The Praetor announced, for example, that he would, hereafter, regard 
property held by certain methods, hitherto considered irregular or invalid, as if it were 
held according to due and immemorial form, and would consider the title acquired valid 
for all practical purposes.  He did not assume to make such titles valid: that would be 
to change the law.  But he could promise in adjudicating cases to treat them as if they 
were valid, and so practically cure their defects. In a word, he could not create rights; 
but he could create and withhold remedies.  It was thus that through successive edicts 
the law attained an immense growth.  And such growth was, of course, of the most 
normal and natural character.  By such slow, conservative, practical, day to day 
adjustments of practice the law was made easily to fit the varying and diversified 
needs of a growing and progressive people.

	261. A Praetor Peregrinus.  - A little more than one hundred years went by, and 
then it was necessary to appoint an additional Praetor, a Praetor peregrinus ("Praetor 
qui jus dicit inter peregrinos" was his full descriptive title), a Praetor for the foreigners 
or aliens who more and more multiplied in the city, to the quickening of its trade and to 
the extension of its life and power.  It was presently necessary to distinguish the 
Praetor of the older, undivided office as the Praetor urbanus, the City Praetor, the 
Praetor for citizens.  The functions of the Praetor peregrinus were similar to those of 
the City Praetor, but much less limited by the prescriptions of old law.  He administered 
justice between resident foreigners in Rome itself, between Roman citizens and 
foreigners, and between citizens of different cities within the Roman dominion.  Roman 
law, - the jus civile, the law administered and developed by the Praetor urbanus, - was 
only for Romans.  Its origins and fundamental conceptions marked it as based upon 
tribal customs and upon religious sanctions which could only apply to those who 
shared the Roman tradition and worship.  It could not apply even as between a Roman 
and an alien.  The Latin and Italian towns which Rome brought under her dominion 
were, therefore, suffered to retain their own law and judicial practices for their own 
residents, so far at least as their retention offered no contradiction to Rome's policy or 
authority; but the law of one town was of course inapplicable to the citizens of any 
other, and therefore could not be used in cases between citizens of different towns.  In 
all such cases, when Roman law could not be appealed to, the Praetor peregrinus was 
called upon to declare what principles should be observed.

	262. The Jus Gentium. - The first incumbents of this delicate and difficult office, 
of Praetor peregrinus, were doubtless arbitrary enough in their judgments, deciding 
according to any rough general criteria of right or wrong, or any partial analogies to 
similar cases under Roman law that happened to suggest themselves.  But they seem, 
nevertheless, to have had a sincere purpose to be just, and at length the Roman habit 
of being systematic enabled them to hit upon certain useful, and as it turned out, 
momentous, general principles.  They of course had every opportunity for a close 
observation and wide comparison of the legal practices and principles obtaining 
among the subject nations among whom their duties lay, and they presently discerned 
certain substantial correspondences of conception among these on many points 
frequently to be decided.  With their practical turn for system, they availed themselves 
of these common conceptions of justice as the basis of their adjudications.  They 
sought more and more to find in each case some common standing-ground for the 
litigants in some legal doctrine acknowledged among the people of both.  As these 
general principles of universal acceptance multiplied, and began to take systematic 
form under the cumulative practice of successive Praetors, the resultant body of law 
came to be known among the Romans as the jus gentium, the law of the nations, - the 
law, that is, common to the nations among whose members Roman magistrates had to 
administer justice.

	263. The Jus Gentium not International Law. - This body of law had, of course, 
nothing in common with what we now call the Law of Nations, that is, International 
Law.  International law relates to the dealings of nation with nation, and is in largest 
part public law - the law of state, of political, action (secs. 1457, 1458).  The jus 
gentium, on the other hand, was only a body of private and commercial law, chiefly the 
latter.  It had nothing to do with state action, but concerned itself exclusively with the 
relations of individuals to each other among the races subject to Rome. Rome decided 
political policy, her Foreign Praetor decided only private rights.

	264. Influence of the Jus Gentium upon the Jus Civile. - But the jus gentium 
attained an influence of great importance, even over the development of Roman law 
itself.  Its principles, partaking of no local features or special ideas produced only by 
the peculiar history or circumstances of a single people, but made up of apparently 
universal judgments as to right and wrong, justice and injustice, seemed to be entitled 
to be considered statements of absolute, abstract equity.  As they became perfected 
by application and studious adaptations to the needs of a various administration of 
justice, it became more and more evident that the jus civile, the exclusive law under 
which the Roman lived, was arbitrary and illiberal by comparison. The Praetor 
peregrinus began to set lessons for the Praetor urbanus.  The jus civile began to 
borrow from the jus gentium; and as time advanced, it more and more approximated to 
it, until at last it became completely liberalized by its example.

	265. Completion of the Praetor's Power. - The just gentium was not foreign law: it 
became Roman law by adoption at the hands of the Praetor. It was "that part of the 
private law of Rome which was essentially in accordance with the private law of other 
nations." It became positive law so soon as it found application in the courts of the city 
magistrates, binding Romans themselves no less than did the jus civile, which was 
based upon custom and statute.  It was simply the jus oequum as contradistinguished 
from the jus strictum.  If found its recognition and its way into use through the Praetor's 
'formulas,' the authoritative instructions with which the Praetor assigned cases for 
decision to a judex; and it found at last as free an entrance through the 'formulas' of 
the Praetor urbanus as through those of the Praetor peregrinus.

	266. The Praetor peregrinus was probably the first to adopt and develop the 
formulary procedure; for in his court the forms of action recognized in the Tables 
applied only when both of the litigants possessed full jus commercii, a standing to 
which Rome was slow to admit her closest allies.  But the real introduction of the 
procedure into the body of Roman law proper of course took place at the hands of the 
Praetor urbanus, in those cases arising between Roman citizens themselves to which 
the jus strictum could not be made to apply.  'Formulas' were admissible only where a 
judex was appointed and instructed de novo; they could not be used in cases which 
went to the centumviral court or in cases which the magistrate himself decided without 
reference, by some summary process.

	267. So free a procedure tended not only to supplement but also to supplant the 
too inflexible and unamendable actions of the old law, and really infringed upon the jus 
strictum in the most direct manner.  A sharp and final issue was joined, consequently, 
between the jus proetorium of the Praetor urbanus and the interpretation of the college 
of pontiffs, which in the end only legislation could decide.  In the year 150 B.C., 
legislation decided it. By the Lex Aebutia it was in that year enacted that the formulary 
procedure might be employed by Roman citizens in all cases set up in the court of the 
Praetor urbanus, even in those for which the old law had provided; and that 
notwithstanding the fact that by that time plebeians had long since made their way into 
the office of Pontifex Maximus and had offered public instruction to all comers in the 
mysteries of the old procedure, and that the old formulas of the jus strictum had been 
published and a commentary written upon them, which had made them no less the 
property of laymen than of priests.  The Praetor's direct and simple forms suited a 
growing and hurrying life; the others were outgrown and discredited.  The early years 
of the Empire saw the use of the old forms actually forbidden by statute.

	268. Administration of Justice in the Provinces. - The authority of the Foreign 
Praetor did not extend beyond Italy, beyond the city's immediate dependencies.  In the 
'Provinces' proper the governors exercised the functions of Praetor peregrinus.  The 
towns of the provinces, like the towns of Italy, were for long left with their own 
municipal organization and their own systems of judicature.  But between the citizens 
of different districts of a province there were cases constantly arising which had to be 
brought before the governor as judge.  Whether as pro-consul therefore, or as pro-
praetor, or under whatever title, the governor was invested with praetorial functions, as 
well as with military command and civil supremacy. It was with principles of judicial 
administration that the governor's edict, issued on entering upon office, was largely 
concerned.  Here was another and still larger field for the growth of the jus gentium, - 
an almost unlimited source of suggestion to Roman lawyers.

	269. The Law of Nature. - As Rome's conquest grew and her law expanded she 
did not fail to breed great philosophical lawyers who saw the full significance and 
importance of the jus gentium and consciously borrowed from it liberal ways of 
interpretation.  And they were assisted at just the right moment by the philosophy of 
the Greek Stoics.  The philosophy of the Stoics was in the ascendency in Greece 
when Rome first placed her own mind under the influence of her subtile subjects in 
Attica and the Peloponnesus: and that philosophy was of just the sort to commend 
itself to the Roman. Its doctrines of virtue and courage and devotion seemed made for 
his practical acceptance: its exaltation of reason was perfectly congenial to his native 
habit.  But its contribution to the thought of the Roman lawyer was its most noteworthy 
product in Rome.



THE STATE
Wilson, Woodrow
Roman Dominion And Roman Law
    
Part II.

	270. The Stoics, like most of the previous schools of philosophers in Greece, 
sought to reduce the operations of nature both in human thought and in the physical 
universe to some simple formula, some one principle of force or action, which they 
could recognize as the Law of Nature.  They sought to square human thought with 
such abstract standards of reason as might seem to represent the methods or 
inspirations of Universal Reason, the Reason inherent, indwelling in Nature.  In the 
mind of the Roman lawyer this conception of a Law of Nature connected itself with the 
general principles of the jus gentium, and served greatly to illuminate them. Probably, 
it seemed, these conceptions of justice which the Foreign Praetors had found common 
to the thought of all the peoples with whom they had come into contact were 
manifestations of a natural, universal law of reason, a Law of Nature, superior to all 
systems contrived by men, implanted as a principle of life in all hearts.

	271. The jus gentium thus received a peculiar sanction and took on a dignity and 
importance such as it had never had so long as it was merely a body of empirical 
generalizations.  Its supremacy was henceforth assured. The jus civile more and more 
yielded to its influences, and more and more rapidly the two systems of law tended to 
become but one.

	272. Roman Citizenship and the Law. - This tendency was aided by the gradual 
disappearance of all the more vital distinctions between the citizen of Rome herself 
and citizens of her subject cities and provinces. Step by step the citizens first of the 
Latin towns, then of the Italian cities, then of favored outlying districts of the Empire, 
were admitted first to a partial and finally to a complete participation in Roman 
citizenship.  And of course with Roman citizenship went Roman law.  In this way the 
jus civile and the jus gentium advanced to meet each other.  Under the emperors this 
drift of affairs was still further strengthened and quickened till Caracalla's bestowal of 
citizenship upon all the inhabitants of the Roman world was reached as a logical result.

	273. The Jurists. - As Roman law grew to world-wide proportions and became 
more and more informed by the spirit of an elevating philosophy and the liberal 
principles of an abstract equity, it of course acquired a great attraction for scholarly 
men and had more and more the benefit of studious cultivation by the best minds of 
the city.  The Roman advocate was not the trained and specially instructed man that 
the modern lawyer is expected to be. For some time after the law began to be 
systematically studied there were no law schools where systematic instruction could 
be obtained; there were no lawyers' offices in which the novice could serve, and 
discover from day to day the ins and outs of practice.  The advocate was scarcely 
more than an arguer of the facts before the judices: he did not lay much stress upon 
his own view of the law, or often pretend to a profound acquaintance with its principles. 
But there did by degrees come into existence a class of learned jurists, a sort of 
literary lawyers, who devoted themselves, not so much to advocacy before the jury-
courts, as to the private study of the law in its developments from the XII.  Tables 
through the interpretations of the praetorial edicts and the suggestions of the jus 
gentium.  They set themselves to search out and elucidate the general philosophical 
principles lying at the roots of the law, to explore its reasons and systematize its 
deductions.  These jurisprudents were of course not slow to draw about themselves a 
certain clientage.  Though entirely distinct as a class from the 'orators,' or barristers, 
who assisted clients in the courts, they established in time a sort of 'office practice,' as 
we should call it. Cases were stated to them and their opinions asked as to the proper 
judgments of the law.  They attracted pupils, too, with whom they discussed 
hypothetical cases of the greatest possible scope and variety.

	274. Influence of the Jurists. - In the hands of these private jurists the law 
received an immense theoretical development.  And this very much to its advantage.  
For Roman thinking, like Roman practice, was always eminently conservative.  The 
jurists took no unwarrantable liberties with the law.  They simply married its practice to 
its philosophy, no one forbidding the banns. They most happily effected the transfusion 
of the generous blood of the jus gentium into the otherwise somewhat barren system 
of the jus civile.  They were chief instruments in giving to Roman law its expansiveness 
and universality.  For of course their judgments were quickly heard of in the courts.  
They often gave written as well as oral opinions, and these were always hearkened to 
with great respect.  Their published discussions of fictitious causes came to have more 
and more direct influence upon the result of those which actually arose in litigation. 
Advocates and litigants alike turned to them for authoritative views of the law to be 
observed.  And a legal literature of the greatest permanent interest and importance 
eventually sprang into existence.  The jurists collected and edited the written sources 
of the law, such as the Edicts of the Praetors, and set them in the fuller and fuller light 
of an advancing scientific criticism.  Their commentaries became of scarcely less 
importance than the Edicts themselves, containing, as they did, the reasoned intent of 
Table and Edict.

	275. The Jurisconsults under the Empire. - This scientific cultivation of the law by 
scholarly students began before the end of the Republic; was far advanced, indeed, at 
the time the Empire was established.  The beginnings of the scientific law literature of 
which I have spoken date as far back as 100 B.C.

     The dates 100 B.C. and 250 A.D. are generally taken as marking the
     beginning and end of the important literary production on the part of the
     jurists.  The most distinguished names connected with this literature are
     those of Papinian, Ulpian, Gaius, and Julius Paulus.

	276. It was under the emperors, however, that the greater part of this peculiar 
literary and interpretative development at the hands of the jurists took place.  For under 
the imperial system the jurists were given an exceptional position of official connection 
with the administration of the law such as no other similar class of lawyers has ever 
possessed under any polity. Certain of the more distinguished of them were officially 
granted the jus respondendi which custom had already in effect bestowed upon them, 
but which had, until the end of the Republic, belonged only to the pontiffs.  It was 
henceforth their right to give authoritative opinions which should be binding upon judices 
and juries.  Even under the Republic the opinions of the jurisconsults had been 
authoritative in fact; what the imperial commission did was to render them authoritative 
in law.  Of course if advocates or litigants who were on opposite sides in any case could 
produce opposite or differing opinions from these formally commissioned jurisconsults, it 
devolved upon the judices to choose between them; but they were hardly at liberty to 
take neither view and strike out an independent judgment of their own, and when the 
jurisconsults agreed the judices were bound to decide in accordance with their opinion.  
Certain writers - 'text writers,' we call them - on our own law have, by virtue of 
perspicacity and learning, acquired an influence in our courts not much inferior to that of 
the Roman jurisconsults, but no Blackstone or Story has ever amongst us been 
commissioned by the state to be authoritative.

	277. Under the Empire the jurisconsults acquired more than the right of 
response: they became actively engaged in the administration of law, exercising judicial 
functions and applying to actual adjudication the tests which they had in the republican 
period applied only in the form of unofficial opinions.  In the time of Augustus we find two 
law schools in Rome, and later times saw many others established in important 
provincial cities.

	278. Imperial Legislation. - The influence of the jurisconsults extended beyond 
the administration to the creation of law.  Legislation under the early emperors, from 
Augustus to Hadrian, retained something of its old form. During the reign of Augustus 
the popular assemblies were still given leave to pass upon the laws which the Emperor, 
as tribune, submitted to them; and during a great part of the imperial period the Senate 
was formally consulted concerning most of the matters of law and administration over 
which it had once had exclusive jurisdiction.  But neither Senate nor people were 
independent.  The former was at the mercy of the Emperor's power as censor; the latter 
were at the disposal of his powers as tribune.  Law, consequently, came to emanate 
more and more undisguisedly from the Emperor's single will, - from his edicts as 
magistrate and from his instructions and decisions as head of the judicial administration.  
Happily for Roman law, the emperors made trusted counsellors of the leading 
jurisconsults and suffered themselves to be guided by them in their more important law-
creations and judgments. Probably most edicts and imperial decisions were prepared, if 
not conceived, by competent lawyers.  Imperial legislation, therefore, in the most critical 
period of its early development, was under the guidance of the most enlightened and 
skilful jurists of the time, and was kept to the logical lines of its normal and philosophical 
growth.  The jurisconsults may be said to have presided over all phases of its 
development at the important period when that development was conscious and 
deliberate.

	279. Codification of the Edict. - The last important step in the preparation of 
Roman law for modern uses was its codification. Codification began with the Praetor's 
Edict.  It had become in time a very complex and miscellaneous document.  The bulk of 
what his predecessors in office had done each Praetor adopted: their edicts became his 
own, and the body of practice which thus ran on from year to year became known at 
length as the edictum perpetuum, the perpetual edict, - that part of it which the Praetor in 
office accepted from his predecessors as the edictum tralaticium, the edict handed down 
from Praetor to Praetor.  Growing yearly by accretion, the edict had by Cicero's time 
become principally edictum tralaticium, and had come to resemble a body of 
miscellaneous case law.  It was high time to subject it to revision, collation, 
consolidation, give it consistency and simplicity.  "Hadrian (before the year 129 A.D.) 
instructed the great jurist Salvius Julianus definitively to revise the edicts of the praetor 
urbanus and the praetor peregrinus, adding at the same time the market regulations (as 
to the liability of the vendor for faults, etc.) contained in the edict of the curule aediles.  
By order of the emperor, the whole was then ratified by a Senatusconsultum.  This is the 
so-called Edictum Hadrianum or Julianum.  The edict issued by the provincial governors 
in the administration of justice (edictum provinciale) was similarly dealt with and finally 
reduced to definite form." (Sohm.) Praetors were henceforth deprived of the imperium.  
They were obliged to receive the edict as it had been codified, and to use it unchanged.

	280. Final Codification of the Law. - It still remained to reduce to a single 
consistent body the yearly accumulating mass of imperial edicts, senatusconsulta, 
rescripts, and official opinions by which the imperial period had seen the law varied and 
increased.  The most important efforts of this sort were those made by Theodosius (379-
395 A.D.) and Justinian (529-534 A.D.).  The Theodosian Code is important because it 
influenced the legislation of the first Teutonic masters within the Empire; the Justinian, 
because it was by far the most complete and scientific of the codes, and because it has 
been the basis of subsequent studies and adaptations of Roman legal practice the world 
over.  The republican legislation and the praetorial edicts of the period of the Republic 
had received final formulation and fusion at the hands of the jurists and codify the later 
imperial constitutions.  The Theodosian Code went but a very little way in the digesting 
of the writings of the great law writers; the Justinian Code, however, which was prepared 
under the direction of the great lawyer, Trebonian, was singularly successful in all 
branches of the difficult and delicate task of codification.  It consists, as we have it, of 
four distinct parts: 1. The Pandects, or Digest of the scientific law literature; 2. The 
Codex, or Summary of imperial legislation; 3. The Institutiones, a general review or text-
book founded upon the Digest and Code, an introductory restatement, in short, of the 
law; and 4. The Novelloe, or new imperial legislation issued after the codification to fill in 
the gaps and cure the inconsistencies discovered in the course of the work of codifying 
and manifest in its published results.

	281. The whole constituted that body of laws which was to be known to the times 
succeeding the twelfth century as the Corpus Juris Civilis, or Body of the Civil Law.  All 
law was now civil law, the law of Rome; there was no longer any necessary distinction 
between jus civile and jus gentium. The Corpus Juris Civilis became at once the law of 
the Eastern Empire, and for a time the law of Italy also.  It did not dominate the legal 
developments of the West outside of Italy, however, until the Middle Ages, for Justinian 
had his capital at Constantinople and never controlled any important part of what had 
been the western half of the old Empire, except Italy, and even Italy he united only 
temporarily and precariously to his eastern dominions.  His Code entered Europe to 
possess it through the mediation of the universities and ecclesiastics of the Middle Ages 
(sec. 328).

	282. The Completed Roman Law: its Municipal Life. - The body of law thus 
completed by sagacious practical adaptations, careful philosophical analysis and 
development, and final codification has furnished Europe, not with her political systems, 
but with very many, if not most, of her principles of private right.  The Corpus Juris has 
been for later times a priceless mine of private law (secs. 328-349).  The political fruits of 
Roman law, - for it has had such, - are seen in municipal organization. Though Rome for 
the most part suffered the towns in her provinces to retain their own plans of 
government, she of course kept an eye upon the management of their affairs, and her 
influence and interest were ever present to modify all forms and practices which did not 
square with her own methods.  She besides dotted not only Italy, but the banks of the 
Rhine and other strategically important portions of her dominions with colonies of her 
own citizens, who either built fortress towns where there had before been no centred 
settlement at all, or sat themselves down in some existing native village.  In both cases 
they imported Roman methods of city government.  Everywhere, therefore, native towns 
were neighbors to Roman municipal practice, and yearly took more color of Roman 
political habit from contact with it.  By the time of the Teutonic invasions western and 
southern Europe abounded in municipalities of the strict Roman pattern.

	283. Diffusion and Influence of Roman Private Law. - But it was private, not 
public, law which was the great gift of the imperial codes. With the widening of the citizen 
right, the private law of Rome had spread to every province of the Empire.  As it spread, 
it had been generalized to meet the varied needs and circumstances of infinitely various 
populations, to fit the trade and property relations of the vast Roman world, until it had 
become, as nearly as might be, of universal use and acceptability.  It made wide and 
scientific provision for the establishment, recognition, and enforcement of individual 
rights and contract duties.  It was incomparably more many-sided and adequate than 
anything the barbarian who for a time disturbed its supremacy could invent for himself: 
and it proved to have anticipated almost every legal need he was to feel in all but the last 
stages of his civil development.  It was to be to him an exhaustless mine of suggestion at 
least, if not a definite store of ready-made law.

	284. Roman Legal Dominion in the Fifth Century. - The invading hosts who came 
from across the Rhine in the fifth century of our era found Roman law and institutions 
everywhere in possession of the lands they conquered. Everywhere there were towns of 
the Roman pattern, and populations more or less completely under the dominion of 
Roman legal conceptions and practices.  Their dealings with these institutions, the action 
and reaction upon one another of Roman law and Teutonic habit, constitute in no small 
part the history of government in the Middle Ages.

	285. Influence of Mosaic Institutions. - It would be a mistake, however, to ascribe 
to Roman legal conceptions an undivided sway over the development of law and 
institutions during the Middle Ages.  The Teuton came under the influence, not of Rome 
only, but also of Christianity; and through the Church there entered into Europe a potent 
leaven of Judaic thought.  The laws of Moses as well as the laws of Rome contributed 
suggestion and impulse to the men and institutions which were to prepare the modern 
world; and if we could but have the eyes to see the subtle elements of thought which 
constitute the gross substance of our present habit, both as regards the sphere of 
private life and as regards the action of the state, we should easily discover how very 
much besides religion we owe to the Jew.

Representative Authorities. 

     For the texts of Roman law, see

     Corpus Juris Civilis, edited by Kruger, Mommsen, and the bros. Kriegelli.
3 vols.  Berlin and Leipsic, 1872-1875

     Bruns, C.J., Fontes Juris Romani Antiqui.  Tubingen, 1872.  Fifth
(improved) edition by Mommsen.  Freiburg, 1887.

     Huschke, Jurisprudentia Antejustiniana.  Leipsic, 1879.

     For commentary and exposition, see

     Holland, T. E. (editor), "Institutes of Justinian."

     Poste (translator), Gaii Institutionum Juris Civilis.

     Hardley, Jas., "Introduction to Roman Law." N.Y., 1880.

     Sohm, Rudolph, "Institutes of Roman Law," trans. from the German, Oxford,
1892.  The best of the text-books.

     Morey, W. C., "Outlines of Roman Law," and authorities there cited. N.Y.,
1885.  A brief manual.

     Muirhead, Jas., "Historical Introduction to the Private Law of Rome."
Edinburgh, 1886.

     Amos, Sheldon, "History and Principles of the Civil Law of Rome."

     Mackeldy, F., "Lehrbuch der Institutionen des heutigen romischen Rechts."
Giessen, 1814.  Translations, N.Y., 1845; Phila., 1883.

     Ihering, R. v., "Geist des romischen Rechts." Of this work there is a
French translation.

     For special expositions of the historical development of Roman law, see

     Phillimore, Jno. G., "Introduction to the Study and History of Roman
Law." London, 1848.

     Rivier, Alphonse, "Introduction historique au droit Romain." Brussels,
1881.

     Clark, E. C., "Early Roman Law.  Regal Period." London, 1872.

     Mommsen, Theodor, "History of Rome," passim, and "Romische Staatsrecht."
2 vols.

     Puchta, "Kursus der Institutionen," 1841; ninth edition by Kruger, 2
vols., 1881.

     Walter, "Geschichte des romischen Rechts." 2 vols., 3 eds.  1840-1860.

     Savigny, F. K. v., "Geschichte des romischen Rechts im Mittelalter."
Heidelberg, 1815-1831.  French translation, 1839.  English translation of Vol.
I., Edinburgh, 1829.

     Meyer, J. D., "Esprit, Origine, et Progres des Institutions Judiciaire
des Principaux Pays de l'Europe." Paris, 1823.

     For comparisons of Roman law with several modern systems, see

     Mackenzie, Lord, "Studies in Roman Law, with Comparative Views of the
Laws of France, England, and Scotland." Third edition, 1870.

     Reeves, Jno., "History of the English Law, from the Time of the Romans to
the End of the Reign of Elizabeth.  With an Introductory Dissertation on the
Nature and Use of Legal History, the Rise and Progress of Our Laws, and the
Influence of the Roman Law on the Formation of Our Own," by W. A. Finlason.
London, 1869.

     Williams, Jas., "The Institutes of Justinian illustrated by English Law."
London, 1883

     Scrutton, T. E., "Influence of the Roman Law on the Law of England."
Camb. Univ. Press, 1885.

     Schmidt, "Der prinzipielle Unterschied zwischen der romischen und
germanischen Rechte." 1853.

     Hahn, "Die materielle Uebereinstimmung der romischen und germanischen
Rechtsprinzipien." 1856.

     Concerning the general institutional significance of Roman law, see

     Seeley, J. R., "Roman Imperialism."

     Bryce, Jas., "The Holy Roman Empire."

     Maine, Sir H. S., "Ancient Law," "Early Law and Custom," and "Early
History of Institutions."

     Austin, Jno., "Lectures on Jurisprudence, or the Philosophy of Positive
Law." 2 vols. London, 1873.

     On special points reference may always be profitably made to

     Smith, Dr. W., "Dictionary of Greek and Roman Antiquities," and to

     Peck, H. T. (editor), "Harper's Dictionary of Classical Literature and
Antiquities." N.Y., 1897.



THE STATE
Wilson, Woodrow
Teutonic Polity And Government During The Middle Ages
    
Part I.

	286. Contact of the Teutonic Tribes with Rome. - The Teutonic tribes which, in 
the fifth and following centuries, threw themselves into the Western Roman Empire to 
possess it were not all of them strangers to the polity which they overset.  The Romans 
had often invaded Germany, and, 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 Mediterranean and the western 
world, and had, of course, been deeply affected by the example of Roman civilization.  
Teutons had, besides, entered and, so to say, espoused the Roman world in great 
numbers, in search of individual adventure or advantage, long before the advent of the 
barbarians as armed and emigrant hosts.  Rome had drawn some of her finest legions 
from these great races which she could not subdue.  Her armies were in the later days 
of the Empire full of stalwart, fair-haired Germans.  Even her greater officers and 
officials were oftentimes of that blood.

	287. 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, a fresh, unspoiled individuality of their own.  They had their own 
original contribution to make to the history of institutions.  Hitherto they had lived under 
a system of government combining with singular completeness, though in somewhat 
crude forms, tribal unity and individual independence.  Amongst them, as amongst 
other Aryan peoples, kinship constituted the basis of association and the primal 
sanction of authority; and the family was the unit of government.  Kinsmen, 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 individuals, but 
of the community; but they were allotted in separate parcels to the freemen of the 
community, upon would-be equitable principles, to be cultivated for private, not for 
communal, profit.  Chiefs there were who exercised magisterial powers, but these 
chiefs were elected in village meeting.  They did not determine the weightier questions 
of custom, in the administration of justice: that was the province of the village meeting 
itself; and such judicial authority as they did exercise was shared by 'assessors' 
chosen from the whole body of their free fellow- villagers.

	288.  Free, Unfree, 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 
position 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 
depended upon the franchises of his community rather than upon any virtue in his own 
blood.

	289.  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 (meeting) 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 communal 'host'.  Commonly, however, these greater 
matters of war and of 'foreign relations' were determined by assemblies representing 
more than one village.  Communities sent out offshoots which remained connected 
with them by federal bonds; or independent communities drew together into leagues; 
and it was the grand folk-moot of the confederated communities which summoned the 
'host' and elected leaders, - which sometimes even chose the chiefs who were to 
preside over the administration of the several villages.

	290.  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 comitatus, 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 military 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.

	291. Contrasts between the Teutonic System and the Roman. - These features 
of tribal confederation and personal supremacy, though suggestive at many points of 
the primitive Roman state, were in strong contrast with the Roman polity as it existed 
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 were in radical contradiction to conceptions obviously 
fundamental to Roman state life.

	292. Roman 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 subordination was to the state, and that subordination 
was so complete that, as I have previously said, he was practically merged in the 
state, possessing no rights but those of a child of the body politic. His obligation to 
obey the magistrate in the city or his commander in the field lasted only so long as the 
magistrate's or commander's commission lasted. 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 citizen or soldier owed the yielding of everything, even of life itself: for 
as against the state the Roman had no private rights. While he held office, therefore, 
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.

	293. Teutonic Personal Allegiance. - With the Teutons, on the contrary, political 
association manifested an irresistible tendency towards just the opposite principles.  
When they came to their final triumph over the Empire they came ranked and 
associated upon grounds of personal allegiance.  In their old life in Germany, as we 
have seen (sec. 290), 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 members of their leaders' 
comitatus, bound to him by no public command or sanction at all, but only by his 
personal supremacy over them.  They even made themselves members of his 
household, depended upon the bounties of his favor, and constituted themselves a 
personal following of their chosen leader such as no Roman but a fawning client would 
have deigned to belong to.  It was a polity of individualism which presented many 
striking points of surprise to 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.

	294. Temporary Coexistence of the Two Systems. - For long after the Teuton 
had established his dominion over the Romanized populations of Europe, Teutonic 
and Roman institutions lived side by side, each set persistent for its own people.  The 
Germans did not try to eradicate either the old population or the old laws of the 
Empire.  They simply carried into the midst of the Empire their own customs, which 
they kept for themselves, without thrusting them upon their new subjects.  They 
appropriated to their own uses large tracts of 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 casting 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 Germans when they had touched only its geographical borders, and it did not fail 
in a certain measure to dominate them even now, when it was at their feet.  They 
made no attempt to stamp it out.  They, on the contrary, tolerated, respected, imitated 
it.

	295. 'Personal' Law. - What looked like tolerance on the part of the Teutons was 
in reality for the most part only a natural 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.  Salian Frank 
had one law and custom, Ripuarian 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 'personal' 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.

	296. 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 organization, 
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 institutions; 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 
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 Roman political method, but in the direction of the 
creation of that singular public polity which we designate as medioeval.

	297. Roman Influence upon Private Law. - The Roman influence thus told most 
directly and most powerfully through the medium of Roman 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 Roman civil arrangements.  The leaders had in many cases a fancy 
for seeming successors to the Roman Emperor.  They were prompt, when their power 
was once established, to draw the law which was to be 'personal' to their Roman 
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 Roman 
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 Romana 
Burgundionum," the Roman law of the Burgundians, as contradistinguished from their 
own Burgundian law; and its provisions were chiefly for their conquered subjects, not 
for themselves. In the year 506 came the Lex Romana Visigothorum, the Roman 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 Roman 
law.  It was practically the only source of Roman law known in the south of France till 
the twelfth century.  Germany and England drew their knowledge of that law from it 
until the eleventh century.  In 511, or thereabouts (for the date is not certainly 
ascertained), Theodoric the Great promulgated a like compilation of the Roman law for 
his Ostrogothic kingdom in Italy, a compilation which we know as the Edictum 
Theodorici. It was no small evidence of Roman influence that these greater rulers 
should seek to give their subjects written law in both kinds; and the fact that only 
priests were literate enough to undertake the work of codification meant that Roman 
principles would creep at unawares even into the statements of native law; for the 
polity and learning of the Church had its roots in the tradition 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 custom 
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.

	298. 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 reproduced 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.

	299. 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, was to produce the conditions of modern political life.  
During 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.

	300. Effects of Movements of Conquest upon Teutonic Institutions. - 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.

	301. (1) The New Kingship. - The migratory conquests of the Teutons greatly 
emphasized for a time the principle of individualism, - the principle of personal 
allegiance.  They advanced to their new seats not as separate marauding bands, but 
as emigrant nations.  It was a movement of races, not of armies merely.  All the 
freemen of the tribes came, bringing with them their families, their household goods, 
and their slaves, as having come to stay. But they could not preserve, when on such 
an errand, the organization of times of settlement and peace.  They 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.' 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 invading 
hosts, and who had met and routed the Roman forces which sought to withstand the 
stalwart immigrants; and so long as conquests remained incomplete they continued in 
command to complete them.  Conquest being achieved, their authority was 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 to see in France, after 
feudalism should have worked its perfect work.

	302. (2) The Modified Land Tenure. - The invading peoples doubtless at first took 
possession of the conquered territory by a tenure 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.

	303. 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 
requirements.  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.

	304. 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 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.  Before 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 new 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 he 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 
landowners, 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.

	305. 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 Teutonic 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 covered, 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 exceeded those which fall 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.

	306. 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 himself 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 
customary, as the new order of things developed, to grant also a certain wholesale 
right of jurisdiction and government, a long list of 'Immunities' or exemptions from 
higher authority in all 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 difficult to withdraw them. They inevitably became 
hereditary, and great families throve upon them.

	307. 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 overlord 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 
primogeniture: 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 taking 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.  "Monasteries 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."

	308. 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; 
and the poorer freemen, their ranks thinned by war, their properties too small to carry 
the burdens of independence, and their power to combine every year growing less, 
were fain to 'commend' 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 completed.

	309. Local Differences in Feudal Development. - There was not, of course, 
exactly the same method of development everywhere.  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 (secs. 290, 293); 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 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.

	310. 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 freeman 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, 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, 
no necessary connection with the land, though the small owner as well as the landless 
person probably became his lord's 'man' rather by commendation than by benefice.  It 
became a universally recognized maxim of law that 'every man must have his lord.' 
Whether through benefice or through commendation, he must fall into a definite place 
in the minutely assorted and classified society of feudalism.

	311. Political Disintegration. - The state was thus disintegrated.  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 territory.  
The king controlled directly, as he had the power, only the greater lords, who were in 
feudal theory his immediate vassals; other men, lower down in the series, could be 
reached from above only through their immediate 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.

	312. 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 themselves did, and 
because they did, arming themselves for the king, as they would arm themselves 
against him, only as their lords commanded. In brief, every baron 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 confederated 
group of inharmonious petty kingdoms.

	313. 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 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 neighbors.  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 (sec. 323).

	314. 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.  But in the most important 
and powerful burgs enough of the old municipal organization and independence was 
preserved to transmit to the times which witnessed the downfall of feudalism at least a 
vivid memory of the antique communal life in which society had found its first, and up 
to that time its best, vigor. They kept alive if it were only a tradition, yet a fecundating 
tradition, of that true 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.

	315. 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 organization 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 classification.  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 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 associated 
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.' 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.

	316. The City Leagues. - The greater trading towns near the Baltic and along the 
Rhine took advantage, during the thirteenth century, of the opportunities for 
independent action afforded them by the piecemeal condition of authority under the 
feudal system to draw together into leagues, the better to pursue their own objects; 
and for a very long time these leagues exercised the powers of great states, making 
war and peace, levying custom, concluding 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 Hamburg, 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.

	317. Unifying Influences. - Two unifying influences operated more or less 
potently during the Middle Ages to counteract the disintegrating tendencies of the 
feudal system.  These were the Roman Catholic Church and the Holy Roman Empire.  
Both the Church and the Empire may be said to have been shadows of imperial Rome.  
They were, by intention at least, the temporal and spiritual halves of the old empire of 
the Caesars.

	318. (1) 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 everywhere insinuated herself into the new political 
system which developed under their hand. Not only had every castle its chaplain, 
every city and country-side its priest, but the greater ecclesiastics themselves became 
feudal lords, masters of baronies, members alike of the civil and the religious 
hierarchies; and even monasteries owned vast estates which were parcelled out upon 
a feudal tenure.



THE STATE
Wilson, Woodrow
Teutonic Polity And Government During The Middle Ages
    
Part II.

	319. 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 kingdom 
of the Church of Rome.  That Church recognized no boundaries, 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 common subjection; and that lesson, though often neglected, wasnever utterly 
lost sight of or forgotten.  She kept alive, moreover, in her canon law, much of the civil 
law of Rome; her laws at any rate were not diverse, but always the same; they 
reached the people and the conceptions of the time through the administration not only 
of her ecclesiastical courts, but also, indirectly, no doubt through the judgments of the 
baronial courts of the baron-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.

	320. (2) 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 the territory now included in Germany, Switzerland, Hungary, Italy (all save the 
southernmost part), France, and Belgium.  And neither any Teuton nor any successor 
of Teutons in western Europe ever gathered wide territories under his sway without 
dreaming of restoring the Roman Empire and himself ascending the throne of the 
Caesars. From Charles the Great to Napoleon the spell of the Roman example has 
bound the imagination of every European conqueror.  Charles had this ambition clearly 
in his view, and circumstances peculiarly favored its realization. At the same time that 
he reached the height of his power, Rome reached 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 generations have known as the Holy Roman Empire, - 'Holy' 
because created by the authority of mother Church.

	321. 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 (sec. 297); 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 opportunity, 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 principles of the same system.  The Empire was, therefore, not only 
sometimes a silent witness and sometimes a great power for unification, but also 
always a steady influence on the side of a system of law more advanced and unifying 
than that of feudalism.

	322. 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 territory of the Franks 
tended more and more to become permanently divided into two distinct parts.  There 
were often, it is true, more parts than two: for it was the Frankish custom to divide even 
a royal inheritance between all the sons of a deceased possessor.  But, as it fell out in 
the long run, the most permanent division was that between Neustria (the western half) 
and Austrasia (the eastern).  In both of these kingdoms the Merowingian rulers soon 
degenerated into mere shadows of their imperative, dominant ancestors; and they 
were presently displaced by a powerful family of 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 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.

	323. 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 Carolingian 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 
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'etat 
c'est moi.' They had gathered the fragments of the feudal system into a single hand, 
and had made the state itself a feudal possession, a family estate.

	324. The Piecing together of Austria and Prussia. - Later still the same process 
was repeated in Prussia and in Austria.  By conquest, inheritance, forfeiture, marriage, 
contract, fraud, powerful feudal families pieced together those great kingdoms, to 
become in after times the bases of national organization.  In neither Prussia nor 
Austria did the process go so far as in France, though Austria, under the great house 
of Habsburg, became possessor of the imperial throne of the Holy Roman Empire, and 
Prussia, under the equally great house of Hohenzollern, has become the central and 
dominant state of a new German Empire, which, through the healthful processes of 
modern national life, if not through the happily obsolete forces of absolutism, may yet 
be as truly compact and unified a kingdom as any the world has seen.

The Diffusion Of Roman Law In Europe. 

	325. 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 populations, these rules entered more and more 
into the general mass of common custom.  This process was in great part 
unconscious; there was no scientific selection in the development.

	326.  The Barbaric Codes. - It was not from mere tradition, however, - not simply 
from Roman law transmuted into unrecorded provincial custom, - that the knowledge 
of these 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. (sec. 297), which is known to quotation as 
the Breviary (brevarium Alaricianum). The West Goths themselves had not long 
remained contented with that compend of the law.  In the seventh century there had 
been prepared in Spain a new Lex Visigothorum which contained a summary, not of 
Roman rules only, but of Gothic custom as well, and which, superseding the earlier 
compilation of Alaric, formed the basis for later codifications of Spanish law.  But the 
south of France, which had once owned the 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 together as best she might amidst just such a confusion of 'personal' laws 
as prevailed elsewhere in the once Roman world (sec. 295).

	327. Custom and Written Law in France. - It was at this 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 ecrit).  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 quite 
thoroughly Germanized, there reigned in unrestrained confusion the Teutonic customs 
of the barbarian masters.

     This division corresponded closely with the division between the
     langue d'oc and the langue d'oil.  The districts of the langue d'oil (of
     the Frankized Latin) were the country of custom; the districts of the
     langue d'oc, the country of written law.

	328. The Study of the Roman Law. - But in the twelfth century the law of Rome 
fell upon the good fortune of being systematically studied once more by competent 
scholars, and 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, which Germanized Europe had hitherto used 
scarcely at all, ^1 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 elements 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 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 Roman 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 mixture 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, established 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 Toulouse, the 
old capital of the West Goths; and in Spain creating (A. D. 1254) the notable University 
of Salamanca.  From Spain and France, Holland caught the fashion, giving to Europe in 
the seventeenth century the illustrious jurist Hugo Grotius, who created out of the great 
principles of equity discoverable in Roman Law the elevated and influential science of 
International Law (sec. 1457).  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 sixteenth century.

	[Footnote 1: The Digest and the Codex were in some measure made use of by 
the canonists throughout the Dark Ages.]

	329. This sudden spread and luxuriance of the study is impressive evidence of a 
common preparation and need for it.  The cultivation of the Roman law in the schools 
may in some instances 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.

	330. 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 hundreds." Priests and laymen alike got their training in them.  "Returning 
to their homes, the civil doctors crowded the hereditary expounders of local usage off the 
judicial bench. Under the fostering care of kings and princes," interested to see a 
centralized 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.

	331. 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 Pavia.

	332. Influence of the Church. - The Roman Church had early effected a conquest 
of the Teutonic invaders, and the new masters of Europe had left its organization intact.  
"It cared for education 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 manner.  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 indispensable as counsellors and administrators, no less than 
as clerks; were the compilers of codes, whether of Roman or of Teutonic rules; had in all 
things the ascendency of training and knowledge.

	333. The currency of the Latin language had also its influence 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.

	334. 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 kingdoms 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 administration of justice.  Its use and 
its cultivation went hand in hand.

	335. 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 jurisdiction grew, the principles of Roman jurisprudence gained wider and 
wider acceptance and supremacy.

	336. 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 courts, as they were 
developed in the provinces, applied local custom in their decisions, for the most part, 
only upon very conclusive proof of its existence and its definiteness,a 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.

	337. And presently the Roman law came, so to say, from out the nation to meet 
the royal system.  Very early in Berri, Bourbonnais, 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 circumstances 
by the processes of French history.  The statement ought, however, to be taken with an 
important qualification.  A very great deal of Germanic law found permanent place 
among accepted legal principles in France, though Roman law contributed the chief 
formative forces, the forces of fusion and system.

	338. Local Custom in France. - It is important to observe that the unifying, 
harmonizing influences exercised by the growing royal jurisdiction were, for a long time 
at any rate, influences which affected procedure much more than the internal, essential 
elements of legal principle.  The differentiation between district and district which had 
taken place in the process of feudalization had been of the sharpest, most decided 
character. When the Capets first assumed the titles of kingship there were duchies as 
great as France.  The work of extending and consolidating the kingdom consumed 
several centuries; and, meanwhile, each petty sovereignty was developing its own law 
apart.  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 customs, Berri a very 
different set, Anjou a third, Brittany a fourth; and so throughout the once piecemeal 
country.

	339. Unifying Influence of the Royal Prerogative. - The influence of the royal 
jurisdiction upon this heterogeneous mass of differing laws was, as I have said, at first 
rather to unify and systematize the procedure of the local courts, which administered 
local law, 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.

	340. 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 services 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 customaround to the rules of universal acceptance to be found 
in Roman law and regal decision. Independently, moreover, of the influence of the 
crown, the Roman law was entering the local courts, becoming common law in Auvergne 
and Bourbonnais, as we have seen, before it became the common law of France.

	341. 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 Justinian and the canons of the Church contributed their versions of 
Roman judicial practice and tradition to its findings.

	342. 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 
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.  
Everywhere, 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.

	343. In Germany there was no central power such as that which served to build 
together the legal systems of France and of England.  The feudal system had done its 
work more thoroughly there than elsewhere: and Germany emerged from the 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 imperial lawyers, the imperial party 
in Germany, were always administrators 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 influences.  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.

	344. Reason for Germany's Reception of Roman Law. - The reception of the 
Roman law into the law of Germany was due to various circumstances and influence but 
not to the poverty or imperfections of German law.  German law was both rich and full in 
its development: at some points it 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 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 Germany as anywhere else in the European world; and yet, along with 
the Roman law, which she took from the schools and commentators of Italy, Germany 
took also the Italian Feudal Law, to which the Italian students had given a similar 
systematic formulation.

	345. The Roman law was received in Germany because of the feebleness and 
disintegration of the judicial system there; because the old popular courts, which 
administered only an unchanging 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 
popular court," as Professor Sohm says, "is the natural enemy of Jurisprudence." "The 
Roman law was received," he declares, "not because it was Roman, not because it was 
the better, law, but because it was scientific law," - not because of its contents, but 
because of its form and exactitude.  "Because we needed the foreign jurisprudence, we 
received the foreign law." The introduction took place, not because princes controlled the 
courts, but because litigants insisted.  They were dissatisfied with the administration of 
justice in the unlearned courts.  They wanted a court, a judge, learned in the law.  "The 
single judge must be a learned judge, by the same necessity by which the old popular 
court was an unlearned court."

	346. 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 
district, 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 customs 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 jurisprudence.  Germans had long 
studied in Italy; and the Roman law of the Italian schools was taught from their 
foundation in the German universities. All theological students were obliged to study the 
Roman and canonical law as part of their regular professional 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 occurrence which we call the 
reception of foreign law," says Professor Sohm, "consisted entirely in this, that the 
jurisprudence which already ruled in the spiritual courts took possession also of the civil 
courts."

	347. The law that was received was not the Corpus Juris of Justinian, but the 
common law of Italy, founded upon the Roman, the canon, and the Lombard law.  "The 
Corpus Juris was terra incognita to the German jurists of the period of the reception." 
They brought in, "not the Pandects, but the Usus modernus Pandectarum of the Italian 
lawyers." It was the great Savigny of our own century who first carried German legal 
study back to the pure sources of the Roman law, and great was the confusion produced 
by the substitution.  The new law was not, of course, accepted whole and in bulk. It 
entered, in Germany as elsewhere, as 'subsidiary' law, not as the native law of the land.  
It nevertheless received everywhere a decided preference in the courts.  While 
accepting Roman legal rules as prima facie conclusive 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.

	348. 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.

	349. In England, a strong native jurisprudence kept the foreign 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 Plantagenet 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 judges put together 
a consistent English law, and there was no need for a foreign jurisprudence.

	350. And yet the Roman law was not wholly excluded.  The Romans 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 Englished 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 (sec. 328); and the works 
of the earliest English legal text-writers, such as Bracton, Glanvil, 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 Germanic 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 of form and 
method rather than of substance, and the great bulk of her law is her own.

Representative Authorities. 

     Adams, George B., "Civilization during the Middle Ages," New York, 1894.

     Bluntschli, J. C., "Allgemeine Staatslehre." Book I., Chapters IV., VI.
Stuttgart, 1875.  There is an American translation of this work.

     Brunner, H., "Deutsche Rechtsgeschichte." 2 vols., 1887-1892.

     Bryce, "The Holy Roman Empire." New York, 1886.

     Church, R. W., "The Beginnings of the Middle Ages." (Series of Epochs of
Modern History.)

     Curteis, A. M., "History of the Roman Empire from the Death of Theodosius
the Great to the Coronation of Charles the Great, 395-800." 1875.

     Duruy, Victor, "Histoire du Moyen Age, depuis la chute de l'Empire
d'Occident jusqu'au milieu du XVe Siecle." 1 vol. Paris. 8th ed., 1875. Trans.
by G. B. Adams, New York, 1891.

     Emerton, E., "Introduction to the Study of the Middle Ages," Boston,
1889, and "Mediaeval Europe," Boston, 1894.

     Freeman, E. A., "Historical Essays." Series I.

     Freytag, G., "Bilder aus der Deutschen Vergangenheit": "Aus dem
Mittelalter," 1873. "Vom Mittelalter zur Neuzeit," 1867.

     Gibbon, E., "Decline and Fall of the Roman Empire." Smith's ed. New York,
1880.

     Guizot, F., "Lectures on the History of Civilization in France and in
Europe."

     Hallam, H., "View of the State of Europe during the Middle Ages,"
especially Chapter II., which contains what is possibly the best brief account
in English of the Feudal System.

     Heeren, A. H. L., "Manual of the History of the Political System of
Europe and Its Colonies." Oxford, 1834.

     Kingsley, Chas., "The Roman and the Teuton."

     Macaulay, T. B., Essay on "Ranke's History of the Popes."

     Milman, H. H., "History of Latin Christianity." 8 vols. New York.

     Myers, P. V. G., "Outline of Mediaeval and Modern History," Boston, 1886.

     Oman, Ch., "Europe, 476-918," New York and London, 1893.

     Ranke, L. von, "History of the Popes."

     Schroeder, R., "Lehrbuch der deutschen Rechtsgeschichte." 2nd. ed., 1894.

     Sheppard, J. G., "The Fall of Rome and the Rise of the New
Nationalities." 1 vol.  London and New York, 1861.

     Concerning the introduction of Roman law into modern European legal
systems, see, besides authorities mentioned at end of Chapter IV., ante, -

     Jenks, Edward, "Law and Politics in the Middle Ages." N.Y., 1898.

     Sohm, Rudolf, "Die deutsche Rechtsentwickelung und die Codifications-
frage," in Grunhut's Zeitschrift fur das Privat und Oeffentliche Recht der
Gegenwart, I., 245-280.

     Stein, Lorenz, "Das Wesen der Reception und die Reception des
griechischen Rechts im romischen Recht," in Grunhut, 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."

     Waitz, Georg, "Deutsche Verfassungsgeschichte," 8 vols. The classical
work on early Germanic institutions and the development of the German
constitution.



THE STATE
Wilson, Woodrow
The Government Of France
    
Part I.

	351. 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 inherited by Louis XIV.  The course of 
French history is from complex to simple.  In the days of Hugh Capet 'France' was the 
name of only a single duchy 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 territories 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.

	352. By slow and steady steps, nevertheless, a work of unification 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.

	353. Perfection of the Feudal System in France. - The feudal system worked its 
most perfect work in France.  The opportunities of feudalism there were great.  
Neustria, the western, Gallic half of the great Frankish kingdom, was early separated 
from Austrasia, the eastern, Germanic half (secs. 322, 323), 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 empire 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 feudalism had its 
heyday in France.

	354. It is reckoned that in Hugh Capet's day the "free and noble population" of 
the country out of which modern France was to be made numbered "about a million of 
souls, living on and taking their names from about seventy thousand separate fiefs or 
properties: of these fiefs about three thousand carried titles with them.  Of these again, 
no less than a hundred, - some 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." ^1 Of these one hundred, however, only some eight 
or ten were really powerful states.

	[Footnote 1: G. W. Kitchin, History of France, Vol. I., p. 186.]

	355. 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 undertaking.  
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.

	356. 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 liberties 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 feudalism 
was over.  It was their final task to destroy them by perfecting centralized 
administrative organization.

	357. Rural Communes. - While feudalism was in its creative period, while the 
forces were at work, that is, which were shaping 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 admission of persons to communal privileges, laid down 
rules for 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

	[Footnote 1: H. de Ferron, Institutions Municipales et Provinciales Comparees, p. 
3.]

	358. 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 country courts (secs. 836, 942).

	359. Liberties of Towns: the Roman Municipalities. - The privileges of self-
direction granted to the rural communes, however, 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 maintained 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 opportunity to set up independent sovereign powers of their 
own.  The Franks, as we have seen, had found many Roman cities in Gaul, and, not at 
first taking kindly to town life, had simply conquered them and then let them be (sec. 
298).  In these, consequently, the old Roman organization had endured, freed from 
Roman dictation.  The Franks who entered them later took character from them almost 
as much as they gave character to them.  Germanic principles of moot-government 
and individual freedom entered, to a certain extent, like a new life-blood into the 
Roman forms, and 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 (curioe) 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 establish 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.

	360. 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 authority as well as burgher privilege was fully recognized, and under 
which, moreover, the authority of the seigneur was actively exercised through the 
instrumentality of a Prevot, the lord's servant and representative in city affairs.

	361. 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 naturally 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.

	362. 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 
aggressions, 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, drawing 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 municipal citizenship: they 
made frequent gifts of bourgeoisie to disaffected vassals of the barons, - gifts so 
frequently made, indeed, that there grew up a special class of royal townsmen, a special 
bourgeoisie du roi.

	363. 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.

	364. 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.

	365. The administrative functions exercised by the towns have been thus 
summed up: the administration of communal property, the maintenance of streets and 
roads, the construction of public edifices, the support and direction of schools, and the 
assessment and collection of all taxes. ^1

	[Footnote 1: Ferron, p. 8.]

	366. Forms of Town Government. - The forms of self-government in the towns 
varied infinitely in detail, according to place and circumstance, but the general outline 
was almost 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 the 
president, never the 'chief executive,' of the corporation, and mayor and aldermen alike 
being equal in rank and in responsibility in exercising their corporate functions.

	367. 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 (sec. 1397). Oligarchy and tyranny both crept in, time 
and again; nowhere did local liberties permanently preserve their first vigor; everywhere 
real self- government sooner or later succumbed to adverse 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-
government.  The independence of the cities died hard and has left glorious memories 
behind it.

	368. Pays d'Etats. - Early times saw self-government in the provinces also.  
Many a feudal province had had its own 'Estates, its own triple assembly, that is, of 
nobles, clergy, and burghers, which met to discuss and in large part, no doubt, to direct 
provincial affairs.  The provinces 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, represented nothing 
but grants of privilege, were nothing but communities which had been given a special 
and exceptional place in the feudal order.  The assemblies of the provinces, accordingly, 
were not primary or democratic like those of the towns, but were made up by 'estates,' - 
models for the States-General which appeared in 1302 (secs. 374, 375).

	369. 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.

	370. In several of the provinces, as, notably, in Languedoc and Brittany, these 
provincial Estates continued to meet and to exercise considerable functions down to the 
time of the Revolution.  Such provinces came to be distinguished from the others as 
pays d'etats (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 existence before history could catch a glimpse of them.  We see the 
Estates of the pays d'etats 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 be taken in the presence of the king's provincial officers and must await 
the regal sanction; they live by the royal favor and must in all things yield to the royal will.  
Nevertheless their privileges were still so substantial as to make the pays d'etats 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 expenses 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 vitality 
and a prosperity such as the rest of France, administered, as it was, exclusively from 
Paris, speedily and utterly lost.

	371. 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 consolidation.  For eight centuries that expansion and consolidation went 
steadily on; but its successful completion was assured before the extinction of the first, 
the direct, line of Capets in 1328.  Before that date Philip Augustus had wrung 
Normandy from England and had added Vermandois, Auvergne, Touraine, Anjou, 
Maine, and Poitou to the dominions of his Crown, and his successors had so well carried 
forward the work of expansion that before the Valois branch came into the succession 
only Flanders, Burgundy, and Brittany broke the solidity of the French power in the north, 
and only Aquitaine, still England's fief, cut France off from her wide territories in the 
southeast. It had been the mission of the direct line of the Capets to lay broadly and 
irremovably the foundations of French unity and nationality, and they had accomplished 
that mission.  They gave to their monarchy the momentum which was afterwards to carry 
it into full supremacy over Brittany, Aquitaine, and Burgundy, over the Rhone valley, and 
over the lands which separated her from the Rhine.

	372. The Crusades and the Monarchy. - The monarchy, even more than the 
towns (sec. 363), 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 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.

	373. Institutional Growth. - Of course along with territorial expansion there went 
institutional growth: and this growth involved in large part the destruction of local 
liberties.  The amalgamation of France into a single, veritable kingdom was vastly more 
fatal to local self- government than the anarchy and confusion of feudal times had been.  
The cities could cope with neighbor 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 provincial 
assemblies, where they managed to exist at all in the face of the growing power of the 
Crown, were, like all other independent authorities of the later time, sadly curtailed in 
privilege, and at the last almost entirely lost heart and life.

	374. The States-General. - At one time, indeed, it seemed as 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-Generaux) 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.'

	375. Character of the States-General. - The first States-General, summoned by 
Philip the Fair, reminds one not a little of the parliament called together in England in 
1295 by Edward I. (secs. 848, 850). Apparently France was about to have a parliament 
such as England's became, a representative body, speaking, and at the end of every 
important contest bringing to pass, the will of the nation.  But for France this first promise 
was not fulfilled. 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 occasional summons, this assemblage of the three Estates.  This was the period 
during which feudal privileges were giving way before the royal prerogative, and it was 
often convenient to have the formal sanction of the Estates at the back of acts of 
sovereignty on the part of the 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 authority.  For one thing, they had not the organization proper, not to say 
necessary, for the exercise of power.  The three Estates, the Nobility, the Clergy, and 
the Commons (Tiers 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; their only 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 never 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 representatives of local political life.

	376. 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.

	377. Growth of the Central Administration. - In the earlier periods of the Capetian 
rule Feudal Court and certain household officers constituted a sufficient machinery for 
the central administration.  There was a Chancellor, who was the king's private secretary 
and 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 
(secs. 228, 229, 237, 238).

	378. The Council of State. - So long as 'France' was only a duchy and the real 
territory of the Crown no wider than the immediate domain of the Capetian dukes, the 
weight of administration 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 sections, 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 retain the name Council 
of State, 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 officials of the household were speedily 
absorbed, the Great Butler, for instance, becoming merely the president of the Chamber 
of Accounts.

	379. 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.

	380. 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 extensively 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 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 throughout the 
realm to discover where things were going amiss and where men needed that the king 
should interfere; he established the right of appeal to his own courts, even from the 
courts of the barons, thus making the Parliament 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 
Prevots, whom he subordinated to the Parliament of Paris.

	381. 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, financial, 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 remain 
officials and not dream of following the example of dukes and counts and becoming 
independent feudal lords on their own accounts.

	382. 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 anything 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 interest in court intrigue alone.  He drew all men of rank and 
ambition to himself, merged them in himself, and left nothing between the monarchy and 
the masses whereby the terrible impact of the great revolution which was to come might 
be broken.

	383. The Completed Centralization: the Intendant. - Finally came to 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 Crown 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 elections ceased; the Crown sold the local offices as life estates to any one 
who would buy them for cash.

	384. The Province was a military, not a civil, administrative district. The 
Provinces were grouped into Generalities, of which there were in all thirty-two, and it was 
over a Generality that each Intendant ruled. Ecclesiastical administration was served by 
still another distinct division into Dioceses.

	385. 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 pretence 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.

	386. 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 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 treasured privileges 
of the pays d'etats, and for here and there a persistent form of town life, France lay in the 
pigeon-holes of a bureau.  Tabla rasa had been made of the historical elements of local 
government.

	387. 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 government 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 particular grievance 
sprang." ^1

	[Footnote 1: John Morley, Miscellanies, Vol. II. (last Macmillan edition), essay on 
"Turgot," p. 138.]

	388. 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 executed; and they 
very soon proved themselves unable to improve much upon the old patterns of 
government.  In denial of the indefeasible sovereignty of the king, they proclaimed, with 
huzzahs, the absolute sovereignty of the people; but Assembly and Convention could do 
no more than arrogate all power to themselves, as the people's representatives, and 
seek to reign in the king'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.

	389. The Reconstruction by Napoleon. - The Revolution removed all the 
foundations of French politics, but scarcely any of the foundations of French 
administration.  The interests of the 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 diversifying 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.

	390. 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 simplify 
and systematize it; and it was this purpose that Napoleon carried out.  For the 
Convention and Assembly, as representatives 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 responsibility.  "'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," ^1 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 symmetrically 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 simplifications and improvements of method, 
upon the system of Intendants and delegates of the old regime.  This he accomplished in 
that celebrated "Constitution of the Year VIII." which still lies almost undisturbed at the 
foundation of French administration.  The Revolution had resulted in imparting to 
centralization what it never had had before: namely, assured order and effective system.

	[Footnote 1: Marquardsen's Handbuch, Lebon's monograph on France, p. 78.]



THE STATE
Wilson, Woodrow
The Government Of France
    
Part II.

	391. Since the war between France and Germany in 1870-'1, the Departments of 
France have numbered only eighty-six, the loss of Alsace and Lorraine having 
subtracted three Departments.

	392. 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 initiative in legislation, assented to the establishment of 
a parliament 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.

	393. The Third Republic. - Sedan having fallen (September 2), and the Emperor 
having been taken prisoner, the imperial government went to pieces, and on Sunday 
the fourth of September, 1870, the leaders of uneasy Paris proclaimed the Third 
Republic, Gambetta being their mouthpiece.  A provisional 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 suffrage, in order that the people's 
representatives might construct 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 assembly at all until the end had come and it had become 
necessary to decide terms of submission and peace.

	394. 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 Gambetta and his colleagues and have set a prince once more upon the 
throne of France.  But it could not unite.  Some, the 'Legitimists,' wished to see the old 
house of Bourbon restored; others were partisans of the house of Orleans; a few were 
Imperialists and wanted the empire of the Bonapartes set up again.  The first business 
of the Assembly was easily disposed of, humiliating though it was. Peace was 
concluded with 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.

	395. A Balance of Parties. - For five years the Assembly maintained 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 
Republicans, 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 programme, 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 opinion that the Republic 
must be left standing.  Thiers declared very frankly that he would have preferred a 
constitutional monarchy; 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.

	396. 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 constitution they should give it 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, accordingly, as simple and rudimentary a frame as possible, leaving 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 four 
years they experimented with the government they had: 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 Assembly removed from 
Bordeaux to Versailles.  While the Commune 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 restored, it was still necessary to 
handle the finances and arrange many disordered matters of administration.  What 
with the difficulties of governing the country and the even greater difficulty of quieting 
its own factions, it proved impracticable for the Assembly to enter upon the work of 
constitution-making before 1873.  The work was not completed before the closing 
months of 1875.

	397. Meanwhile (August 31, 1871), by the same act which 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 extraordinary 
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 
experimented 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.

	398. 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 'organic,' 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 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' 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.

	399. 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 enthroned, - not necessarily by coup d'etat: 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 be 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 
Assembly to become as sovereign as the Assembly which created them (see sec. 
411).  They are, besides, the sole judges of their own constitutional powers.  No courts 
restrain them.  France, like England, vests in her parliament a complete sovereignty of 
discretion as to its own acts.

	400. The principal difference between the two cases is, that the 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.

	401. 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 supplementing them.  So much of 
former constitutional usage as is 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.

	402. The Chamber of Deputies. - It was the hope of the constitution- 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 seventy thousand inhabitants. Deputies 
must be at least twenty-five years of age, and their term, unless the Chamber be 
sooner dissolved, is four years.  The eighty-six Departments into which the country is 
divided are the basis of representation in the Chamber, as in the Senate (sec. 406).  
To each Department is assigned a certain number of deputies, according to its 
population; every Department, 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 are chosen in the States (sec. 1286). The Arrondissements 
serve as 'congressional districts,' as we should call them, - and this method of voting is 
accordingly known in France as scrutin d'arrondissement (ballot by arrondissement).

	403. 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 d'arrondissement was reestablished, because scrutin de liste had given too free 
a sweep to the popular majorities of General Boulanger.

	404. The principal colonies, too, are entitled to representation in the Chamber.  
Algiers sends five deputies; Cochin-China, Guadaloupe, Guyana, India, Martinique, 
Reunion, and Senegal each send one.  All counted, there are five hundred and eighty-
four deputies.  Elections 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 
Republic in each case.  The law directs, however, that the President must order an 
election within sixty days, or, in case of a dissolution, within 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.

	405. 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 electoral district (an arrondissement), an election on 
the first ballot is possible 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 
encouraged.  Rival groups are tempted to show their strength on the first ballot 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 be 
more regarded another time by showing a little strength; and rivalry is encouraged, 
instead of consolidation.  France cannot afford to foster factions.

	406. 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 respects its powers the Senate has become a merely 
statutory body.  So far as the 'constitutional' laws are concerned, it might be 
constituted by executive appointment or by lot.  By statute it has been made to consist 
of three hundred members chosen by 'electoral colleges' specially constituted for the 
purpose in the several Departments and colonies, and the term of senatorship has 
been fixed at nine years.  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 Department, the members of the 'General 
Council' of the Department (sec. 447), and the members of the Councils of its several 
Arrondissements (sec. 455), together with delegates chosen in each Commune by the 
Communal Council from among the qualified voters of the Commune (sec. 464).  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 dominates the Senate.

	407. 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. This process will in time, of course, do away with all life-
membership.

	408. 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 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, Martinique, Guadaloupe, Reunion, French Indies." (Law of Dec. 9, 1884.)

	409. In Case of Usurpation. - In case the Chambers should be illegally dissolved 
or hindered from assembling, the General Councils of 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 
government 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.

	410. 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 capital, which has led so many assemblies captive. 
Whether met for the election of the President or for the revision of the Constitution, the 
National Assembly must do the single thing which it has convened to do and then at 
once adjourn.  For the election of the President there are clearly determined times and 
occasions: whenever the office of President falls vacant, whether by the death or 
resignation of the President or by the expiration of his term.

	411. Revision of Constitution. - A revision of the Constitution 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 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 these important heads before agreeing to a National Assembly.  
Alike for the election of a President and for the adoption of constitutional amendments 
an absolute majority vote of the united Chambers suffices.

	412. 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 consent 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 
frequently 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.

	413. 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 ordinary 
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.

	414. The officers of the Senate act as officers of the National Assembly. They 
consist of a President, four Vice-Presidents, six Secretaries, and four Quaestors, 
elected for one year.  The Chamber of Deputies has the same offices, with the addition 
of two more secretaryships.

	415. 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 reconsideration 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 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 thereafter, 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 out of the six Presidents of the Republic have been forced or 
have chosen to resign.  Not one has completed his full term of seven years: for Carnot 
was assassinated and Faure has been (1897) but two years in office.

	416. 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.

	417. The President's power of dissolving the Chamber might, on occasion, be 
used to bar even the proceedings of the National Assembly. The consent of the 
Senate having been obtained, the President could dissolve the Chamber while the 
National Assembly was in session, and so deprive that body of two-thirds of its 
members, leaving it without that 'absolute majority,' lacking which it can take no 
authoritative action. Such a course would, however, be clearly revolutionary, - more 
revolutionary than any action of the Assembly that it might be used to prevent, - and 
would, though perhaps technically defensible, have no real sanction of law.

	418. Influence of President and Senate. - The President and Senate, it will be 
seen, are given a really very great power of control over the Chamber of Deputies.  It 
is within the choice of the President to moderate the excesses of the Chamber by 
returning bills to it for reconsideration, or by adjourning it during a period of too great 
excitement; and 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 of dissolution, with the approval of the Senate; but the change of Deputies only 
taught him the real character of the government, 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 later presidents have been men of so little commanding force and the Senate has 
played so timid a part in affairs that their position of advantage has been altogether 
sacrificed; and the unbridled license of the Chamber constitutes one of the chief 
menaces to the success and even to the existence of the Republic.

	419. The Cabinet and the Council of Ministers. - A Cabinet of ministers 
constitutes a link between the President and the Chambers: and the political functions 
of this Cabinet are amongst the central features of government in France.  It is to be 
carefully distinguished from the Council of ministers; both the Cabinet and the Council 
consist of the same persons; but the Cabinet is a political body exclusively, while the 
Council has only administrative functions.  The distinction illustrates pointedly the 
double capacity of the ministers.

	420. The Ministries. - There are now eleven ministers: the Minister of Justice, 
filling the office filled before the Revolution by the Chancellor; the Minister of Finance, 
who has taken the place of the Comptroller-General of ante-revolutionary days (sec. 
386); the Minister of War, who acts as head of the administrative department created 
in the time of Mazarin (1644); the Minister of Marine and the Colonies (1644); 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 Minister 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), Religion (1848), and the Fine Arts; 
the Minister of Public Works; the Minister of Agriculture (an office created in 1812, but 
afterwards abolished, to be revived in 1828-30); the Minister of Trade and Industry; 
and the Minister of Posts and Telegraphs.  These last two offices were created in 1848 
by subtraction from the department of the Interior.

	421. The Cabinet. - As a Cabinet, the ministers represent the Chambers. They 
are commonly chosen from amongst the members of the Houses; but, whether 
members or not, they have, as ministers, the right to attend all sessions of the 
Chambers and to take a specially privileged part in debate.  The same right extends 
also to the Under-secretaries of Finance, of the Interior, of the Colonies, and of Fine 
Arts, who are, consequently, usually members of the Chambers.

     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.

	422. 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, though not under his presidency, but under that of a special 
'President of the Council' chosen by the ministers from amongst their own number.  Its 
duty is to exercise a general oversight of the administration of the laws, with a view to 
giving unity of direction to affairs of state.  In case of the death, resignation, or 
incapacitation of the President of the Republic, the Council is to act in his stead until the 
National Assembly can meet and elect his successor.  Its members are ex officio 
members of the Council of State, the highest judicial tribunal of the Republic for the 
determination of administrative cases (sec. 468).

	423. Relation of the Ministers to the President. - The 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 responsibility.  But the two 
names, Council and Cabinet, furnish convenient means for making plain the various 
relations of the ministers to the President.  As a Council they are, in a sense, his 
creation; as a Cabinet they are, in a sense, his masters.  The Executive Departments or 
Ministries over which they preside are the creation, not of the Constitution 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 Chambers alone for their conduct in office.  The President is 
the head of the administration; but his salary is dependent upon the annual budget which 
the Minister of Finance presents to the Chambers: and the items of the budget are 
matter of agreement between the ministers and the Chambers.

	424. 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 interest in 
the Chambers, - are too often used, in short, to be cast as bait for votes.

	425. 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 incomparably greater than our President's need to please Congress, since 
they are dependent upon the good-will of the Chambers for their tenure of office, while 
he is not dependent on Congress for his.

	426. There have never yet been in France, however, any such wholesale 
removals from office upon the going out of one administration and 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 of 
Republicans to the leadership of another, - or, at most, a change from the leadership of 
Republicans to the leadership of Radicals, who are simply extreme republicans.  In 
England we hear of "Her Majesty's Opposition": the party of the minority for the time 
being is known to be as patriotic, as much attached to the existing form of government, 
as safe to entrust power to, should it obtain a majority in the Commons, as the party in 
office.  But in France it is not so.  Until very recent years, 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 is living.  The people have never given it a 
majority in the Chamber, and have never been willing to entrust it with office.  One group 
of Republicans, therefore, succeeds another; one faction goes out of office, another 
comes in. Generally a new cabinet, just come in, is composed in part of men who held 
office also in the cabinet just thrust out.  It is a change only of chief figures.  And so 
wholesale removals from office do not take place.

	427. 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 ministers 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 only to the Chamber of 
Deputies. The votes of the Senate alone seldom make or unmake Cabinets; that has 
come to be recognized as the prerogative of the popular Chamber, which is more 
directly representative of the nation.

	428. 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 minister concerned, ask any question as 
to affairs of state; and an answer is demanded, by custom at least, to every question 
which can be answered publicly without detriment to the public interest. Next to the 
direct question, which is a matter between the individual questioner and the minister 
questioned, comes that broader form of challenging the policy of the Cabinet, known in 
France as the 'Interpellation.' 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 ministers, as the case may be.  It is the question exalted into a 
subject of formal discussion: it is the weightiest form of interrogating ministers: it makes 
them and all that they have done the objects of set attack and defence. A third and still 
more formal method of bringing administrative acts under the scrutiny of the Chambers 
consists in the appointment of a Committee of Investigation.

	429. The power of interpellation has been so indiscriminately and unwisely used 
in France as seriously to discredit her system of cabinet government.  The Chamber of 
Deputies is notoriously an intemperate body, and it seems constantly inclined to make of 
government a game at which it may match its wits with those of the ministers of the day.  
Interpellation is unhesitatingly used to take the ministers by surprise.  Deputies lie in wait 
to take them at a disadvantage.  They are 'interpellated,' moreover, most often, not upon 
questions of first-rate importance or in any way representative of their policy, but upon 
trivial matters of the moment.  A sudden impulse upon a minor question of administration 
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.  It is said that "out of the twenty-nine 
ministries that have resigned in consequence of a vote of the Chamber of Deputies since 
the cabinet has been made responsible, ten have fallen on account of orders of the day 
moved after an interpellation, or in course of a debate.  Several of these orders covered, 
indeed, the general policy of the cabinet, but others had no such broad significance." 
(Lowell, I., 122.)

	430. The ministers are, therefore, hardly more than nominally the leaders of the 
Chamber, holding their authority for brief periods and upon a very precarious tenure.  
For a little they represent a combination of Republican groups; they have almost never 
since the establishment of the Republic had a thoroughly homogeneous majority behind 
them.  The Chamber treats them as if they were still the agents and appointees of a 
monarch, instead of its own representatives, and is jealous and suspicious of them at 
every turn.  The system no doubt awaits for its successful operation the formation of two 
coherent national parties, capable of organizing for government instead of merely for 
rivalry.



THE STATE
Wilson, Woodrow
The Government Of France
    
Part III.

	431. The Course of Legislation. - All propositions alike, whether made by 
ministers or by private members, have to go to a special committee for consideration 
before reaching a debate and vote by the whole House; but the propositions of private 
members must pass another test before they reach even a special committee.  They 
must go first to the 'Monthly Committee on Parliamentary Initiative,' and it is only after 
hearing the report of that Committee upon bills submitted to it that the House 
determines whether particular measures shall be taken under further consideration 
and advanced to the special-committee stage.  A vote of emergency taken upon the 
introduction of a measure can, however, rescue a ministerial bill from all committee 
handling, and a private member's bill from the delays of the Initiative Committee.

	432. The Committees. - The committee organization of the House is worthy of 
special remark.  Every month during the session, the members of the Chamber of 
Deputies are divided by lot into eleven, those of the Senate into nine, Bureaux.  These 
Bureaux select four 'monthly committees,' one on 'Leave,' one on 'Petitions,' one on 
'Parliamentary Initiative,' and one on 'Local Interests, and one annual committee on the 
Budget, - each Bureau contributing its member or members.  The Bureaux select, 
moreover, all the special committees to which bills are referred, except when the 
House prefers itself to elect a committee; and they themselves consider matters 
referred to them.

	433. It will be seen that this arrangement, making the composition of the Bureaux 
dependent upon lot, as it does, and providing for the monthly reconstitution alike of the 
Bureaux and of the committees which they select, must effectually prevent the 
recognition or maintenance of party lines in the formation either of the Bureaux or of 
the committees, and seems in that way very well adapted to check the factional ardors 
of the Chamber.  But 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 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.

	434. The Budget Committee. - All financial matters are considered by special 
standing committees chosen for one year; in the Chamber of Deputies by a Budget 
Committee composed of thirty-three members, and in the Senate by a Finance 
Committee composed of eighteen members; and these Committees, like other 
standing committees, arrogate to themselves something like absolute 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. ^1

	[Footnote 1: See the Revue des Deux Mondes for Nov. 1, 1886, p. 226 et seq. ]

	435. Government by the Chambers. - Ministerial responsibility has rapidly 
degenerated in France, during the past few years, into government by the Chambers, 
or, worse still, 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 substitute 
for originative leadership submissive obedience, complete servility 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 Chamber has undertaken to govern, with or without 
the leadership of ministers.  So capricious, so wilful has it been in its rejection of every 
minister who would not at once willingly serve its moods, so impatient indeed of all real 
ministerial leadership, that almost every public man of experience and ability in France 
has now been in one way or another discredited by its action; and France is staggering 
under that most burdensome, that most intolerable of all forms of government, 
government by mass meeting, - by an inorganic popular assembly.  It is this state of 
affairs which has once and again called forth so loud a demand for a revision of the 
Constitution, and which has seemed upon at least one notable occasion to create an 
opportunity for another return to some sort of dictatorship.

	436. The Administrative and Judicial Powers of the Executive. - It must not be 
supposed, because the life of a ministry is 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 immemorial practice in France, that he may not only freely interpret 
the laws but may also supplement them to meet circumstances and cover cases which 
the legislature did not foresee or provide for.  He may not disregard the plain principles 
of the law, indeed, but he need not be restrained by its 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 Executive is expected to shape the laws to the cases that arise, and to 
supplement them where they lack completeness. The laws are, accordingly, for the 
most part themselves without detailed provisions.  They give the officers of state who 
are to execute them a principle by which to go rather than a body of minute 
instructions.  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.

	437. 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 recent 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.

	438. Department Functions. - The main duties of most of the Departments are 
sufficiently indicated by their names.  The Ministry of Justice controls the 
administration of civil, criminal, and commercial law; in other words, is set over the 
judicial system of the country.  Not over the whole of it, however.  The strict 
differentiation of functions insisted upon in France assigns to the Ministry of War, the 
Ministry of Marine, and the Ministry of the Interior respectively, the administration of 
military, marine, and administrative law.  The Ministry of Foreign Affairs controls the 
relations of France with foreign countries.  The Ministry of the Interior undertakes all 
duties not assigned to any other executive Department.  That of Finance collects, 
handles, disburses, and accounts for the revenues of the state. That of War directs all 
military affairs.  That of Marine and the Colonies has, added to the duty of managing 
the navy, the duty of acting for the colonies as all departments in one.  The Ministry of 
Public Instruction, Religion, and the Fine Arts organizes and oversees education, from 
the primary schools up to the University, mediates between church and state, buys 
works of art for the state, directs the public art- schools, museums, and art-exhibitions, 
subsidizes the theatres, exercises a censorship over the drama, superintends 
conservatories and schools of music and oratory, and supervises the state 
manufactories of Sevres ware and tapestry.  The Ministry of Public Works is entrusted 
with the management of the public highways, including the railways, and of the state 
mines, with the inspection of shipping and the care of seaports and lighthouses, and 
with the direction of the schools of engineering and architecture.  The Ministry of 
Agriculture is charged with the care of the forests, the proper irrigation of the country, 
oversight and assistance in the breeding of live-stock, sanitary regulations with 
reference to cattle diseases, and the administration of the various aids given by law to 
agriculture.  The Ministry of Trade and Industry undertakes to provide for the interior 
commerce of the country the facilities afforded by special courts of law, bourses and 
chambers of commerce, duly commissioned middle-men and factors, life-insurance 
companies, savings banks, and accident funds, the official examination and warranty 
of certain classes of manufactured goods, the policing of markets, and the granting of 
patents and trade-marks; for the foreign commerce of the country, it regulates duties 
and imposts, offers premiums for shipbuilding and seamanship, and collects statistics.  
A special 'Bureau of Industrial Societies' was added to this Department in 1886.  The 
Ministry of Posts and Telegraphs sees to the carrying and delivery of the mails, and to 
the telegraphic service of the country.

	439. The duties of most of these ministries illustrate the range of function 
assumed by the government in France (secs. 1479, 1480) 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. 

	440. 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 administrative 'generalities' (sec. 385), with their complexities 
and varieties of political regulation and local privilege, there is a system, above all 
things simple and symmetrical, of Departments divided into Arrondissements, 
Arrondissements divided into Cantons, and Cantons divided into Communes. Much 
the most significant of these divisions is the Department: whether for military, judicial, 
educational, or political administration, it is the important, the persistent unit of 
organization; arrondissement, canton, and commune are only divisions of the 
Department, - not fractions of France, but only fractions of her Departments. The 
canton, indeed, is little more than an election district; and the arrondissement is only a 
fifth wheel in the administration of the Department. The symmetry of local government 
is perfect throughout.  Everywhere the central government superintends the local 
elective bodies; and everywhere those bodies enjoy the same privileges and are 
hedged in by the same limitations of power.

	441. The several parts of the system of local government in France will thus be 
seen to rest, not upon any historical groundwork, 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.  If, therefore, France is now approaching 
confirmed democracy and complete self-government, as there is good reason to 
believe she is, she is building, not upon a basis of old habit, fixed firmly in the stiff soil 
of wont 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 something already made.

	442. The Department: the Prefect. - The central figure of French administration is 
the Prefect, the legal successor of the Intendant (sec. 384).  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 appointer of most of its subordinate officials.  He 
fills a double capacity: he is the agent and appointee of the central government, and at 
the same time the agent of the local legislative authorities.  He is at once member and 
overseer of the General Council of his Department; and he is necessarily its agent, 
inasmuch as he commands, as representative of the authorities in Paris, all the 
instrumentalities through which its purposes must be effected.  A minister can veto any 
act of a Prefect, - for he is the representative of any minister who needs his executive 
aid in the Department, - but no minister can override him and act by his own direct 
authority.  Until he is dismissed the minister must act through him.

	[Footnote 1: He appoints and disciplines the teachers.]

	443. 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 may 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 (secs. 447-452) 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 Communes, many of which are great cities, with elective officers of 
their own (sec. 458).  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, moreover, cover not merely the preservation of order and the enforcement 
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 (sec. 464) for a like period.

	444. The Prefect may take part in the proceedings of the General Council of the 
Department at any time except when his accounts are being considered.

	445. Such is the legal position of the Prefect.  His actual position is somewhat 
different.  The politics of the Republic, 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; and has, moreover, already 
made his office a party prize.  He is appointed by the Minister of the Interior and is in 
law first of all and chiefly the representative of the Interior.  But the other ministers 
also, as has been said, act through him in many things.  The result is that his office is 
often emptied and filled again upon a change of ministers, - a change, that is, of the 
ruling group in the Chamber.  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.  He is, rather, the 
trimmer to local opinion too often found under popular governments.

	446. The Spoils System in France. - French administration in all its branches, 
indeed, and in all grades of its service, from the lowest to the highest, has suffered 
profound corruption through the introduction of the fatal idea that public office may and 
should be used as a reward for party or personal services.  Ministers have adopted, all 
too readily, the damning practice of distributing offices among their party followers as 
pay for party activity, and even among the friends and constituents of deputies, in 
exchange for support in the Chamber.  And of course, when short of gifts to bestow, 
the temptation is to empty as many offices as possible of opponents or luke-warm 
friends in order to have places to give away.  This policy is likely to be doubly fatal to 
good government in France because of the very frequent changes of ministry at 
present characteristic of her politics. (Compare secs. 426, 427.)

	447. 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 President 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 President.  Councillors are elected for a term of six years, one-half of the 
membership of the Council being renewed every three years.  In order that 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 
(sec. 406), 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 plurality will 
suffice to elect on a second.  In case of a tie, the older candidate is to be declared 
elected.

	448. The membership of the Council varies in the several Departments, 
according to the number of cantons, from seventeen to sixty-two.

	449. The General Council is judge of the validity of elections to its own 
membership; but it is not the final judge.  An appeal lies from its decisions to the 
Council of State.  A seat may be contested on the initiative either of a member of the 
Council, the Prefect, or a constituent of the member whose rights are in question.

	450. There are two regular sessions of the General Council each year. The 
duration of both is limited by law: for the first to fifteen days, for the second to one 
month.  Extra sessions of eight days will be called by the President of the Republic at 
the written request of two-thirds of the members. If the Council in any case outsit its 
legal term, it may be dissolved 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.

	451. 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.

	452. 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 maintenance 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 printing the election 
lists; supervises the administration of the roads, railroads, and public works of the 
Department; oversees the management of lunatic asylums and the relief of the poor.  
Most important of all, it apportions among the several arrondissements the direct taxes 
annually voted by the Chambers.

	453. 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 oversee 
the Prefect.  The powers of this Commission, however, are merely advisory.

	454. 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 General Council to do their work, and then every step of that work is 
liable to be revised by the central administration. Irregularities in the election of a 
member 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, and not by such a 
challenging of its acts in the courts by the persons affected as, in English or American 
practice, strengthens liberty by making the individual alert to assert the law on his own 
behalf, instead of trusting inertly to the government 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, 'if only it never express a 
wish which has a political character.'

	455. The Arrondissement is the electoral district for the Chamber of Deputies, the 
members of the Chamber of Deputies being elected, as we have seen, not 'at large,' 
for the whole Department, but by Arrondissements, - not by scrutin de liste, that is, but 
by scrutin d'arrondissement (sec. 404).  It also serves as a judicial district and as the 
province of an arrondissemental Council.  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 decisions are largely controlled by the Prefect, and may be annulled by 
the President of the Republic.

	456. The Canton is the electoral district from which members are chosen to the 
General Council and the Council of the Arrondissement; 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.

	457. The Commune, unlike the arrondissement and canton, is as vital an 
organism as the Department.  All towns are communes; but there is, of course, a much 
larger number of rural than of town communes.

	458. There are 36,170 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.

	459. 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.

	460. Down to 1874 the mayors of the more populous Communes were appointed 
by the authorities in Paris, the mayors of the 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.

	461. The Communal Magistracy. - The mayor and his assistants 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, not to the Council which elects him, but to the central administration and 
its departmental representative, the Prefect. Once elected, he becomes the direct 
representative of 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.

	462. 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 one year.

	463. 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, and 
in other Communes all his appointments must be confirmed by the Prefect.

	464. 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 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 
municipal budget, which is presented by the mayor.  Its financial session may continue 
six weeks; none of its other sessions may last more than fourteen days.  The mayor 
acts as its president, except when his own accounts are under consideration.

	465. Neither the Municipal Council nor the Council of the Arrondissement is 
judge of the validity of the elections of its members. Contested election cases are 
heard by the Prefectural Council (sec. 469).

	466. Until 1831 the Municipal Council was chosen by the Prefect from a list of 
qualified persons made up in the Commune.  Between 1831 and 1848 its members 
were elected by a restricted suffrage.  Since 1848 they have been elected by universal 
suffrage.

	467. 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 President 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.

	468. 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 unbounded 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. sec. 437.) The highest of these courts is the Council of State, which is 
composed of the ministers, and of various high administrative officers of the 
permanent service.  It is the court of last resort on administrative questions.  It is also 
charged with the duty of giving advice to the Chambers or to the government on all 
questions affecting administration that may be referred to it.

	469. 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 administrative questions, and 
over all conflicts between administrative authority and private rights.  Its processes of 
trial and adjudication are briefer and less expensive than those of the ordinary law 
courts.  In almost all cases an appeal lies to the Council of State.

	470. 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.

	471. Each minister is himself a judge of first instance in cases whose 
consideration is not otherwise provided for, an appeal almost always lying, however, to 
the Council of State.  Prefects and mayors are, in like manner, judges of first instance 
in certain small cases.

The Administration Of Justice. 

	472. 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 arrondissements.  These last consider cases from 
the Justices of the Peace, who hold court for the adjudication of small cases in the 
cantons. By decree of the President, passed in the Council of Ministers, the Senate 
may be constituted a special court for the consideration of questions seeming to 
involve the safety of the state; and such questions may be removed by the same 
authority from the ordinary courts.

	473. The appointment of all judges rests with the President, or, rather, with the 
Minister of Justice; and the tenure of the 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.

	474. 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.

	475. Tribunal of Conflicts. - Between the two sets of courts, the administrative 
and the ordinary, there stands a Tribunal of Conflicts, whose province it is to determine 
to which jurisdiction, the administrative or the ordinary, any case belongs whose 
proper destination, or forum, is in dispute. This Tribunal consists of the Privy Seal as 
president, of three State Councillors chosen by their colleagues, and of three members 
of the Cassation Court selected, in like manner, by their fellow-judges, besides two 
members chosen by those already mentioned.

Some Representative Authorities. 

     Aucoc, "Conferences sur l'administration et le droit administratif," 3
vols., Paris, 1882.

     Bastard D'Estang, "Les Parlements de France."

     Beaulieu, Leroy, "Administration locale en France et en Angleterre."

     Benoist, Revue des Deux Mondes, July, 1895.

     Block, "Dictionnaire de l'administration francaise," Paris, 1887, and
subsequent annual supplements.

     Bodley, 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, Emile, "Studies in Constitutional Law: France - England - United
States." Trans. from the French by E. M. Dicey, London, 1891.

     Bozerian, "Etude sur la revision de la constitution."

     Burgess, J. W., "Political Science and Constitutional Law," 2 vols.,
Boston, 1891.

     Cheruel, "Dictionnaire historique des Institutions, Moeurs, et Coutumes
de la France," 2 vols., 6 ed., Paris, 1884.

     Currier, C. F. A., "Constitutional and Organic Laws of France, 1875-
'89," Philadelphia (Am. Acad. Pol. Sci.), 1893.

     Demombynes, "Les Constitutions 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.

     Dupriez, L., "Les Ministres dans les principaux Pays d'Europe et
d'Amerique, 2 vols., Paris, 1892.

     Edwards, M. Betham, "France To-Day," 2 vols., London, 1892-'94.

     Ferron, H. de, "Institutions municipales et provinciales comparees,"
Paris, 1884.

     Goodnow, Frank J., "Comparative Administrative Law," 2 vols., N.Y., 1893.

     Haas, C. P. M., "Administration de la France," 4 vols., 2 ed., Paris,
1861.

     Kitchin, G. W., "History of France," 3 vols., Oxford, 1881-85.

     Laferriere, E., "Traite de la Jurisdiction administrative et des recours
contentieux," 2 vols., Paris, 1887.

     Lebon, Andre, "Das Staatsrecht der franzosischen Republik," in
Marquardsen's "Handbuch des Oeffentlichen Rechts der Gegenwart." Freiburg in
B., 1886; "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.

     Meier, E. von, "Das Verwaltungsrecht," in Holtzendorff's "Encyklopadie
der Rechtswissenschaft," Sys. Theil, pp. 1220, et seq., ed. 1890.

     Naquet, A., "The French Electoral System," N. A. Rev., vol. 155.

     Sarwey, O. von, "Allgemeines Verwaltungsrecht" in Marquardsen, pp.
110-112.

     Scherer, Edmond, "La Democratie et la France."

     Shaw, Albert, "Municipal Government in Continental Europe," N.Y., 1895.

     Stephen, Sir James, "Lectures on the History of France," 2 vols., 3 ed.,
London, 1857.

     Tocqueville, Alexis de, "L'Ancien Regime et la Revolution" and
"Recollections" (trans. London, 1896).

     Villeneuve, M. de la Bigne de, "Elements de Droit constitutionel
francais," Paris, 1892.



THE STATE
Wilson, Woodrow
The Governments Of Germany
    
Part I.

	476. The Feudalization of Germany was in some points strongly contrasted with 
the feudalization of France.  There was in Germany no Romanized subject population 
such as existed in Gaul, with habits which should enter like a leaven into the polity 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 dominant Franks.  For the rest, there 
was at first the old grouping about elective or hereditary princes, the old tribal 
individualities of custom, the old 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 'commendation' (secs. 305-308, 310), as through the official organization of the 
Frankish monarchy.

	477. Official System of the Frankish Monarchy: the Grafen. - In order to exercise 
their kingly powers the more effectually, the Frankish monarchs adopted the natural 
plan, for which there was Roman precedent, of delegating their functions to officers 
commissioned 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 (Grafen), 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, many exemptions from their authority within the general districts 
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 administrative territory of the Graf 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.

	478. The Magistracy of Office and the Magistracy of Proprietorship. - There thus 
grew up, side by side, a double magistracy - a magistracy of office and a magistracy of 
proprietorship.  The Graf ruled by virtue of his office; the baron by virtue of his landed 
possessions: there were lords by privilege (Immunitats-herren), 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 
Graf tended more and more to become hereditary and to connect itself with the 
ownership of large estates.  Heredity of title and prerogative was the almost irresistible 
fashion of the age: the men of greatest individual consequence, besides, - the men 
who were fit because of their individual weight to be delegated to 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 proprietorship it 
took from proprietorship its invariable quality of heredity.  This was the double process: 
Grafs became hereditary territorial lords; and hereditary territorial lords acquired either 
the grafship itself or powers quite as great.

	479. Hereditary Chiefs. - Add to this hierarchy the more ancient princes of the 
tribes, and the tale of greater lords is complete.  These princes were, by traditional title 
at least, rulers of the once self- governing communities which Frankish ascendancy 
had in the days of conquest united under a common authority.  In many cases, no 
doubt, they retained a vital local sway.  They were intermediate, in the new political 
order, between the king and the barons.

	480. Full Development of Territorial Sovereignty. - By the thirteenth century 
German feudalization was complete.  Princes (dukes), Grafs, and barons had all alike 
become lords within their own territories (Landesherren). Bishops and abbots, too, as 
in France, had entered the competition for power and become themselves Grafs 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 (secs. 380, 385).  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.

	481. The Markgraf. - One office especially fostered feudal independence in 
Germany.  Outside the hierarchy I have described, and standing in special relations 
with the king, was the graf, Markgraf, - the Graf of the Mark or border, set to defend 
the kingdom against inroads by hostile peoples.  He was of course chosen chiefly 
because of his capacity in war, and was of the most imperative, masterful soldier 
breed of the times.  To him, too, were necessarily vouchsafed from the first 
extraordinary powers.  He was made virtual dictator in the unsettled, ill- ordered border 
district which he was appointed to hold against foreign attack; and he was freely given 
all the territory he could conquer and bring under the nominal authority of the king. It 
was thus that the Mark 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 long in becoming virtually a ruler in his own right, little disturbed by 
the nominal suzerainty of a distant monarch, and possessed by fast hereditary right of 
the titles and powers which would one day make of him a veritable king.

	482. 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 Rhine, 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 Hohenstaufan essayed the office Charles had made 
great, wielding such authority as they could as power came and went 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.

	483. The Imperial Cities. - While the imperial power languished 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 developed, 
fallen into its order in two classes. Some of them held their privileges of the Emperor 
himself, were his immediate vassals; others were subordinated to some feudal lord 
and were subjects of the Empire only through him.  The position of those immediately 
dependent upon the Emperor was much more advantageous 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 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 
importance 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 in imperial affairs 
became one of the most important of the many independent roles played on the 
confused stage of that troubled time.  Lubeck, Hamburg, and Bremen retain to this day 
a certain privilege of position as free cities in the German Empire (secs. 497, 500).

	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 domains 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 little 
cantons, at first joined only by their neighbor canton, Lucerne, but afterwards 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 ultimately 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.  In the next chapter we shall consider its political 
development with the special attention which it merits.

	485. 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 Hohenzollern of Nurnberg.  
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 great 
role it was to play in the seventeenth, eighteenth, and 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 'king of 
Prussia.'

	486. Frederic the Great. - Frederic, the first king of Prussia, governed from 1688 
to 1713.  His son, Frederic William I. (1713-1740), rounded out Brandenburg's 
possessions and hoarded the money and prepared the army with which his son, 
Frederic the Great (1740-1786), was to complete the greatness of Prussia.  The great 
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, territory already thoroughly German. The 
second and third partitions of friendless Poland in 1793 and 1795 added to Prussia the 
districts now known as South and 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.

	487. 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 Empire made 
of the Germans a single nation, that Napoleon was able to detach from all alliance with 
either Austria or Prussia every one of the German states except Brunswick and the 
electorate of Hesse.  Of these the chief were 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.

	488. The year 1806 had marked also the formal end of the 'Holy Roman Empire' 
over which the Habsburgs had so long presided.  The eighteenth century had 
witnessed a notable decline 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 
leadership in Germany.

	489. 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 
German 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, principalities) 
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 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.

	490. Period of Constitutional Reform. - In 1848 most of the German states, 
except Prussia, granted to their people constitutional government. 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 'Custom 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 
parliamentary institutions; and these concessions, though at first largely make-believe, 
served eventually as the basis for more substantial popular liberties.

	[Footnote 1: The Union did not at first include this 'all,' but it did eventually.]

	491. 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 themselves; and Austria found herself finally excluded from German 
political arrangements.

	492. Austria out of Germany. - Since then Austria, originally predominantly 
German, has devoted herself to the task of amalgamating the various nationalities of 
Southeast Europe under her hegemony, and so has become in large part a non-
German state.  Prussia has become 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 Pommerania and the northern half of Saxony; the 
war of 1866 confirmed her in the possession of Schleswig-Holstein, Hannover, Hesse-
Cassel, Hesse- Nassau, and Frankfort.

	493. The German Empire. - The finishing impulse was given to the new 
processes of union by the Franco-Prussian war of 1870-1871.  Prussia's brilliant 
successes in that contest, won, as it seemed, in the interest of German patriotism 
against French insolence, broke the coldness of the middle states towards their great 
northern neighbor; they joined the rest of Germany; and the German Empire was 
formed (Palace of Versailles, January 18, 1871).

Government Of The Empire. 

	494. Austria and Germany: Character of the German Empire. - When he ceased 
to be Emperor of the Holy Roman Empire (1806; sec. 488), Francis I. still remained 
Emperor of Austria.  He had assumed that title in 1804; and from that day to this there 
has been in full form, - what there had long been in reality, - an Austrian Empire.  In 
1871 there arose by its side a new German Empire, but the two empires are 
thoroughly unlike one another. The Austrian Empire, though wearing the form of a dual 
monarchy as Austria- Hungary, is composed of the hereditary possessions of the 
House of Habsburg; the German Empire, on the other hand, is a federal state 
composed of four kingdoms, six grand-duchies, five duchies, seven principalities, three 
free cities, and the imperial domain of Alsace-Lorraine, these lands being united in a 
great 'corporation of public law' under the hereditary presidency of the king of Prussia.  
Its Emperor is its president, not its monarch.

	495. The four kingdoms are Prussia, Bavaria, Saxony, and Wurttemberg; the 
grand-duchies, Baden, Hesse, Mecklenburg-Schwerin, Saxe-Weimar, Oldenburg, and 
Mecklenburg-Strelitz; the duchies, Brunswick, Saxe- Meiningen, Anhalt, Saxe-Coburg, 
and Saxe-Altenburg; the principalities, Waldeck, Lippe, Schwarzburg-Rudolstadt, 
Schwarzburg-Sondershausen, Reuss- Schleiz, Schaumburg-Lippe, and Reuss-Greiz; 
the free cities, Hamburg, Lubeck, and Bremen.

	496. The Central German States and the Empire. - The first step towards the 
present union was taken in 1870, when Baden, Bavaria, and Wurttemberg, fearing that 
the object of Napoleon III. was to conquer the central German states or renew the 
Confederation 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 German 
Confederation, with King William as president.  Almost immediately, thereafter, the 
influences of the time carried the Confederates a step farther: at the suggestion of the 
king of Bavaria, the president-king was crowned Emperor, and the German 
Confederation became the German Empire. ^1

	[Footnote 1: The present constitution of the Empire bears date April 16, 1871.]

	497. The Character of the Empire. - These changes of membership 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 more than 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 occupies not an hereditary throne, but only an hereditary office.  Sovereignty does 
not reside in him, but "in the union of German federal princes and the free cities." He is 
the chief officer of a great political corporation, whose object it is to "form an eternal 
union of the realm and the care of the welfare of the German people."

	498. The Emperor. - Still his constitutional prerogatives are of the most eminent 
kind.  Unlike other presidents, he is irresponsible: he cannot be removed, his office 
belonging inalienably to the throne of Prussia, whether its occupant be king or regent 
only.  He summons, opens, adjourns, and closes the two Houses of the federal 
legislature, the Bundesrath and the Reichstag, the latter of which he can also, with the 
consent of the Bundesrath, dissolve. He appoints, and may at his pleasure remove, 
the Imperial Chancellor, who is both the vital centre of all imperial administration and 
the chairman of the Bundesrath; and he appoints also, under the countersignature of 
the Chancellor, all minor officers of the imperial service, whom, with a like cooperation 
of the Chancellor, he may also dismiss.  He controls the foreign affairs of the Empire 
and commands its vast military forces; and in this latter capacity, of commander-in- 
chief of the imperial army, it rests with him, acting at the suggestion of the Bundesrath, 
to coerce into obedience such states of the Empire as may at any time wilfully and 
pertinaciously neglect to fulfil their federal duties.  He has, in brief, to the fullest extent, 
both the executive and the representative functions now characteristic of the head of a 
powerful constitutional state.  There are distinct, limits to his power as Emperor, limits 
which mark and emphasize the federal character of the Empire and make of it a state 
governed by law, not by prerogative; but those limits nevertheless lie abundantly wide 
apart.  Adding, as he does, to his powers as hereditary president of the Empire his 
commanding privileges as king of Prussia and, as king of Prussia, the dominant 
member of the Union, he possesses no slight claim to be regarded as the most 
powerful ruler of our time.  (Compare secs. 415, 418, 423, 746, 761, 775, 796, 813, 
823, 860, 889, 1329, 1381, 1382.)

	499. Sovereignty of the Empire in Legislation. - So complete, so unlike that of a 
mere confederation, is the present union of German states that the sovereign 
legislative power of the Empire is almost unlimited. The constitution can be amended 
by the federal legislature; amendment may change all the existing allotments of power 
as between the federal and the state governments; powers now reserved to the states 
can, except in one or two instances in which they are explicitly guaranteed, be 
withdrawn from them without their consent.  The individual states virtually retain their 
general rights "only by sufferance of the Empire." ^1 Amendments of the constitution 
are not submitted either to the people or to the governments of the states: nor are they 
passed by any special or peculiar procedure, as in France (sec. 411).  They are 
originated and acted upon as ordinary laws would be.  The only limitations put upon 
their passage are, first, that fourteen negative votes in the Bundesrath will defeat a 
proposed amendment, and, second, that no state can be deprived of any right 
guaranteed to it by the constitution, without its own consent.  From the first the 
legislative power of the Empire has 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 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 has now enacted, 
besides full codes of commercial and criminal law, an exhaustive civil code which has 
brought practically all of private law under the statutes of the imperial government.

	[Footnote 1: Laband, Das Staatsrecht des deutschen Reiches (Marquardsen's 
Handbuch), p. 22.]

	500. The Bundesrath: its Composition and Character. - The central and 
characteristic organ of the Empire is the Bundesrath, the Federal Council, which is, 
alike in make-up and function, the lineal successor of the Diet of the older 
Confederation.  In form, in theory, and indeed in fact, the Bundesrath is a body of 
ambassadors.  Its members represent the governments of the states from which they 
come, and are accredited to the Emperor as diplomatic agents, plenipotentiary 
charges d'affaires, to whom he must extend the same protection that is extended to 
the like representatives of foreign states.  It is 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"; ^1 and the Bundesrath is the organ of this body.  It is 
therefore the organ through which the sovereignty of the Empire is expressed. The 
Emperor does not exercise sovereignty: he only shares it as king of Prussia, so far as 
the Empire is concerned, and takes part in its exercise only through the Prussian 
members of the Bundesrath. It follows, of course, from this principle that the members 
of the Bundesrath are only the agents of their governments, and act under instructions 
from them, making regular reports of the proceedings of the Bundesrath to their home 
administrations. The votes of a state are valid, whether cast by her representatives in 
accordance with their instructions or not; but the delegates are responsible for every 
breach of instructions to their home authorities.  In practice they are generally 
themselves members of the governments they represent, entrusted also with high 
administrative functions at home, and representing their governments in the local 
legislative bodies of their own states, as well as in the Bundesrath. The Bundesrath is 
thus used, as it was intended to be, and as it was used under the somewhat looser 
forms of the earlier Confederation, as a body of consultation and guidance, a larger 
sort of imperial cabinet, in which the responsible ministers of the several states draw 
together to determine all questions of general interest, whether they affect the making 
or the administration of the laws.

	[Footnote 1: Laband, p. 40.]

	501. Representation of the States in the Bundesrath. - The states of the Empire 
are unequally represented, according to their size.  Prussia has seventeen votes; 
Bavaria six; Saxony and Wurttemberg four each; Baden and Hesse each three; 
Mecklenburg-Schwerin and Brunswick each two; the other seventeen states one 
apiece.  The votes of each state which is entitled to more than one vote must be cast 
together as a unit, and each such state can cast her full vote whether or not she have 
her full number of representatives present.

	502. Members are sent and withdrawn at the pleasure of their respective 
governments, like the responsible agents they are; and their constant responsibility 
makes formal instruction as to their votes upon particular measures for the most part 
unnecessary.  The smaller states have found the duty of maintaining representatives 
at times very onerous; and, inasmuch as it is not required by law that their delegates 
should be chosen from among their own citizens, it has become a common practice for 
them to serve economy and their own convenience by combining to maintain joint 
representatives.  Groups of them combine, and each group delegates their powers to a 
single person, who is authorized to represent them severally. Since 1880, however, 
the session of the Bundesrath has been divided into two periods, in one of which the 
more important matters of the year are considered; and during this part of the session 
each state is required to vote, if it votes at all, through its own separate delegate.  
During the remainder of the session routine matters are disposed of and joint 
representation is permitted.

	503. The significance of the constitutional provision that amendments to the 
constitution may not pass if there be fourteen negative votes cast in the Bundesrath is 
quite evident.  A combination of the small states may defeat any organic change of law 
proposed by the large states; and Prussia alone can bar any amendment to which she 
is opposed.  The seventeen votes of Prussia on the one side and the seventeen votes 
of the small states on the other might be said, were there any real offset to the power 
of Prussia, to constitute the central balance of the system.



THE STATE
Wilson, Woodrow
The Governments Of Germany
    
Part II.

	504. Functions of the Bundesrath. - The Bundesrath occupies a position in the 
German system in some respects not unlike that which the Roman Senate held in the 
government of Rome (secs. 171-174).  It is, so to say, the residuary legatee of the 
constitution.  All functions not specifically entrusted to any other constitutional authority 
remain with it, and no power is in principle foreign to its jurisdiction.  It has a composite 
character, and is the presiding organ of the Empire.  It is at one and the same time an 
administrative, a legislative, and a judicial body.

	505. In its legislative capacity, it presides over the whole course of lawmaking.  
The Reichstag has the right to originate measures, but, as a matter of practice, 
originates very few.  Most bills first pass the Bundesrath and go with its sanction to the 
Reichstag.  If passed by the people's house, they are returned to the Bundesrath and 
there once more adopted.  All the more important legislation, moreover, is framed by 
the imperial officials and presented to the Bundesrath by the Chancellor, who is not 
only president of the federal chamber but also chief of the Prussian delegation.  
Prussia, therefore, in reality presides over the process of legislation.  Hers is the chief 
initiative; and the federal chamber, in which she commands seventeen votes, is the 
usual source of every great measure.  The Reichstag has, of course, the right of 
amendment, and has sometimes exercised it with boldness; but nothing that it 
suggests can become law without the assent of the guiding and overseeing 
Bundesrath. The consent of the Bundesrath, as well as of the Reichstag, must be had 
also to every treaty which affects any matter that falls within the legislative powers of 
the Empire.

	506. The measures sent down from the Bundesrath to the Reichstag are 
generally advocated there, if not by the chancellor himself, by members of the federal 
chamber specially delegated for that purpose; and the Reichstag is usually kept 
advised of the amendments which the Bundesrath will accept. All members of the 
Bundesrath have, however, the right to be present in the Reichstag, and to express 
their views upon its floor concerning pending legislation, even when their views are not 
those which have been accepted by the majority in the Bundesrath.

	507. The administrative function of the federal chamber may be summed up in 
the word oversight.  It considers all defects or needs which discover themselves in the 
administrative arrangements of the Empire in the course of the execution of the laws, 
and may in all cases where that duty has not been otherwise bestowed, formulate the 
necessary regulation to cure such defects and meet such needs.  It has, moreover, a 
voice in the choice of some of the most important officers of the imperial service.  It 
nominates or elects the members of the Court of Accounts, of the Supreme Court of 
the Empire (Reichsgericht), and of the 'Chamber of Discipline,' as well as the officials 
who administer the imperial pension funds, and those who constitute the directory of 
the Imperial Bank.  It confirms the nomination, also, either directly or through one of its 
committees, of consuls and of the officers who exercise the imperial control over the 
duties and taxes laid by the states under laws of the Empire.  It may also be reckoned 
among the executive functions of the Bundesrath that its consent is necessary to a 
declaration of war (except in case of invasion, when the Emperor may act alone), to a 
dissolution of the Reichstag during a legislative period, and to coercive action against 
a state of the Empire.

	508. The judicial functions of the Bundesrath spring in part out of its character as 
the chief administrative council of the Empire.  When acting as such a council, many of 
its conclusions partake of the nature of decisions of a supreme administrative court of 
appeal.  But its jurisdiction as a court is much wider than questions of administration.  
It can declare a state of the Empire delinquent, and order execution to issue against it.  
It is the court of highest instance in every case of the denial of justice to an individual 
in a state court arising out of a defect or deficiency in the law of the state; it being 
within its competence in such a case to compel the state to cure the deficiency and 
afford the suitor the proper remedy.  It is 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 involve not mere private law questions (such cases 
go to the ordinary civil courts), but points of public law.

	509. In case it cannot agree upon a conclusion in such disputes, the whole 
legislative power is brought into play and a law is passed covering the matter in 
controversy.  If in any case it considers itself unfitted by its organization, or for any 
other reason, to act as a court in controversies brought before it, it may delegate its 
judicial powers to a court or to experts.  This it did in 1877 with reference to the dispute 
between Prussia and Saxony concerning the Berlin-Dresden railway. ^1

	[Footnote 1: Laband, p. 43, n.]

	510. Organization of the Bundesrath. - The Imperial Chancellor is chairman of 
the Bundesrath.  He is 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 
constitutional lawyers that the Chancellor's membership in the federal chamber is 
necessary to his presidency of the body. In case of a tie vote, the Chancellor's vote is 
decisive: that is to say, the side on which Prussia's votes are cast prevails, for her vote 
must be undivided: - the Chancellor's vote is not his own, but is one- seventeenth part 
of Prussia's whole vote.

	511. The Chancellor may appoint a substitute to act in his absence as president, 
this limitation resting upon his choice, that if he does not appoint a Prussian delegate 
to the office he must appoint a Bavarian.  He may also appoint a substitute to perform 
all his functions, and such an appointment would include the presidency of the 
Bundesrath unless a separate and special delegation of that office were made, - and 
unless, also, perhaps, the general substitute were not a member of the Federal 
Council.

	512. Inasmuch as it is not merely the legislative but also the administrative organ 
of the Empire, the Bundesrath may be convened without the Reichstag.  It must be 
called together if one-third of its members demand a session.  Its business, moreover, 
is continuous from session to session, being taken up at each session where it was left 
off at the last: an arrangement by which it gains both efficiency and expedition in 
action. Its sessions are secret: for it preserves the reserve of a guiding cabinet. Its 
compromises and quarrels do not go abroad.

	513. Imperial law makes no provision with regard to a quorum in the Bundesrath.  
It is believed by German jurists, however, that its business could go forward, after 
proper notice, if only the Chancellor, its president, were present.  No state can cast its 
vote upon any question in which it is not interested.

	514. Committees. - The Bundesrath follows the practice of other deliberative 
bodies in referring various matters to special committees of its members.  It has, too, 
like other bodies, certain standing committees. These are three: one on Alsace-
Lorraine, one on the Constitution, and one on the Order of Business.

	Much more important than these, however, are eight delegations of its members 
which, though called committees, may be more properly described as Commissions, 
for, like the executive committee of our own Congress under the old Confederation 
(sec. 1069), they continue to sit during the recesses of the chamber which they in a 
sense represent.  Of these Commissions two are appointed by the Emperor, namely a 
Commission "for the Land Forces and Fortifications" and a Commission "for Naval 
Affairs": five are chosen yearly by the Bundesrath, namely, those "on Tariffs and 
Taxation," "for Trade and Commerce," "for Railways, Posts, and Telegraphs," "on 
Justice," and "on Accounts" (Rechnungswesen); the eighth and most important, the 
"Commission on Foreign Affairs," consists of the representatives of Bavaria, Saxony, 
and Wurttemberg, and of two other members chosen by the Bundesrath.  At least five 
states must be represented on each of these Commissions, and Prussia must always 
be one of the five, except in the case of the Commission on Foreign Affairs.  On this 
last Prussia needs no representation; she has committed to her, through her king who 
is also Emperor, the whole conduct of the foreign affairs of the Empire; the 
Commission is 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 Bundesrath and to make no reports to it: it serves to 
receive communications concerning the foreign affairs of the Empire and to exchange 
opinions with the imperial administration concerning" those affairs. ^1 Its action is thus 
independent of its connection with the Bundesrath; and this is the chief point of 
contrast between it and the other Commissions.  Their duties are principally to the 
Bundesrath: they for the most part only make reports to it.

	[Footnote 1: Laband, p. 46.]

	515. Besides their right to representation on the Commission on Foreign Affairs, 
of which Bavaria has the presidency, Wurttemberg, Bavaria, and Saxony have also the 
right to appointments on the Commissions for Land Forces and Fortifications and for 
Naval Affairs which it is the privilege of the Emperor to name.  Prussia is entitled to the 
presidency of all the Commissions except that on Foreign Affairs.  Each state 
represented has one vote in the action of a Commission, and a simple majority 
controls.

	516. The Reichstag: its Character and Competence. - It would lead to very 
serious misconceptions to regard the Bundesrath 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 
is differently constituted and is entrusted with a certain share in functions not 
legislative.  Properly conceived, the Bundesrath and Reichstag stand upon a very 
different footing with reference to each other.  The Bundesrath is the sovereign organ 
of the Empire, the authoritative representative of the "body of German sovereigns and 
the senates of the free cities." Though it originates most of the legislation of the 
Empire, legislation is no more peculiarly its business than is the superintendence of 
administration or the exercise of judicial functions.  It, as part of the administration, 
governs; the Reichstag, as representing the German people, controls.  The control of 
the Reichstag is exercised, not only through its participation in legislation, but also 
through the giving or withholding of its sanction to certain ordinances to whose validity 
the constitution makes 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 are not enumerated; they are, exercised in one form or 
another, as wide as the activities of the Empire.  The legislative competence of the 
Empire is, since 1873, legally unlimited as to private law: it covers the whole field of 
civil and criminal enactment.

	517. Composition of the Reichstag. - The Reichstag represents, not the states, or 
the people of the several states regarded separately, but the whole German people.  
Representation is distributed on the basis of about one representative to every one 
hundred and thirty-one thousand inhabitants. Representatives are, however, elected 
by districts, one for each district, and no district may cross a state line and include 
territory lying in more than one state.  If, therefore, any state of the Empire have less 
than one hundred and thirty-one thousand inhabitants, it may, nevertheless, constitute 
a district and send a representative to the Reichstag.

	518. The Reichstag at present (1897) consists of three hundred and ninety-seven 
members; and of this number Prussia returns two hundred and II. thirty-five, about 
three-fifths of the whole number.  The electoral districts as they now stand (1897) are 
sadly in need of change.  They were fixed so long ago that Berlin, though it has grown 
to possess more than a million and a half inhabitants, has only six members in the 
Reichstag.

	519. The members of the Reichstag are elected for a term of five years by 
universal suffrage and secret ballot.  The voting age in Germany is twenty-five years; 
and that is also the earliest age of eligibility to the Reichstag.

	520. The election districts are determined in the northern states according to 
laws passed under the North German Confederation; in Bavaria, by the Bavarian 
legislature; in the other southern states, by the Bundesrath. The subdivisions of the 
districts, the voting precincts, are determined by the administrations of the states.

	521. An absolute majority is required for election, as in France (sec. 405).  In 
case no candidate receives such a majority, the commissioner of election - an officer 
appointed by the administration for each district - is to order a new election to take 
place within fourteen days after the official publication of the result of the first, the 
voting to be for the two candidates who received the highest number of votes.  Should 
this second election result in a tie the lot decides.

	522. Election to the Reichstag takes place, not on days set by statute, but on 
days appointed by executive decree, as in France (sec. 405).  For the Reichstag may 
be dissolved by the Emperor, with the consent of the Bundesrath (by a vote in which 
Prussia concurs) before the completion of its regular term of five years.

	523. In case of a dissolution, a new election must be ordered within sixty days, 
and the Reichstag must reassemble within ninety days.  The Emperor may also 
adjourn the Reichstag without its own consent (or, in English phrase, prorogue it) once 
during any session, for not more than thirty days.

	524. Sessions of the Reichstag. - The Reichstag meets at the call of the 
Emperor, who must call it together at least once each year; and who may convene it 
oftener.  He must summon at the same time the Bundesrath.  The sessions of the 
Reichstag must be public; it is not within its choice to make them private.  A private 
session is regarded as, legally, only a private conference of the members of the 
Reichstag, and can have no public authority whatever.

	525. Members of the Reichstag who accept a salaried office under the Empire or 
one of the states, or an imperial or state office of higher rank or power than any they 
may have held when elected, must resign and offer themselves for reelection. 
(Compare sec. 865.)

	526. Organization of the Reichstag. - The Reichstag elects its own President, 
Vice-presidents (2), and Secretaries.  For the facilitation of its business, it divides itself 
by lot, for the session, into seven 'Sections' (Abtheilungen), each Section being made 
to contain, as nearly as may be, the same number of members as each of the others.  
These Sections divide among them the work of verifying the election of members and 
the choice of special committees.  The Reichstag has no standing committees; but 
from time to time, as convenience suggests, temporary committees are named, whose 
duty it is to prepare information for the body, which they present in reports of a general 
nature.  These committees it is which the Sections select.  Each Section contributes its 
quota of members to each committee.  The party leaders, however, always determine 
beforehand the division of places on the Committees and the Sections merely do their 
will in the matter.  Government bills, moreover, are not referred to the committees.  
They play no such part in revision as is played by the committees of the French 
Chamber of Deputies (secs. 432-434).  One-half of the members constitute a quorum; 
and an absolute majority is requisite to a valid vote.

	527. Election of Officers. - The initial constitution of a newly elected Reichstag is 
interesting.  It comes to order under the presidency of the oldest member; it then elects 
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 are elected for the rest of the session.  There is 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 takes place.  It is only at the first, however, that there is 
a, so to say, experimental election for a trial term of four weeks.

	528. Powers of the Reichstag: the Budget. - The Bundesrath, as I have said, 
governs; the Reichstag in a measure controls.  But only in a measure. Its assent is 
necessary to the validity of all legislation.  Though the Bundesrath originates, it cannot 
rule in the field of law without the cooperation of the popular chamber.  Like other 
popular assemblies, too, the Reichstag votes the taxes and subjects the government 
to sharp criticism when it asks for money.  But the annual budget comes to it, like other 
subjects of legislation, from the Bundesrath, and with the sanction of that great 
chamber already behind it; many of the principal revenue laws are not annual but 
permanent; the army, for whose maintenance the larger votes are asked, is organized 
for periods of several years together and must be paid; and there is really very little 
latitude of choice with regard to any but new or subordinate expenditures.  No minister 
is responsible to the Reichstag for what he does or proposes.  The Emperor may 
dissolve the Reichstag at any time, if the Bundesrath consents, and has frequently 
exercised the power with the result of obtaining in the new elections the majority he 
desired.  The Reichstag may influence affairs, may win slow victories by persistent and 
well-directed criticism, may force modifications of policy; but it is constantly made to 
realize the fact that it cannot govern, and that its chief function is not origination but 
control.

	529. Classes and Parties. - The majority of its members, moreover, are 
Prussians, and Prussia is above all things else a military state, trained to the compact 
order and instinctive obedience of a strong monarchy. Classes, too, are sharply 
marked in Prussia.  An active and influential landed aristocracy furnishes the army with 
its best officers, the court with its most devoted servants, the public assemblies with 
their most conservative leaders. The parties that desire democratic privilege work 
against ancient prestige, against the habit of the community, against the organization 
and the prejudices of long-established classes.  National parties, moreover, are broken 
athwart by the divergent feelings and variant interests of the different states of the 
unequal Empire.  Prussia supports the monarchy whose power galls the lesser states; 
her statesmen withstand the process of liberalization which men of the smaller states 
would fain see pressed forward. Neither responsible party government nor any kind of 
clear-cut constitutional rule is yet possible.

	530. Imperial Administration - While the distinction between the executive and 
legislative functions of government is sharply enough preserved in Germany, no 
equally clear discrimination is made in practice between executive and judicial 
functions.  The judiciary is a branch of the administration.  The caption 'Imperial 
Administration' covers, therefore, all activities of the government of the Empire which 
are not legislative.

	531. Although it is a fundamental principle of the imperial constitution that 'the 
Empire has sovereign legislative power, the states only autonomy,' the Empire has 
heretofore occupied only a part of the great field thus opened to it, and has confined 
itself as a rule to mere oversight, leaving to the states even the execution of imperial 
laws.

	532. The judges of all but the supreme imperial court, for instance, the tariff 
officials and gaugers, the coast officers, and the district military authorities, are state 
officers.

	533. The Imperial Chancellor. - The Empire has, nevertheless, its own distinct 
administrative organs, through which it takes, whether through oversight simply or as a 
direct executive, a most important and quite controlling part in affairs; and the head 
and centre of its administration is the Imperial Chancellor, an officer who has no 
counterpart in any other constitutional government.

	534. (1) Looked at from one point of view, the Chancellor may be said to be the 
Emperor's responsible self.  If one could clearly grasp the idea of a responsible 
constitutional monarch standing beside an irresponsible constitutional monarch from 
whom his authority was derived, he would have conceived the real, though not the 
theoretical, character of the Imperial Chancellor of Germany.  He is the Emperor's 
responsible proxy.  Appointed by the Emperor and removable at his pleasure, he is 
still, while he retains his office, virtually supreme head of the state, standing between 
the Emperor and the Reichstag, as the butt of all criticism and the object of all 
punishment. He is not a responsible minister in the English or French sense (secs. 
427, 868, 869); there is, strictly speaking, no 'parliamentary responsibility' in Germany.  
In many respects, it is true, the Chancellor does occupy with regard to the Reichstag 
much the 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 is forced upon him.  But an adverse vote does not unseat him.  His 
'responsibility' does not consist in a liability to be forced to resign, but consists simply 
in amenability to the laws.  He does not represent the majority in the Reichstag, but he 
must obey the law.

	535. This 'responsibility' of the Chancellor's, so far as it goes, shields, not the 
Emperor only, but also all other ministers.  "The constitution of the Empire knows only 
a single administrative chief, the Imperial Chancellor." ^1

	[Footnote 1: Laband, p. 57.]

	536. So all-inclusive is the representative character of the chancellorship that all 
powers not specifically delegated to others rest with the Chancellor.  Thus, except 
when a special envoy is appointed for the purpose, he conducts all negotiations with 
foreign powers.  He is also charged with facilitating the necessary intercourse between 
the Bundesrath and the Reichstag.

	The Chancellor's relation to the Reichstag is typified in his duty of submitting to it 
the annual budget of the Empire.

	537. (2) Still further examined, the chancellorship is found to be the centre, not 
only, but also the source of all departments of the administration.  Theoretically at least 
the chancellorship is the Administration: the various departments now existing are 
offshoots from it, differentiations within its all-embracing sphere.  In the official 
classification adopted in German commentaries on the public law of the Empire, the 
Chancellor constitutes a class by himself. ^2 There are (1) The Imperial Chancellor, (2) 
Administrative officials, (3) Independent (i.e., separate) financial officials, and (4) 
Judicial officials.  The Chancellor dominates the entire imperial service.

	[Footnote 2: Laband, p. 56.]

	538. (3) A third aspect of the Chancellor's abounding authority is his 
superintendency of the administration of the laws of the Empire by the states. With 
regard to the large number of imperial laws which are given into the hands of the 
several states to be administered, the Empire may not only command what is to be 
done, but may also prescribe the way in which it shall be done: and it is the duty of the 
Chancellor to superintend the states in their performance of such behests.  In doing 
this he does not, however, deal directly with the administrative officials of the states, 
but with the state governments to whom those officials are responsible.  In case of 
conflict between the Chancellor and the government of a state, the Bundesrath 
decides.

	539. The expenses of this administration of federal laws by the states fall upon 
the treasuries of the states themselves, not upon the treasury of the Empire.  Such 
outlays on the part of the states constitute a part of their contribution to the support of 
the imperial government.  The states are required to make regular reports to the 
imperial government concerning their conduct of imperial administration.

	540. (4) When acting in the capacity of chairman of the Bundesrath, the 
Chancellor is simply a Prussian, not an imperial, official.  He represents there, not the 
Emperor, for the Emperor as Emperor has no place in the Bundesrath, but the king of 
Prussia.

	541. During most of the time since the institution of the Empire the Chancellor 
has been also chief minister of Prussia as president of the Council; and such a union 
of offices is both natural and desirable. Theories aside, the Prussian government 
guides imperial affairs through the Chancellor.

	542. The Vice-chancellorship. - The laws of the Empire make a double provision 
for the appointment of substitutes for the Chancellor.  As I have already said, in 
connection with his presidency of the Bundesrath (sec. 511), he may himself appoint a 
substitute, for whose acts he is, however, responsible.  In addition to this a law of 
March 17, 1878, empowers the Emperor to appoint a responsible Vice-Chancellor.  
This appointment is made, upon the motion of the Chancellor himself, for the 
administration of all or any part of his duties, when he is himself hindered, even by an 
overweight of business, from acting; the Chancellor himself judging of the necessity for 
the appointment.  The Chancellor may at any time, too, resume any duties that may 
have been entrusted to the Vice-Chancellor, and himself act as usual.  He is thus, in 
effect, ultimately responsible in every case, - even for the non-exercise of his office.  
The vice-chancellorship is only a convenience.

	543. Foreign Affairs. - The full jurisdiction over the foreign affairs of the Empire 
conferred upon the imperial government by the constitution of the Empire does not 
exclude the several states from having their own independent dealings with foreign 
courts: it only confines them in such dealings to matters which concern them without 
immediately affecting imperial interests. The subject of extradition, for instance, of the 
furtherance of science and art, of the personal relations and private affairs of 
dynasties, and all matters which affect the interests of private citizens individually, are 
left to be arranged, if the states will, independently of the imperial Foreign Office.  The 
states, therefore, have as full a right to send ambassadors for their own constitutional 
purposes as the Empire has to send ambassadors for its greater objects affecting the 
peace and good government of Europe.  It may thus often happen that the Empire and 
several of the states of the Empire are at the same time separately represented at one 
and the same court.  In the absence of special representatives from the states, their 
separate interests are usually cared for by the representative of the Empire.  The 
department of the imperial administration which has charge of the international 
relations of the Empire is known as the Foreign Office simply (das Auswartige Amt).

	544. Internal Affairs. - The general rule of government in Germany, as I have 
said, is that administration is left for the most part to the states, only a general 
superintendence being exercised by the imperial authorities. But the legislative sphere 
of the Empire is very much wider than is the legislative sphere of the central 
government in any other federal state. Imperial statutes prescribe in very great variety 
the laws which the states administer, and are constantly extending farther and farther 
their lines of prescription.  From the Empire emanate not only laws which it is of the 
utmost moment to have uniform, - such as laws of marriage and divorce, - but also 
laws of settlement, poor laws, laws with reference to insurance, and even veterinary 
regulations.  Its superintendence of the local state administration of imperial laws, 
moreover, is of a very active and systematic sort.

	545. Weights and Measures. - Imperial methods of supervision are well 
illustrated in the matter of weights and measures. The laws with reference to the 
standard weights and measures to be used in commerce are passed by the imperial 
legislature and administered by state officials acting under the direction and in the pay 
of the state authorities; but thorough control of these state officials is exercised from 
Berlin.  There is at the capital a thoroughly organized Weights and Measures Bureau 
(Normal- Eichungskommission), which supplies standard weights and measures, 
superintends all the technical business connected with the department, and is in 
constant and direct association with the state officials concerned, to whom it issues 
from time to time specific instructions.

	546. Money. - With regard to money the control of the Empire is, as might be 
expected, more direct.  The states are forbidden to issue paper money, and imperial 
legislation alone determines money-issue and coinage. But even here the states are 
the agents of the Empire in administration. Coining is entrusted to state mints, the 
metal to be coined being distributed equally among them.  This, however, is not really 
state coinage.  The state mints are the mere agents of the imperial government: they 
coin only so much as they are commanded to coin; they operate under the immediate 
supervision of imperial commissioners; and the costs of their work are paid out of the 
imperial treasury.  They are state mints only in this, that their officers and employees 
are upon the rolls, not of the imperial, but of the state civil service.  The Empire would 
doubtless have had mints of its own had these not already existed ready to its hand.

	547. Railways. - The policy of the Empire with reference to the management of 
the railways is as yet but partially developed. The Empire has so far made 
comparatively little use of the extensive powers granted it in this field by its 
constitution.  It could virtually control; but it in practice only oversees and advises. The 
Imperial Railway Office (Reichs- Eisenbahnamt) has advisory rather than authoritative 
functions; its principal supervisory purpose is to keep the various roads safe and 
adequately equipped. Some railways the Empire itself owns, but most of the lines are 
owned by the several states; and the states are bound by the constitution to administer 
them, not independently or antagonistically, but as parts of a general German system.  
Here again the Empire has refrained from passing any laws compelling obedience to 
the constitution on this point; possibly because the states have assiduously complied 
of their own accord.  Using the Bundesrath for informal conference on the matter 
(though the Bundesrath has no constitutional authority in railway administration) they 
have effected satisfactory cooperative arrangements.

	548. The railways of Bavaria stand upon a special footing: for Bavaria came into 
the federation on special terms, reserving an independence much greater than the 
other states retain in the management of her army, her railways, and her posts and 
telegraphs.



THE STATE
Wilson, Woodrow
The Governments Of Germany
    
Part III.

	549. For military purposes, the Empire may command the services of the 
railways very absolutely.  It is as aids to military administration primarily that their 
proper construction and efficient equipment are insisted on through the Imperial 
Railway Office. Even the Bavarian railroads may be absolutely controlled when 
declared by formal imperial legislative action to be of military importance to the Empire.  
With reference to any but the Bavarian roads a simple resolution of the Bundesrath 
alone suffices for this declaration.

	550. The duty of the states to administer their roads as parts of a single system is 
held to involve the running of a sufficient number 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.

	551. At times of scarcity or crisis, the Emperor may, with the advice of the 
Bundesrath, prescribe low tariffs, within certain limits, for the transportation of certain 
kinds of provisions.

	552. Posts and Telegraphs. - Here the administrative arrangements of the 
Empire are somewhat complicated.  Bavaria and Wurttemberg retain their own 
systems and a semi-independence in their administration, just as Bavaria does with 
regard to her railways also; being subject to only so much of imperial regulations as 
brings their postal and telegraphic services into a necessary uniformity with those of 
the Empire at large.  In most of the states the imperial authorities directly administer 
these services; in a few - Saxony, Saxe-Altenburg, the two Mecklenburgs, Brunswick, 
and Baden - there is a sort of partnership between the states and the Empire.  The 
principle throughout is, however, that the Empire controls.

	553. Patents, etc. - Besides the administrative activities with reference to internal 
affairs which I have mentioned, the Empire issues patents, grants warrants to sea-
captains, naval engineers, steersmen, and pilots; and examines sea-going vessels 
with a view to testing their seaworthiness.

	554. Military and Naval Affairs. - The Empire as such has a navy, but no troops. 
Prussia is the only state of the Empire that ever maintained a naval force, and she has 
freely resigned to the Empire, which she virtually controls, the exclusive direction of 
naval affairs.  But the case is different, in form at least, with the army.  That is 
composed of contingents raised, equipped, drilled, and, in all but the highest 
commands, officered by the states.  This at least is the constitutional arrangement: the 
actual arrangement is different.  Only Bavaria, Saxony, Wurttemberg, and Brunswick 
really maintain separate military administrations.  The other states have handed over 
their military prerogatives to the king of Prussia; and Brunswick also has organized her 
contingent in close imitation of and subordination to the Prussian army. Bavaria's 
privileges extend even to the appointment of the commander of her contingent.  The 
Emperor is commander-in-chief, however, appointing all the higher field officers; and 
the imperial rules as to the recruitment, equipment, discipline, and training of troops 
and as to the qualifications and relative grading of officers are of the most minute kind 
and are imperative with regard to all states alike.

	555. Finance. - The expenses of the Empire are met partly from imperial 
revenues, and partly from contributions by the states.  The Empire levies no direct 
taxes; its revenues come principally from customs duties and excises, certain stamp 
taxes, the profits of the postal and telegraph system, of imperial railways, of the 
imperial bank, and like sources.  So far as these do not suffice, the states assist, being 
assessed according to population.  And here, again, the states undertake much of the 
actual work of administration: the customs officials, for example, being state officers 
acting under imperial supervision.  The financial bureaux, like all other branches of the 
imperial government, are immediately subordinated to the Imperial Chancellor.

	556. Justice. - In the administration of justice, as in so many other undertakings 
of government, the Empire superintends, merely, and systematizes. The state courts 
are also courts of the Empire: imperial law prescribes for them a uniform organization 
and uniform modes of procedure: and at the head of the system stands the Imperial 
Court (Reichsgericht) at Leipzig, created in 1877 as the supreme court of appeal.  The 
state governments appoint the judges of the state courts and determine the judicial 
districts; but imperial laws fix the qualifications to be required of the judges, as well as 
the organization that the courts shall have.  The decisions of the court at Leipzig give 
uniformity to the system of law.

	557. Citizenship. - Every citizen of a state of the Empire is a citizen of the Empire 
also and may enjoy the rights and immunities of a citizen in every part of the Empire; 
but citizenship, though rooted in the states by way of locus, is conferred only upon 
terms fixed by federal law. The Empire determines in nearly all respects this 
fundamental question of civil status; and every citizen is thereby made the more 
directly and immediately a citizen of the Empire.  It remains, nevertheless, the theory 
of the relationship that citizenship is primarily state citizenship and that citizenship of 
the Empire flows out of citizenship of the state, as with us. (Compare secs. 1121, 
1124.)

The Government Of Prussia. 

	558. The organization of government in Prussia has, for the student of German 
political institutions, a double interest and importance.  In the first place, Prussia's king 
is Germany's Emperor; Prussia is the presiding and controlling state of the Empire; 
and many of her executive bureaux are used as administrative agencies of the Empire.  
Her government is in a very real sense an organ and representative of the imperial 
government.  In the second place, Prussia's administrative system serves as a type of 
the highest development of local government in Germany.  Prussia has studied to be 
more perfect than any other European state in her administrative organization.

	559. 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 military 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 successors, 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 model of 
centralized civil order.

	560. 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 process was simple 
enough.  In them there was little effective obstruction: 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.

	561. 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 nominated 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.

	562. First Results of Centralization. - The system pursued in the process of 
centralization, so far as there was any system, 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, usually from among their own number, and appointed by the king," saw to the 
preservation of order, to the raising of the levies, to tax collection, and to 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-commissioners, charged with excise and police, 
were the real rulers.  Above this local organization, as an organ of superintendence, 
there was in each province a 'Chamber for War and Domains,' which supervised alike 
the Landrath and the city tax- commissioners.

	563. 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

	[Footnote 1: Tuttle, History of Prussia, Vol. III., pp. 107-109.]

	564. Justice and Finance. - Much progress towards centralization was also made 
by the organization of justice and finance. "The administration of justice was in the 
hands of boards, the Regierungen, or governments, on the one hand [the whole 
organization of administration in Prussia being characteristically collegiate], and the 
courts on the other."

	565. In finance also there was promise of systematization. During the period 
preceding the Napoleonic wars, when 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 need for revenue 
arose out of the undertakings of war. ^1 There were, therefore, at the seat of 
government two specially prominent departments of administration, the one known as 
the 'General War Commissariat,' and having charge of the army, 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.

	[Footnote 1: The army consumed about five-sevenths of the entire revenue.]

	[Footnote 2: Seeley, Life and Times of Stein, Vol. I., Chap. II. Also Tuttle, Vol. I., 
pp. 421, 422.]

	566. 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. Frederick William I. united War and 
Domains under a single central board, to be known as the 'General Supreme Financial 
Directory for War and Domains,' and brought the local war and domains boards 
together in the provinces as Chambers for War and Domains.  Under this arrangement 
the various 'war councillors' who served the provincial Chambers were charged with a 
miscellany of functions. Besides the duties which they exercised in immediate 
connection with military administration, they were excise and police commissioners, 
and exercised in the cities many of the civil 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 Landrathe.

	567. 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 separated 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 confused the system by creating special 
departments immediately 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.

	568. 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 great Ordinance by which he reconstructed the administration of the 
towns.

	569. Prussian administrative arrangements as they now exist may be said to be 
in large part student-made.  As the Roman emperors honored the scientific jurists of 
the Empire by calling upon them to preside over legal development, so have Prussian 
kings more and more inclined to rely upon the advice of cultured students of 
institutions in the organic development of the government.  Stein was above all things 
else a student of governments. In our own day the influence of Professor Gneist upon 
administrative evolution has continued the excellent tradition of student power.  And 
because she has thus trusted her students, Prussia has had practical students: 
students whose advice has been conservative and carefully observant of historical 
conditions.

	570. Of course it is much easier to give such influence to students where the 
government follows for the most part royal or executive initiative than where all 
initiative rests with a popular chamber. It is easier to get and to keep the ear of one 
master than the ears of five hundred.

	571. Reform of Local Government before 1872. - The country 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: ^1 The provinces were divided into 'Government Districts,' as 
now, the Government Districts into 'Circles' or Counties.  An administrative Board 
established in the Government District was then, as now, 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 by-gone age, and 
possessing certain shadowy powers of giving advice.  In the 'Circle' or County, there 
was still the Landrath, as formerly, appointed from a list of local landed proprietors, 
and associated with the 'Estates of the Circle,' a body composed of the county squires 
and a few elected representatives from the towns and the rural townships, - a body of 
antiquated pattern recalled to life, like the Estates of the province, 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 
councils and associated with those councils in all executive business by means of a 
joint-committee organization, the burgomasters being presidents rather than chief 
magistrates.

	[Footnote 1: See R. B. D. Morier's essay on Local Government in Germany, in 
the volume of Cobden Club Essays for 1875.]

	572. Landgemeinde and Manors. - Besides these areas of administration there 
were rural communes (Landgemeinde) still connected, quite after the feudal fashion, 
with adjacent or circumjacent manors, their government 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 supervision 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.

	573. 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 representative bodies.  It retained the 
Landrath, but somewhat curtailed 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. It is upon this legislation, as I have said, that the system of 
local government now obtaining in Prussia is erected ^1 (secs. 588, 618).

	[Footnote 1: Morier, p. 434.]

	574. 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 masqueraded as committees of a cumbrous General Directory, and 
whose functions were distributed entirely upon a basis of logical distinction, not at all 
upon any additional idea of 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, 
retaining 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.

	575. There are now, therefore, 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).

	576. The Council of State. - Most of these ministries were created before Prussia 
had any effective parliamentary system, and when, consequently, there was no 
instrumentality in existence through which there could be exercised any legislative 
control over the executive.  Stein would have revived for the exercise of some 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 (sec. 854), had a 
mixed membership made up in part of princes of the blood royal, in part of certain civil, 
military, and judicial officials serving ex officio, and in part of state officials specially 
and occasionally summoned.  It was Stein's purpose to rehabilitate this body, which 
was in a sense representative of the classes standing nearest to 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 responsibility and freedom of movement.  This part of 
his plan was not, however, carried out, and the Council of State, though still existing, a 
shadow of its former self, has never regained its one-time prominence in 
administration.

	577. Staatsministerium. - Instead of adopting Stein's plan, Count Hardenberg 
integrated the several ministries by establishing the Ministry of State, or College of 
Ministers (Staatsministerium), which stands in much the same relation to Prussian 
administration that the French Council of Ministers (sec. 422) occupies towards 
administration in France, though it in some respects resembles also the French 
Council of State (sec. 468).  It is composed of the heads of the several ministries and 
meets, once a week or oftener, for the consideration of all matters which concern 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 may arise, etc.  It serves to give unity and coherence to administration.

	578. The Supreme Chamber of Accounts. - The same purpose is served by the 
Supreme Chamber of Accounts (Oberrechnungskammer) and by the Economic 
Council (Volkswirthschaftsrath).  The Supreme Chamber of Accounts was founded in 
1714 by Frederic William I.  Its members have the tenure and responsibility of judges.  
Its president is appointed by the Crown on the nomination of the Ministry of State; its 
other members are appointed by the Crown upon the nomination of its president, 
countersigned by the president of the Ministry of State.  It constitutes a distinct branch 
of the government, being subordinate, not to the Ministry of State, but directly 
responsible to the Crown.  Its duty is the careful oversight and revision of the accounts 
of income and expenditure from all departments; and the oversight of the state debt 
and of the acquisition and disposition of property by the state.  It watches, in brief, the 
detailed administration of the finances, and is the judicial guardian of the laws 
concerning revenue and disbursement.

	579. The Economic Council. - The Economic Council considers proposals for 
laws or ordinances affecting weighty economic interests which fall 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 
may be submitted to its debate before going to the king for his approval.  It is also 
privileged to consider the question how Prussia's votes shall be cast upon such 
matters in the Bundesrath.  Of course, however, its part in affairs is merely 
consultative.  It is 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 commerce, mercantile corporations, and agricultural unions.

	580. The Ministers in the Legislature. - The king - or, more properly, the 
Administration - is represented in the legislative houses by the ministers, who need not 
be members in order to attend and speak on the public business.

	581. The Landtag: the House of Lords. - The Prussian Landtag, or Legislature, 
consists of two houses, a House of Lords (Herrenhaus) and a House of 
Representatives (Abgeordnetenhaus).  The House of Lords might better be described 
as a house of classes.  It contains not only hereditary members who represent rights of 
blood, but also life members who represent landed properties and great institutions, 
and officials who represent the civil hierarchy.  There sit in it princes of the blood royal 
nominated to membership by the king; the heads of families once royal whose 
domains have been swallowed up by Prussia; certain greater noblemen 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 Marshal, the Grand Master of the Teutonic Order, and the Chancellor); 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 
landholders of great and ancient possession, the nine universities, and forty-three 
cities which have received the right of nomination.  The king may, besides, issue 
special summons to sit in the House of Lords to such persons as he thinks worthy. 
There is no limit placed upon the number of members, - the only restriction concerns 
age: members must be at least thirty years old.

	582. At present (1897) the number of members is about three hundred. Of these 
quite one-third are of the landed nobility, and almost as many more are the nominees 
of the landed classes; so that the House stands for loyalty to the Crown and opposition 
to liberal change.

	583. The House of Representatives, though in a sense representing every 
Prussian twenty-five years of age who is not specially disqualified to vote, is not 
constituted by a direct popular franchise, or even by an equal suffrage.  The vote is 
indirect and is proportioned to taxable property.  The country is divided into districts; 
the qualified voters of each district are divided into three classes in such a way that 
each class shall represent one-third of the taxable property of the district; each of 
these classes selects by vote a third of the number of electors to which the district is 
entitled; and the electors so chosen elect the members of the House of 
Representatives.

	584. The Electoral System. - One elector is chosen for every two hundred and 
fifty inhabitants; the voting is not by the ballot, but is public, and an absolute majority of 
the electors is required to elect.  The total number of members of the House is 433.  
The term is five years.  Any Prussian who is thirty years of age and in full possession 
of civil rights may be chosen.  In case a vacancy occur in the House, no choice of 
electors is necessary.  Once chosen, the electors are competent to act throughout the 
legislative term.

	585. It need hardly to be remarked that the division of the primary voters into 
classes according to the amount of taxes they pay gives a preponderance to wealth.  
The three classes are of course very unequal in numbers.  It requires a comparatively 
small number of rich men to represent one-third of the taxable property in a district; it 
takes a considerably larger number of the well-to-do to represent another third; and the 
last third will be represented by the great majority of the inhabitants of the district. For 
the classes are not constituted with a view to distributing the small taxpayers and 
equalizing the classes numerically.  Those who pay most taxes constitute the first 
class; those who pay less, the second; those who pay least or none, the third; and it 
may thus very well happen that a very small number of persons elects a third of the 
electors.

	586. Equality and Competence of the House. - The consent of both Houses is 
necessary to the passage of a law, and they stand 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 can pass upon the budget, 
which must be presented first to the House of Representatives, only as a whole.  The 
Lords cannot amend the budget in part when it comes up to them: they must accept or 
reject it entire.

	587. The King's Power of Adjournment and Dissolution. - The king may adjourn 
the House of Representatives for a period not exceeding thirty days, once during any 
one session without its consent.  He may also dissolve it. When a dissolution is 
resorted to he must order a new election within sixty days, and the newly elected 
House must assemble within ninety days.  (Compare sec. 415.)

	588. Local Government. - The organization of local government 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 conservative than the Constituent 
Assembly and Napoleon in France, he did not sweep away the old provinces of 
Prussia, whose boundaries, 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 system established. The country is, indeed, 
divided into Districts (Bezirke) corresponding in general character and purpose with 
the French Departments; but these Districts are grouped under a superintendent 
provincial organization. There are, therefore, in Prussian local organization (1) the 
Province, (2) the Government District, (3) the Circle (Kreis) or County, and (4) the 
township and the town.  The township and the town are, as we shall see, coordinate, 
standing, not in subordination to each other, but in the same rank of the series.

	589. The usual organs of local government throughout all the series of the 
Prussian system are "first, a representative body with an exclusive control over the 
economic portion of the communal business; secondly, an executive board with an 
exclusive control 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." ^1

	[Footnote 1: R. B. D. Morier, Cobden Club Essays (1875) on Local Government 
and Taxation, p. 433.]



THE STATE
Wilson, Woodrow
The Governments Of Germany
    
Part IV.

	590. The Province. - There are in the Province two sets of governmental organs: 
one of which represents the state and its oversight, the other the Province and its self-
government.  (1) The state is represented by a Superior President and a Provinzialrath 
associated with him.  The original purpose in retaining the provincial organization was 
to secure broad views 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 administration than the minister at Berlin, but 
not so near as the officials of the Government Districts, the provincial representatives 
of the state are 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 are 
such matters as effect 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 act, however, not through officers of 
their own, but through the District Administrations.  There lies 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 represents the central government, too, in all special, 
occasional duties, and under all extraordinary circumstances.  He has, besides, initial 
jurisdiction in cases of conflict between District Administrations, or between such 
Administrations and specially commissioned officials not subject to their orders.

	[Footnote 2: Schulze, Das Staatsrecht des Konigreichs Preussen (in 
Marquardsen's Handbuch), p. 63.]

	591. 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 is 
authorized to assume the whole authority of administration, local as well as general, 
within the Province.

	592. In overseeing the District Administration, however, he has no executive, but 
only advisory, powers.  He is merely the eye of the Ministries at Berlin, advising them 
of all matters needing their action. Like the French Prefect, he is the servant of all 
Ministries alike, though most directly and intimately associated with the Ministry of the 
Interior.

	593. The defect of the provincial organization in Prussia is said to be lack of 
vitality.  Critics like Professor Gneist thought that it rendered the system of local 
government cumbrous without adding to its efficacy.  It is too much restricted to 
gratuitous advice, and too little authorized to take authoritative action.

	594. The Provinzialrath, the administrative Council associated with the Superior 
President, consists, besides the President or his representative as presiding officer, of 
one professional civil official of high rank, appointed by the Minister of the Interior, 
practically for life, and of five lay members chosen by the Provincial Committee for a 
term of six years.  The assent of the Provinzialrath is necessary to every ordinance 
issued by the Superior President.

	595. (2) The organs representing the Province and its self-government are the 
Provincial Landtag, the Provincial Committee, and the Landeshauptmann or 
Landesdirektor.  In a Prussian law concerning local government the province is 
described as "a communal union established with the rights of a corporation for self-
government of its own affairs." ^1 The provincial legislative body, the Landtag, is 
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 is a 
union of Circles, not of Districts: the Districts, as we shall see, are organs of the central 
government only. The functions of the Landtag lie within the narrow field of such 
matters as the apportionment of taxes among the Circles (which in their turn apportion 
them among individuals), the examination of the local budget, the care of provincial 
property, and the election of certain officials, - though it is at liberty to take cognizance 
of anything that is of local concern.

	[Footnote 1: Schulze, Das Staatsrecht des Konigreichs Preussen (in 
Marquardsen's Handbuch), p. 85.]

	596. It may 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 may be present at its sessions and may annul all acts 
in which it oversteps its jurisdiction.  Its by-laws are subject to the Crown's approval, as 
are also many of its votes of appropriation; and the king may dissolve it.

	597. The Landtag elects the Provincial Committee and the Landeshauptmann, 
who are the executive organs of provincial self- government.  The Landeshauptmann 
and the Committee stand related to each other very much as do the Superior 
President and Provinzialrath, or the French Prefect and the Prefectural Council: the 
Landeshauptmann is the executive, the Committee the advisory organ of local self-
administration, though it in effect directs the action of the Landeshauptmann in most 
matters.

	598. The spheres of the representatives of the state and of the representatives of 
local self-government are quite sharply distinguished in Prussia.  The Provincial 
Committee and the Landeshauptmann have nothing to do with the general 
administration: that is altogether in the hands of the Superior President and the 
Provinzialrath, who on their part have nothing to do with local self-government.  The 
sphere of local self-government, though narrow, is somewhat more guarded against 
the constant interference of the central authorities in Prussia than in France.  
(Compare sec. 454.)

	599. Communal Estates. - In some Provinces there still exist certain 
corporations, representing the old organization by 'estates' of independent districts, 
which retain their 'landtag,' their separate property, and a small part of their privileges.  
They constitute rural poor-unions, and play a limited part in local administration 
according to the sharply explicit laws of incorporation under which they now exist.  
They are, however, being gradually abolished or transformed by special enactments. 
Their German name is Kommunal-standische Verbande, which may be translated, 
Unions of Communal Estates.

	600. The Government District (Regierungsbezirk). - Unlike the Province, the 
Government District has no organs of self-government: it is exclusively a division of 
state administration.  Its functionaries are the principal, - it may even be said the 
universal, - agents of the central government in the detailed conduct of administration: 
they are 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 are exceptionally entrusted to officers specially commissioned for 
the purpose.  In brief, they serve every ministry except the Ministry of Justice.

	601. Collectively the functionaries of the District are called the 'Administration' 
(Regierung), and their action is for the most part collegiate, i.e., through Boards.  The 
exception to this rule concerns matters falling within the province of the Ministry of the 
Interior.  That Ministry acts in the District, not through a board of officials, but through a 
single official, the President of the Administration (Regierungsprasident).  In dealing 
with all other matters the action is collegiate; but the Boards are not independent 
bodies: they are divisions (Abtheilungen) of the 'Administration' taken as a whole, and 
in certain affairs of general superintendence the 'Administration' acts as a single 
council (im Plenum). Each Board is presided over by a 'Superior Administrative 
Councillor' (Oberregierungsrath); and that on Domains and Forests has associated 
with it a special functionary known as the Forest- master.  The members of the 
'Administration' are all appointed by the central government, which places upon the 
Boards whose functions require for their proper discharge a special training certain so-
called "technical members": for instance, school experts, medical experts, road-
engineers, and technically instructed forest commissioners.

	602. These 'Administrations' have taken the place of the old-time War and 
Domains Chambers of which I have spoken (sec. 565), and which, like the 
Administrations, acted through Boards as a sort of universal agency for all 
departments of government.  It is only since 1883 that the affairs of the Interior have 
been given into the sole charge of the President of the Administration.  Before that 
date they also were in the hands of a Board.

	603. "Every head of a department, as well as every Rath and assessor, is bound 
each year to make a tour through a portion of the district, 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." ^1 (Compare sec. 563.)

	[Footnote 1: Morier (Cobden Club Essays), p. 422.]

	604. The President of the Administration (Regierungsprasident) is the most 
important official in the Prussian local service.  Not only does he preside over the 
'Administration,' the general and most important agency of local government; he is also 
equipped for complete dominance.  He may, upon occasion, annul the decisions of the 
'Administration' or of any of its Boards with which he does not agree, and, in case 
delay seems disadvantageous, may himself command necessary measures.  He may 
also, if he will, set aside the rule of collegiate action and arrange for the personal 
responsibility of the members of the 'Administration,' whenever he considers any 
matter too pressing to await the meeting and conclusions of a Board, or, if when he is 
himself present where action is needed, he regards such an arrangement as 
necessary. ^2 In brief, he is the real governing head of local administration.  The 
jurisdiction of the 'Administration' covers such matters as the state taxes, the churches, 
the schools, and the public domain.

	[Footnote 2: Schulze (in Marquardsen), p. 64.]

	605. The District Committee. - Although, as I have said, the Government District 
is not an area of self-government, a certain part in the oversight of governmental 
action in the District is given to lay representatives chosen by the provincial agents of 
the people.  A District Committee (Bezirksausschuss), composed of two professional 
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 (sec. 597) for a term of six years, is 
allowed an oversight of such matters as it has been thought best to put under lay 
supervision.  The President of the Administration is ex officio a member of the 
Committee and usually presides over its sessions. All orders or arrangements which 
he wishes to make with regard to local police are subject to its confirmation, and all 
questions regarding the control of subordinate local authorities fall to it.  More 
important than its administrative functions are the judicial functions with which it has 
been recently invested. Since 1883 the District Committee has been the Administrative 
Court of the District (sec. 628).  When acting in this capacity the Committee is presided 
over by its judicial member, and the President of the Administration does not sit with it.

	606. The Government Districts number thirty-five, and are grouped, as I have 
said, within the twelve Provinces.

	607. The Circle (Kreis). - In the Circle, as in the Province, there emerges a 
double set of functions: there is the state administration and, alongside of it, the 
narrower function of self-government.  This double set of functions is performed, 
however, by a single set of functionaries: by a professional officer known as the 
Landrath, associated with a Circle Committee (Kreisausschuss), which acts by 
delegation for the Diet of the Circle (Kreistag), the consultative and supervisory 
authority.  There are not, as in the Province, one council and one executive for the 
state, another council and another executive for the locality.

	608. The Landrath and the Circle Committee. - The Landrath stands upon a 
peculiar footing: his office is ancient and retains some of its historical features.  
Originally the Landrath represented the landed gentry of various districts of 
Brandenburg; he was appointed upon their nomination and in a sense represented 
their interests.  In some parts of Prussia traces of this right of presentation to the office 
by the landowners still remain; and in almost all parts of the kingdom the privilege of 
nomination has been transferred to the Circle Diet, as heir of the control once 
exercised by the local lords of the soil.  The Landrath is, therefore, formally, the 
representative of the locality in which he officiates.  In reality, however, he is 
predominantly the agent of the state, serving both the District Administration and the 
departments at Berlin.  He is appointed by the Superior President of the Province in 
which the Circle lies, and is always a professional officer who has passed, by 
examination, into the higher grades of the civil service.  He is chief of police within the 
Circle, and superintendent of all public affairs.  The Circle Committee is associated 
with him in the administration of his office and organized under his presidency. It 
consists, besides himself, of six members chosen by the Circle Diet.  It constitutes the 
Administrative Court of the Circle (sec. 628), hearing appeals from the acts of 
subordinate officials as well as supervising administrative action.

	609. The Diet of the Circle represents, not the people, but groups of interests, - is 
based upon the economical and social relations of the people. Each Circle includes all 
towns lying within it which have less than 25,000 inhabitants, and representation in the 
Diet is divided between town and country.  The country representation, in its turn, is 
divided between the rural Communes and the greater landowners.

	610. The cities elect representatives either singly or in groups; if singly, through 
their magistrates and councils acting together; if in groups, through electors who 
assemble under the Presidency of the Landrath. As 'greater landowners' are classed 
all those who pay, in their own right, 75 thalers annual land or building tax; and these 
are organized for electoral purposes in Unions (Verbande).  The rural Communes elect 
in groups through electors.  The term of members of the Circle Diet is six years.  Cities 
having more than 25,000 inhabitants constitute separate Circles, and combine in their 
town governments both Circle and Commune under the forms of city government.

	611. The Circle the Basis of Local Government. - A moment's review of the 
electoral arrangements which underlie Prussian local government as I have outlined it 
will show how literally the whole structure, so far as it is a system of self-government, 
rests upon the electoral organization of the Circle.  The Diet of the Circle is the only 
representative body I have yet named which is chosen by the qualified voters of the 
locality: and it is not chosen directly.  The larger towns elect their quota of members 
through their councils, while the smaller towns unite and choose through electors.  The 
rural Communes elect in groups, through electors. The greater landowners send their 
separate quota.  And then from the Circle Diet, when once it is chosen, proceed, 
indirectly, all the other lay bodies of administration in the larger areas.  It nominates the 
Landrath, elects the Circle Committee, and unites with the Diets of the other Circles of 
the Province in choosing the provincial Landtag.  The provincial Landtag, in turn, elects 
the Landeshauptmann and the Provincial Committee.  The Provincial Committee 
elects five out of the seven members of the Provinzialrath and four out of the six 
members of the District Committee. Each Provincial Committee chooses, on an 
average, two District Committees. It is in only a very restricted sense a system of 
popular control in local affairs.  It is a long way from the people to the District 
Committee.

	612. The Magisterial District (Amtsbezirk). - The rural Communes are grouped in 
Magisterial Districts containing each about fifteen hundred inhabitants; and each 
District is presided over by a Reeve or Justice (Amtsvorsteher or Amtsmann) who is 
appointed by the king upon the nomination of the Circle Diet, usually from among the 
landowners of the locality.  The Reeve's term is six years.  He is given charge of the 
police of the District, and is entrusted with the administration of the laws for the relief of 
the poor and the preservation of health.  As police commissioner he is put over the 
mayors of the several Communes within his district.  He acts under the supervision of 
the Committee of the Circle.

	613. The Rural Commune (Landgemeinde). - The larger rural Communes act 
through small representative assemblies or councils, while the less populous regulate 
their affairs by mass meeting.  In some Communes the executive officer is known as 
'mayor,' in others as 'village judge,' in still others as 'president.  In most localities he is 
assisted by one or more aids or assessors.  The electoral privilege is based upon the 
three- class system of voting described in secs. 583-585, except that those who pay 
no taxes at all are usually excluded from the franchise.  The powers of the Communes 
cover all matters of strictly local interest.

	614. The City Communes (Stadtgemeinde). - Among the City Communes there is 
great variety of organization.  In some cities there is a single executive, - a single 
Burgomaster, - perhaps assisted by certain Boards; in others the Burgomaster has 
colleagues; in still others the magistracy is collegiate, - is itself a Board.  In all there are 
councils more or less directly representative of the people.  In the cities, as in every 
other unit of local administration, the subjects of finance, police, and the military are 
largely controlled from Berlin; and in these branches of administration the city 
governments are agencies of the central government. They thus have a double 
character; they are at one and the same time representatives of the authorities at the 
capital and of the citizens at home.  When acting as agencies of state administration 
they are, of course, responsible to the central Departments at Berlin.

	615. There is in Prussian local organization none of the extreme, the rather 
forced uniformity so noticeable in France, where no difference is made between rural 
Communes and City Communes, only the greater cities, like Paris and Lyons, being 
given a special organization.  In Prussia historical and other grounds of variety have 
been freely observed.

	616. General Principles of Prussian Town Government. - Although without 
uniformity of structure, town government in Prussia has certain uniformities of principle 
at its basis which render it a striking example of active self-government.  The mayor of 
a Prussian city is a trained official, taken from the professional service; but he is not 
the Executive; he is simply president of the executive.  There is associated with him a 
board of Aldermen most of whose members are elected from the general body of 
citizens, to serve without salary, but an important minority of whose members are 
salaried officials who, like the mayor, have received a thorough technical training in 
their various branches of administration, and whose tenure of office is in effect 
permanent: and this board of Aldermen is the centre of energy and rule in city 
government.  But it acts under check.  A town council represents the citizens in the 
exercise of a control over the city budget, and citizens not of the Council as well as 
Councilmen act with the Aldermen in the direction of executive business. The 
Aldermen do their administrative work in Committees, and act 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 command also the assistance 
of local committees of citizens, by whom the conditions and needs of the various 
districts of the town are familiarly known.  Thus in the work of poor relief, in the 
guardianship of destitute orphans, in education, and in tax assessment 'select citizens' 
commonly reinforce 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, 
is not optional; it is one of the cardinal principles of the system that service as a 'select 
citizen' is to be enforced by penalties, - by increasing the taxes of those who refuse to 
serve.

	617. Berlin "governs itself through more than ten thousand men belonging to the 
wealthier part of the middle classes." ^1 The citizens chosen for ward work or for 
consultation with the central committees of Aldermen and town-councillors include 
merchants, physicians, solicitors, manufacturers, head-masters of public schools, and 
like representative persons.

	[Footnote 1: Professor Gneist, Contemporary Review, Vol. 46 (1884), p. 777.]

	618. The three-class system of voting described in secs. 583, 584, and 585 
obtains also in all municipal elections in Prussia, so that weight in the electoral control 
of city affairs is proportioned to tax-assessment. One-third of the elected Aldermen and 
town-councillors represent the wealthy class, one-third the middle class, one-third the 
'proletariat.' It is said that in Berlin the first class contains "less than two per cent of the 
voters, the second class less than thirteen per cent, and the third eighty-six per cent." 
The arrangement breeds a deep discontent in the lowest class and they largely refrain 
from voting.

	619. The Administration of Justice. - The Prussian courts of justice, like those of 
the other states of the Empire, have the general features of their organization and 
jurisdiction prescribed by imperial law (sec. 556). They are Prussia's courts; but they 
also serve as courts of the Empire; Prussian law commands only their personnel and 
their territorial competence. At the head of the system sits the supreme court of the 
Empire (Reichsgericht), to which the courts of all the other states stand subordinated. 
^2 In each Province there is a Superior District Court (Oberlandesgericht), and, next 
below it, a District Court (Landgericht). In each magisterial District there is an 
Amtsgericht.

	[Footnote 2: Prussia is vouchsafed by imperial law the privilege of retaining her 
own supreme court; but she has not availed herself of the permission.]

	620. The Amtsgericht, which is the court of first instance in minor civil cases, 
consists of one or of several judges, according to the amount of business there is for 
the court to despatch: for when there is more than one judge the work is not handled 
by them together, but separately; it is divided, either logically or territorially.

	621. The higher courts, the District Court, and the Superior District Court consists 
each of a number of judges.  At the beginning of each year, the full bench of judges in 
each court determine a division of the business of the court among themselves, 
constituting themselves in separate 'chambers' for separate classes of cases.  There is 
always a 'civil chamber' and a 'criminal chamber,' and often a chamber for commercial 
cases (Kammer fur Handelssachen). Each chamber has its own president and its own 
independent organization.

	622. Minor criminal cases are tried in sheriffs' courts (Schoffengerichte) 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 sit under the 
presidency of three judges of the District Court.

	623. An appeal from a sheriff's court on the merits of the case can go no further 
than the District Court.  Appeals on the merits of the case from the criminal chamber of 
the District Court are not allowed; but a case can be taken from that court on the 
ground of the neglect of a rule of law to the Superior District Court, and on other legal 
grounds to the Imperial Court, for revision.

	624. The nomination of all judges rests with the king: but the appointment is for 
life and the judges stand in a position of substantial independence.  The Minister of 
Justice, however, completely controls all criminal prosecutions: for no criminal 
prosecution can be instituted except by the states-attorneys who represent the 
government in the several courts, and these hold their offices by no permanent tenure, 
but only at the pleasure of the Minister.

	625. Purity in the administration of justice is sought to be secured by public oral 
proceedings.  Until a very recent period all proceedings in the Prussian courts were 
written: the plea and the answer constituted the suit. Now public oral proceedings are 
made imperative.

	626. The organization of justice in Prussia provides for the assumption by the 
state of a certain 'voluntary' jurisdiction, some of which, such as the exercise of 
guardianship and the probate of wills (which latter is 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 knows also certain officially commissioned Arbitrators 
(Schiedsmanner) and certain trade judges, which are in some respects peculiar to 
itself.

	627. Administrative Courts (Verwaltungsgerichte). - The same distinction 
between administrative and ordinary courts of justice that we have observed in France 
obtains also in Prussia (sec. 468).  Here again appears the organizing hand of Stein.  
He established for Prussia the principle that cases arising out of the exercise of the 
state's sovereignty should be separated in adjudication from cases between private 
individuals and should be allotted to special courts.  Such are 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.

	628. The courts charged with this jurisdiction are, (1) in the Circle, the Circle 
Committee (sec. 608), presided over, as in dealing with other matters, by the Landrath, 
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 (sec. 605), to whose presidency 
when sitting in this capacity, the king may appoint, as representative of the President 
of the Administration, one of the members of the 'Administration' under the title of 
Director of the Administrative Court (Verwaltungsgerichtsdirektor).  (3) The Superior 
Administrative Court in Berlin (Oberverwaltungsgericht), whose members are 
appointed by the king, with the consent of the Council of Ministers, for life.  This court 
stands upon the same footing of rank with the supreme federal tribunal, the 
Reichsgericht. Its members must be qualified, half of them for high judicial, half for 
high administrative office.  It acts, like the other courts, in divisions or 'senates,' each of 
which has its separate organization; and these sections come together only for the 
settlement of certain general questions.  (Compare sec. 468.)

	629. The Court of Conflicts (Gerichtshof fur Kompetenz-konflikte). - Between the 
two jurisdictions, the ordinary or private and the administrative, stands, as in France, a 
Court of Conflicts.  It consists of eleven judges appointed for life (or for the term of their 
chief office, in case they act ex officio); and of these eleven six must be members of 
the Superior District Court of Berlin, - must belong, that is, to a court of the ordinary 
jurisdiction.  The other five must be persons eligible to the higher judicial or 
administrative offices.  (Compare sec. 475.)

	630. The Prussian Courts and Constitutional Questions. - The Prussian courts 
have no such power of passing upon the constitutionality of laws as is possessed by 
the courts of the United States.  They cannot go beyond the simple question whether a 
law has been passed, or, in administrative cases, an official order issued, in due legal 
form.

Some Representative Authorities. 

     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.

     Demombynes, G., "Constitutions Europeennes." 2 vols., 8vo. Paris, 1883.
See Vol. II., pp. 487 and 733.

     Dupriez, L., "Les Ministres dans les principaux pays d'Europe et
d'Amerique," 2 vols., Paris, 1892.

     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." 10th ed., Berlin, 1895.

     James, E. J., "The Federal Constitution of Germany." (Translation.) Am.
Acad. Social and Political Science, Phila., 1890.

     Laband, Paul, "Das Staatsrecht des deutschen Reiches," 3 vols., Tubingen,
1876-1882.  Now in third edition.  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.

     Mejer, Otto, "Einleitung in das deutsche Staatsrecht." 2d ed. Freiburg in
B., 1884.

     Morier, R. B. D., in Cobden Club Essays on "Local Government and
Taxation." 1875.

     Ronne, L. v., "Das Staatsrecht des deutschen Reiches." 2d ed., Leipzig,
1876.  And "Das Staatsrecht der preussischen Monarchie." 5 vols. 4th ed.,
1881-1883.

     Sarwey, O von, "Allgemeines Verwaltungsrecht," in Marquardsen's "Handbuch
des Oeffentlichen Rechts der Gegenwart." Freiburg in B., 1884, pp. 112-117.

     Seeley, J. R., "Life and Times of Stein." Part I., Chap. V.; Part III.,
Chap. I.; Part V., Chaps. II., III.

     Schulze, Hermann, "Das preussische Staatsrecht, auf Grundlage des
deutschen Staatsrechtes," 2 vols., Leipzig, 1872-1877.  Also "Das Staatsrecht
des Konigreichs Preussen," in Marquardsen's "Handbuch." Freiburg in B., 1884.

     Stengel, K. von, "Worterbuch des deutschen Verwaltungsrechts," 2 vols.,
Freiburg in B., 1889-1890.

     Turner, Sam'l Epes, "A Sketch of the Germanic Constitution," N.Y., 1889.



THE STATE
Wilson, Woodrow
The Governments Of Switzerland
    
Part I.

	631. 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 feudal system.  Real vassalage, indeed, such as the low countries of 
France and Germany knew, had never penetrated to all the valleys of the Alps; many a 
remote commune had never known anything but a free peasantry; and hardly 
anywhere near the 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 overlordships, and most of the Swiss Cantons of 
to-day represent pieces of old feudal domains.

	632. First Movements towards Cantonal Independence. - In 1309, however, 
began the process which was to create the Switzerland 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.

	633. The Processes of Confederate Growth. - In its briefest terms the story is 
this.  The Cantons broke from the toils of the 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 development 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 prevailed: so that union was at last achieved.

	634. 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 
Revolution.  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 present 
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 compact and centralized 'Helvetic 
Republic,' after the new model just set up in unhappy France (1798-1802).  Napoleon 
had intervened (1803-1814) for the purpose of both loosing these artificial bonds and 
creating a new cement for the League in the shape of a common allegiance to himself.  
And, in 1815, the pressure of the French power being removed, reaction had come. 
The irritated 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 reaction, 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.

	635. 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 
confederate 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 privileges 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 threatened 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, 
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, Unterwalden, 
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.

	636. The New Constitution. - Constitutional revision followed immediately.  The 
Pact of 1815 was worn out: a strong and progressive 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 important revision of 1874, is the present Constitution of 
Switzerland.

	637. 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 highest 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 
Confederation. The popular chamber is called the 'National Council' (der Nationalrath), 
the federal senate, the 'Council of States' (der Standerath).  The former represents the 
people as a whole; the latter, the States as constituent members of the Confederation.

	638. Much of the resemblance of these arrangements to our own is due to 
conscious imitation.  The object of the reformers of 1848 and 1874 was not, however, 
to Americanize their government, and in most respects it remains distinctively Swiss.

	639. Nationality and State Sovereignty. - Much as such institutions resemble our 
own federal forms, the Constitution of Switzerland rests upon federal foundations such 
as our own government 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 maintaining 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 familiar to us now than it was before 1861.  
It speaks of the Confederation as formed by "the people of the twenty-two sovereign 
Cantons," and it explicitly declares that "the Cantons are sovereign, so far as their 
sovereignty is not limited by the federal Constitution, and exercise as such all rights 
which are not conferred upon the federal power"; and its most competent interpreters 
are constrained to say that such a constitution does 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 unquestionably 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.

	640. 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 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 guarantee 
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 Constitution, the guaranteeing of the cantonal constitutions, or the fulfilment of 
federal duties for their object"; and to effect revisions of the federal Constitution.

	641. It adds to such federal powers as we are familiar with the authority to 
regulate religious bodies and monastic orders, to control the manufacture and sale of 
alcoholic liquors, to establish general sanitary regulations in the case of certain 
diseases, to control the construction and operation of all railroads, to regulate labor in 
factories, to provide for the compulsory insurance of workmen, and to legislate 
throughout the whole field of commercial 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.

	642. Guarantee of the Cantonal Constitutions. - The Swiss federal 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 representative 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 govern-
     ment 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
     government for its constitution, and even for each amendment as added.

The Cantonal Governments. 

	643. 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 Confederation is best gained by studying first the political institutions 
of the Cantons.  At almost all points the federal government exhibits likeness to the 
governments of the 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.

	644. In some respects the Swiss Constitution is more conservative - or, if you 
will, less advanced - than the Constitution of the United States. Those who have fought 
for union in 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 persistent resistance to the strengthening and even the logical development of 
the prerogatives of the federal power.  The Constitution of the Confederation, therefore, 
bears many marks of compromise.  It gives evidence at certain points of incomplete 
nationalization not only, but even of imperfect federalization.  Cantonal institutions are, 
consequently, upon a double ground entitled to be first considered in a study of the 
governments of Switzerland. Both their self- assertive vitality and their direct influence 
upon federal organization make them the central subject of Swiss politics.

	645. 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 separation of legislative, executive, and 
judicial functions.  I say 'in practice'; for in theory such distinctions are observed.  The 
constitutions of fully half the Cantons say explicitly that legislative, executive, and judicial 
functions shall be kept fundamentally 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, therefore, to give to their 
legislative bodies a share both in the administration and in the interpretation of laws; and 
these bodies are unquestionably the axes of cantonal politics.

	646. 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 legislature have been made after foreign, not after Swiss, 
models. In Uri, Unterwalden, Glarus, and Appenzell this single lawmaking body is the 
Landsgemeinde, the free assembly of all the qualified voters, the folk-moot; but in the 
other Cantons the legislative assembly is representative. Representatives are elected by 
direct popular vote in all the Cantons, and in almost all by the secret ballot.

	647. Elections are for a term which varies from one year to six 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, the average being about one to every 994 inhabitants. ^1

	[Footnote 1: Orelli, Das Staatsrecht der schweizerischen Eidgenossenschaft 
(Marquardsen's Handbuch), pp. 100, 101.]

	648. In most of the Cantons the legislative body is called the Great Council 
(Grosse Rath) - the executive body being the Lesser Council.  In some it is called the 
Cantonal Council (Kantonsrath); in others, the Landrath.

	649. Functions of the Cantonal Legislatures. - The functions of these councils 
have the inclusiveness characteristic of Swiss 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 cantonal 
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 (secs. 1218, 1219).

	[Footnote 1: Orelli, p. 99.]

	650. The Executive Power is collegiate in all the Cantons, is exercised, that is, 
not by a single individual or by several individuals acting independently of each 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" (Regierungsrath).  Its term of office varies in the different 
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 eleven Cantons, and only eight retain the practice of election by the 
Great Council.  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 party leaders, and its membership is usually made up, not from 
one, but from the several political parties of the Canton.

	651. The Administrative Council usually consists of from five to seven members, 
though in the Canton of Berne it contains nine.  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 departments are under the 
general direction of the Council as a whole, and the administration of a canton has 
usually a very real coherence and an intimate coordination.

	652. The People's Control over Legislative Action. - Although the people have 
delegated their legislative powers to representative 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 (Berne) 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 hundred 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 popular 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 almost 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.

	653. The Popular Veto. - In some of the smaller Cantons, again, the people are 
given a right of Veto.  It is provided that, within a certain length of time after the 
publication of a measure passed by the Council (generally about a month), a popular 
vote upon the measure may be forced by the petition of some fifty citizens (the number 
varies of course in different Cantons) and the measure be made to stand or fall 
according to the decision of that vote.  The law is rejected, however, only when an actual 
majority of all the registered voters cast their ballots against it. Those who do not vote 
are reckoned as favorable to the law.

	654. The Initiative: Imperative Petition. - So far has the apparent logic of 
democracy been carried in Switzerland that the 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 except Geneva the people have been granted the right to initiate 
constitutional reforms by petition; and in all except Luzern, Freiburg, and Valais 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 constitutional amendments.  In the case 
of ordinary legislation, specific laws may be proposed by petition, in all the Cantons 
except the three 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 provided 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 proposal 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 
fundamental law.  The number of signatures required for these imperative petitions 
varies with the size of the Cantons, a very usual number being from five to six thousand.  
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.

	655. The Initiative has been very little used, having given place in practice, for 
the most part, to the Referendum.  Where it has been employed it has not promised 
either progress or enlightenment, leading rather to doubtful experiments and to 
reactionary displays of prejudice than to really useful legislation.  In both of the great 
Cantons of Zurich and Berne, the most populous and influential in the Confederation, it 
has been used to abolish compulsory vaccination.  It was established for the 
Confederation only six years ago (1891), and has been used in federal legislation only to 
aim a blow at the Jews, under the disguise of a law forbidding the slaughtering of 
animals by bleeding.

	656. The Referendum. - Both Veto and Initiative in practice yield precedence to 
the Referendum.  In every Canton of the Confederation, except Freiburg only, the right 
of the people to have all important 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 consideration of the people.  Among 
the Cantons which have representative institutions, on the other hand, the Referendum 
assumes a different form. In about one-half 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' Referendum.  In the rest 
of the Cantons (always excepting Catholic and conservative Freiburg) substantially all 
substantive changes in the laws must be submitted to the electors, and the action of 
their legislatures is periodically voted upon.  This is known as the 'obligatory' 
Referendum.  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.

	657. 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, Graubunden, namely, and Valais.  
These Cantons were not at that time members of the Confederation, but merely districts 
allied with it (zugewandte Orte). Within themselves they constituted very loose 
confederacies of Communes (in Graubunden 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 members of the central council of the 
Confederation acted always under instructions from their respective Cantons, and upon 
questions 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 commissioned 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

	[Footnote 1: Orelli, p. 104.]

	658. 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 1852, and it was not until the decade 1864-
1874 that it won its way into the constitutional practice of the greater Cantons.  Its use, 
therefore, is everywhere new, and the experience by which we must judge of it is recent 
and partial.  It is still tested only in part.  It has led in most cases to the rejection of 
radical legislation, even to the rejection of radical labor legislation, such as the ordinary 
voter might be expected to accept with avidity.  The Swiss populations, being both 
homogeneous and deeply conservative, have resisted, as perhaps no other people 
have, the infection of modern radical opinion.  They have shown themselves apt to 
reject, also, complicated measures which they do not fully comprehend, and measures 
involving expense which seems to them unnecessary.  And yet they have shown 
themselves not a little indifferent, too.  The vote upon most measures submitted to the 
ballot is usually very light; there is not much popular discussion; and the Referendum by 
no means creates that quick interest in affairs which its originators had hoped to see it 
excite.  It has dulled the sense of responsibility among legislators without in fact 
quickening the people to the exercise of any real control in affairs.

	659. Local Government: the Districts. - Local government in the Cantons exhibits 
a twofold division, into Districts and Communes.  The District is an area of state 
administration, the Commune an area of local self-government. The executive functions 
of the District, the superintendency of police, namely, and the carrying into effect of the 
cantonal laws, are entrusted, as a rule, not to a board, but to a single officer, - a 
Bezirksammann or Regierungs-Statthalter, - who is either elected by popular vote in the 
District or appointed by one of the central cantonal councils, 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.

	660. 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 (sec. 1218).  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.

	661. There is by no means a fixed and uniform organization in the local 
government of the Cantons.  In the Communes of the French Cantons, for example, the 
people do not themselves act directly in affairs, in township meeting, as the people of the 
German Cantons do, but through an elected council, and the organization of local 
business suggests the cantonal organization upon a small scale.  In all the Communes 
alike, however, as in the Cantons, the executive power is vested in a board of officials, 
presided over by a Hauptmann, a Gemeindeamman, a Syndic, or a Maire.  This 
communal or municipal council is chosen, in the German Cantons, by the freemen in 
assembly, in the French Cantons by the representative body to which supervision in 
affairs and the enactment of all local regulations is entrusted.  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.

	662. 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.  Naturalization is 
regulated by federal law; but the full rights of citizenship can be conferred only by 
cantonal and communal law.

The Federal Government. 

	663. 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 
Canton, 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.

	664. The executive commission of the Confederation is known as the Federal 
Council (Bundesrath).  It consists of seven members elected for a term of three years by 
the two houses of the federal legislature acting together in joint session as a Federal 
Assembly (Bundesversammlung).  The Constitution forbids the choice of two of its seven 
members from one and the same Canton: they must represent seven of the twenty-two 
Cantons.  The Council is organized under a President and Vice-President 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 STATE
Wilson, Woodrow
The Governments Of Switzerland
    
Part II.

	665. 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.  Berne and Zurich have always been represented in the Bundesrath, and are 
considered to have acquired a sort of prescriptive right to places on it.  Vaud has 
almost always had a member, too; and Aargau was represented continuously till 1891.

	666. 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. ^1

	[Footnote 1: Westminster Review, Vol. 129, p. 207.]

	667. The Federal Assembly fills all vacancies in the membership of the Council, 
electing, however, only for the unexpired term.

	668. 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 Bundesrath must 
be renewed by the two Houses upon the assembling of the new National Council.  The 
Bundesrath is thus not, strictly speaking, elected for three years, but for the term of the 
National Council, whatever that may turn out to be.

	669. The precedence of the President of the Council is a 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.

	670. The Executive and the Legislature. - The members of the Federal Council, 
though they may not be at the same time members of either House of the Legislature, 
may attend the sessions of either House, may freely take part in debate, and may 
introduce proposals concerning subjects under consideration: may exercise most of 
the privileges of membership, except the right to vote.  They are expected, indeed, to 
prepare and guide the business 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.

	671. There have been two cases since the establishment of the Council, in 1848, 
- two cases, that is, in fifty years, - of resignation from the Council on the ground of 
disagreement in political opinion, - but two only. ^1

	[Footnote 1: Westminster Review, Vol. 129, p. 207.]

	672. 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 
impossible: it has been necessary to divide the work among seven Departments.  
Each member of the Council presides over a Department, 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' subordinates of Cabinet ministers generally manage, by virtue of 
possession, to keep in their own hands, to the restraint and government of transient 
political chiefs.  All important decisions emanate from the Council as a whole; and, so 
far as is practicable, the collegiate action contemplated by the Constitution is adopted.

	673. The seven Departments, as organized by a law taking effect January 1, 
1888, are (1) of Foreign Affairs, (2) of Justice and Police, (3) of the Interior, (4) of War, 
(5) of Finance and Imposts, (6) of Industry and Agriculture, and (7) of Posts and 
Railways.  The department of Foreign Affairs is now separated from the presidency, 
with which it was formerly always associated, so that greater continuity of policy is now 
possible in all departments. ^2 The arrangement of administrative business in 
Departments is effected in Switzerland, as in France and Germany, by executive 
decree, and not by legislative enactment, as in the United States.

	[Footnote 2: See Hiltz, Politisches Jahrbuch der Schweiz, 1887, p. 778.]

	674. 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 time two largely inconsistent functions.  They are real, 
not simply nominal, heads of Departments, and are obliged as such to give their time 
and attention to the routine, the detail, and the technical niceties of administration; and 
yet as a body they are expected to impart to the administration as a whole that 
uniformity, breadth, and flexibility of policy that 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 
Departments permanent heads and leave to a board of ministers such as the present 
Council only a general oversight. Political and administrative functions require different 
aptitudes, must be approached from very different points of view, and ought seldom to 
be united in the same persons. ^1

	[Footnote 1: Orelli, Das Staatsrecht der schweizerischen Eidgenossenschaft 
(Marquardsen's, Handbuch), p. 36.]

	675. Mixed Functions of the Executive. - Swiss law, as I have said, makes no 
very careful distinction between executive, legislative, and judicial functions.  Popular 
jealousy of executive power has resulted, alike in the cantonal systems and in the 
system of the Confederation, in the vesting of many executive functions either wholly 
or in part in the lawmaking bodies, and a very singular confusion between executive 
and judicial functions has resulted in the possession by both the executive and the 
legislative bodies of prerogatives which should, on any strict classification, belong only 
to regularly constituted courts of law.  It is, consequently, somewhat difficult to get a 
clear summary view 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.

	676. (1) It stands closely connected with the Legislature because of its part in 
shaping legislation.  The Council both originates proposals in the Houses and gives its 
opinion upon proposals referred to it, either by the Houses or by the Cantons.  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 administration.  It presents the budget 
of the Confederation also to the Houses and leads in its debates of financial 
legislation.  It is, in 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.

	677. (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 discretion.  In 
like manner there are other cantonal laws and ordinances whose validity is made 
dependent upon its approval; and to a very limited extent, a jurisdiction like that 
entrusted to the Federal Court in hearing complaints concerning breaches of federal 
law is given it.  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.

	678. 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 settlement, freedom from military service, free passage, 
etc.; rights of settlement within the Cantons; freedom of belief; validity of cantonal 
elections, votes, etc.; gratuitous equipment of the militia. ^1

	[Footnote 1: Orelli, pp. 43, 44.]

	679. (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 Confederation.  Besides these usual executive and 
administrative functions, it exercises, however, others other less common.  It is the 
instrument of the Constitution in making good to the Cantons the federal guarantee of 
their constitutions.  It executes the judgments of the Federal Court, and also all 
agreements or decisions of arbitrators concerning matters in dispute between 
Cantons. ^2 In cases of necessity it may call out and itself direct the movements of 
such cantonal troops as are needed to meet any sudden danger, provided the 
Legislature is not in session to command such measures, and provided the call is for 
not more than two thousand men or 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 general duty which is imposed upon it 
of guarding both the external and the internal safety and order of the Confederation, a 
duty which embraces the general police function of keeping the peace.

	[Footnote 2: Ibid., p. 34.]

	680. The Army. - The Confederation can maintain no standing army; only the 
Cantons can maintain troops in time of peace; and even they cannot keep more than 
three hundred men apiece without the consent of the Confederation.

	681. 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 political rights and liberties of individuals are 
respected by cantonal law.  It is likewise authorized, in case of internal disturbances, to 
intervene to preserve 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 oversight and direction upon the 
initiative of individuals whose rights are affected, as well as upon the initiative of the 
cantonal governments themselves; and its powers of superintendence and intervention 
have shown a marked tendency to grow from generation to generation.  The people 
have come to feel the Cantons in many things too small to do without the aid and 
countenance of the federal power.

	682. Execution of Federal Law. - Although the supervisory powers of the federal 
government are very great, however, its active administrative 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 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.  (Comp. secs. 531, 538, 539.)

	683. Appeal in Judicial Cases. - Following the example of the cantonal 
constitutions, which provide for a very absolute dependence 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 revision of 1874, which had as one of its 
chief objects the development and strengthening of the judiciary of the Confederation, 
transferred many appeals to a Federal Court, but it left 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 'administrative' cases might be reserved 
to the Assembly by special legislative action.  Religious 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.

	684. 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 character and 
functions to the Supreme Court of the United States; but they were able to realize their 
purpose only in part.  The most important prerogative of our own Court, its powers, 
namely, of constitutional interpretation, was denied the Federal Court in Switzerland.  
Most 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.

	685. The Federal Chancellor. - The office of Federal Chancellor is worth nothing 
as an inheritance of the present from the older Confederation, 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 
Assembly, is keeper of all the federal records, and exercises a semi- executive 
function as preserver of diplomatic forms and usages.  A Vice- Chancellor acts under 
the Chancellor as Secretary of the Council of States (Standerath), the Chancellor 
acting chiefly for the popular chamber.

	686. The Federal Legislature. - Properly speaking, the legislative powers of the 
Confederation are vested in the Federal Assembly (Bundesvesammlung); but that 
Assembly consists of two distinct Houses, the National Council (Nationalrath) and the 
Council of States (Standerath); 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 five Cantons or of one-fourth of the 
members of the National Council.  An absolute majority of its members constitutes a 
quorum in each House.

	687. Composition of the Houses: I.  The National Council. - The popular chamber 
of the Assembly consists of one hundred and forty-seven members chosen from fifty-
two federal electoral districts (Wahl-Kreise) in the proportion of one representative for 
every 20,000 inhabitants.  The federal electoral districts cannot, 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.

	688. This is the case with the three so-called half-cantons, Obwalden, 
Nidwalden, and Inner Appenzell, and the ancient canton of Uri.  Zug, which has but 
23,167, also returns but a single member.  Berne, on the other hand, which has 
541,051 inhabitants, has twenty-seven representatives, and Zurich, with 351,917, 
seventeen; while one other, Vaud, has twelve, and two, St. Gallen and Aargau, have, 
respectively, eleven and ten.

	689. In those electoral districts which send more than one representative - as, for 
instance, in Berne, whose twenty-seven members are sent from six districts - 
candidates are voted for upon a general ticket, each voter being entitled to vote for as 
many representatives as the district returns.  It requires an absolute majority to elect.

	690. 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 members 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.

	691. It is upon the assembling of each new National Council that the election of 
the Federal Council takes place (secs. 665-669).  The three- years term of the 
executive Council is thus made to extend from the beginning of the first session of one 
National Council to the beginning of the first session of the next.

	692. 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 President or Vice-President of one session 
cannot be reelected for the session next following.  For the officers of the National 
Assembly, like the officers of most European law-making bodies, are elected every 
session instead of for the whole term of the body, as in our House of Representatives 
and the English House of Commons.

	693. II.  The Council of States (Standerath) 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 
defined character: for the mode in which its members shall be elected, the 
qualifications which they shall possess, the length of time which they shall serve, the 
salary which they shall receive, and the relations they shall 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 
consequently 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 the Cantons which have 
the obligatory Referendum they are generally elected by popular vote, as the members 
of the National Council are; in those which have representative institutions they are 
usually elected by the legislative body of the Canton.  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 'half-cantons,' namely, Unterwalden, 
Basel, and Appenzell.  The half-cantons send each one member to the Council of 
States.  The following is a list of the Cantons: Zurich, Berne, Luzern, Uri, Schwyz, 
Obwalden, Nidwalden, Glarus, Zug, Freiburg, Solothurn, Baselstadt, Baselland, 
Schauffhausen, Outer Appenzell, Inner Appenzell, St. Gallen, Graubunden, 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 functions 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 Federal 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 fulfilment 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 departments 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 decisions of the Federal Council in contested 
administrative cases. 7. With the concurrence of the people, they revise the Federal 
Constitution.

	697. 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 consideration; 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.

	698. Revision 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 petition, 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.

	699. 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 'facultative' or 'optional' Referendum (sec. 656).

	700. 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 Referendum are sent to the authorities of each Canton, and 
by them published 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 signatures 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.

	701. Functions of the Federal Assembly. - The functions which the Houses 
exercise in joint session, as the Federal Assembly, are not legislative but electoral and 
judicial.  1. The Assembly elects the Federal Council, the federal judges, the 
Chancellor, and the generals of the confederate army.  2. It exercises the right of 
pardon.  3. It determines conflicts of jurisdiction between federal authorities, fulfilling 
the functions delegated under the French and Prussian constitutions to a special Court 
of Conflicts (secs. 475, 629).

	702. 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.

	703. 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 uniformity of system is prescribed as in Germany (sec. 556); nor are the 
cantonal courts subordinated to the Federal Court except in certain special cases 
provided for by statute.  It may be said, in general terms, that justice is administered by 
the Cantons, with recourse in selected cases to the tribunal of the Confederation.

	704. 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 instance.  There 
are also everywhere Justices of the Peace whose duty it is, in many places, first to act 
as mediators in legal disputes, - and as magistrates only when they fail as mediators. 
Petty police cases are heard by the District Courts; but for the hearing of criminal 
cases there is trial by jury under the presidency of a section of the supreme court 
justices, or by a special criminal court acting without a jury.

	705. In three of the larger Cantons, Geneva, Zurich, and St. Gallen, there are 
special Cassation Courts put above the Obergericht.  Zurich and Geneva have also 
special Commercial Courts (Handelsgerichte).

	706. In many of the Cantons the Supreme Court exercises certain 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.

	707. In most of the cantons, too, the Supreme Court makes annual 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.

	708. 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.

	709. In Berne the legislative Council also elects the Presidents of the District 
Courts; but this is not the usual practice.

	710. 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, 
competent lawyers are generally elected; and reelection is in most cases the rule.

	711. 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.

	712. 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 determine 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 Constitution.  Doubtless the 
Federal Court, like the Council of States, is still in a transitional stage, and will 
ultimately be given a still more independent and influential position.

	713. The Federal Court consists of nine 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 
Federal Assembly selects two of these nine to act, the one as President, the other as 
Vice-President, of the Court.  The Court sits, not at Berne, the legislative capital of the 
Confederation, but at Lausanne.

	714. 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.

	715. 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.

	716. Seven judges constitute a quorum of the Court.  The number of judges who 
sit in any case must always be an uneven number, including the president.

	717. Criminal Jurisdiction of the Federal Court. - In the exercise of its criminal 
jurisdiction the Federal Court goes on circuit.  The country is divided into five assize 
districts (Assisenbezirke), one of which embraces French Switzerland; a second, 
Berne, and the surrounding Cantons; a third, Zurich and the Cantons bordering upon 
it; a fourth, central, and part of east Switzerland; and the fifth, Italian Switzerland.

	718. The Court annually divides itself, for criminal business, into three bodies: A 
Criminal Chamber, a Chamber of Complaints, and a Chamber of Appeals. The 
Criminal 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.

	719. 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 concerning 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 governments; 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.

	720. 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 authorities." Such a province is, however, in the 
very nature of the case, insusceptible 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 infringements 
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 cantonal authorities for ordinary alleged failures of justice, such as the 
Constitution 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 application of the law." ^1

	[Footnote 1: Orelli, p. 42.]

	721. 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 (sec. 662).

	722. (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. Certain other private law cases, even when they do not involve federal 
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 (sec. 1306).

	723. 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.

	724. 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.

	725. 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.

	726. (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 Confederation.  It may, 
however, in the discretion of certain authorities, include a variety of other matters in 
addition to these.  Federal officers, whose breaches of duty are ordinarily punished 
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 assigned to the federal tribunal by cantonal constitutions or laws, if 
the Federal Assembly assent to the arrangement.

     The Chamber of Appeals of the Federal Court takes cognizance, besides,
     of complaints concerning judgments of the cantonal courts given under
     certain fiscal, police, and banking laws of the Confederation.

	727. The Federal Council: (4) Administrative Cases. - The administrative 
jurisdiction of the Confederation, which is exercised, not by the Federal Court, but by the 
Federal Council, includes a great number of important cases. It covers questions 
touching the calling out of the cantonal militia, the administration of the public-school 
system of the Cantons, freedom of trade, occupation and settlement, consumption taxes 
and import duties, freedom of belief and worship, the validity of cantonal elections and 
votes, and rights arising out of contracts with foreign powers regarding trade relations, 
the credit to be given to patents, exemption from military 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.

	728. Inter-Cantonal Judicial Comity. - The Swiss Constitution, in close imitation of 
the provision on the same subject in the Constitution of the United States, requires that 
full force and credit be given the judgments of the courts of each Canton throughout the 
Confederation.

Some Representative Authorities. 

     Adams, Sir F. O., and Cunningham, C. D., "The Swiss Confederation." 8vo.
London and N.Y., 1889.

     Blumer, J. J., "Handbuch des schweizerischen Bundesstaatsrechts," 2
vols., 1863-1865.  New ed. completed by J. Morel, 1887.

     Bluntschli, J. C., "Geschichte des schweizerischen Bundesrechts von den
ersten ewigen Bunden bis auf die Gegenwart," 2 vols., 1849-1852.  2d ed., Vol.
I., 1875.

     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. 258 ff.

     Coolidge, "Early History of the Referendum," in the English Historical
Review, 1891, p. 674.

     Curti, E., "Geschichte de schweizerischen Volksgesetzgebung." 2d ed.,
Zurich, 1885.

     Demombynes, G., "Les Constitutions Europeennes." Ed. 1883, Vol. II., pp.
304 ff.

     Deploige, S., "Le Referendum en Suisse," Brussels, 1893.

     Droz, Numa, "Etudes et portraits politique."

     Dubs, J., "Das offentliche Recht der schweizerischen Eidgenossenschaft."
2d ed., Zurich, 1878.

     Dupriez, L., "Les Ministres dans les principaux pays d'Europe et
d'Amerique." 2 vols., Paris, 1892.  Vol. II., pp. 167 ff.

     James, E. J., "The Federal Constitution of Switzerland," a translation.
Publications of the American Academy of Political and Social Science,
Philadelphia, 1890.

     Lowell, A. L., "Governments and Parties in Continental Europe," 2 vols.,
Boston, 1896.  Chaps. XI.-XIII.

     Meyer, Johann, "Geschichte des schweizerischen Bundesrechts," 2 vols.,
1875-1878.  Supplement 1881.  "Eidgenossische Bundesverfassung, Bundesgesetze,
und Bundesbeschlusse," 1876.  "Staatskalender der schweizerischen
Eidgenossenschaft," 1880.

     Moses, Bernard, "The Federal Government of Switzerland, An Essay on the
Constitution." A comparative study.  San Francisco, 1889.

     Orelli, Alois von, "Das Staatsrecht der schweizerischen
Eidgenossenschaft." (in Marquardsen's "Handbuch des offentlichen Rechts"),
Freiburg in B., 1885.

     Rambert, Eugene, "Etudes historique et nationales, - Les Alpes Suisses,"
1889.

     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.

     Stussi, "Referendum und Initiativ in den Sweizerkantonen," 1893.

     Vincent, J. W., "State and Federal Government in Switzerland," (Johns
Hopkins Studies), Baltimore, 1891.

     Winchester, Boyd, "The Swiss Republic," Philadelphia and London, 1891.



THE STATE
Wilson, Woodrow
The Dual Monarchies: Austria-Hungary - Sweden-Norway
    
Part I.

	729. The Dual Monarchies. - Midway in character between unitary kingdoms like 
France and England and federal states like Germany and Switzerland stand the dual 
monarchies of Austria-Hungary and Sweden-Norway. Each of these dual governments 
consists of two kingdoms united under a single monarch, and under neither is there 
any extensive fusion of the political institutions of the two countries thus united.  Each 
of the united kingdoms, under the one government as under the other, keeps its own 
institutions, and therefore to a large extent its own individuality: but at the summit of 
their governments a single throne unites them, and in some things a common 
machinery of administration. Very interesting and important differences of law and 
organization, however, separate Austria- Hungary from its northern analogue, 
Sweden-Norway.

Austria-Hungary. 

	730. Austria's Historical Position. - Until the middle of the present century Austria 
stood at the front of German political union; not until 1866 was she deposed from 
leadership in Germany and set apart to attempt alone the difficult task of 
amalgamating the polyglot dual monarchy of Austria-Hungary (sec. 492).

	731. Acquisition of Hungary and Bohemia. - It was unquestionably Austria's 
headship in the Empire which enabled 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.

	732. Bohemia. - Bohemia was a Slavonic wedge thrust into the side of Germany.  
Compassed about by hostile powers, it was a prize to be fought for. Alternately 
conquered by several neighboring kingdoms, it finally fell into German hands and 
became an apanage of the Empire.  It was as such that the Habsburgers seized it 
when its throne became vacant in consequence of the extinction of a Luxemburg line 
of 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.

	733. 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 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 Bohemia (1029), and passed, along with that 
kingdom, into Austrian hands, in 1526.

	734. Hungary. - Hungary is the land of the Magyars, a Turanian race which 
retains even to the present day its 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 Roman 
Empire, the territory of Hungary became, in 889, the realm of the Magyar duke Arpad, 
the Conqueror.  In the year 1000 the duke Vaik, who had succeeded to the duchy in 
997, received at the hands of Pope Sylvester II. the title of 'apostolic king' of Hungary, 
and, under the name of Stephen, became the first of a line of native monarchs which 
kept the throne until 1301.  From 1301 till 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 Constantinople.  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.

	735. 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 
disciplined for her revolt of 1848-1849, these provinces have remained apanages of 
Hungary, though Croatia occupies a somewhat distinctive position, and is 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.

	736. 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, was acquired by Austria 
through the treaty of Campo Formio, in 1797.

	737. Bosnia and Herzegovina. - The Congress of Berlin, 1878, which met to fix 
upon a basis for the new settlements resulting from 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.

	738. Austria-Hungary: Nature of the Union. - The present constitution of the 
Austro-Hungarian monarchy practically recognizes but two parties to the union, Austria 
and Hungary.  Bohemia, for all she has so much individuality and boasts so fine a 
history of independence, is swallowed up in Austria: only the Magyars of Hungary, 
among all the races of the heterogeneous realm of the Habsburgers, have obtained for 
the kingdom of their making a standing of equality alongside of dominant Austria.

	739. Variety of Race. - The commanding difficulty of government throughout the 
whole course of Austro-Hungarian politics has been the variety of races embraced 
within the domain of the monarchy.  First and most prominent is the three-sided 
contrast between German, Slav, and Magyar.  Within this general classification, again, 
Slav differs from Slav by reason of many sharp divergences of history, of speech, and 
of religion; and outside this classification, there is added a miscellany of Italians, 
Croats, Serbs, Roumanians, Jews, - men of almost every race and people of eastern 
Europe. This variety is emphasized by the fact that only the Czechs (Bohemians), 
among all these peoples, have a separate home land in which they are in the majority.  
In Bohemia and Moravia the Czechs constitute considerably more than half the 
population; whilst in Hungary the Magyars, though greatly outnumbering any other one 
element of the population, are less than half the whole number of inhabitants; and in 
Austria, though men of German blood are very greatly in the majority in the central 
provinces which may be called Austria proper, they constitute in Austria taken as a 
whole very little more than one-third of the population.

	740. Home Rule: Bohemia, Hungary. - At least two among these many races, 
moreover, are strenuously, restlessly, persistently devoted to independence. No lapse 
of time, no defeat of hopes, seems sufficient to reconcile the Czechs of Bohemia to 
incorporation with Austria.  Pride of race and the memories of a notable and 
distinguished history keep them always at odds with the Germans within their gates 
and with the government set over their heads.  They desire at least the same degree 
of autonomy that has been granted to Hungary.

	741. Not 'granted' 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 
definite in their purposes, the Magyars, though crushed by superior force in the field of 
battle, have been able to win a specially recognized and highly favored place in the 
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 administration, 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 
even 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.

	742. The period of reaction which followed the Napoleonic wars 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 Hungary 
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.

	743. The Constitution of 1867. - Wars and disasters presently burst upon the 
absolutist Austria, however, in an overwhelming storm.  Thrust out from Germany (sec. 
492), she was made at length to feel the necessity, if she would give her realm 
strength, to give her subjects liberty.  Her eyes were at last fully 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 recognized the 
kingdom, not as Austria's, but as the joint kingdom of Austria-Hungary, and which gave 
to the Empire its present relatively liberal political organization.

	744. Dual Character of the Monarchy. - The Austro-Hungarian monarchy, 
although compacted by the persistent forces of a long historical development, is not a 
unitary state, a territorial and legal unit, but simply a "real union of two constitutionally 
and administratively independent states." This union is, indeed, more substantial than 
that between Sweden and Norway: the latter has existed less than seventy-five years, 
and is, as we shall see (secs. 769, 803), only an arrangement by which two kingdoms 
may 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 
services, and left the while in possession of only such liberties as could be retained by 
dint of turbulent insistence, consists of two countries at many points interlaced and 
amalgamated in history and in institutional life.

	745. The Fundamental Laws. - The present constitutional law of the dual 
kingdom rests 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 embrace, beside various other rules concerning succession 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 fix the relation of the two kingdoms to one another and 
arrange for the administration of their common affairs.  (b) The fundamental law of 
Austria consists 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 arrangements of Hungary rest 
upon the Golden Bull of Andreas II., 1222, touching the privileges of the Estates (sec. 
741); upon certain laws of 1790-1791 concerning the political independence 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 is given certain 
distinct privileges to be enjoyed independently of Hungary.  These are most of them 
older laws than the Austrian.  Although able for long periods together to keep Austria 
at their feet, the Habsburgers have never been able to keep Hungary for long in a 
similar attitude of submission.  Her constitutional separateness and independence, 
though often temporarily denied in practice, have never been destroyed.  The 
cooperative rights of the Estates in government, communal self-administration, and the 
privileges of the free cities have triumphantly persisted spite of all efforts made to 
suppress them.

	746. The Common Government: the Emperor-King. - The Emperor of Austria 
bears also the titles King of Bohemia and 'Apostolic' King of Hungary (sec. 734).  He 
stands at the head, not of one of the branches of the government, but of the whole 
government in all its branches.  In theory, indeed, he alone governs: he makes, while 
legislatures and provincial assemblies only assent to, the laws.  Law limits his powers: 
the sphere of his authority is fixed in each kingdom by definite constitutional 
provisions; but, whatever practical concessions modern movements of thought and of 
revolution may have compelled, it yet remains the theory, and to a certain extent the 
fact, of constitutional development in Austria-Hungary that the monarch has himself of 
his own free will created such limitations upon his prerogative as exist.  There is, 
therefore, significantly enough, nothing to be said by constitutional commentators in 
Austria-Hungary either concerning the king's veto or concerning any special 
arrangements for constitutional change.  It is thought to go without the saying that the 
monarch's negative will absolutely kill, his 'let it be' abundantly vitalize, all laws, 
whether constitutional or other.

	747. Of course limitations upon the monarch's prerogative are not necessarily 
any the less real because he may abrogate them if he dare, so long as the whole 
disposition and temper of his people and of his times forbid his abrogating them.

	748. Succession, Regency, etc. - The laws touching the succession to the 
Austro-Hungarian throne provide so minutely for the widest possible collateral 
inheritances, that provision for a vacancy is apparently not necessary. Permanent laws 
vest the regency in specific representatives of the royal house.  The royal age of 
majority is sixteen years.

	749. The Common Ministries. - The Emperor-King is assisted in his direction of 
the common affairs of his two kingdoms by three Ministries and an Imperial Court of 
Audit.  There is (1) a Ministry of Foreign Affairs and of the Imperial Household, which, 
besides the international functions indicated by its name, is charged with oversight of 
the foreign trade and shipping interests of the dual kingdom.  (2) The Ministry of War, 
by which the common standing army of the two kingdoms is administered.  The 
legislation upon which the maintenance of this common standing army is based 
originates with the legislatures of the two kingdoms acting separately.  It is, that is, 
matter of agreement between the two countries. It covers such points as the size of the 
army, liability to military service, rules and methods of recruiting, etc., and is embodied 
in identical laws adopted by the two legislatures, each acting for itself and without 
constitutional compulsion.

	750. As commander-in-chief of the army, the Emperor-King has 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 
concerns of the military administration, however, his acts require the countersignature 
of the minister.

	The militia, or reserve, services of the two kingdoms are separate, and 
separately maintained; but in war the militia of both countries becomes supplementary 
to the regular army.

	(3) The Ministry of Finance: acting under the Emperor, the minister of finance 
prepares the joint budget, apportions the costs of the common administration between 
Austria and Hungary, sees to the raising of the relative quotas, applies the common 
income in accordance with the provisions of the budget, and administers the common 
floating debt.  The Ministry of Finance is in addition charged with the administration of 
Bosnia and Herzegovina.

	751. These two countries, although still nominally parts of the Turkish Empire, 
have really, since the Treaty of Berlin (1878), been subject in all things to Austria (see 
737).  The Austrian Ministry of Finance stands for them in the position of all 
administrative departments in one.

	752. The chief sources of the common revenue in Austria-Hungary are customs 
duties and direct contributions from the treasuries of the two states. Certain parts of 
the customs duties are assigned to the common treasury; and such expenses as these 
are not sufficient to meet are defrayed by the contributions, Austria paying sixty-eight, 
and Hungary thirty-two, per cent. of the sums needed.

	753. The Economic Relations of Austria and Hungary are regulated in the 
important matters of commerce, the money system, the management of those 
railroads and telegraph lines whose operation affects the interests of both kingdoms, 
the customs system, and the indirect taxation of industries by formal agreements 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 controls for itself the collection of customs duties within its own 
territory; but Austria-Hungary is regarded as forming only a single customs and trade 
territory, and the laws touching administration in these fields must be identical in the 
two countries.

	There is a joint stock Austro-Hungarian bank at Vienna; the two kingdoms have 
by treaty the same system of weights and measures; and there is separate coining but 
the same coinage.

	754. Patents, Posts, and Telegraphs. - A common system of patents and 
copyrights is maintained; and both countries have the same postal and telegraph 
service.

	755. The Delegations. - The most singular, interesting, and characteristic feature 
of the common government of Austria-Hungary is the Delegations, which constitute, in 
germ at least, a common Legislature. There are two Delegations, an Austrian and 
Hungarian.  They are respectively committees of the Austrian and Hungarian 
legislatures.  Each Delegation consists of sixty members, twenty of whom are chosen 
by the upper, forty by the lower chamber of the legislature which they represent. But, 
although thus in form a committee of the legislature which sends it forth, each 
Delegation may be said to represent the kingdom from which it comes rather than the 
legislature of that kingdom.  It is not subject to be instructed, but acts upon its own 
judgment as an independent body.  The two Delegations sit and act separately, though 
they exercise identical functions.  Each passes judgment upon the budget of the 
common administration, each is at liberty to take action upon the management of the 
common debt, each superintends the common administration, and can freely question 
and 'interpellate' (sec. 428) the ministers, from whom each hears periodical reports; 
and each has the privilege of initiative as regards all measures coming within their 
competence.  These functions are concurrent, not joint.  They are, nevertheless, 
obviously functions which must under such a system be exercised in full agreement: 
the common administration cannot serve two masters.  If, therefore, after a triple 
exchange of resolutions no agreement has been reached between the two bodies, a 
joint session is held, in which, without debate, and by a mere absolute majority vote, 
the question at issue is decided.

	756. As a matter of fact the legislative powers of the Delegations are very narrow 
indeed.  Their independent action is confined for the most part to the granting of 
supplies and the superintendence of the administrative action of the three common 
ministries.  The very supplies they grant come out of taxes voted separately by the 
parliaments of the two kingdoms; and almost every agency they use rests upon 
treaties and identical laws independently passed.

	757. The term for which the Delegations are elected is one year.  They are called 
together by the monarch annually, one year at Vienna, the next at Buda-Pest.

	758. In the selection of members of the Delegations the Austrian crown lands 
(the provinces once separate or independent) are entitled to representation, as is also 
favored Croatia-Slavonia on the Hungarian side.

	759. When the two Delegations meet 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.

	760. Citizenship. - There is no common citizenship for the two kingdoms; but in 
all business relationships the citizens of each state are regarded as citizens of the 
other.

	761. The Government of Austria: the Executive. - The governing power rests in 
Austria with the Emperor.  The Emperors of the present day may by no means venture 
upon the centralization of authority attempted and in part effected by Maria Theresa 
and Joseph II.; but Austrian constitutional law does not assign duties to the head of the 
state: it assigns functions to the ministers and grants privileges to the representative 
bodies.  All powers not explicitly so conferred remain with the Emperor.  He directs all 
the administrative activities of the state; he appoints the life members of the upper 
house of the Reichsrath; and, through his ministers, he in large measure controls 
legislation.  But he must act in administration through the ministers and in legislation 
through the parliament.  The countersignatures of the ministers have been, by statute, 
made necessary for the validity of his decrees; and the consent of the Reichsrath is 
indispensable to the determination of the policy and content of all legislation.  The only 
judicial prerogative that remains with him is the power of pardon.  On all sides his 
power is circumscribed by the legally necessary cooperation of other regularly 
constituted authorities.

	762. The Ministry, which consists of a Minister-President and seven heads of 
departments, acts as the Emperor's council, but it does not constitute a board whose 
majority vote decides administrative questions. Action is taken, rather, in each 
department upon the individual responsibility of the minister at its head.  The ministers 
have a threefold office: they are the Emperor's councillors, they execute his 
commands, and they are the responsible administrators of special branches of the 
public service.  They act for the Emperor also in introducing measures in the 
Reichsrath.  They must attend both Houses to defend the policy of the executive and 
to answer 'interpellations.'

	763. There are eight executive departments: Interior, National Defence, Religion 
and Education, Trade, Agriculture, Finance, Justice, and Railways. The Minister-
President often holds no portfolio, and constitutes a ninth minister.

	764. Legislation: the National and Provincial Legislatures. - In all legislation of 
whatever kind the cooperation of the representatives of the people is necessary; but 
not all of this cooperative privilege belongs to the Reichsrath, the national legislative 
body.  Cooperation in the greater matters of legislation is expressly given by law to the 
Reichsrath, but all legislative powers not expressly granted to it belong to the sphere of 
the Landtags of the seventeen provinces (kingdoms, grand-duchies, arch-duchies, 
duchies, and counties), of which the conglomerate realm is made up.

	765. The Reichsrath. - The Reichsrath consists of a House of Lords 
(Herrenhaus) and a House of Representatives (Abgeordnetenhaus).  To the House of 
Lords come princes of the blood royal who have reached their majority, the 
archbishops and certain bishops, nobles of high rank who have acquired hereditary 
seats in the chamber, and such life members as the Emperor chooses to appoint in 
recognition of special services to the state, to the church, to science, or to art.  To the 
other House come representatives chosen by five classes of voters: the great 
landowners, the cities and marts, chambers of trade and commerce, the rural 
communes, and a fifth the general class which "includes substantially all men not in 
domestic service." ^1 The term of the lower house is six years.

	[Footnote 1: Lowell, Governments and Parties in Continental Europe, II., 88.]

	766. The present number of members in the House of Representatives is four 
hundred and twenty-five.  Representation is apportioned among the several lands 
which form the Austrian domain; and in Dalmatia the greater taxpayers, instead of the 
greater landowners, are represented.  In the class of landowners women and 
corporations may vote.  The franchise - which is partly direct, partly indirect - is made 
to rest throughout all the classes of voters, except the fifth, in one way or another 
either upon property or taxation.

	767. The assent of the chambers is required not only in legislation but also for 
the validity of treaties which affect the trade of the country, which lay economic 
burdens upon the state, which affect its legal constitution, or which concern an 
alienation or extension of territory. The powers of the two Houses are the same, 
except that financial measures and bills which affect recruitment for the army must 
originate in the House of Representatives.

	768. It is the general rule that the assent of both Houses is necessary to every 
resolution or action of the Reichsrath; but an interesting exception is to be noted.  If a 
disagreement arise between the chambers upon a question of finance or of military 
recruitment, the lowest figures or numbers are to be considered adopted.

	769. The Emperor names not only the life members but also the president and 
vice-president of the House of Lords.  He calls and opens the sessions of the 
Reichsrath, and may close, adjourn, or dissolve it.

	770. It is within the prerogative of the Emperor, acting with the advice of his 
ministers, to enact any laws which may seem to be immediately necessary during a 
recess of the Reichsrath, provided they be not financial laws, or laws which in any way 
permanently encumber the state.  But such laws must be submitted to the Reichsrath 
within four weeks after its next assembling (going first to the House of 
Representatives), and altogether lapse unless submitted to the Reichsrath within that 
time, and sanctioned by it. (Compare secs. 796-798.)

	771. Ministerial Responsibility. - In theory, the ministers are responsible to the 
Houses, and must resign if defeated; but the theory finds no realization in practice.  
Race lines determine party lines in the Houses, and even members of the same race 
do not keep steadily together in purpose or policy; so that there are no governing 
parties, and no majorities that can be reckoned beforehand.  The Emperor may 
placate now this group, and again the other, and so keeps his own ministers and 
pursues his own policy as he can.

	772. The Landtags. - The greater political divisions of Austria retain their own 
Landtags, or local legislatures, and to these belong considerable legislative powers.  
The Emperor names the chairmen of the Landtags and their substitutes; he calls, 
opens, and may close, adjourn, or dissolve the Landtags; and his assent is necessary 
to all their acts.  But their consent is necessary to almost all laws which affect the 
provinces which they represent, and their privileges constitute an important part of the 
total of legislative power which rests with the representatives of the people. The 
provinces have also extensive rights of self-administration.

	773. Local Government. - The Landtags are of course the most conspicuous 
organs of self-government.  Each Landtag consists of a single chamber and 
represents the same classes of voters that send members to the national Reichsrath 
(sec. 765), - with the addition of another, an official class.  The administrative organ of 
the province is a provincial committee, as in France (sec. 453).  The central 
government is represented in the exercise of its many local powers by a Statthalter or 
Landes prasident, whose powers are very extensive.  Within the province there are, in 
some parts of the country, districts or circles, which are areas of financial 
administration; and throughout the country the smallest areas of local government are 
the Communes, local bodies which, acting within the commission of general statutes, 
exercise considerable powers of self- direction through a communal committee and a 
communal president chosen, together with a certain number of assistants, by the 
committee.

	774. The Communes are organs of the provinces, and their presidents to a 
certain extent serve the general state administration.

	775. The Government of Hungary: the Executive. - The king bears substantially 
the same relations to the other powers of the state in Hungary that he bears 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 is limited as regards Hungary in the same way that it is limited as 
regards Austria (sec. 767).

	776. The Hungarian Ministry consists of a Minister-President and, if he hold no 
portfolio, of nine other ministers: a minister attendant 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.

	777. The ministers attend the sittings of the chambers and play there the same 
part that the Austrian ministers play in the Reichsrath (sec. 762).  The Hungarian 
ministers are, however, subject to a real responsibility to the parliament of the 
kingdom.  The Magyars maintain a veritable majority in the Hungarian Houses, and 
they know 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 
obey and represent the majority in parliament, resigning as of course when defeated.

	778. The Diet. - The Diet (Orszaggyules), the national representative body, 
consists of a Table of Magnates and a Table of Representatives.  To the former go all 
hereditary peers who pay an annual land tax of three thousand florins, the highest 
officials of the Roman Catholic and Greek churches, certain ecclesiastical and lay 
representatives of the Protestant churches, eighty-four life peers appointed by the 
king, certain members ex officio, three delegates from Croatia-Slavonia, and those 
royal archdukes who have reached their majority and who own landed estates in 
Hungary.  The Table of Representatives consists 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, is only four hundred and thirteen. The forty additional 
members represent Croatia-Slavonia; and, inasmuch as that great province has an 
almost independent legislature of its own, its members in the national House vote only 
upon questions of national action which affect their own province.  These subjects are 
understood to be, the army, trade, and finance.  As must always happen where there 
is real ministerial responsibility, the lower House is the governing House.  The 
Magnates yield, in the long run, every point upon which the purpose of the 
Representatives is definitely fixed.

	779. The franchise rests upon the payment of a small amount of taxes on land or 
on income.  Members of certain learned and professional classes, however, possess 
the franchise without any property qualification.

	780. The president and vice-president of the upper House are nominated by the 
king.

	781. As in the case of the Austrian representative bodies, so also in the case of 
the Hungarian, the king convenes and opens, and may close, adjourn, or dissolve 
them.

	782. Local Government. - For purposes of local government Hungary is divided 
into shires, self-administered cities, and Communes.  The organization is throughout 
substantially the same.  In each area, - the Commune excepted, - there is a president 
who represents the central government; in each, without exception, there is an 
administrative committee which is 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 rests the general direction of 
affairs.

	783. Croatia-Slavonia. - There is not in Hungary the provincial organization which 
we have seen to exist in Austria (secs. 772, 773). Croatia-Slavonia is the only 
constituent part of the Hungarian lands which has its own separate Landtag.  The 
organization of this territory is in all respects exceptional.  It has been given legal rights 
which cannot be taken away from it without its own consent; and it has a distinct 
administration responsible to the king and to its own Landtag.  It is nevertheless, an 
integral part of the Hungarian monarchy.



THE STATE
Wilson, Woodrow
The Dual Monarchies: Austria-Hungary - Sweden-Norway
    
Part II.

Sweden-Norway. 
	784. The Danes. - The territory of the three northern kingdoms of Denmark, 
Sweden, and Norway very early became a home of the Teutonic peoples, a nursery of 
Teutonic strength, a peculiar possession of Teutonic institutions.  It was from this 
northern land that the fierce 'Northmen' issued forth to win dominions in France, in 
Russia, and in Sicily; from it, too, came the Dane to lay his strong hand upon England.  
Its roving giants kept the world in terror of piracy and invasion for centuries together.

	785. Early Institutions of Sweden and Norway. - The institutions of these 
strenuous northern folk were of the usual Germanic sort.  Sweden and Norway were at 
first, like all the German countries, divided into a few score loosely confederated parts 
held together by no complete national organization or common authority.  By degrees, 
however, the usual slow and changeful methods of consolidation wrought out of the 
general mass of petty political particles the two kingdoms of Sweden and Norway.  In 
each a dominant family had worked its way to recognized supremacy and a throne. As 
in other Germanic countries of the early time, so in these, the throne was elective; but, 
as elsewhere, so also here, the choice always fell upon a member of the dominant 
family, and the kingly house managed most of the time to keep together a tolerably 
compacted power.

	786. Union of Denmark, Sweden, and Norway. - Once and again intermarriage or 
intrigue united Sweden and Norway under the same monarch; once and again, too, 
Danish power was felt in the Scandinavian peninsula, and the house of Denmark 
obtained a share in the distribution of authority. Finally, in 1397, a joint council of 
deputies from the three kingdoms met at Kalmar, in Sweden, and effected the 
Kalmarian Union.  This union resulted directly from the marriage of Hakon VI., joint 
king of Sweden and Norway, with Margaret, daughter of Valdemar of Denmark; the 
Council of Kalmar only put it upon a basis of clear understanding.  It was agreed that 
the three kingdoms should acknowledge a common monarch; that, in default of heirs 
of the house then on the throne, the three kingdoms should elect their common 
monarch, by such methods of agreement as they might be able to devise; but that, 
whether under elected or under hereditary monarch, each kingdom should retain its 
own laws and institutions.

	787. The Independence of Sweden. - For Norway this union with Denmark 
proved of long standing.  Not until 1814 was it finally severed.  Upon Sweden, 
however, Denmark maintained a very precarious and uncertain hold, now ruling her, 
again thrust out, favored the while only by her own power and by the sleepless mutual 
jealousies of the patriotic but selfish and suspicious Swedish nobles.  At length, in 
1523, Sweden was able to break finally away from the union.  Her deliverer was 
Gustaf Eriksson, better known as Gustavus Vasa, who by force of a singular genius for 
leadership and war first drove the Dane out and then established the royal line which 
was to give to Europe the great Gustaf Adolf, the heroic figure of the Thirty Years' War.  
Gustaf Eriksson reigned for thirty-seven years (1523- 1560), and with him the true 
national history of Sweden may be said to have begun.  The house which he founded 
remained upon the throne of Sweden until 1818, and under the long line of sovereigns 
which he inaugurated the Swedish constitution was worked out through a most 
remarkable series of swings back and forth between the supremacy of the monarch 
and the supremacy of the royal council.  According as the personal weight of the king 
was great or small did the royal power wax or wane.

	788. Oscillating Development of the Swedish Constitution. - The old constitution 
of Sweden associated with the king a powerful council of nobles and an assembly of 
Estates.  In the latter, the Riksdag, four orders had acquired representation, the 
nobles, the clergy, the burghers, and the peasants.  For two hundred years the 
constitutional history of Sweden is little more than a changeful and perplexing picture 
of the ascendency now of the king, now of the Council or of the Riksdag, and again of 
the king, or of the Council and Riksdag combined.  With Gustaf Adolf (1611-1632) 
originated the clumsy plan, retained until the present century, according to which each 
of the orders represented in the Riksdag acted separately in the consideration of 
national affairs, to the fostering of dissension among them.  By dint of the masterful 
policy of Karl XI. (1672-1697), the power of the Crown was made absolute, the Council 
eclipsed.  Karl XII., a great soldier, wasted the resources of the country and thereby 
prepared the way for a decline of the royal power.  1720 saw a new constitution 
adopted which gave almost entire control of affairs to the Council and to a committee 
of one hundred drawn from the three first Estates of the Riksdag; and 1734 brought 
forth a new code of laws.  Gustaf III., however (1771- 1792), again reduced the 
Council from its high estate, and left to the Riksdag nothing but a right to vote against 
an offensive war.  And so the constitution swung backward and forward until the 
present century.

	789. Bernadotte and the Accession of Norway. - The great change which 
ushered in the present regime in Sweden came in 1814, when by the Convention of 
Moss (August 14) and the action of the Congress of Vienna, Norway was separated 
from Denmark and joined, by a throne, to Sweden. Norway had adopted a new and 
liberal constitution at Eidsvold on May 17, 1814 (in which it was provided, amongst 
other things, that all Acts should be signed by the ministers, 'by authority,' instead of by 
the king simply, as hitherto), and had chosen Kristian king.  Upon the signing of the 
Convention of Moss, however, Kristian was obliged to resign; and until the formal 
ratification of the convention, on November 4, 1814, Norway was practically a republic. 
Acting without a king, she accepted Karl XIII. of Sweden as her sovereign, and 
obtained from him an acknowledgment of the constitution of Eidsvold.  Karl (1809-
1818) was childless; and in 1810 the Swedes, willing to please Napoleon, the master 
of Europe, chose as prince and successor to the throne Bernadotte, a man who had 
risen from the ranks to be one of the many distinguished generals bred in the service 
of Napoleon.

	790. Bernadotte ascended the Swedish throne, with the title of Karl XIV., in 1818, 
but he had really come into the possession of full royal power in 1811, on account of 
the failing health of Karl XIII.

	791. It turned out, however, that Bernadotte was more ready to oppose Napoleon 
than any longer to serve him.  He threw the weight of Sweden on the side of the Allies, 
against the designs of France; and Norway's union with Sweden was confirmed when 
the Allies made their deal at Vienna.

	792. Norway's Fight for Independence and her New Constitution. - Norway, 
though willing enough to escape the dominion of Denmark, had not chosen without 
compulsion to exchange for it an equal bondage to Sweden. She at first refused to 
accept the settlement of 1814, rose in rebellion against all outside control, framed for 
herself a liberal constitution, and for a few months essayed once more the role of an 
independent kingdom.  Her new constitution she managed to keep.  With England's 
assistance, Bernadotte compelled her acquiescence in the union with Sweden, but he 
did not force upon her a surrender of the institutions which she had chosen to adopt.

	793. The union between Norway and Denmark accomplished at Kalmar had 
resulted in the absolute power within his Norwegian domain of the common king. 
Allying himself with the citizen class in the national assembly, the king had been able 
to crush the nobles, and eventually to destroy all constitutional liberties.  This he was 
the more readily enabled to do because the throne of Norway had early become 
hereditary and the Norwegian nobles had thus been robbed of that sovereign influence 
which, under the elective system of Denmark and Sweden, they had long contrived to 
retain. The new constitution adopted by the Norwegians at Eidsvold in 1814 naturally 
spoke a strong reassertion of national privileges and institutions.  It was not only 
decidedly democratic, it was also not a little doctrinaire and visionary.  Its framers, 
having too few Norwegian liberties to build upon, had recourse to the always futile 
resource of borrowing foreign experience.  They embodied in the new fundamental law 
constitutional arrangements which they had taken from England and the United States 
and which found no suitable soil of Norwegian habit in which to grow.  Still, her new 
constitution gave Norway a valuable impulse towards regulated political liberty; and, if 
not carried out at all points, was at least a promise of things hoped for and afterwards 
to be in great measure attained.

	794. Constitutional Contrast between Sweden and Norway. - In Sweden there 
had been no such democratic revolution; and in point of institutions the two kingdoms 
were in 1814 very unequal yoke-fellows.  Until 1866 Sweden retained her clumsy 
machinery of a Riksdag of four Estates, as well as many other constitutional 
arrangements which made the royal power predominant. Doubtless the standing 
example of Norway's more simple and liberal constitution had much to do with the 
revision of the Riksdag undertaken in 1866; and it is unquestionable that the 
democratic ideas embodied in the fundamental law of the Norwegian kingdom have 
worked as a powerful leaven in Swedish politics. Slowly but surely, and principally by 
the movement of Sweden, the two countries have drawn towards each other in 
institutional development.

	795. The Fundamental Laws. - The present fundamental law of Sweden- Norway 
consists of three parts: (a) the separate constitutional laws of Sweden, (b) the separate 
constitutional laws of Norway, and (c) the Imperial Riks-Akten of August, 1815, which 
binds the two countries together under a common sovereign.  This last is, as far as 
Sweden is concerned, a mere treaty, having never passed the Riksdag as a 
constituent law of the kingdom; but for Norway it is an integral part of her law, having 
been formally adopted as such by the Storthing.  (a) The separate fundamental laws of 
Sweden have never been embodied in any single written constitution, but consist of 
various laws regulative of the succession to the throne, passed in the period of 
dynastic change (1809-1810); of certain portions of the great enactments of February, 
1810, which gave to the Riksdag an orderly arrangement of its four Estates and 
regulated the order of legislative business; of the enactments of June, 1866, which, 
abolishing the fourfold constitution of the Riksdag, substituted two popular houses; and 
of the laws guaranteeing freedom of the press, passed in May, 1810, and July, 1812.  
Taken together, these laws constitute a body of fundamental provisions slowly built up 
by Swedish statesmen upon the somewhat inconstant bases of Swedish constitutional 
precedent.  Perhaps its most significant feature appears in the detail with which the 
enactments of 1810 enter into the regulation of the order and methods of business in 
the Riksdag. Under the former complicated division of that body into four separate 
houses minute regulative detail was of course unnecessary, and, as seen in the laws 
of 1810, this detail is illustrative of one of the chief and most interesting difficulties of 
constitutional development in Sweden. (b) The constitutional laws of Norway, on the 
other hand, are, equally from the nature of the case, very much more simple.  They 
consist of the Convention of Moss, drawn up in August, 1814, and confirmed by 
Norway in November of the same year; of the constitution framed by the Norwegians 
at Eidsvold in May, 1814, during the brief struggle against all foreign control; and of the 
imperial Riks-Akten of August, 1815, which Sweden has continued to observe as a 
treaty merely, but which Norway has made a part of her law.

	796. The Common Government: the King. - The thong which binds Sweden and 
Norway together is the authority of their common king; but they are in effect separate 
kingdoms, and this authority has one character as respects Sweden and quite another 
as respects Norway.  The fundamental laws of each kingdom constitute it a limited 
monarchy, but only in Norway does it seem to be the chief object of constitutional 
provision to limit royal power. Both the active and the obstructive parts of the king in 
legislation are much more considerable in Sweden than in Norway.  In Sweden it rests 
exclusively with him to formulate what are there denominated 'economic laws': 
administrative laws, namely, regulative of trades, commerce, and manufacture, and of 
mines and forests.  He is, moreover, the sole and sovereign author of police 
regulations, and of laws controlling vagrancy; he has power to make rules concerning 
the erection of buildings and to originate ordinances touching sanitary precautions and 
protection against fire.  As regards all other laws he must act jointly with the Riksdag; 
though his veto is in every case absolute.

	797. The Riksdag may, of course, advise the king concerning the economic and 
administrative legislation entrusted thus exclusively to him; but any action it may take 
has the force of advice merely.  The only control it can exercise in such cases comes 
to it through its money power; it may withhold the money necessary to the carrying out 
of administrative or economic ordinances determined upon by the king.

	798. In Norway, on the other hand, the king has no independent legislative 
powers, except during recesses of the Storthing; and his veto is only suspensive.  
Certain police regulations and certain ordinances touching particular branches of 
industry he may issue while the Storthing is not in session, but these are of force only 
until the Storthing comes together again. (Compare sec. 770.  His veto of bills passed 
by the Storthing may be overridden by the passage of the same bill (it must continue 
literally the same) by three successive Storthings.

	799. This naturally renders the passage of bills over his negative an extremely 
tedious and difficult undertaking, and usually, in case of a very urgent disposition on 
the part of the Storthing to have its own way, a compromise measure is finally 
adopted, often at the express suggestion of the king.  In two notable instances, 
however, - the abolition in 1821 of such noble titles as existed since the adoption of the 
democratic constitution of 1814, and the establishment of ministerial representation in 
the Storthing (1884), - the veto was overridden, through the persistence of the 
Storthing, by means of the constitutional passage of the measures proposed.

	800. The Throne. - The royal majority is fixed at eighteen years. Women are 
excluded from the succession.  The king must be of the Lutheran faith.  He takes the 
throne under oath to obey the constitution and laws of the dual kingdom, and he must 
temporarily lay down the governing power when sick or out of the country, except 
when absent in the field of battle.

	801. In case a vacancy occurs, the throne is to be filled by election, the choice to 
be made by the Swedish Riksdag and the Norwegian Storthing acting separately, if 
they can agree; or, if they cannot agree, by a joint committee of seventy-two (thirty-six 
from each body) assembled at Carlstad. This committee is to choose between the two 
candidates by secret ballot.

	802. In the event of an interregnum or of the minority of the king, the 
administration of the two kingdoms is to be undertaken by a joint Council of State, 
consisting of the ten ordinary state councillors of Sweden and ten special 
representatives of Norway.  If the interregnum or minority continue more than a year, 
however, the national representatives must be called together and given an 
opportunity to make other arrangements.  If the king be sick or absent, his heir, if of 
age, governs in his stead.

	803. Foreign and Common Affairs. - Almost the only common affairs of the two 
kingdoms which are matters, not of agreement between them, but of sovereign action 
on the part of the king acting for both, are those affairs which affect the relations of 
Norway and Sweden with foreign countries.  In this field of foreign affairs the king has 
power to declare war and conclude peace, to form or dissolve alliances, to use ships of 
war or troops, to send or recall ambassadors, - has, in brief, all the prerogatives of 
sovereignty. His power to act thus for both kingdoms does not, however, merge 
Sweden and Norway as regards international relations: they retain their separateness 
and individuality in the family of nations; and the king may, and often does, conclude 
treaties affecting one of his kingdoms only.  Peace and war are inevitably, however, 
common to both kingdoms.

	804. The king is assisted in these functions by no common minister of foreign 
affairs: he acts through the Swedish minister, Norway having no minister of foreign 
affairs at all.  Certain other ministers of state must be present, however, when the 
Swedish foreign minister lays diplomatic affairs before the king; and when such 
matters directly affect Norway a Norwegian minister of state must be present.  
Norwegians find ground for serious objection to the present constitutional 
arrangements existing between the two countries in their own too slight hold upon the 
conduct of foreign affairs.

	805. War. - If, in the exercise of his great international functions, the question of 
war arise, the king must take the opinion of a joint Council of the two kingdoms (sec. 
809), but he is not legally bound by its opinions.  He must himself assume the full 
responsibility of deciding the question.

	806. A certain limitation rests upon the royal power as regards the use of the 
Norwegian forces.  He may freely call out the whole military force of Sweden, both land 
and naval, but he may not use the Norwegian troops of the line without the express 
consent of the Storthing.  The Norwegian militia, moreover, cannot under any 
circumstances be employed outside of Norway, and it is within the competence of the 
Storthing at any time to increase the militia at the expense of the regular line.  It has 
indeed actually done this.

	807. Legislative Control of Foreign Relations. - Of course, too, the king must in 
every exercise of his royal powers act within the limits of the fundamental law.  He 
cannot enter into any agreement with a foreign country which is not consistent with the 
constitutions of his kingdoms; he may not conclusively pledge the legislatures of his 
kingdoms to any action or to any expenditure of money; and he is in a large measure 
dependent upon their cooperation for the execution of treaties.  But these are the 
familiar limitations of modern representative government.

	808. Concurrent Legislation. - Matters which are of common interest to the two 
countries, but which lie outside of the prerogatives of the common king, are regulated 
by concurrent identical resolutions or laws passed by the Riksdag and the Storthing 
severally.  Important examples of such concurrent laws are those which affect the 
money systems of the two countries, and those which concern the Lapps.  The money 
systems of the two countries are not the same; but there is a regulated system of 
exchange.

	809. The Joint Councils. - The place of a common ministry to advise the king 
touching questions which affect the interests of both kingdoms is taken in Sweden-
Norway by a complicated system of Joint Councils of State. Whenever any matters are 
considered in the Swedish Council of State at Stockholm which concern Norway also, 
the Norwegian minister resident and the two Norwegian councillors who regularly 
attend the king must be called in (sec. 823); and whenever practicable the opinion of 
the whole Norwegian Administration must be sought and obtained.  Whenever, on the 
other hand, matters which directly affect Sweden are under debate in the Norwegian 
Council of State at Christiania, that Council must likewise be reinforced by the 
presence of three Swedish ministers.  There is thus upon occasion both a Swedish-
Norwegian and a Norwegian-Swedish Joint Council of State; and not a little doubt 
exists among publicists in the two kingdoms as to what particular matters are proper to 
the consideration of one and what to the consideration of the other of these anomalous 
bodies.  The whereabouts of the king, however, serves as a rough criterion as to the 
predominance of Sweden or of Norway in these Councils.

	810. The sphere of these Councils is quite extended.  It includes the 
consideration of questions of war and peace, the oversight and the costs of the 
diplomatic service, inter-territorial relations, the balance of financial accounts between 
the two countries, and all reciprocal affairs in which the intimate cooperation of the two 
kingdoms is necessary.

	811. Citizenship. - There is no common citizenship for the two kingdoms, 
although Swedes are allowed by Norwegian law to acquire citizenship in Norway by 
mere residence.  Certain reciprocal advantages are, however, accorded: citizens of 
either country may, for instance, own land in the other; interstate trade is encouraged, 
and a joint-ownership of vessels is facilitated.  Legal banishment from one kingdom, 
moreover, is banishment from the other.

	812. The Government of Sweden. - In all matters of internal legislation and 
administration the two kingdoms are as distinct as if no legal relations existed between 
them.  Each has its own separate treasury, its own bank, its own money system, its 
own army and navy; and each has its own complete administrative and legislative 
organization.

	813. The Swedish Executive: the King and Council. - Sweden's theoretical 
development in the field of constitutional law has been less complete than her practical 
development.  Her fundamental law recognizes only a twofold division of governmental 
powers, into Executive and Legislative.  Judicial power is supposed to reside in the 
king, and is in theory indistinguishable from the Executive power.  As a matter of 
practice, however, though the king nominates the judges, they are quite as 
independent of him as they would be were Swedish theory upon this head more 
advanced.

	814. The position and character of the Swedish Executive are in some respects 
peculiar.  The king is charged to a quite extraordinary extent not only with the general 
oversight but also with the detail of administration. The ministers are not so much 
directing heads of departments as councillors of state assigned the duty of advising 
the monarch.  They have seats in the Riksdag with a full voice in all its debates and 
the right, exercised in the name of the king, to initiate legislation.  This connection with 
the legislature involves also, as a natural consequence, frequent resignations of the 
ministers in cases of unalterable disagreement between themselves and one or both of 
the chambers; but ministerial responsibility is not as yet a recognized principle of the 
constitution.  Not only the full equality of the two chambers stands in the way of its 
development, but also the authority of the king.  The ministers serve too many masters 
to be altogether responsible to any one of them.  In respect of her Executive, therefore, 
Sweden may be said to stand half-way between England and France, where ministers 
are wholly responsible to one house of the legislature, and Germany, where the 
ministers are responsible to neither, but to the sovereign alone.

	815. The executive departments in Sweden are the following seven: Foreign 
Affairs, Justice, War, Marine, Interior, Finance, Educational and Ecclesiastical Affairs.  
At the head of the Council of State (the collective ministry) stands a prime minister who 
is not generally assigned any specific executive duties.  The division of business 
among the departments rests entirely with the king.  Although the king governs, 
however, so far as one man may, every decree which he issues must be 
countersigned by the head of the department whose affairs it concerns.

	816. The Riksdag. - The national Riksdag consists, as in most other 
governments, of two chambers.  Neither, however, is a house of lords; both chambers, 
on the contrary, are representative in their make-up.  One, the upper chamber, 
consists of one hundred and fifty members chosen for a term of nine years by the 
representative bodies of the counties and the councils of the larger towns: these 
electoral bodies being in their turn chosen upon the basis of a complicated communal 
franchise granted chiefly on property or income.  No one is eligible to be elected a 
member of this chamber who has not possessed for at least three years previous to 
the election property of the taxable value of some twenty-two thousand dollars, or an 
annual income of at least eleven hundred dollars.  The lower house, numbering two 
hundred and thirty members, is chosen for a term of three years by the electors of the 
towns and of the rural districts, either by direct or by indirect vote as a majority of the 
electors prefer.  The rural districts are allowed one member for every forty thousand 
inhabitants, the towns one for every ten thousand inhabitants, the latter being thus 
given the preference in representation. For both electors and members there is a small 
property or income qualification.

	817. This does not, however, result in the return of a majority of town members.  
Only eighty members are returned by the towns, one hundred and fifty by the rural 
districts.

	818. The proportion of representation in the upper house is one member for 
every thirty thousand inhabitants.  The rural population has by this arrangement a 
larger representation in the upper than in the lower house. Only the municipal councils 
of those towns participate in the elections to this house whose population is not 
represented in the county councils. Such towns are only five in number: Stockholm, 
Goteborg, Malmo, Norrkoping, and Gafle.

	819. The members of the upper house are not elected for a joint term of nine 
years, but each member is chosen to serve that length of time: so that if any member 
be chosen to fill a vacancy his term will, of course, overlap the terms of the members 
previously elected.  The body is thus given a sort of continuous existence.

	820. Joint Legislation upon Financial Questions. - It is a peculiarity of Swedish 
constitutional arrangements that, under some circumstances, the two houses are 
fused.  Legislative business is under the general direction of a joint committee of the 
two chambers, and in case of a difference of opinion between the houses upon 
financial matters a decision is reached in joint session.  The houses meet in joint 
session for no other purpose, however.

	821. Local Government. - Local government rests in Sweden upon very ancient 
historical foundations.  The primitive Germanic institutions of self-government have 
there never been entirely overlaid or lost.  In the Communes, the oldest and, so to say, 
most natural areas of local administration, there is almost complete autonomy, the 
people themselves acting, where the size of the community does not forbid, in primary 
assemblies, quite after the immemorial fashion.  The counties are more artificial 
constructions of a later date and are presided over by officers appointed by the king; 
but in them also popular representative councils play an important supervisory part.

	822. Changes in the Constitution. - Changes in the constitution can be quite 
simply effected.  If proposed by one Riksdag and adopted by the next (the next after 
an election for the lower house) they become, with the royal assent, incorporated parts 
of the fundamental law.

	823. The Government of Norway: the Norwegian Executive. - The king stands in 
substantially the same relations to his Council in Norway that he occupies towards his 
Council in Sweden: the supreme deciding authority is his.  Alike in Norway and in 
Sweden he must take the opinion of his ministers upon public questions; and when he 
is in Sweden he may not take any decision upon Norwegian affairs without hearing the 
advice of the three Norwegian councillors who attend him there (sec. 824).  On 
important Norwegian measures not demanding haste he must even, when in Sweden, 
ask the written opinion of the whole Norwegian Council.  But the decision is his in any 
case.  His constant absence in Sweden, nevertheless, gives a weight in government to 
the Norwegian Council which its Swedish counterpart never possesses.  The king 
must leave to that Council, acting under the presidency of a viceroy or of the prime 
minister, the major part of the governing authority, including even his veto; and his 
power to reverse its action is strictly limited.  As regards their relations to the national 
legislature the Norwegian do not differ greatly from the Swedish ministers. They sit, 
without voting, in the Storthing; they have the privilege of initiative, and they are under 
no constitutional obligation to resign in case of defeat (sec. 814).

	824. The Norwegian Council of State consists of two parts, (a) a minister of state 
and two councillors, all three of whom accompany the king, and (b) the 'Government' 
proper, consisting of a minister of state, as prime minister, and six or seven other 
ministers, according as the prime minister has or has not a portfolio.  For the 
administrative departments in Norway, as in Sweden, are seven in number; namely, 
Ecclesiastical Affairs, Justice, Interior, Finance and Customs, War (including, since 
1885, the navy), Public Works, and Audit.  The division of business among the several 
departments rests with the king.

	825. The Storthing. - The national Storthing has a character and constitution 
quite peculiarly its own.  It is, in fact, a single body, elected as a whole, but self-divided 
for ordinary legislative business into two sections, a Lagthing and an Odelsthing.  It is 
chosen for a term of three years and consists of one hundred and fourteen members, 
thirty-eight (or one-third) of whom are returned by the towns, seventy-six (or two- 
thirds) by the rural districts.

	826. This proportion is fixed by law and can be changed only by constitutional 
provision.  The franchise rests upon a property qualification, and the voting is indirect.  
In the cities the secondary electors are chosen in the proportion of one to every fifty 
voters; in the country districts in the proportion of one for every one hundred voters.

	827. Upon the assembling a new Storthing one-fourth of its members are 
selected, by the Storthing's own vote, to constitute the Lagthing; the remaining three-
fourths constitute the Odelsthing; and with the Odelsthing remains the right to originate 
all measures of legislation.  The Lagthing is thus, as it were, merely a committee of the 
Storthing set apart as a revisory body, a sort of upper chamber.  It is only with regard 
to ordinary bills, however, that the Storthing acts in this way as two houses. 
Constitutional and financial questions it considers as a single body.

	828. In case the Lagthing twice reject any measure sent to it by the Odelsthing, 
the difference is decided in joint session by a two-thirds vote.

	829. Local Government. - Local government in Norway does not rest upon the 
same undisturbed foundations of historical tradition which in Sweden uphold it.  The 
laws which give to it its organization date from 1837.  By these the country is divided 
into districts and communes, in the government of both of which the people are 
represented, but in both of which officials appointed by the central Government 
exercise considerable powers of oversight and control.

	830. Changes of Constitution. - Constitutional amendment is effected in Norway 
substantially as in Sweden.  Proposals of amendment must be introduced at the first 
ordinary session of the Storthing held after an election, and must be finally acted upon, 
without alteration, during the first session of the next Storthing.  The votes of two-thirds 
of the members present are required for the passage of such amendments, and the 
king's veto operates as in other cases (sec. 798).

	831. The Two Countries. - More than eighty years of successful union (1814-
1897) now stand behind this singular dual monarchy.  The attitude of Sweden towards 
her partner land has been marked during most of this period, as the attitude of the 
stronger towards the weaker party should be, by not a little forbearance and 
consideration.  The two countries have concurred in removing also all the more serious 
causes of possible commercial irritation between them, though a customs tariff still 
burdens trade between them. Sweden, nevertheless, has the preponderant weight and 
influence in all common affairs, particularly in the regulation of the foreign relations of 
the two kingdoms (sec. 803).  Her policy, moreover, is often, when considered from 
Norway's point of view, a Swedish policy merely, looking directly or indirectly towards 
Swedish control.  Not a few causes of jealousy, not a few points of friction, remain in 
the system.  An influential party in Norway, therefore, desires an even larger measure 
of independence and home rule than is now possible without fundamental 
constitutional change, suspecting, probably not without just cause, that it is the object 
of a certain party, at any rate, if not of all parties, in Sweden, to weaken the guarantees 
of liberty now existing, and to draw Norway even further within the circle of Swedish 
control.  The future, it would seem, must assuredly bring forth either greater 
consolidation of the dual government or a new and better definition and guarantee of 
Norway's separate rights.

Some Representative Authorities. 

     On Austria-Hungary:

     Arnold-Foster, F., "Francis Deak, 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.  N.Y. and London,
1895.

     Demombynes, 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.

     Gumplowicz, "Das Oesterreichische Staatsrecht.

     Leger, Louis, "A History of Austro-Hungary from the Earliest Time to the
Year 1889." Translated from the French 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.

     Patterson, Arthur J., "The Magyars: Their Country and Its Institutions."
2 vols., 8vo.  London, 1870.

     Ulbrich, J., "Das Staatsrecht der oesterreichisch-ungarischen Monarchie,"
in Marquardsen's "Handbuch des oeffentlichen Rechts der Gegenwart," Freiburg
in B., 1884.

     Vambery, Arminius, and Heilprin, Louis, "Hungary," (Stories of the
Nations Series), N.Y. and London, 1886.

     Whitman, C. Sidney, "The Realm of the Habsburgs," London and N.Y. 1893.

     Worms, Baron H. de, "The Austro-Hungarian Empire." 8vo.  London, 1877.
Historical and descriptive.

     Zuylen de Nyevelt, Baroness, "Austria: Its Society, Politics, and
Religion." National Review, October, 1891.

     On Sweden-Norway:

     Aschehoug, T. H., "Das Staatsrecht der vereinigten Konigreiche Schweden
und Norwegen," in Marquardsen's "Handbuch des oeffentlichen Rechts," Freiburg
in B., 1886.

     Borgeaud, Chas., as above, pp. 94-104.

     Demombynes, G., "Les Constitutions Europeennes," I., pp. 93-198.

     Dunham, S. A., "History of Denmark, Sweden, and Norway." 3 vols., 12mo.
London, 1840.  Best brief history in English.

     Geijger, E. J., and Carlson, F. F., "Geschichte Swedens," translated into
German by J. C. Petersen.  5 vols., 8vo.  Gotha, 1844-1875.

     Keary, C. F., "Norway and the Norwegians." 8vo. London, 1892.

     Otte, Otte, E. C., "Scandinavian History." 12mo.  London, 1894.

     Sars, J. E., "Historisk Inledning til Grundloven."


THE STATE
Wilson, Woodrow
The Government Of Great Britain
    
Part I.

I. Central Government 
	832. Origin of the Constitution. - The history of government in England, as in 
Germany, begins with the primitive politics of the Teutonic races. Those great race 
movements of the fifth century 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 evidences of the displaced system of Rome may 
have had upon the rough seamen who made the new conquest, or how much of 
Roman influence may have 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.

	833. Primitive Teutonic Institutions. - These institutions had none of the national 
character which they were in the course of time to acquire. They illustrated the well-
known historical sequence, 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; kinship among them was honorary and typical rather than real. 
The freemen of each little community 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 imperative individuality as a more or less 
effectual check upon the wilfulness of his commander (secs. 287-294).  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.

	834. 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 (secs. 300, 301): 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.

	835. The Hundred-moot and the Folk-moot. - But there was, besides, a wider 
organization, possessing features which possibly had not been quite so fully and 
symmetrically developed and integrated in earlier Germanic practice. Communities 
were combined into 'hundreds,' and it was a combination of 'hundreds,' doubtless, that 
constituted the little kingdoms of the first 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 distinctively a judicial rather 
than an administrative district.  Above the hundred-moot, at the top of the primitive 
system, was the general folk-moot, a general assembly of the freemen, playing the 
same part as tribal or national council that Tacitus had seen similar assemblies play in 
Germany in the first century.

	836. English Kingdom and English County. - When the English kingdoms were 
many, each, probably, had its general council, which sat under the presidency of the 
king, and which advised with him concerning the common interests with some at least 
of the old authoritativeness which its conclusions had possessed before 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.

	837. 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 Assembly of the Wise.  We have no certain knowledge of the 
exact character of this famous national body; but we are probably warranted in 
concluding that it was formed more or less closely upon the model of the 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 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-gemot at some central 
point in the kingdom and declare 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.

	838. Powers of the Witenagemot. - The powers of the Witenagemot 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 
withheld 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 
perfunctory, was yet a necessary and, symbolically, a valuable form, preserving, as it 
did, the memory, if no more, of the nation's freedom.

	839. 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 ecclesiastical 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 owners, and granted away in new estates to Normans or to 
submissive Englishmen, to be held in feudal subjection to himself.  The feudal system, 
so familiar to the historian of the Continent, with its separated baronial jurisdictions and 
its personal dependencies of vassal upon lord and of lord upon overlord, was 
perfected in England also. Township courts in most places gave way to baronial 
courts; hundred-moots lost their one-time importance; 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 exercise of their privileges.

	840. The Great Council of the Norman Kings. - More important 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 feudal 
character of the Norman type, that new character became mirrored in the composition 
of the royal council.  The Mycel-gemot merged in the Great Council (magnum or 
commune concilium) 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 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 constitutional history; for from it 
may be said to have sprung the whole effective organization of the present 
government of England.  Out of it, directly or indirectly, by one process or another, 
have been evolved Parliament, the Cabinet, and the courts of law.

	841. The Feudal System in England. - England was not feudalized by the 
Normans.  Feudalization had grown there, as elsewhere, with the growth of Teutonic 
politics, under Saxon and Dane as under Frank and Goth.  Society in England, as on 
the Continent, had divided into ranks of nobles, freemen, and slaves bound together 
by personal fealty and the principles of landownership. 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.

	842. 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 establishments, or of successive new creations of 
instrumentalities of legislation and administration: all the way through it is a history of 
almost insensible change, of slow modification, and of unforced, almost of 
unconscious, development.  Very great contrasts appear between the character of her 
government in one age and its character in another age distant one or more centuries 
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 outlined in brief epitome: its stages are long, 
its features large, its details unessential to clearness.

	843. 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 constituted, who were state officers and chief officials of the 
court became a Permanent royal Council, out of which, in course of time grew the 
more modern Privy Council and at length the Cabinet; and 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.

	844. 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 
"committee, or inner circle," of that greater body.  The Great Council met but three 
times in the year; its organization was not permanent; its membership varied, both 
numerically and personally, from year to year.  The officers of the permanent service, 
on the other hand, were always within 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 
capacity as a smaller council, should carry with it the weight of their connection with 
the more authoritative Great Council.  As a matter of fact at any rate, they acquired 
powers almost coincident with those of the national body itself.  Their powers came, 
indeed, to possess an importance superior even to those of the more august 
assembly, being exercised as they were, not intermittently or occasionally, but 
continuously; not with a mere outside acquaintance with the posture of affairs, but with 
an inside intimacy of knowledge.

	845. Composition of Permanent Council. - Under the Norman kings the 
membership of the Permanent Council consisted, usually, of the two archbishops (of 
Canterbury and of York), the Justiciar, the Treasurer, the Chancellor, the Steward, the 
Marshall, the Chamberlain, and the Butler, with the occasional addition of other 
officials, such as the king's Sergeant, and of 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.

	846. 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 machinery of the common law"; ^1 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 Permanent Council very early ceased to act 
as a whole in the discharge of all its functions alike.  Itself a committee, it presently, in 
its turn, began to split up into committees.

	[Footnote 1: Stubbs, Constitutional History of England, Vol. III., p. 252.]

	[Footnote 2: A. V. Dicey, The Privy Council, p. ii.]

	847. 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 functions of the Crown 
were more and more exclusively entrusted. (Compare sec. 379.) It was not long before 
(a) a separate Court of Exchequer, which was at first charged principally with the 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; 
(b) 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 completed by the middle of the fourteenth.

	848. 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 constitution 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 
summoned always by special personal summons; but the lesser barons, who formerly 
had been called to the Council, not by personal summons, but only by a general 
summons addressed to them, along with all tenants-in-chief, through the sheriffs of the 
counties, had given over attending because of the expense and inconvenience of the 
privilege, and were accordingly no longer called.  Their place was filled by 
representation.  Writs addressed to the sheriffs 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 established the type for the 
composition of all future Parliaments.

	849. 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 summon all lesser barons also by a 
general summons, through the sheriffs and bailiffs. But this general summons failed of 
the desired effect.

	850. Representatives from the towns were summoned first in 1265 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 1295, not 
because he was deliberately 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 representing all classes.

	851. 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 lesser 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.

	852. Genesis of the Two Houses. - Such a body as the Parliament 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 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.

	853. There were left, therefore, in Parliament two main elements, lords and 
commoners.  The lords, to whom the archbishops, bishops, and abbots adhered by 
immemorial wont, formed a house to themselves, the House of Lords. The commoners 
from the towns, who were soon joined by the middle order of gentry, the knights of the 
shires, who were neither great lords summoned by personal 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.

	854. 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 maintained 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 
Permanent 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 '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 governing body of the realm.

	855. 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 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 arrogated to itself by the Permanent Council's proxy, the Privy 
Council.  Out of it came, in course of time, the well-remembered Council of the North, 
the hated Star Chamber, and the odious High Commission Court, 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.

	856. Origin of the Cabinet. - Meanwhile, long before the parliamentary 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 meeting him, not in the larger 
council chamber, but in a 'cabinet,' or smaller room, apart.  The Privy Council had, in 
its turn, become "too large for 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 
executive 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." ^1

	[Footnote 1: Macaulay, History of England, Vol. I., pp. 197, 198 (Harper's ed., 
1849).]

	857. 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 
approached its present position are thus summarized by a distinguished 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, consulted 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 Council 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. (Reign 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 '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 authority in the State." It was "still, however, regarded with jealousy, and the 
full realization of the modern theory of ministerial responsibility, by the admission of its 
members to a seat in Parliament," was "only by degrees effected.

	"(4) Finally, towards the close of the eighteenth century, the political conception 
of the Cabinet as a body, - necessarily consisting (a) of members of the Legislature (b) 
of the same political views, and chosen from the party possessing a majority in the 
House of Commons; (c) prosecuting a concerted policy; (d) under a common 
responsibility to be signified by collective resignation in the event of parliamentary 
censure; and (e) acknowledging a common subordination to one chief minister, - took 
definitive shape in our modern theory of the Constitution, and so remains to the 
present day." ^1

	[Footnote 1: H. D. Traill, Central Government (English Citizen Series), pp. 23-25.]

	858. Parliament and the Ministers. - The principles concerning the composition of 
the modern Cabinets which are stated in this last paragraph of Mr. Traill's 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 (sec. 854), the 
national council very early developed a profound jealousy 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 revolutionary, all efforts to hold the 
king himself personally responsible 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 William 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 Chancellor 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 severe processes of trial by Parliament for high crimes and 
misdemeanors, 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.

	859. 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.

	860. The Executive. - The Executive, under the English system, so far as it may 
be described at once briefly and correctly, may be said to consist, therefore, of the 
Sovereign and a 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 conducted in the Sovereign's name.  The 
true place of the Sovereign in the system is that of an honored and influential 
hereditary councillor, to whose advice an exalted title and a constant familiarity with 
the greater affairs of state lend a peculiar weight.  The king ^1 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.

	[Footnote 1: Since the throne of England is generally occupied by a man, it is 
most convenient to use 'king' as the distinctive title of the Sovereign in every general 
statement of constitutional principles.]

	861. The Sovereign is not a member of the Cabinet because George I. could not 
speak English.  Until the accession of George I. the king 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 Presidents 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!

	862. 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 history centres 
in the struggle of Parliament to establish its supremacy over all other authorities in the 
conduct of the government; that struggle issued in the last century in the complete 
triumph of Parliament; it has reached its farthest logical consequence in our own 
century 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, manufacturers, 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.



THE STATE
Wilson, Woodrow
The Government Of Great Britain
    
Part II.

	863. Appointment of the Cabinet Ministers. - The responsibility of the ministers to 
Parliament constitutes their strength because it makes them the agents of Parliament: 
and the agents of a sovereign authority virtually share its sovereignty.  The king 
appoints only such ministers as have the confidence of the House of Commons; and 
he does it in this way: he sends for the recognized leader of the political party which 
has the majority in the House of Commons and asks him to form a Cabinet.  If this 
leader thinks that his party will approve of his assuming 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 recommends 
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 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 ability, 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.

	864. Composition of the Cabinet. - The Cabinet does not consist invariably of the 
same number of minister.  Eleven officials always have 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 are generally added from three to six others, according to 
circumstances: often, for instance, 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 governs these additions is, that every interest which is 
likely to be prominent 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.  
The word 'Ministry' is of wider meaning than the word 'Cabinet.' The 'Ministry' consists 
of all those executive officers who have seats in Parliament. These are the '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 Cabinet of Lord 
Salisbury consists (1897) of nineteen persons; but besides these there are forty non-
Cabinet ministers in Parliament.  (Compare sec. 886.)

	865. No member of the House of Commons may accept office without the 
approval of his constituents.  Upon receiving an appointment as minister he must 
resign his seat in the House and seek reelection, as representative plus minister.  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 
reelected without opposition.

	866. 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 I., who did not know enough of English 
public men to choose all the ministers, and so left the choice to Walpole.

	867. This method of forming a ministry is the outcome of Parliament's efforts to 
hold the king's ministers to a strict responsibility to itself. None but members of their 
own party would 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 privileges of the floor.  Only by such an 
arrangement could the full harmony desired between Parliament and the ministers be 
maintained: by face to face intercourse.

	868. 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 
ministry 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 supported by them, 'throw overboard' only those of their 
number whose departments were most particularly affected by the vote, and so keep 
substantially the same body of men in office.  If a defeated or censured ministry think 
that the House of Commons in its adverse vote has not really spoken the opinion of 
the constituencies, they can advise the Sovereign to dissolve the House and order 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.

	869. 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 Palmerston, then foreign secretary, was dismissed from 
office for adding to various other acts of too great independence an unauthorized 
expression of approval of the coup d'etat of Louis Napoleon in France.

	870. 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 (sec. 856), it is 
not a body recognized by law: its existence, like the existence of not a few other 
political 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 Council. 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 twelve or fifteen 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 ministers, are still members of the 
Council and have still the same legal right to advise the Crown.

	871. Initiative of the Cabinet in Legislation. - Having inherited 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 
consideration 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.

	872. 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.

	873. The Departments of Administration. - So much for the relations 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 departments, as in other governments.  But the departments of the central 
government in England are by no means susceptible of brief and simple description as 
are those of other countries, which have been given their present forms by logical and 
self- consistent written constitutions, or by the systematizing initiative of absolute 
monarchs.  They hide a thousand intricacies born of that composite development so 
characteristic of English institutions.

	874. The Five Great 'Offices' of State. - Not attempting detail, however, it is 
possible to give a tolerably clear outline of the central administration of the kingdom in 
comparatively few words.  The Treasury I shall describe in a separate paragraph (sec. 
879).  The Home Office superintends the constabulary; oversees, to 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 certain statues restricting at some points the employment of labor.  The Foreign 
Office describes itself.  So do also, sufficiently, the Colonial Office, the War Office, and 
the India Office.

	875. These five great 'Offices' are all, historically considered, in a certain sense 
offshoots from a single office, that of the king's Principal Secretary of State.  By one of 
the usual processes of English constitutional development, an officer bearing this title 
very early came into existence as one of the most trusted ministers 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 necessary to double him and 
to have two Principal Secretaries of State, two men theoretically sharing one and the 
same office, and alternates of each other.  At last he has, for the sake of convenience, 
been quintupled.  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.

	876. The Admiralty, the Board of Trade, and the Local Government 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 of 
Trade is, in form, a committee of the Privy Council.  It is reconstituted at the opening of 
each reign by an order in Council.  It consists, nominally, of "a President and certain ex 
officio members, including the First Lord of the Treasury, the Chancellor of the 
Exchequer, the Principal Secretaries of State, the Speaker of the House of Commons, 
and the Archbishop of Canterbury." ^1 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 commissions 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 on 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 supervising the 
administration, by the local authorities of the kingdom, "of the laws relating to the 
public health, the relief of the poor, and local government," - duties more important to 
the daily good government of the country than those of any other department. It also 
specially examines and reports upon every private bill affecting private interests.

	[Footnote 1: Traill, pp. 126, 127.]

	877. The Board of Agriculture. - In 1889 still another department 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 
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 Lancaster, 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 inquiries and investigations touching agricultural 
processes and conditions and concerning the culture of forests, the inspection and 
subvention of schools in which instruction is given in such subjects, 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.

	878. 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 system of the country, which is owned by the government; 
and it has also under its direction a useful postal savings-bank system.

	879. The Treasury. - The history of this department, which may be reckoned the 
most important, may serve as another typical example of English departmental 
evolution.  Originally the chief financial minister of the Crown was the Lord High 
Treasurer, with whom was associated at an early date a Chancellor of the Exchequer.  
But in the reign of George I. the great office of Lord High Treasurer was, in English 
phrase, put permanently 'into commission': its duties, that is, were intrusted to a 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 became concentrated in the hands of the Chancellor of 
the Exchequer; 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 
(sec. 872); and the Junior Lords were left none but parliamentary duties.

	880. 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 possible sources of revenue, together with 
proposals to extend or curtail taxation, according as there is prospect of a deficit or of 
a surplus under existing arrangements.

	881. The Estimates. - The various departments make up their own estimates; but 
these are subjected to a careful examination by the Chancellor of the Exchequer, and 
with him rests the prerogative of revising them where they may seem to admit of or to 
require revision.  Thus changes in the clerical forces of the departments or 
redistributions of their work among sub-departments, etc., cannot, if they involve 
additional expense, be made without express approval by the Treasury.

	882. Mr. Gladstone twice, with characteristic energy, held, when Prime Minister, 
both the office of First Lord of the Treasury and the office of Chancellor of the 
Exchequer, thus in effect once more bringing the First Lord into vital connection with 
his nominal department.

	883. Administrative Departments of the Privy Council. - Though superseded as 
advisory council to the Crown by the Cabinet and deprived of all actual executive 
control by the 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 public 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 
(sec. 924).

	884. The Lord Privy Seal exercises no important functions except 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.' 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.

	885. 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 
Chancellorship in order that they may give the ministry the benefit of their advice and 
countenance.

	886. Political Under Secretaries. - There are often associated with the principal 
ministers of state certain 'political' Under Secretaries, whose function is one of very 
considerable importance.  A political Under Secretary is one who goes in or out of 
office with his party, not having a place in the Cabinet but sharing its fortunes in the 
Commons.  He is parliamentary spokesman for his chief.  If the foreign minister, for 
instance, or any other member of the Cabinet, the affairs of whose department may be 
expected to call forth frequent comment or question in the lower House, be a member 
of the House of Lords, he is represented in the 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 sec. 864.)

	887. 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 concerning Scotch interests, and a Secretary for Scotland who is the 
intermediary between the Scotch members of Parliament and the ministry, and the 
official spokesman of the ministers regarding Scotch business in the House of 
Commons.  Officially the Lord Advocate ranks as a subordinate of the Secretary of 
State for Home Affairs. The Irish executive is, formally at least, separate from the 
English, being vested in a Lord 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.

	888. 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 (sec. 925).

	889. 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 confidence reposed in it by that chamber, it is a mere committee, 
possessing 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.

	890. Parliament: I. the House of Commons; its Original Character. - "The 
Parliament of the nineteenth century is, in ordinary speech, the House of Commons.  
When a minister 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 constitutional roles were played by the king and baronage.  The commoners in 
Parliament represented the towns, and spoke, for the most part, at first, only 
concerning the taxes they would give.  When the house of Parliament called the House 
of Commons first assumed a distinct separate existence, about the middle of the 
fourteenth century (sec. 852), it was by no means a homogeneous 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 presence 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.

	[Footnote 1: Spencer Walpole, The Electorate and the Legislature (English 
Citizen Series), p. 48.]

	891. Historical Contrasts between County and Borough Representatives. - The 
main object of the Crown in making the Commons as representative as possible would 
seem to have been to bring the whole nation, as nearly as might be, into cooperation 
in support of the 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 century, the franchise was limited in the counties to freeholders whose landed 
property was of an annual value of forty shillings, and forty shilling freeholders were 
then men of means; ^1 but this franchise remained unchanged until the parliamentary 
reforms of 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 redistribute 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 properties, 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.

	[Footnote 1: Forty shillings, it is estimated, were equivalent at that time in 
purchasing value to eighty pounds at present ($400).  See J. E. T. Rogers, Economic 
Interpretation of History, p. 32.]

	892. The House of Commons consisted in 1801 of 658 members, and of these 
425 are said to have been returned "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 election to the nomination either of the Treasury or of 162 
powerful individuals." ^1

	[Footnote 1: Walpole, p. 55.]

	893. 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.

	894. Parliamentary Reform. - It was to remedy this state of things that the well-
known reforms of the present century were undertaken.  Those reforms have made the 
House of Commons 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 franchise.  The decayed towns were deprived of their 
members, and the new centres of population were accorded adequate representation.  
The right to vote in the counties was extended from those who owned freeholds to 
those who held property on lease and those who held copyhold estates, ^1 and to 
tenants whose holdings were of the clear annual value of fifty pounds.  The borough 
franchise was put upon the uniform basis of householders whose houses were worth 
not less than ten pounds a year.  This was putting representation into the 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 important readjustments of representation.  The 
franchise was at the same time very greatly widened.  In the boroughs all 
householders and every lodger whose lodgings cost him ten pounds annually were 
given the right to vote; and in the counties, besides every forty shilling freeholder, 
every copyholder and leaseholder 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 basis of the 
present franchise was laid.  The qualifications for voters in the counties were made the 
same as the qualifications fixed for borough electors by the law of 1867, and over two 
millions and a half of voters were thus added to the active citizenship of the country.  
There is now a uniform 'household and lodger franchise' throughout the kingdom.

	[Footnote 1: Copyhold estates are estates held by the custom of the manor in 
which they lie, a custom once evidence by a 'copy' of the rolls of the Manor Court.]

	895. 'Occupier'is used in England as synonymous with the word lodger. The 
'occupation' requisite for the exercise of the franchise must be of a "clear annual value 
of Pounds 10." Occupation "by virtue of any office, service, or employment" is 
considered, for the purpose of the franchise, equivalent to occupation for which rent is 
paid, if the rent would come to the required amount, if charged.

	896. In 1885 another great Redistribution Act was passed, which merged eighty-
one English, two Scotch, and twenty-two Irish boroughs in the counties in which they 
lie, for purposes of representation; gave additional members to fourteen English, three 
Scotch, and two Irish boroughs; and created thirty-three new urban constituencies.  
The greater towns which returned several members were cut up into single-member 
districts, and a like arrangement was effected in the counties, which were divided into 
electoral districts to each of which a single representative was assigned. ^1 These 
changes were accompanied by an increase of twelve in the total number of members.  
Through the redistribution of seats in 1832 and 1867 the number had remained 658; it 
is now 670.

	[Footnote 1: This was establishing what the French, as we have seen (sec. 402), 
would call scrutin d'arrondissement.]

	897. Multiple Voting. - It is the peculiar feature of the English law governing the 
franchise that individual voters who have the requisite amount of property or interest in 
more than one constituency are entitled to vote for members of the House in as many 
parliamentary districts as they hold the necessary amount of property in; and, 
inasmuch as the elections are not held everywhere upon the same day, it is possible 
for one man to vote in several places, for as many several members.

	898. The following is an analysis of the present membership of the House of 
Commons given in the Statesman's Year Book for 1897: ^2 the English counties return 
253 members, the English boroughs 237, the English Universities 5; Scotch counties 
39, boroughs 31, universities 2; Irish counties 85, boroughs 16, universities 2. Totals: 
counties 377, boroughs 284, universities 9.

	[Footnote 2: Where other data also will be found.]

	899. One unusual feature of the reforms of 1884-1885 was that they applied to 
Scotland and Ireland as well as to England and Wales.  Earlier Acts had applied only 
to England and Wales, special Acts governing the franchise and representation in 
Ireland and Scotland.  The Irish delegation in the House of Commons is now for the 
first time truly representative of the Irish people.

	900. The legislation of 1885, by dividing the greater towns into single-member 
constituencies, abolished the 'three-cornered constituencies' which had been devised 
in 1867 for purposes of minority representation. Voters in places which returned more 
than two members had been allowed one vote less apiece in parliamentary elections 
than the number of members to be chosen. Thus, if any place returned four members, 
for example, each voter was entitled to vote for three and no more: it being hoped that 
the minority would by proper management under this plan be able to elect one out of 
the four.  The plan was not found to work well in practice, and has accordingly been 
abandoned.

	901. Election and Term of the Commons. - Members of the House of Commons 
are elected, by secret ballot, for a term of seven years.  Any full 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. ^1 The persons thus excepted, - all save the 
peers, at least, - can neither sit nor vote.

	[Footnote 1: Lord Palmerston, for example, was an Irish peer.]

	902. As a matter of fact no House of Commons has ever lived its full term of 
seven years.  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 Parliaments has 
been less than four years.  The longest Parliament of the present century (elected in 
1820) lived six years, one month, and twelve days.

	903. The use of the secret ballot does not rest upon any permanent statute.  In 
1872 its use was voted for one year; and ever since the provision has been annually 
renewed.

	904. There is no property qualification for election to the House now, as there 
was formerly; but the members receive no pay for their services; and, unless their 
constituents undertake to support them, - as was done in the early history of 
Parliament, and has been done again in some recent instances, - this fact constitutes 
a virtual income qualification.



THE STATE
Wilson, Woodrow
The Government Of Great Britain
    
Part III.

	905. 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, as of old 
(sec. 848).  Parliament is also 'prorogued' (adjourned for the session), by the 
Sovereign (that is, the Cabinet); and assembles again, after recess, by special 
summons.

	906. 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 beforehand.  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.

	907. 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.

	908. 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 Parliament 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 dissolution and before the day fixed for the convening of the new 
Parliament, the old Parliament is to come together for six months, if necessary, but for 
no longer term.

	909. 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 (sec. 871), quite absolutely under the 
direction of its great committee, the Cabinet. Certain days of the week are set apart by 
the rules for the consideration of measures introduced by private members, but most 
of the time of the House is devoted to 'government bills.' The majority put themselves 
in the hands of their party leaders, the ministers, and the great contests of the session 
are between the minority on one side of the chamber and the ministerial party, or 
majority on the other side.

	910. 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 father 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 ministerial proposals) on the front bench by the table, 
and so directly facing the ministers, only the table intervening.

	911. II. The House of Lords: its Composition. - The House of Lords consisted 
during the session of 1896 of four hundred and ninety-six 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 representative 
peers, elected by the whole body of Scottish peers to sit for the term of Parliament; 
twenty-eight Irish peers, elected by the peers of Ireland to sit for life; and four judicial 
members known as Lords of Appeal in Ordinary (secs. 915, 923, 924), sitting as life-
peers only, by virtue of their office.

	912. There is no necessary limitation to the number of 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-thirds of the present number of peers hold peerages created in 
the present century. Thirteen were created in the year 1886.  The number of Scottish 
and Irish peers is limited by statute.

	913. The House of Lords is summoned to its sessions when the House of 
Commons is, and the two must always be summoned together.

	914. Function of the House of Lords in Legislation. - The House of Lords is, in 
legal theory, coequal in all respects with the House of Commons; but, in fact, its 
authority is, as I have already more than once said (secs. 859, 868, 890), politically 
very inferior.  Its consent is, in law, as necessary as that of the House of Commons to 
every act of legislation; but it does not often withhold that consent when the House of 
Commons speaks emphatically and with the apparent concurrence of the nation on 
any matter: it then regards it as a matter of imperative policy to acquiesce.  Its 
legislative function has been well summed up as a function of cautious revision.  It can 
wisely and safely stand fast against the Commons only when there is some doubt as 
to the will of the people.  Its acquiescence, however, is based usually upon just views 
of policy rather than upon mere timidity, and its part in the quieter sorts of law-making 
is still very influential.

	915. 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 Norman times) as a body.  Those functions are now always exercised by 
the Lord Chancellor, who is ex officio 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.

	916. Legislation, therefore, is controlled by the House of Commons, the 
interpretation of the law by the judicial members of the House of Lords.  The House of 
Lords shares with the popular chamber the right of law-making, but cannot assert that 
right in the face of a pronounced public opinion.  The Sovereign, in like manner, has 
theoretically the right to negative legislation; but the Sovereign is in the hands of the 
ministers, and the ministers are in the hands of the Commons; and legislation is never 
negatived.

	917. 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 ordinance.  She has great laws like the Bill of Rights at the centre of 
her political system; but the Bill of Rights was only an act of Parliament.  She has no 
written constitution, and Parliament may, in theory, change the whole structure and 
principle of her institutions by mere Bill.  But in fact Parliament dare not go faster than 
public opinion: and public opinion in England is steadily and powerfully conservative.

	918. That is a very impressive tribute which Sir Erskine May pays to the 
conservatism of a people living under such a form of government when he says, "Not a 
measure has been forced upon Parliament which the calm judgment of a later time has 
not since approved; not an agitation has failed which posterity has not condemned." ^1

	[Footnote 1: Constitutional History, Vol. II., p. 243 (Am. ed., 1863).]

	919. 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 adversaries always before the courts 
in London. But these circuit judges travelled from the place to place under special 
commissions from the central authorities of the state, and had no permanent 
connections with the counties in which their assizes were held: they came out from 
London, were controlled from London, and, their circuit work done, returned to London.  
It was, moreover, generally only the three courts of Common Law (the Court of King's 
Bench, the Court of Common Pleas, and the Court of Exchequer) that sent their judges 
on circuit; the great, overshadowing Court of Chancery, which arrogated so wide a 
jurisdiction to itself, drew all its suitors to its own chambers in Westminster.  The only 
thing lacking to perfect the centralization was a greater uniformity of organization and a 
less haphazard distribution of jurisdiction among the various courts.  This lack was 
supplied by a great Judicature Act passed in 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 (sec. 847), out of that once 
single body, the ancient Permanent Council of the Norman and Plantagenet kings, 
were at last reintegrated, made up together into a coordinated whole.

	920. 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 then 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 Queen'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.

	921. "The Chancery Division has five judges besides its president, the 
Chancellor; the Queen's Bench Division has fifteen judges, of whom one, the Lord 
Chief Justice, is its president; the Probate, Divorce, and Admiralty Division has but two 
judges, of whom one presides over the other." ^1 This arrangement into divisions is a 
mere matter of convenience; no very strict distinctions 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 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 effective 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 different from the ordinary trial of cases, 
must two or more judges sit together.

	[Footnote 1: F. W. Maitland, Justice and Police (English Citizen Series), pp. 43, 
44.]

	922. The Court of Appeals may hear appeals on questions both of law and of 
fact.  It consists of the Master of the Rolls and five Lords Justices, who may be said to 
constitute its permanent and separate bench, and of the presidents of the three 
Divisions of the High Court, who may be called its occasional members.  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.

	923. 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 (sec. 911); only sometimes 
are there added to these a third Lord of Appeal in Ordinary, an ex-Lord Chancellor, or 
one or more of such judges or ex-judges of the higher courts as may have found their 
way to peerages.  Other members of the House never attend; or, attending, never 
vote.

	924. 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 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.

	925. 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 Division of the High Court, and he is a member of the Judicial 
Committee of the Privy Council; and he actually sits in all of these except the High 
Court, - in the House of Lords 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

	[Footnote 1: Maitland, p. 68.]

	926. 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 deprived of 
all judicial functions, both in their organization and in their duties.  They consist, not of 
the sheriff and all the freemen of the shire, but of single judges, holding their offices 
during good behavior, assisted by permanent ministerial officers, and exercising their 
jurisdiction not over counties but in districts much smaller than the counties.  They are 
called county courts only by way of preserving an ancient and respected name.

	927. The County Courts have jurisdiction in all cases of debt or damage where 
the sum claimed does not exceed Pounds 50, and in certain equity cases where not 
more than Pounds 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 outline.  A full account would involve many 
details; for it has been the tendency of all recent judicial legislation in England to give 
more and more 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" Pounds 50.

	928. 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 
Pounds 100.  Any case, however small the pecuniary claim involved, 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 Pounds 20 is involved.

	929. 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 'district' - the districts 
numbering about 500.  Each district has its own separate court, with its own offices, 
registrar, etc.; but the judges are appointed for the circuits, - one for each circuit.  They 
are appointed by the Lord Chancellor from barristers of seven years' standing. ^1

	[Footnote 1: The various Acts affecting the County Courts were amended and 
consolidated by the County Courts Act, 1888.]

	930. 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 Pounds 20 value.

	931. 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 Counties; 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 criminal cases, except those of the pettiest 
character, such as police cases, are tried before juries.

	932. "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.

	[Footnote 1: Maitland, p. 86.]

	933. 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 (sec. 966) is exercised by 
Petty Sessions, subject to appeal to the whole bench of Justices.

	934. The Justices of the Peace were, as we shall see more particularly in another 
connection (secs. 946-950), the general governmental authorities of the counties until 
the reform of local government effected in 1888, exercising functions of the most 
various, multifarious, and influential 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 fourteenth 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.

	935. 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.

	936. 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 
Treasury, the amount of state aid to be given to the support of the forces; but all the 
actual administration of the system is undertaken by the local authorities.  In the 
Counties a joint Committee of Quarter Sessions and the County Council appoint 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 (sec. 974).  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 employs, 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 Assistant Commissioners who are appointed by the Home 
Secretary and serve directly under his authority.

	937. The police throughout the country are given something like military drill and 
training, the organization being made as perfect, the training as thorough, and the 
discipline as effective as possible.  Ex-army officers are preferred for the office of Chief 
Constable.

II.  Local Government. 

	938. 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 description, 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 enthusiasm.  
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 
construction.  They are patch-work, not symmetrical net-work, and the patches are of 
all sizes, shapes, and materials.

	939. "For almost every new administrative function," complains one writer on the 
subject, "the Legislature has provided a new area containing a new constituency, who 
by a new method of election choose candidates 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." ^1

	[Footnote 1: Local Administration (Imperial Parliament Series), by Wm. 
Rathbone, Albert Pell, and F. C. Montague, p. 14.]

	940. 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 attempt 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.

	941. 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' 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, and generally with a miscellany of other functions; (b) 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 subdivision of the counties (1889) into new 
administrative 'districts,' charged with general administrative functions.  The only 
distinction persistent enough to serve as a basis for any classification of the areas and 
functions of the local administration 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.

	942. The County: its Historical Rootage. - For the County, with its influential 
Justices of the Peace and its wide administrative activities, is still the vital centre of 
rural government in England; and the Counties are in a sense older than the kingdom 
itself.  Many of them, as we have seen (sec. 836), 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.'

	943. 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 
government now in existence could adduce plausible proof of their descent from the 
manly, vigorous, self-centred Saxon institutions of the ancient time.

	944. Early Evolution of the County Organs. - In Norman times the eoldorman's 
office languished in the shadow of the Sheriff'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.

	945. 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 when 
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 
influential enough to escape formal conviction, were not influential enough to retain 
their offices.  They were dismissed, and replaced by Exchequer officials directly 
dependent upon the Crown.  In 1194, in the next reign, it was arranged that certain 
'custodians of pleas of the Crown' should be elected in the counties, 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 justice. 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 administration of justice, was limited to one year.  The pulling 
down of the old system was complete; fresh construction had already become 
necessary.

	946. Justices of the Peace. - The reconstruction was effected through the 
appointment of 'Justices of the Peace.' The expedient of 'custodians of pleas of the 
Crown' (custodes placitorum coronoe) 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 investigation concerning every case of 
sudden death from an unknown cause.  Better success attended the experiment of 
Justices of the Peace.  At first 'Conservators' of the peace merely, these officers 
became, by a statute passed in 1360, in the reign of Edward 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.

	947. 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 administrative 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.

	948. 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 multifarious 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; (b) of the Home 
Office, under which he acted in governing the county constabulary, in conducting the 
administration of lunatic asylums, and in visiting prisons; (c) of the Board of Trade, 
under whose general supervision he provided and tested weights and measures, 
constructed and repaired bridges, and oversaw highway authorities; and (d) of the 
Local Government Board, under whose superintendence he appointed parish 
overseers of the poor, exercised, 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), for the storage of 
gunpowder and petroleum, and for other undertakings required by law to be licensed; 
divided the counties into highway, polling, and coroner's districts; issued orders for the 
removal of paupers to their legal places of settlement; fulfilled a thousand and one 
administrative functions too various to classify, too subordinate to need enumeration, 
now that most of them have been transferred to the Councils.  The trial of criminal 
cases, together with the performance of the various functions attendant upon such a 
jurisdiction, always constituted, of course, one of the weightiest duties of their office, 
and is now its chief and almost only duty.

	949. "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 something 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

	[Footnote 1: Justice and Police, p. 84.]



THE STATE
Wilson, Woodrow
The Government Of Great Britain
    
Part IV.

	950. Character and Repute of the Office of Justice. - The office of Justice of the 
Peace is representative in the same sense, - not an unimportant 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 
system into local government, and the apparent desirability of systematizing 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.

	951. 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 
Rotulorum).  The Sheriff, since the completion of this change, has been a merely 
administrative officer, executing the judgments of the courts, and presiding over 
parliamentary elections.  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 secs. 931-935.)

	952. 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, 
suggested 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 districts; and these areas 
had been superimposed upon one another with an astonishing disregard of consistent 
system, - without either geographical or administrative coordination.  The confusions 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; (b) 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 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 expense and at the cost of a great deal of 
vexation to the taxpayer.

	953. The ministry at first proposed to remedy this confusion, at least in part, by 
largely centering administration, outside 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 readjustments 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 
presumably 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.

	954. 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 
accomplished till 1894.

	955. 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 organization. Paradoxically enough, it meant just the opposite, that the 
counties were to be given an organization closely resembling that already possessed 
by the boroughs.  The nomenclature of the Act would be more correct, though possibly 
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 (sec. 989), to county government, with certain relatively 
unimportant modifications.

	956. The counties designated by the Act are dubbed 'administrative counties,' 
because they are not in all cases the historical counties of the map.  In several 
instances counties are separated into parts for the purposes of the reorganization.  
Thus the East Riding of Yorkshire constitutes 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 997.)

	957. The County Councils: their Constitution. - In pursuance of the purpose of 
assimilating county to borough organization, the counties are given representative 
governing assemblies composed of councillors and aldermen, presided over by a 
chairman whose position and functions reproduce those of the borough mayors, and 
possessing as their outfit of powers 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 Councillors.  These two classes differ from each other, not 
in power or in function, but only in number, term, and mode of election.  The 
Councillors are directly elected by the qualified voters of the County and hold office for 
a term of three years; the Aldermen are one-third as many as the 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.  This single- chambered Council of 
Aldermen and Councillors elects its own chairman, to serve for one year, and pays him 
such compensation as it deems sufficient. During his year of service the chairman 
exercises the usual presidential, but no independent executive, powers, and is 
authorized to act as a Justice of the Peace, along with the rest of the 'Commission' of 
the County.

	958. Any one may be elected a councillor who is a qualified voter in the county, 
or who is entitled to vote in parliamentary elections by virtue of ownership of property 
in the county; and in the counties, though not in the boroughs from whose constitution 
this of the counties is copied, peers owning property in the county and "clerks in holy 
orders and other ministers of religion" may be chosen to the Council.

	959. The number of councillors, and consequently also 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 (aldermen, 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.

	960. For the election of councillors the county, including such boroughs as are 
not 'county boroughs,' is divided into electoral districts, corresponding in number to the 
of councillors, 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.

	961. 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.

	962. The County Franchise. - The councillors are elected, to speak in the most 
general terms, by the resident ratepayers of the county.  Every person, that is to say, 
not an alien or otherwise specially disqualified, who is actually resident within the 
county or within seven miles of it, paying rates in the county and occupying, within the 
county, either jointly or alone, any house, warehouse, counting-house, shop, or other 
building for which he pays rates is entitled to be enrolled (if his residence has been of 
twelve months' standing) and to vote as a county elector.

	963. A person who occupies land in the county of the annual value of Pounds 10 
and who resides in the county, or within seven miles of it, may vote in the elections for 
county councillors though his residence has been of only six months' standing.  Single 
women who have the necessary qualifications as taxpayers and residents are entitled 
to vote as county electors.

	964. Powers of the County Councils. - The Council of 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, reformatory and industrial schools;

	(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 
medical 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;

	(7) It divides the county into polling districts also for parliamentary 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.

	965. 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.

	966. 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.

	967. Oddly enough, the County Council is, by another section of the Act of 1988, 
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.

	968. The Financial Powers of the Council are extensive and important. The 
Council takes the place of the Justices in determining, assessing, and levying the 
county, police, and hundred rates, in disbursing the funds so raised, and in preparing 
or revising the basis or standard for the county rates; though in this last matter it acts 
subject to appeal to Quarter Sessions.  It may borrow money, "on the security of the 
county fund," for the purpose of consolidating the county debt, purchasing 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.

	969. 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 proposed loan would raise it above 
that amount, a loan can be sanctioned only by a provisional order of the Board, - an 
order, that is, which becomes valid only upon receiving the formal sanction of 
Parliament also, given by public Act.  A county may issue stock, under certain 
limitations, if the consent of the Local Government Board be obtained.

	970. Additional Powers. - The Act of 1888 provides that any other powers which 
have been conferred upon the authorities of particular localities by special Act, and 
which are similar in character to those already vested in the County Councils, may be 
transferred to the proper County Councils by provisional order of the Local 
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.

	971. The County Budget. - At the beginning of every local financial year (April 
1st) an estimate of the receipts and expenditures of the year is submitted to the 
Council, and upon the 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.

	972. 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.

	973. 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 certain licenses (a long list of them, from liquor licenses of 
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 certain specified county expenses, notably for the education of paupers and 
the support of pauper lunatics.

	974. The Police Powers, long exercised by the Justices of the Peace, are now 
exercised by a joint committee of Quarter Sessions 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, however, determined by the bodies which choose them.

	975. 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 coincident.  During much the 
greater part of English history, too, citizenship and church membership were 
inseparable in fact, as they still are in legal theory.  The vestry, therefore, which was 
the assembly of church-members 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, constituted 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 organization 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.

	976. The Poor-law Parish. - It was in this way that it fell out that the township, 
when acting in matters strictly nonecclesiastical, came to call itself the parish, and that 
it became necessary to distinguish the 'civil parish' from the 'ecclesiastical 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 parish, nor with the ecclesiastical parish"; but 
old parochial associations 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 minimum of powers, indeed, but not yet taken from 
its seat of control.  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.

	977. The Reform of 1894. - All the legislation attempted in England during the 
present century with regard to local government, 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 (sec. 986), are not directly affected by the Act.  But 
the organization and action of the rural parishes are revolutionized.  They are made 
self-governing communes, with a very notable list of powers and privileges.

	978. Every rural parish, great or small, has now its primary assembly, its parish 
meeting, of which every person of legal age in the parish, man or woman, is a member 
who is qualified to vote for members of the County Council (secs. 962, 963) or for 
members of Parliament (secs. 894, 895); and married women are included as well as 
single.  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 (and there were some six thousand such 
parishes in 1894); 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 adoption 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 one year.

	979. 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 mentioned 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 executive agents of the parish in practically every sort of 
business.

	980. The chairman of a parish council is ex officio a Justice of the Peace for the 
county in which he resides; and this feature of the law has, in view of the very large 
number of parishes in every county, radically changed the character of the commission 
of the peace.  Any one may be a parish councillor, and any one may be a chairman of 
a parish council who can be a member of a parish meeting (sec. 978), and a seat on 
the county bench of Justices is consequently no longer by any means the exclusive 
possession of country gentlemen.

	981. The parish councillors are elected in parish meeting, by a mere show of 
hands, - unless a formal poll be demanded.  No elector, whatever 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.  Married women cannot qualify, however, upon the same property upon 
which their husbands have qualified.

	982. 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-wardens, 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 acquire 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 sanitary 
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 extinguishment of fires.  It fixes the local assessment and tax rate, on 
appeal; prepares the parish register; and appoints the overseers and assistant 
overseers of the poor, who assess the poor 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.

	983. Supervision. - The County Councils are given supervisory charge of the new 
system of parish government.  They group or divide the parishes for action under the 
law, in their discretion; they may create or dissolve parish councils in the smaller 
parishes; they determine the number of members in each parish council; supervise the 
action of the parish councils 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.

	984. 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 vestries, as of old.

	985. 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 Guardians.  Various Highway Boards, too, Burial Boards, Bath 
Commissioners, 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 
District an administrative Council, and united in the hands of that Council the various 
local functions hitherto dispersed and separated.  The District Council is elected for a 
term of three years (as the Board of Guardians was), and is charged with the general 
oversight and conduct of all business affecting the common interests of the parishes 
embraced within this District in matters of local government.  It takes the place of the 
old Board of Guardians 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 parishes 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 Justice of the Peace for the county.

	986. The Urban District. - The urban parishes, outside incorporated 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 Districts, 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 their area.

	987. 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.

	988. 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.

	989. Municipal Corporations. - The constitution of those English towns which 
have fully developed municipal organizations rests upon the Municipal Corporations 
Act of 1835 and its various amendments, as codified in an Act of 1882 of the same 
name.  This latter Act is, in its turn, in some degree altered by the 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.

	990. Generally there is considerable local opposition either to such a petition 
being offered or to its being granted when offered; for the government of the place is 
usually already in the hands of numerous local authorities of one kind or another who 
do not relish the idea of being extinguished; and there are always, besides, persons 
who do not care to take part in bearing the additional expenses of a more elaborate 
organization.

	991. 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.

	992. Once incorporated, the town takes its constitution ready-made from the Act 
under whose sanction it petitioned for incorporation.  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 out, in rotation, 
every year.  There are always added to the councillors one-third as many aldermen 
elected by the councillors for a term of six years, one-half of their number retiring 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.  The 
councillors are elected by the resident ratepayers of the borough.  "Every person who 
occupies a house, warehouse, shop, or other building in the borough, for which he 
pays rates, and who resides within seven miles of the borough, is entitled to be 
enrolled as a burgess." ^1

	[Footnote 1: Chalmers, Local Government, p. 74.]



 
THE STATE
Wilson, Woodrow
The Government Of Great Britain
    
Part V.

	993. 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 municipality 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 
(b) it obtains the appointment of additional Justices of its own, who are, however, 
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.

	994. 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.

	995. County Boroughs. - In every borough the mayor, aldermen, 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 completely 
as the several counties stand apart from each other.  Except in the single matter of the 
management of their police force, they may not even arrange with the county 
authorities for merging borough with county affairs.  Their Councils may be said, in 
general terms, to have, within the limits of the borough, all the powers once belonging 
to the county Justices except those strictly judicial in their nature, all the sanitary 
powers of urban sanitary authorities, often the powers of school administration also, - 
all 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.

	996. 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 constituted a 'county borough,' the order is provisional merely, and must be 
confirmed by Parliament.

	997. Other Boroughs. - Boroughs which have not been put in the same rank with 
counties and given full privileges of self-administration 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 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 payment of the costs of the 
assizes and judicial sessions held in them.  They send members, too, to the County 
Council.  Their representatives, however, cannot vote in the County Council on 
questions affecting expenditures to which the parishes of the 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 Justices 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 reformatory 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 Sessions 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 
exclusively local matters of self-direction, merged in the counties, in whose Councils 
they are, of course, like all other parts of the counties, represented.

	998. 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 Sessions, it has also, as incident to that Court, its own 
Clerk of the Peace and its own Coroner.

	999. The Financial Powers of a municipal Council are in all cases strictly limited 
as regards the borrowing of money.  "In each instance, when a loan is required by a 
municipal corporation, the controlling authority [the Local Government Board] is to be 
applied to for its consent. A local inquiry, after due notice, is then held, and if the loan 
is approved, a term of years over which the repayment is to extend is fixed by the 
central authority." ^1 The same powers are exercised by the Local Government Board 
with regard to the larger loans of parish and district Councils also.

	[Footnote 1: Bunce, Cobden Club Essays, 1882, p. 283; title, "Municipal 
Boroughs and Urban Districts."]

	1000. "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

	[Footnote 2: Chalmers, p. 87.]

	1001. 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 Government Board, 
which could of its own authority create what was then known as an Urban Sanitary 
District.  As towns already incorporated grew, therefore, the added portions became 
independently 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-governing." ^3

	[Footnote 2: Chalmers, p. 87.]

	[Footnote 3: Bunce, p. 298.]

	1002. 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.

	1003. Central Control of Urban Authorities. - Full municipal corporations look 
partly (in the matter of sanitary regulation, for example,) to the Local Government 
Board as a central authority exercising powers of supervision, partly (in the 
management of the constabulary, for instance,) to the Home Office, and partly (if 
seaports) to the Board of Trade.  Urban Districts, however, have but a single central 
authority set over them, the Local Government Board.

	1004. 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 corporation 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.'

	1005. The Local Government Act of 1888 made of the metropolis, not a 'county 
borough,' but a county, - the 'Administrative County of London' - with its own Lord 
Lieutenant, Sheriff, and Commission of the Peace, as well as its own Council.  Its 
numerous parishes were left to act, as formerly, under their several vestries; and the 
Act of 1894 has given to those vestries the same constitution and substantially the 
same powers that are elsewhere in the kingdom possessed by the Urban District 
Councils (sec. 986).  The 'City' is 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.

	1006. The number of councillors in the London County Council is fixed at twice 
the number of members returned to Parliament at the time of the passage of the Act of 
1888 by the various constituencies of the metropolitan area. The councillors, thus, 
number 118.  The Council of the Metropolis is put upon an exceptional footing with 
regard to its quota of aldermen.  The aldermen are to be one-sixth, instead of one-
third, as many as the councillors.  The total membership of the London Council is, 
therefore, 137.

	1007. School Districts. - The only important area remaining to be mentioned is 
the School District.  Under the great Education Act of 1870 and the supplementary 
Acts of 1876 and 1880, England is divided for educational purposes into districts which 
are under the supervision of the Education Department of the Privy Council (sec. 883).  
These districts are not mapped out quite so independently of previously existing 
boundaries as other local areas have been; they are made to coincide, so far as 
possible, with parishes or with municipal boroughs, the adjustment of their boundaries 
being left, however, to the discretion of the Education Department.  Those districts 
which desire such an organization are given an elective School Board, chosen by the 
ratepayers, which has power to compel attendance upon the schools in accordance 
with the Education Acts, and to provide, under the direction of the Department, the 
necessary school accommodation.  Other districts are governed in school matters by 
an Attendance Committee, simply, which is a sub-committee of some previously 
existing authority (in boroughs, of the town council, for instance) and whose only duties 
are indicated by its name.

	1008. The plan of public education in England contemplates the assistance and 
supplementing of private endeavor.  Where private schools suffice for the 
accommodation of the school population of a district, the government simply 
superintends, and, under certain conditions, aids.  Where private schools are 
insufficient, on the other hand, the government establishes schools of its own under 
the control of a school board.

	1009. Central Control. - The plan of central control in England is manifestly quite 
indigenous.  The central government is not present in local administration in the 
person of any superintending official like the French Prefect (secs. 442, 445, 454), or 
any dominant board like the 'Administration' of the Prussian Government District (secs. 
600-604). There has, indeed, been developing in England throughout the last half of 
this century a marked tendency to bring local authorities 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 centralization. It has, so far, not gone beyond making the advice 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 rate-payers 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. It may 
disallow the by-laws passed by the boards of sanitary districts, and the by-laws 
enacted by the county authorities, unless they affect nuisances, may be annulled by an 
order in Council; but these are powers sparingly, not habitually, used.  In the matter of 
borrowing money, too, local authorities are narrowly bound by the action of the Local 
Government Board; and its assent to propositions to raise loans is seldom given 
without very thorough inquiry and without good reason shown.  But all these are 
functions of system, so to say, rather than of centralization. Coordination 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.

	1010. Local Government in Scotland. - An Act of 1889 extended 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. 

	1011. English Colonial Expansion. - Doubtless the most significant and 
momentous fact of modern history is the wide diffusion of the English race, the sweep 
of its commerce, the 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 
Continent, 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.

	1012. English Colonial Policy. - It was only by slow degrees, however, that 
England learned the right policy towards her colonies.  She began, as Rome did, by 
regarding her possessions 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 opportunity offered for the building up of another colonial empire scarcely 
less great.

	1013. 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 
enlightened 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.

	1014. 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 
colonists 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 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 established 
in Canada, and subsequent years have seen it extended to all the British colonies 
capable of self-direction.

	1015. The Self-governing Colonies. - The English colonies, as at present 
organized, may be roughly classified in two groups as (a) Self- Governing and (b) 
Crown colonies.  The self-governing colonies are nine in number; namely, Canada, 
Newfoundland, Cape of Good Hope, the four colonies of the east and south of 
Australia (Queensland, New South Wales, Victoria, South Australia), Tasmania, New 
Zealand.  In all of these there is practically complete independence of legislation in all 
matters not directly touching imperial interests: and in all there is full responsible 
government, - government, that is, through ministers responsible to representatives of 
the people for their policy and for all executive acts, because chosen from and 
representing the majority in the popular chamber. In the Cape of Good Hope, 
Tasmania, Victoria, and South Australia, both branches of the legislature are elected; 
in the other five the upper chamber, the Legislative Council, as it is invariably called 
outside of Canada, is nominated by the Executive.  But the origin of the upper 
chamber does not affect the full responsibility of the ministers or the practically 
complete self-direction of the colony.

	1016. The Government of Canada. - In 1840 Parliament provided by Act for the 
union of Upper and Lower Canada (now the provinces of Ontario and Quebec) upon a 
basis 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 modelled upon the government of England herself, no 
satisfactory basis of self-government was reached until, by the 'British North America 
Act' of 1867, the colonies were at once separated and reintegrated by means of a 
federal constitution.  That Act is the present constitution of the "Dominion of Canada." 
Under that constitution the seven provinces now comprised within the Dominion, 
namely, Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, British Columbia, 
and Prince Edward Island, have each a separate parliament and administration.  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.

	1017. 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.

	1018. In Ontario, British Columbia, and Manitoba the legislature consists of but a 
single house.

	1019. The government of the Dominion is for the most 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 queen in Council 
(that is of the ministry of the day in England).  The Governor-General's cabinet is 
known as the Queen's Privy Council and consists (1897) of thirteen members, 
representing the majority in the popular house of the legislature, leading that house in 
legislation, and in all its functions following the precedents of responsible cabinet 
government established in England.  The legislature consists of two houses, the 
Senate and the House of Commons. The Senate consists of eighty-one members 
nominated 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.  Each Senator must be at least thirty 
years of age, must reside in the province for which he is appointed, and must possess 
therein property, real or personal, to the value of four thousand dollars. The House of 
Commons consists of two hundred and thirteen 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 understood, however, that Quebec shall never have less 
than sixty-five members.

	1020. The fourteen ministers composing the Council or cabinet are, a Prime 
Minister and President of the Council, a Secretary of State, a Minister of Trade and 
Commerce, Ministers of Justice, Marine and Fisheries, Railways and Canals, Militia 
and Defence, Finance, Agriculture, Public Works, Interior, a Postmaster General, and 
two ministers without portfolios.

	1021. 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.

	1022. The Parliament of the Dominion may be dissolved by the Governor- 
General upon the advice of the ministers and a new election held, as in England, when 
an appeal to the constituencies is deemed necessary or desirable.

	1023. The Governments of Australia. - The governments of the Australian 
colonies are not different in principle, and are very slightly different in structure, from 
the government of Canada, except that in Australia the colonies stand apart in 
complete independence of each other, having as yet (1897) no formal federal bonds, 
no common authority nearer than the mother country.  Alike in Queensland and in New 
South Wales there is a nominated Legislative Council and an elected Legislative 
Assembly; but in Queensland a property qualification is required of the electors who 
choose the lower house, while in New South Wales there is no such limitation upon the 
suffrage.  In South Australia and Victoria both houses of the legislature are elected; in 
both a property qualification is required of the electors who choose the members of the 
upper house, and in Victoria a like qualification for membership of the upper house, 
also.  In Victoria certain educational and professional qualifications are allowed to take 
the place of a property qualification.  In each of the colonies the governor plays the 
part of a constitutional monarch, acting always upon the advice of ministers 
responsible to the popular chamber.

	1024. 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 
constitutions 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 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 (secs. 
924, 1071).

	1025. The constitutionality of laws passed by the Dominion Parliament in Canada 
is considered first by the courts of the Dominion, going thence, if appealed, to the Privy 
Council.

	1026. The Crown Colonies. - All those colonies which 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 responsible ministry.

	1027. 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 
background and scrupulously heed his ministers, than under any other arrangement 
that ever was before devised, although his influence there is of course "wholly moral - 
an influence of suasion, sympathy, and moderation, which softens the temper while it 
elevates 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.

	[Footnote 1: Letters and Journals of Lord Elgin, ed. by Theodore Walrond, 
London, 1872, p. 126.]

	1028. India. - India stands in matters of government, as in so many other 
respects, entirely apart from the rest of the British Empire.  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 members 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 members, appointed by the Crown, - a Council which is 
first of all administrative, but which, when reenforced by from ten to sixteen additional 
members nominated by the Governor-General, has also the functions of a legislative 
council.

	1029. The work of the Governor-General's Council is divided among some six or 
seven departments, one of which, that of foreign affairs, is generally kept in the hands 
of the Governor-General himself.  These departments do not constitute a ministry; they 
are regarded simply as committees of the Council. The sessions of the reenforced or 
legislative council are held always in public.

	1030. Not all of India is directly administered by the English government.  There 
are numerous native states which act with 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 provinces, of which the chief in 
importance are the so-called 'Presidencies' of Madras and Bombay.  The governors of 
Madras and Bombay 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 an administrative council only, 
preside over Bengal and the North West Provinces.  The Lieutenant-Governors or 
Commissioners of the other provinces, who are also appointed by the Governor-
General, are without councils.

	1031. Greater Britain. - Greater Britain, the world of English colonies, differs very 
materially from Greater Greece, the widespread Hellas of the ancient world.  Hellas 
was disintegrate: the Greeks carried with them, as of course, Greek institutions, but 
only to allow those institutions wide differentiation.  In 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 
institutions which have drawn the four parts of the world together under common 
influences, if they have not compacted them for a common destiny.  Throughout 
Europe reformers have copied English political arrangements; the colonists have not 
copied them, they have extended and are perpetuating and perfecting them.

Representative Authorities. 

     Anson, Wm. R., "The Law and Custom of the Constitution." 2 Parts, 2d ed.,
Oxford, 1896.

     Bagehot, Walter, "The English Constitution," London, 1867.  N.Y., 1882.

     Bourinot, Jas. G., "Federal Government in Canada" (Johns Hopkins Univ.
Studies in Historical and Political Science), Baltimore, 1889.

     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.

     Burgess, J. W., "Political Science and Constitutional Law," 2 vols.
Boston, 1890.

     Cobden Club Essays, 1882: "Local Government and Taxation in the United
Kingdom." London.

     Dicey, A. V., "The Privy Council," London, 1887; and "The Law of the
Constitution." 5th ed., London, 1897.

     Dilke, Sir C. W., "Problems of Great Britain." London, 1890.

     Dupriez, L., "Les Ministres dans les principaux Pays d'Europe et
d'Amerique," 2 vols., Paris, 1892.

     English Citizen Series: H. D. Traill, "Central Government." M. D.
Chalmers, "Local Government."

     F. W. Maitland, "Justice and Police."

     S. Walpole, "The Electorate and the Legislature."

     T. W. Fowle, "The Poor Law."

     J. S. Cotton and E. J. Payne, "Colonies and Dependencies."

     Feilden, H. St. Clair, "A Short Constitutional History of England," a
serviceable topical epitome.  Oxford and London.

     Fonblanque, Albany de, "How We Are Governed." 16th ed. revised an d
reedited by W. J. Gordon.  London, 1889.

     Gneist, R., "History of the English Constitution," 2 vols., N.Y., 1886;
"Student's History of the English Parliament," N.Y., 1887; "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.

     Hearn, W. E., "The Government of England." 2d ed., London, 1887.

     Imperial Parliament Series: "Local Administration," by W. Rathbone, A.
Pell, and F. C. Montague.  London, 1885.

     Macy, Jesse, "The English Constitution," London and N.Y., 1897.

     May, Sir T. E., "Constitutional History of England," 2 vols., N.Y., 1880.

     Meier, E. von, "Das Verwaltungsrecht," in Holtzendorff's "Encyklopadie
der Rechtswissenschaft," systematischer Theil, pp. 1214 et seq.

     Munro, J. E. C., "The Constitution of Canada," Cambridge University
Press, 1889.

     Shaw, Albert, "Municipal Government in Great Britain," N.Y., 1895.

     Stubbs, William, "Constitutional History of England," 3 vols., Oxford,
1883.

     Taswell-Langmead, L., "English Constitutional History," London and
Boston.  3d ed., 1886.

     Taylor, Hannis, "The Origin and Growth of the English Constitution," 2
vols., Boston, 1889 and 1898.

     Todd, Alpheus, "Parliamentary Government in England," new ed., London and
N.Y., 1888-1889; and "Parliamentary Government in the British Colonies,"
Boston, 1880.

     Local Government Reforms:

     Baker, Charles E., "The Local Government Act, 1888, with Notes and
Index," London, 1888.

     Holdsworth, W. A., "The Local Government Act, 1888, with Introduction and
Notes," London, 1888.

     Jenks, Edward, "An Outline of English Local Government," London 1894.

     Ryde, Walter C., "The Local Government Act, 1894," London, 1894.



THE STATE
Wilson, Woodrow
The Government Of The United States
    
Part I.

	1032. The English Occupation of America. - The political institutions of the United 
States are in the main the political institutions of England, transplanted by English 
colonists to a new soil and worked out through a fresh development to new and 
characteristic forms.  Though they now show so large an admixture of foreign blood, 
the main stock of the people of the United States is still of British extraction.  For 
several generations 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 continent. 
But by steady and for the most part easy steps of aggression the English extended 
their domain and won the best regions of the great coast.  New England, Virginia, and 
the Carolinas were never seriously 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 impossible to stay.  
England was not long in widening her colonial borders. The French power was 
crushed out in the North, the Spanish power was limited in the South, and the colonies 
had only to become free to develop energy more than sufficient to make all the most 
competed-for portions of the continent thoroughly English, - thoroughly Anglo-
American.

	1033. Adaptation of English Institutions. - This growth of the English power in 
America involved a corresponding expansion of English institutions. As America 
became English, English institutions 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.

	1034. 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 spontaneous 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 English 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 
Pennsylvania still a third, compounded after a sort of the other two.

	1035. The New England Colonies. - In New England the centre of government 
was always the town, with its church and schoolhouse and its neighborly cluster of 
houses gathered about these.  The soil on the coast where the first settlers established 
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 
adventures of sea-faring rather than to the wide-spreading settlements characteristic of 
an agricultural population.

	1036. The first New Englanders, 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 spiritually and 
temporally organic. Close geographical association, therefore, such as was virtually 
forced upon them by the conditions of livelihood by which they found themselves 
constrained, accorded well with their higher social purposes.  The church could be 
made, by such association, 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.

	1037. 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, and 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 Portsmouth, 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 prolific 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.  (Compare secs. 67, 68, 70.)

	1038. 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 virtual 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-governing units of each group rather 
than in the bonds which connected them with each other.

	1039. Forms of Town Government. - The form of town government was 
everywhere such as it was quite natural that 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 townsmen met in town-meeting and there elected their officers: those 
officers were responsible to them and always rendered careful account of their actions 
to the body which elected them. Generally the most important of these officers were 
called Selectmen, - men selected by the town-meeting to carry on the necessary public 
business of the 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 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 importance 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.

	1040. 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 representative 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.

	1041. The sheriffs of the counties of colonial Massachusetts were appointed by 
the Governor.  The development of the county organization brought into existence, too, 
Justices of the Peace who met in Quarter Sessions, afterwards called 'General 
Sessions,' and who were the general county authority quite after the fashion of the 
mother country. ^1

	[Footnote 1: See Town and County Government in the English Colonies of North 
America, by Edward Channing, Johns Hopkins University Studies in Historical and 
Political Science, 2d Series, pp. 40-42.]

	1042. The Southern Colonies. - To this picture of the political institutions of 
colonial New England political and social organization in the Southern colonies offered 
many broad contrasts.  The settlers in Virginia were not religious refugees: they had 
come out for a separate adventure in 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 'Virginia Company' it was called) 
in England, to which the Virginia territory had been granted by the Crown, and they 
had no thought but to live under the governors whom the Company had placed over 
them.  They founded Jamestown some hundred miles above the mouth of the James 
river; but Jamestown was in no way like the New England towns, and it soon became 
evident that town life was not to be the characteristic 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 population of the colony increased it spread far and wide 
along the courses of the rivers.

	1043. 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 gentleman 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; and followed the new ways 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.

	1044. 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 England 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 between 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 directions, 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.

	1045. 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 plantation 
system.  A great gap speedily showed itself between the owners of estates and the 
laboring classes.  Where slavery exists 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.

	1046. 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 was 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 England. 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 Governor, 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 'commission of the 
peace,' a body of justices or commissioners authorized to hold county court for the 
hearing of all ordinary cases not of grave import; authorized to levy the county taxes, 
to appoint 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 assigned.  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 undemocratic, of course, as was its 
model: "the dominant idea," as Mr. Ingle says, "was gradation of power from the 
Governor downward, not upward from the people." ^1 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 
subserviency 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.

	[Footnote 1: Local Institutions in Virginia, by Edward Ingle, Johns Hopkins 
University Studies in Historical and Political Science, 3d Series, p. 97 (continuous, p. 
199).]

	1047. 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 representing the several 
plantations then existing, which were in this way treated as independent corporations 
entitled to a representative 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 representative 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 'towns' 
and 'plantations' of the early days seem to have been known, at any rate for purposes 
of representation, as 'boroughs,' and the representative house got its name, 'House of 
Burgesses,' before county representation grew up.  The first Assembly, 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 representation in the government of the colony which made and kept Virginia 
a vital political unit, with a real organic life and feeling.

	1048. The Constitutions of the other Southern Colonies corresponded in the main 
with the constitution of Virginia.  They, too, had the county system and the general 
representation in a central assembly, combined with governors and councils appointed 
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 
government had been granted.

	1049. 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 English the foreign 
element was not displaced but merely dominated; 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 beguiling 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.

	1050. The Charters: Massachusetts. - The political relations of the colonies to the 
mother country during the various developments 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 supervision 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 government 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 Company tried to 
manage their colony from London, where the 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 territories; 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.

	1051. The Connecticut Charter. - Rhode Island and Connecticut were smaller 
and more fortunate.  The town of Saybrook, at the mouth of the Connecticut river, had 
been founded under a charter granted to two English noblemen, and consisted, 
therefore, of immigrants direct from England; but Saybrook did not grow rapidly and 
proved a comparative failure.  The successful and dominant settlement on the 
Connecticut was that which was founded higher up the river at Hartford, by men from 
Massachusetts who had neither charter nor any other legal rights, but who had simply 
come, settled, and made a written constitution for themselves.  New 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 of '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 constitution, 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.

	1052. Rhode Island's Charter. - Rhode Island was similarly protected by fortune 
and sagacious management.  Roger Williams, 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 year after Connecticut 
obtained its legal privileges through the instrumentality of Winthrop.  As New Haven 
and Connecticut were joined by 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 radically changed until 1842.

	1053. Proprietary Governments. - The governments of almost all the other 
colonies were at first 'proprietary'; those of Maryland, Pennsylvania, and Delaware 
remained proprietary until the Revolution. Maryland was granted to the Calverts, Lords 
Baltimore; 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 afterwards divided, then sold in part, and finally 
surrendered to the Crown (1702); the Carolinas 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.

	1054. 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.

	1055. Direct Government by the Crown, which came in turn to every colony 
except Rhode Island, Connecticut, Pennsylvania, and 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 dependence of the colonial judiciary, and in general of the whole administrative 
machinery of government, upon the royal will; but it, nevertheless, did not exclude the 
colonists from substantial 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.

	1056. 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 themselves, either by 
royal instruction or royal charter, assemblies so exceedingly resembling a parliament, 
in all their forms, functions, and powers, that it was impossible they should not imbibe 
some opinion of a similar authority.  At the first designation of these assemblies, they 
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 England, that is, and a colonial legislature], to 
which they had been formed by imperceptible habits, and old custom, the great 
support of all the governments 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." ^1

	[Footnote 1: "Letter to the Sheriffs of Bristol," Works (ed. Boston, 1880), Vol. II., 
pp. 232, 233.]

	1057. In such assertions of a right of parliamentary self-government 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 Navigation Acts and all like 
attempts of the mother country to regulate their place in the politics and commerce of 
the outside world, - but which was from the first prompt to resent and resist all dictation 
as to the strictly interior affairs of the settlements.  And the same was true of the 
proprietary colonies, also.  Maryland assumed the same privileges that Virginia 
insisted upon, and even Pennsylvania, with its population compounded of English, 
Dutch, and Swedes, manifested not a little of the same spirit of independent self-
direction.

	1058. 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 
development of a new country gave to the elective governing bodies of the colonies a 
wide and various duty of legislative regulation; the newness of the country created 
everywhere substantially the same new conditions of social 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 the people most interested: and 
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.



THE STATE
Wilson, Woodrow
The Government Of The United States
    
Part II.

	1059. 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 Massachusetts and Virginia, could easily be played off 
against one another.  But we now know how little foundation of fact such a view had. 
Boston's trade was offered to Salem, her commercial rival, as a bait to catch Salem'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 independence and a perpetual 
union between the colonies.  For the shortest possible time did the struggle remain 
local; almost immediately it became 'continental.'

	1060. American as compared with English Constitutional Development. - 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 together into a national union.

	1061. 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 federation 
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 
Jamestown 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 Providence Plantations.' What was at first mere confederation 
between these smallest units, however, by degrees became virtual coalescence, and 
the absorbed towns finally formed but subordinate 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.

	1062. 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 governments 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 continuing their former habitual 
constitutional life.

	1063. 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 colonial constituent law may be said to have been English, since it 
was English practice which originated the idea and habit of giving 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 (sec. 1024).  Within the constitutions of 
the colonial and revolutionary time, at any rate, English law and precedent were 
closely followed.  The English common law has gone with Englishmen to the ends of 
the world.  The English communities in America were but projected 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 independent 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 incompatible with the simple 
democratic society of the new world; but no real break was made with the principles of 
English legal precedent and practice.

	1064. 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 relations of the colonial legislatures with the colonial governors were 
substantially the relations of King and Parliament reproduced on a small scale, but with 
scarcely less earnestness and spirit.  In all respects, except that of the erection of a 
responsible 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 Englishmen in England, struck out not a few 
lines of development of their own in suiting their institutions to the daily needs of a new 
civilization and to novel conditions of social organization; American politics were not 
long in acquiring in many respects a character peculiarly their own. But the manner of 
development was English throughout: there was nowhere any turning of sharp corners: 
there was nowhere any break of continuity.  To the present day our institutions rest 
upon foundations as old as the Teutonic peoples.

	1065. Union: Preliminary Steps. - How much of political precedent that was their 
own the colonists had developed appeared 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 determinate law of cooperation, acting rather upon the suggestions of international 
procedure than upon any clear recognition of corporate 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.

	1066. 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 governments 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; 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, and courts, which had 
no connection whatever with the officers, legislatures, 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 preservation of their internal and 
separate self-government; their liberties were historically coincident with their separate 
organization and rights as distinct 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 necessity 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.

	1067. The Confederation. - It was not until 1781 that a foundation of distinct 
written law was put beneath the practice of union; it was not till 1789 that the law of the 
union was made organic.  In 1781 the Articles of Confederation were finally adopted 
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.

	1068. The Articles of Confederation formally vested the exercise of federal 
functions in a Congress just such as the Continental Congresses had been, - a 
Congress, that is, consisting of delegates from the several states, and in whose 
decisions the states were to have an absolutely 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 constituted was 
officially known as "The United States in Congress assembled." For the exercise of 
representative functions it was very liberally and completely equipped.  To it the 
independence of the several states in 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 eminent and complete.

	1069. Weakness of the Confederation. - But it was given absolutely no executive 
power, and was therefore helpless and contemptible.  It could take no important 
resolution without the difficult 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 representing all the states (hence 
called the "Committee of States") and bound by the same hard rule of obtaining the 
concurrence of nine of its thirteen 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.

	1070. Need of a Better Union. - It was the fatal executive impotency of the 
Confederation which led to the formation of the present stronger and more complete 
government.  The old Continental 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 confederated 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 Virginia 
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 history of the United States begun.

	1071. 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 independent power of its own, whose Constitution and law are the supreme 
law of the land.  The Convention which framed the new Constitution 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 instrumentality of the able men who composed that extraordinary assembly, the 
government of the United States was fitted out with the full experience of the colonies 
and of the revolutionary 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 'assistants,' represented her people at large: 
and Connecticut's example showed the Convention a convenient way of compromise 
by which they could reconcile the two parties within it which were contending, the one 
for an equal representation of the states in Congress after the absolute manner of the 
Confederation, the other for a proportional representation of the people.  The Senate, it 
was agreed, should represent the states equally, the House of Representatives the 
people proportionally.  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 a footing of perfect equality with them.  A similar 
arrangement obtained under the state constitutions.  The function of constitutional 
interpretation was nowhere explicitly conferred, but existed in the nature of the case.  
It, necessarily as old as written charters and constitutions, was an inevitable corollary 
to their fundamental proposition of a gift of limited powers.  Written constituent law is 
by its very nature a law higher than any statute 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 (secs. 924, 1024). ^2

	[Footnote 1: In describing the work of the Convention I follow here Professor 
Alexander Johnston's admirable exposition given in the New Princeton Review for 
September, 1887, under the title "The First Century of the Constitution." A convenient 
brief survey of the chief features of the state constitutions at the time of the formation 
of the present government of the Union may be found in Hildreth, Vol. III., Chap. XLIV.]

	[Footnote 1: See A. V. Dicey, The Law of the Constitution, Chap. III.; and J. 
Bryce, The American Commonwealth, Chap. XXIII.]

	[Footnote 2: See Brinton Coxe, Judicial Power and Unconstitutional Legislation.]

	1072. When they came to equip Congress with powers, the Convention 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 Confederation had proved helpless and ridiculous.  It was 
only when they came to construct the machinery for the election of the President that 
they left the field of American experience and English example and devised an 
arrangement which was so original that it was destined to break down almost as soon 
as it was put in operation.

	1073. This general statement of the broader features of the selective work of the 
Convention will suffice for the present: other more particular references to state 
precedent and experience may be made in their proper connections in our further 
discussion of the government.  I wish in these paragraphs only to fix the attention of 
the student, by way of preparation, upon the instructive fact that the work of the 
Convention was a work 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.

	1074. Character of the New Government. - It is one of the distinguishing 
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 conclusions. Their 
laws have always been used as parts of the practical running machinery of their 
politics, - parts to be fitted from time to time, by interpretation, to existing opinion and 
social condition.

	1075. 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 administer it think that 
it is.  The men of 1789 meant to form "a more perfect union" than that which had 
existed under the Confederation: they saw that for the colonies there must be union or 
disintegration; they thought union needful and they meant to have it in any necessary 
degree. But they had no special love for the union which they set about 
consummating, and they meant to have as little of it as possible, - as little as might be 
compatible with wise providence in respect of the welfare of the new-fledged states.  
They were even more afraid of having too strong a central government than of having 
one which was too weak, and they accepted the new constitution offered them by the 
Convention of 1787 because convinced of the truth of the arguments urged by its 
friends to the effect that the union would be federal merely and would involve no real 
sacrifice of individuality or autonomy on the part of the states.

	1076. 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 entertained 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 
purpose 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.

	1077. 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.

	1078. 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 the Constitution, - the party which had been chiefly instrumental in 
bringing about the adoption of the new frame of government.  Immediately upon the 
inauguration of the 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 financial credit, international consideration, security, 
and energy.  But it soon became evident that the Federalists held views as to the 
nature of the new government which not all of those who had voted for the adoption of 
the Constitution were willing to sanction.  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.

	1079. But, although the Federalist party was destroyed, time worked in favor of 
its political conceptions.  The Democratic-Republicans soon found that success in 
conducting the affairs of the federal government was, even for them, conditioned upon 
a very liberal reading of the authority conferred by the Constitution; 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.

	1080. Railroads, Expansion, and War aid the National Idea. - So long as the 
people of one section of the country saw little or nothing of the people of the other 
sections, separateness of feeling 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 sentiment of national patriotism, - then at length it began to be 
very generally thought that the Federalists had been right after all; that the federal 
government ought to come first in consideration, even at the cost of some state pride.

	1081. 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 secession so much talked about in various quarters in the earlier days 
of the Union at last became a reality.  Inevitably came the war of secession, by means 
of whose fiery processes the differences of institution between North and South were 
to be swept utterly away.

	1082. Civil War completes the Union. - The war wrought changes of the most 
profound character.  Secession was prevented, 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 penetrated to the changing of the 
very nature of the Union, though the form of the federal government remained in all 
essential features unaltered. The great effect of the war was, that the nation was 
made, 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 
government, as the representative of the nation, seem greater in our eyes than ever 
before, and has permanently modified in the profoundest manner the way in which all 
the old questions concerning constitutionality and state rights are regarded.



THE STATE
Wilson, Woodrow
The Government Of The United States
    
Part III.

	1083. Present Character of the Union. - It by no means follows that because we 
have become in the fullest organic sense a nation, ours has become a unitary 
government, its federal features merged in a new national organization.  The 
government of the Union has indeed become permanent, the cherished 
representative, the vital organ of our life as a nation; but the states have not been 
swallowed up.  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 
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 still has 
its charter, somewhat enlarged since the war, but substantially the same document as 
of old; and the national authorities must still confine themselves to measures within the 
sanction of that charter.  The state governments, too, still have their charters, and still 
have valid claim to all powers not specifically delegated to the government of the 
Union.  Liberal construction of the federal charter the nation wants, but not a false 
construction of it. The nation properly comes before the states in honor and 
importance, not because it is more important than they are, but because it is all 
important to them and to the maintenance of 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.

	1084. 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 
government, so complete is the present integration of its state and federal parts.  
Government with us has ceased to be plural and has become singular, the 
government of the United States. Distinct as are its parts, they are not separate.  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 harmony of cooperation wherever their jurisdictions 
cross or are parallel, acting as parts of one and the same frame of government, with 
an uncontested subordination of functions and an undoubted common aim.

	1085. 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 supremacy does not trench upon or displace the 
self-originated authority of the states in the immensely important sphere reserved to 
them. Although it is true, taking our system as a whole, that the governments of the 
states are subordinate in our political order to the government of the Union, they are 
not subordinate in the sense of being subject to be commanded by it, but only in being 
less than national in their jurisdiction.

	1086. The States not Administrative Divisions but Constituent Members of the 
Union. - The common and convenient distinction between central and local 
government furnishes here no appropriate 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 constitution and the mode 
of action of the lesser organs of the system to which it belongs. This the governments 
of the states do with reference to the townships, the counties, the cities within their 
territories: these local bodies are merely administrative 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 administrative divisions 
but constituent members of the Union, coordinate 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. 

	1087. The States properly come first in a description of the government of this 
country, not only because it was in conformity 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 fountains of justice and of legal right, still stand nearest the 
people in the regulation of all their social and legal relationships.  Like the Swiss 
Cantons (sec. 643), our states have given to the government which binds them 
together their own forms of constitution. Even more than the Cantons, our states have 
retained their right to rule their citizens in all ordinary matters without federal 
interference.  They are the chief creators of law among us.  They are the chief 
constituent units of our political system not only, but are also self-directive units. They 
make up the mass, the body, the constituent tissue, the organic stuff of the 
government of the country.  "The federal government," as Tocqueville said, "is the 
exception; the government of the states is the rule." To them is intrusted our daily 
welfare, to the federal government 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 government 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.

	1088. 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 Constitution are also positive portions of state law, whose mandates 
all officers of government, whether state or federal, are bound to obey.

	1089. 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 
interpreters.  In acting upon federal law state officers always act subject to the 
supervision of the federal tribunals.

	1090. The functions of the state courts with regard to the interpretation of federal 
law very forcibly illustrate the adjustments of 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 Constitution 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 objections 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.

	1091. 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 federal government seem great by enumeration.  Besides 
being intrinsically 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 understanding of the real division of powers under our 
government to give to the powers remaining with the states something like the same 
setting forth that is given to those granted to the Union.

	1092. 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, imposts, 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 committed 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 concerning bankruptcy; but these powers do 
not belong to it exclusively.  In case Congress does not act in these matters, the states 
may adopt laws for themselves concerning them.  All the powers of the general 
government are plainly such 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.

	1093. 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 prohibitions obviously curtail scarcely at all the 
sphere which the states would in any case normally occupy within the scheme of 
federal union.

	1094. 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 relations 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 foundations of law 
and order.

	1095. 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 have engaged the public mind in England during the 
present 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 emancipation, 
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 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

	[Footnote 1: Compare J. F. Jameson, Introduction to the Constitutional and 
Political History of the Individual States, Johns Hopkins University Studies in Historical 
and Political Science, 4th Series, p. 9 (continuous p. 189).]

	1096. 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 citizens to each other in their private capacities, does not fall within their 
legitimate province.  This principle is fully recognized 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 proceeded 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 regulations, for example, with reference to the management of 
state property, such as canals and roads, and for the detailed administration 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.

	1097. Distrust of Legislation. - The motive is dissatisfaction with legislation, 
distrust of legislators, a wish to secure for certain classes of law a greater permanency 
and stability than is vouchsafed to statutes, which stand in constant peril of alteration 
or repeal.  A further motive is the desire to give to such laws the sanction of a popular 
vote.  The practice has its analogies to the Swiss Referendum (secs. 656, 658, 699). 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 incongruous 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.

	1098. The Objections to the practice are as obvious as they are weighty. General 
outlines of organization, such as the Constitution of the United States contains, may be 
made to stand without essential alteration for long periods together; but, in proportion 
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 sacrificed.  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, 
constitutions have been as often changed as important statutes.  The danger is that 
constitution-making will become with us only a cumbrous mode of legislation.

	1099. In one or two of the states the Swiss Referendum has been more exactly 
reproduced, though not, so far as I know, in conscious imitation of Swiss example.  
Thus the Wisconsin constitution leaves it with the people to decide whether banks 
shall be established by state law or not; and the constitution of Minnesota makes 
certain railway laws and all appropriations from the internal improvement land fund of 
the state dependent for their validity upon the sanction of a popular vote.

	1100. The objections to the Referendum are that it assumes a discriminating 
judgment and a fullness of information on the part of the people touching questions of 
public policy which they do not often possess, and that it lowers the sense of 
responsibility on the part of legislators.

	1101. 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 constitutions, bound their agents, the governing bodies and officials 
of the states, but have also bound themselves, - have bound themselves 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.

	1102. In England, as we have seen (sec. 917), constitutional amendment is not 
distinguishable from simple legislation.  Parliament may, by simple Act, change any, 
even the most fundamental, principle of government that the deliberate opinion of the 
nation wishes to see changed.  Where the constitution consists for the most part of 
mere precedent, 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 conservative force there is the difficulty with which Englishmen 
abandon established courses.  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 (sec. 
411).  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 (secs. 499, 503).  In the 
United States, on the contrary, constitutional amendment differs from ordinary 
legislation both in formal procedure and in the political powers called into action to 
effect it.

	1103. 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 constitution is sought to be effected, the legislature is empowered to 
propose 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.

	1104. In many of the states a proposition for the calling of such a convention may 
be submitted to the people only if adopted by a two-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 promulgated as law 
by the conventions which framed them.  This method of adoption was once not 
uncommon; but it is now very unusual.

	1105. Proposal of Amendments. - Legislatures may, however, themselves 
propose particular amendments to constitutional provisions.  In some of the states a 
mere majority vote suffices 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 sanction must follow: a vote of the people being made an 
indispensable 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 successive 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.

	1106. 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 restrictions, 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 amendments 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.

	1107. These processes of amendment have been found by no means so difficult 
as they seem.  The habit of inserting in state constitutions 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 constitution shall be revised 
by a convention called for the purpose, while that of Iowa commands the submission of 
the same question to the people every ten years, that of Michigan every sixteen years; 
and the constitutions of New York, Ohio, Virginia, and Maryland direct its submission 
every twenty years.

	1108. Conflict of Laws. - The plan of leaving to the states 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 Constitution 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 separate.  But now that the railroad and the telegraph have made the 
country small both to the traveller and to the sender of messages the states have been 
geographically and socially compacted.  Above all, they have been commercially and 
industrially knit together.  State divisions, it turns out, are not natural economic 
divisions; they practically constitute no boundaries at all to any distinctly marked 
industrial regions.  Variety and conflict of laws, consequently, have brought not a little 
friction and confusion into our social and business arrangements.

	1109. 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 between state and 
state have made possible the most scandalous processes of collusive divorce and 
fraudulent marriage.

	1110. It has become possible for either party to a marriage to go into another 
state, and, without acquiring there even a legal residence, obtain from its courts a 
routine divorce because the other party has not answered a summons published only 
in the state in which suit is instituted and therefore practically certain not to be brought 
to the notice of the person for whom it is intended.  Under such a system a person may 
be divorced without knowing it, and it may be possible for a man to have different 
wives, or a woman different husbands, in several states at the same time.

	1111. In the Matter of Taxation so great a variety of law obtains among the states 
as to preclude in part a normal and 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 corporations 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.

	1112. In the Criminal Law, again, variety works social damage, tending to 
concentrate crime where laws are lax, and to undermine by diffused percolation the 
very principles which 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.

	1113. Proposals of Reform. - It is in view of such a state of affairs, such a 
multiformity and complexity of law touching matters which ought, for the good of the 
country, to be uniformly and simply regulated throughout the Union, that various 
extensions 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.

	1114. 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 exasperation for the lawyer than for the layman.  Unquestionably there is vastly 
more uniformity than diversity. All the states have built up their law upon the ancient 
and common 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, in the courts of nearly every state in the Union, the 
decisions of the courts of the other states, and even the decisions of the English 
courts, are cited as suggestive or illustrative, sometimes also as authoritative, 
precedent.  Everywhere, for instance, the laws of property rest upon 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 
characteristics of tenure, the same separation between the property interests of man 
and wife, the same general rules as to liens and other claims on property, the same 
principles of tenancy, of disposition by will, of intestate inheritance, and of dower. 
Everywhere, too, contracts, common carriage, sales, negotiable paper, and 
partnership rest upon similar principles of practically universal acceptance. We feel the 
conflicts, because we suffer under their vexations; while we fail to realize and 
appreciate the uniformities because they are normal and have come to seem matters 
of course.  It must be acknowledged, moreover, 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 common thought and 
establish common practices.  As it compacts, likenesses will be emphasized, 
diversities pared and worn away.



THE STATE
Wilson, Woodrow
The Government Of The United States
    
Part IV.

	1115. Louisiana, among the states, and New Mexico, among the territories, 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 
communities have approximated in some degree to the legal systems of the rest of the 
Union; and they will draw still closer to them in the future.

	1116. Interstate Law: Commerce. - In a country being 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 
production of the present generation, state lines must coincide with the lines of very 
few affairs which are not political: there must be many calls for the adjusting weight of 
an authority larger than that of any single state.  Most such interests, happily, are 
commercial in their nature, and with the regulation of interstate commerce Congress 
has always been charged.  It was to give Congress this power, indeed, that the great 
constitutional convention 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 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 commerce or intercourse between the states.

	1117. 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 
intercourse 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.

	1118. Of course, too, this is a jurisdiction which must necessarily advance with 
lengthening strides as the movements of our already vast commerce become yearly 
even wider still and more rapid.  It has been made, indeed, to carry also a promise 
even of federal ownership of the telegraph systems of the country, and of a very much 
more extensive regulation of railway management than has yet been ventured upon.  
The most significant step yet taken was the creation, in 1887, of an Interstate 
Commerce Commission charged with the prevention of unjust discriminations in 
railroad rates either for freight or passage.  This Commission has already become one 
of the most important judicial bodies of the nation, and illustrates a very important 
experiment in federal control (sec. 1351).

	1119. Citizenship. - Citizenship in the United States illustrates the double 
character of the government.  Whoever possesses citizenship at all is a citizen both of 
the United 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 obedience is in both cases direct: every citizen must obey 
both federal law and the law of his own state.  His citizenship involves direct relations 
with the authorities of both parts of the government of the country, and connects him 
as immediately with the power of the marshals of the United States as with the power 
of the sheriff of his own county, or the constable of his own town.

	1120. 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 another state secures the 
privileges of citizenship there: but in transferring his state citizenship a citizen does not 
affect his citizenship of the United States at all.  The term of 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.

	1121. Elements of Confusion. - A very considerable amount of obscurity, it must 
be admitted, surrounds the question of citizenship in the United States.  The laws of 
our states have so freely extended to aliens the right to hold property, and even the 
right to vote after a mere declaration of intention to become naturalized citizens (see 
sec. 1143), - have, in brief, so freely endowed aliens with all the most substantial and 
distinguishing privileges of citizenship, - that it has become extremely difficult to draw 
any clear line, any distinction not merely formal, between citizens and aliens.  Of 
course if a person who is not formally naturalized exchanges residence in a state in 
which he was allowed the privileges of citizenship for residence in a state in which 
those privileges are denied him, he can complain of no injustice or inequality. The 
Constitution of the United States commands that "the citizens of each state shall be 
entitled to all the privileges and immunities of citizens in the several states"; but only 
federal law admits aliens to formal citizenship, and only formal citizenship can give to 
any one, wherever he may go, a right to the privileges and immunities of citizenship. 
The suffrage in particular is a privilege which each state may grant upon terms of its 
own choosing, provided only that those terms be not inconsistent with a republican 
form of government (sec. 1143).

	1122. Naturalization. - Naturalization is the name given to the acquirement of 
citizenship by an alien.  The power to prescribe uniform rules of naturalization rests 
with Congress alone, by grant of the Constitution. The states cannot make rules of 
their own in the matter, though they may, singularly and inconsistently enough, admit 
to the privileges of citizenship on what terms they please (sec. 1143).  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 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.

	1123. 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.

	1124. In Germany, it will be remembered, the terms and conditions upon which 
foreigners are to be admitted to citizenship are also regulated by federal law (sec. 
557); while in Switzerland citizenship in its fulness can be conferred only by cantonal 
law, though naturalization is regulated by federal provision (sec. 662).  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.

	1125. 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.

	1126. 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 distinctly than the federal government, rest upon 
fundamental law based upon the explicit assent of the people or their representatives.

	1127. 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 executive, 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.

	1128. The State Legislatures: their Powers. - The state constitutions 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 constitutions 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 persons 
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 legislature 
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 government 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.

	1129. 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 the action of legislatures within the sphere of their proper 
and undoubted powers, and unquestionably based upon a general distrust 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, 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 constitutions 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.

	1130. 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 "homestead 
exemptions"), 'prohibition' provisions, etc. The embodiment of such measures in 
constitutions is intended, as I have said (secs. 1096, 1097), to put them beyond 
legislative interference, - is a limitation of the same indirect sort as a Bill of Rights.  It 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.

	1131. The period to which the duration of legislative sessions is restricted varies, 
when imposed, from forty days (Colorado, Georgia) to ninety days (Maryland and 
Virginia), the most common period being sixty days.  It is noteworthy that only four of 
the original thirteen states have put a restriction upon the sessions of their legislatures.  
Eight of these thirteen have, however, on the other hand, restricted either wholly or in 
part the power to pass private or special legislation, - the power, that is, to make 
special rules for special cases or for particular individuals. It is nevertheless true that it 
is in the newer states, for the most part, that the strictest and most extensive 
limitations of legislative power are to be found.

	1132. State Legislatures not Sovereign Bodies. - It will thus be seen that our 
state legislatures are not in any sense 'sovereign' bodies.  There is a certain 
serviceable clearness of view to be had by regarding the state governments as, in their 
legal aspect, 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 fundamental law to 
which all legislation and all executive action must conform.

	1133. 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 difference in 
character, however, between the two houses of the state legislatures as exists 
between the Senate and the House of Representatives of the United States.  
Connecticut, as we have seen (sec. 1071), furnished the suggestion upon which the 
framers 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 
represented the people directly.  Even Connecticut has now abandoned 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 country 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.

	1134. 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 legislatures have two houses simply for 
purposes of deliberateness in 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 principle, but only an effort at 
prudence.

	1135. The reason for our having double legislatures cannot, however, be so 
simply explained.  It is compounded of both deliberate and historical elements.  Its 
historical grounds are sufficiently clear: the 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 governments.  Possibly, too, they were influenced by more ancient 
example.  The two greatest nations of antiquity had had double legislatures, and, 
because such legislatures existed in ancient as well as in modern times, it was 
believed that they were the only natural kind.

	1136. Historical Precedents. - Greeks, Romans, and English alike had at first, it 
is true, only a single law-making body, a senate representing the elders or nobles of 
the community, associated with the king, and, because of the power or rank of its 
members, a guiding authority in 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 presently the plan of an aristocratic chamber and a popular chamber in close 
association appeared in full development.  We copied the English chambers when they 
were in this stage of real coordination; before her legislature 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.

	1137. 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 the constitutions of the newer states.  In 
Massachusetts and Rhode Island, for instance, the term of both senators and 
representatives is a single year only.  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 
representatives; while in Louisiana representatives are given the term usually assigned 
to senators, namely, four years.

	1138. 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.

	1139. The Qualifications required of senators and representatives vary widely in 
the different states, but not in any essential point of principle. It is universally required, 
for example, that members of the legislature shall be citizens; it is 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.

	1140. 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 government of the state that the Vice-President of the United States occupies in 
the national government.  He is contingent substitute for the governor.  In nineteen of 
the states it is required 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.

	1141. Standing Committees. - The houses of the state legislatures, too, being 
separated from the executive in such a way as to be entirely deprived of its guidance, 
depend upon standing committees for the preliminary examination, digestion, and 
preparation of their business, and allow to these committees an almost unquestioned 
command of the time and the conclusions 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 parliamentary practice universally observed among English-
speaking peoples; and they and Congress alike have had in the main the same 
development.  As they have grown larger they have grown more dependent upon their 
advisory parts, their committees.

	1142. In several states the constitutions themselves command the reference of 
all bills to committees and forbid the passage of any measure which has not been 
referred and reported upon.

	1143. 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 resident 
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 
'inhabitant' 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 country 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.  In South Carolina it is required that each voter shall be able to read and write, 
or, if illiterate, shall own property valued at three hundred dollars.

	1144. In Connecticut, Delaware, Massachusetts, and Mississippi 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 several states the privilege is withheld from those who bet on elections.  In Florida 
betting on an election not only excludes from the election in connection with which the 
offence is committed, but is punished, upon conviction, by entire and permanent 
disfranchisement.  A number of states also shut out duellists. In most of the states a 
plurality vote at the polls is sufficient for election; but Vermont, Rhode Island, and 
Connecticut require election by a majority of those voting.

	1145. 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 constitutions of most of the states declare the suffrage to 
be restricted to males, Colorado, Wyoming, and Washington have conferred it upon 
women in all elections.

	1146. The Ballot, or voting paper, is throughout all the states the instrument of 
voting, and a large majority of them have now (1897) 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.

	1147. 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 
generalized 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.

	1148. The courts of our states are in no sense organs of federal justice, as the 
courts of the German states are (sec. 556).  They have an entirely independent 
standing and organization and an entirely independent jurisdiction.  Their constitution 
and procedure are in no way affected by federal law, - except of course by way of 
limitation; - their sphere is a sphere apart.  The series of courts 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 involving federal law or in cases where the character of the parties to the suit 
does not give any state court complete jurisdiction (secs. 1090, 1306).

	1149. 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 authorities.  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.

	1150. 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 conspicuously in the arrangements of local 
government, which is,as we shall see, not so much organized as left to organize itself 
under general statutes, for whose enforcement no central administrative machinery is 
provided.

	1151. 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.

	1152. 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 Justices of the Peace.

	1153. (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.

	1154. 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.

	1155. (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.

	1156. '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.

	1157. 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 criminal jurisdiction, as in England, civil causes 
going to the courts of Common Pleas. Delaware has criminal courts called courts of 
Gaol Delivery.

	1158. (4) Supreme Courts, which in most of the states have no original 
jurisdiction at all, but only appellate jurisdiction, hearing 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.



THE STATE
Wilson, Woodrow
The Government Of The United States
    
Part V.

	1159. (5) In several states there are supremest courts above the 'supreme.' Thus 
in New York there is a Supreme Court, which has its Appellate Division; the Appellate 
Division has four several parts or 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.

	1160. The name 'court of appeals' is found also in Maryland, Virginia, and West 
Virginia.

	1161. In five of the original states (New Hampshire, Massachusetts, Rhode 
Island, New York, New Jersey), and in Maine, the supreme courts have, anomalously 
enough, original as well as appellate jurisdiction 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.' (Compare sec. 1159.)

	1162. 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.'

	1163. Courts of Equity. - 'Equity' is defined, 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 
justice 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 no adequate provision (secs. 847, 
1423). 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.

	1164. 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 (secs. 265- 270, 274, 280, 281); and in 
most of the states of the Union the same courts exercise both equitable and common 
law jurisdiction.  In several states the whole procedure even, in both jurisdictions has 
been made practically identical, and law is hardly distinguishable from equity.  
Generally, however, the distinctive procedure at least has been preserved, and only 
courts of the superior and supreme grades have been given equitable jurisdiction, - 
jurisdiction, that is, over cases in which the remedy is equitable.  In Alabama, 
Delaware, Michigan, Mississippi, New Jersey, Tennessee, and Vermont there are still 
special chancery courts.

	1165. 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.

	1166. 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 appointment of guardians, administrators, etc., the care 
of the estates of wards, and, in general of the proper disposition of the property of 
persons deceased.  In some of the states, however, these functions are left to the 
ordinary courts of law.

	1167. In England this probate jurisdiction was, from the first until a very recent 
date, a prerogative of the ecclesiastical courts, and in two of our states the probate 
courts retain the names of the officers who exercised this function in the place of the 
bishop: in Georgia the court is called the court of the 'Ordinary, in New York the 
'Surrogate's' court.  In New Jersey, with a reminiscence of the same origin, it is called 
the 'Prerogative' court. In several states, on the other hand, it is known, by virtue of 
one side of its function, as the 'Orphan's' court.

	1168. 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 appointed 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.

	1169. 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.

	1170. 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 governor 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.

	1171. The qualifications required of judges by state law are not stringent.  Only 
some eight or nine of the states require by law any identification of their judges with 
the legal profession; and only six 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-five 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 numerous 'bench.'

	1172. 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.

	1173. The position of sheriff thus differs very materially from the position of a 
United States marshal (sec. 1317), the sheriff's counterpart in the federal judicial 
system.  The marshal is appointed by the President of the United States, and is 
responsible to a central authority, is part of a centralized organization of justice.  The 
sheriff, on the contrary, is the organ of an extremely decentralized, an almost 
disintegrated, organization of justice.  The bailiffs, the sheriff's deputies, are usually the 
appointees of the sheriff.

	1174. 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 legislature, as 
in Switzerland, nor the responsible guides of the legislature, 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 superintendence, is the fountain of information, 
the centre and source of advice, the highest organ of administration to the general eye; 
but it cannot be said to have any place or function of guiding power.  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.

	1175. 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.

	1176. 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, superintendents 
of education.  Many have also auditors: eleven have comptrollers, and fifteen boards 
of education; four (Massachusetts, New Hampshire, Maine, and North Carolina) 
associate councils with their governors.

	1177. 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 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.

	1178. The governor's term of office is in almost all of the states either two or four 
years, although Massachusetts and Rhode Island give their governors a term of but a 
single year, while New Jersey elects hers for three. The lieutenant-governor, where 
such an officer is elected, has the same term as the governor, and is generally 
required to have the same qualifications.

	1179. These qualifications consist, almost always, of citizenship of from two to 
twenty years' standing, residence within the state of from one to ten years, and age of 
from twenty-five to thirty years.  In Maine it is required that the governor shall be a 
native-born citizen.

	1180. 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 different officers are of the most various nature.

	1181. The constitutions of many of the states still exhibit the jealousy of long 
terms of office which was so characteristic of the extreme democratic 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 maximum; and Massachusetts, Virginia, and Maryland give express 
constitutional sanction to rotation in office.

	1182. Many states effect such a limitation with reference to the 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 altogether.

	1183. Contrast between State and Federal Executives. - The federal executive 
was, as we have seen (sec. 1071), constituted in quite close accordance with the 
models of previous state organization; 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 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 sovereign 
than of a state governor.  Certainly the contrast between the official place and power of 
the president and the place and power of the state governors of the present day is a 
very sharp and far-reaching contrast indeed.  The president of the United States is the 
only 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 'cabinet'; 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 principal 
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, after removal from office, 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.

	1184. In Delaware, Maryland, New Jersey, Pennsylvania, West Virginia, 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 to be an appointee of the 
governor; and these facts offer apparent contradiction to the statement that the several 
constituent parts of the state executives stand always apart in complete independence 
and coordination, - especially when it is added that in one or two states officers so 
important 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 preferred, 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 secretary 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 infamous 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 
administrative 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.

	1185. Real 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 government 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 responsibility 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, 
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 state.  
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 federal 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.

	1186. 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 any real integration of local government by a 
system of continuous central control.  Government remains disjointed, - still lies in 
separated parts.  (Compare sec. 1184.)

	1187. Relations of the Local to the Central Organs of Government in the States. - 
It is characteristic of our state organization, therefore, that the counties, townships, and 
cities into which the states are divided for purposes of local government do not serve 
as organs of the states exactly, but rather as independent organisms, 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 enforcing the general 
laws of the state.

	1188. We have not, therefore, local 'self-government,' in the sense in which 
Professor Gneist has found that term to be properly used when employed in the light of 
its Teutonic history; we have, instead, separate local self-direction which is not the 
application of government, but the play of independent action.  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 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.

	1189. 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 commonwealth, 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 clemency 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.

	1190. In some states, as notably in Pennsylvania, the power of granting 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 Connecticut the legislature alone can pardon: the 
governor can only reprieve until the end of the next session of the legislature.

	1191. (4) In all the states except three (Rhode Island, Ohio, North Carolina) the 
governor's assent is made necessary to the validity 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 veto properly so-called, he can compel the 
reconsideration of any measure by the legislature.

	1192. 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.

	1193. 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 required, in some a two-thirds vote; 
sometimes a majority of elected members (instead of a special number within a mere 
quorum) must concur in a second passage; and sometimes two-thirds of the elected 
members.  In Missouri it is provided that the votes of two-thirds of the elected 
members shall be necessary in the house in which the measure originated, while a 
mere majority of the other house will suffice.

	1194. In fourteen of the states the governor is given the power to 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.

	1195. 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 first 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.

	1196. 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.

	1197. The chief clerical features of the office which the five Principal Secretaries 
of State in England theoretically share (sec. 875) would seem to be represented by the 
necessity of the countersignature of some one of them to the validity of the sign-
manual.

	1198. 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.

	1199. Often other duties are assigned to the Secretary of State.  In one state, for 
instance, he is constituted Internal Improvement Commissioner; 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 returned; and it is he who 
transmits them to the president of the Senate to be opened in the joint session of the 
two houses.

	1201. 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.

	1202. 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 examination by the legislature, - in a word, to regulate the 
assessment, collection, and disbursement of the public moneys.

	1203. 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.

	1204. 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.

	1205. 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 superintendents 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.

	1206. Constitutional Diffusion of the Executive Power. - The constitutions of at 
least seven of the states make very frank confession of the diffusion of executive 
authority upon which I have dwelt as characteristic 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 
Arkansas, 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 "assisted by a cabinet of 
administrative officers" appointed by himself, subject to the confirmation of the senate; 
but clothed these officers with functions which made them in fact not assistants but 
colleagues.

	1207. The constitutions of most of the other states declare the executive power 
to be vested in the governor, but are hardly through with outlining his functions before 
they provide for the erection of 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 
commission' by enumerating the officers who are to divide its duties.

	1208. 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 central or local, any considerable play of 
discretionary power: so far as possible they command every officer in every act of his 
administration.  But no hierarchy stands between an officer and the law.  The several 
functions of executive power are segregated, - each official, so to say, serves his own 
statute.  So thorough is the control attempted by legislation, - 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.



THE STATE
Wilson, Woodrow
The Government Of The United States
    
Part VI.

Local Government. 
	1209. General Characteristics. - The large freedom of action and broad scope of 
function given to local authorities is the distinguishing characteristic of the American 
system of government.  Law is central, in the sense of being uniform and the 
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 characterized by a very great degree of 
particularity and detail of provision; but no central authority has executive charge of 
their application: each locality must see to it for itself that they are carried out.

	1210. Duties of Local Government. - The duties of local government include 
Police, Sanitation, the Care of the Poor, the Support and Administration of Schools, 
the Construction and Maintenance of Roads 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, convenience, 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.

	1211. Local Varieties of Organization. - Almost without exception the states 
which have been added to the original thirteen by whom the Union was formed have 
derived their local institutions, whether by inheritance or by imitation, from the mother 
states of the Atlantic seaboard.  Wherever New England settlers have predominated 
the 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 (secs. 1035-1037): they have, on the 
contrary, been deliberately constructed in imitation of New England models.  Neither 
have Western counties been developed by processes of pioneer agricultural 
expansion like those which made the irregular, and in a sense geographically natural, 
counties of Virginia (secs. 1042-1044): they have, on the contrary, been geometrically 
laid off in the exact squares of the government survey and deliberately organized 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 institutions 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 institutions 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 likeness they were made.

	1212. The differences of institution, then, which show themselves in the East 
between local government in New England, local government in the South, and local 
government in the central belt of Atlantic states extend also into the West.  There, too, 
we find the three types, the township type, the county type, and the compound type 
which stands between the two; but the compound type is in the West naturally the 
most common.  The Westerner has had the sagacity to try to combine the advantages 
of all the experiments tried in the older states, rejoicing in being fettered by no 
hindering traditions, and profiting by being restrained by no embarrassing incapacity 
for politics.

	1213. Keeping these facts in mind, it will be possible to consider 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.

	1214. The Township: its Historical Origin. - The township is entitled to be first 
considered in every description of local government 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 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 (secs. 1035, 1036) that they kept together in close settlements for 
religious purposes, for mutual defence, and for purposes of trade, and that their 
settlements were often completely 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 reproduction of the ancient Germanic Mark (secs. 287, 833).  In most 
cases they regarded the land upon which they settled as the property of the 
community, just as their remote barbarian ancestors had done; like those ancestors, 
they divided 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 common 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 inventing nothing; 
they were simply letting their race habits and instincts 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.

	1215. The exceptions to the principle of folk-land occurred where, as in the 
Hartford, Windsor, and Wethersfield settlements on the Connecticut, 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 the new colonies were established.  These joint 
owners were quite distinct from the communal authorities. ^1

	[Footnote 1: See Andrews, The River Towns of Connecticut (Johns Hopkins 
Studies, 7th Series).]

	1216. Absorption of the Town in Larger Units of Government. - 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 (sec. 1038); 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 (sec. 1051), 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 
recognized their elder and once sovereign place in the historical development of the 
commonwealth; but it in all cases necessarily resulted in their virtual subordination.  It 
led also to the creation of new areas of local government.  Towns were grouped, at 
first for judicial purposes only, into counties, and the counties came in time to furnish a 
very convenient basis for certain administrative functions once vested exclusively in 
the smaller areas.  Great cities, too, presently grew up to demand more complex, less 
simply and directly democratic, methods than those of the towns.  But no change has 
seriously threatened town organization with destruction.  The 'town' is still the most 
characteristic and most vital element of local government in New England; and it still 
has substantially the same officers, substantially the same functions, that it possessed 
at its foundation in America.

	1217. 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 
development 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.

	1218. 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.

	[Footnote 1: In Connecticut in the autumn.]

	[Footnote 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.]

	1219. 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 assessment; 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.

	1220. To this corps of officers all the functions of local government belong.  The 
county authorities cannot enter their domain, but must confine themselves to the 
judicial duties proper to them and to such administrative matters as the laying out of 
inter-town roads, the issuing of certain county licenses, the maintenance of county 
buildings, etc., for the due 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.

	1221. In Rhode Island the only county officials are those connected with the 
administration of justice.

	1222. 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 another phase and taken on another character, - 
a character which may perhaps foreshadow its ultimate organization, should the 
country have at any future time the uniform practices of local government now dimly 
promised by certain incipient forces of institutional interchange and imitation.

	1223. 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.

	1224. 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.

	1225. 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 of 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 political institutions. ^1

	[Footnote 1: See p. 10 of Local Government in Illinois, by Dr. Albert Shaw (Johns 
Hopkins Studies in Historical and Political Science, First Series).]

	1226. Spread of Township Organization. - In the newer portions of the country 
the development of the township has progressed almost in direct ratio with the 
development of local government: in many sections, even where population is 
comparatively dense, county organization has been made to suffice for such districts 
as have not assumed the structure and privileges of village or city incorporation; but 
wherever any special effort has been made to perfect local rural organization for 
administrative purposes, the township has been accepted as the best model of political 
association.

	1227. 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 California, 
as well as in Colorado, Oregon, Nebraska, and Nevada.

	1228. Township Organization. - The organization of the township outside of New 
England varies with its development.  Where it is most vigorous there is the town-
meeting, exercising powers strictly defined and circumscribed by statute and 
somewhat less extensive than the powers of the town-meeting in New England, but 
still covering a multitude of local interests and representing a very real control.  Where 
it is less developed there is no town-meeting, but instead only the processes of 
popular election to local office. In all cases the 'selectmen' have disappeared: at least 
we find no officers bearing their name, and no officers possessing exactly their 
functions.  Where the township is most completely organized we find one or more 
'supervisors' standing at the front of township administration, who are clothed with the 
duties of overseers of the poor, exercise oftentimes a certain control over the finances 
of the township, and are in general function the presiding and directing authorities of 
the administration.

	1229. In Michigan and Illinois a single supervisor presides over each township; 
and in Michigan each supervisor is also tax assessor, while in Illinois he is treasurer.  
In Wisconsin and Minnesota there are three supervisors in each township; in Ohio 
three nearly equivalent officers called 'trustees.' In Illinois the school township, though 
generally coincident in area with the civil township, is not identical in organization.  The 
officer called township treasurer is treasurer of the school fund.

	1230. Where there are several supervisors or trustees in the township, it is 
common to associate them together as a Board, and under such an arrangement they 
very closely resemble the New England board of selectmen in their administrative 
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.

	1231. 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 accepted, 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 township a body of school trustees.

	1232. 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 are often three or four years.

	1233. Where there is a town-meeting the officers are elected by it; where there is 
no town-meeting they are chosen at the polls.

	1234. The Township in the Middle Atlantic States. - It is reversing the historical 
order to speak of the townships of the middle Atlantic states after discussing the 
townships of the newer West; but it is not reversing the order of convenient exposition.  
The processes of formation are plainly visible in the West; in the East they are more 
complex and obscure, being the formations of history rather than of legislation.

	1235. The New York township is like the townships of Michigan 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 commissioners 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.

	1236. 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 
supervisors, holding for a term of three years, presides over the township, and has as its 
most prominent function the care of highways.  For the rest, there are the usual officers, 
with the somewhat uncommon addition of three auditors.  Where the township is 
charged with the care of the poor, two special overseers are elected.

	1237. Origins of Local Government in the Middle States. - Local government in 
New York, Pennsylvania, Delaware, and most 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 development of local government in the several parts of his domain 
exhibited a considerable variety.  The township retained its importance in New York, but 
further south, particularly in Pennsylvania, the county gained the superior place.

	1238. The Township in the South. - Wherever, in the South, the principle of local 
taxation for local schools has been fully recognized, there the township has begun to 
show itself, at least in bud.  Virginia, the oldest of the southern states, and in most 
respects the type of all the rest in institutional 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.

	1239. 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 partial 
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 (secs. 1042-1044) 
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 similarly diffused population.  New England immigration 
and new conditions of industrial and social combination have created the township within 
the county in the West, as similarly altered conditions have begun to create it in the 
South also.

	1240. In all cases, it would seem, the county was 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 government, 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 conferred upon 
it by subtraction from the townships.  In the Northwest, county and township have been 
created almost simultaneously and side by side, and are carefully integrated.

	1241. 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,' as 
judicial and administrative subdivisions, and have no such independent historical 
standing.

	1242. The Southern county, which undertakes all of local administration, has a 
complete set of officers.  At its head is a small board of county commissioners.  Acting 
under the general superintendence of the commissioners, there are generally a county 
treasurer, auditor, superintendent of roads, superintendent of education, and 
superintendent of the poor.  On its judicial side, the county has its sheriff, its clerk, its 
ordinary or surrogate, its coroner, and its 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 construction and 
repair of highways, and all local matters.  County officers are in almost all instances 
elected by popular vote.  Under the Southern county system the sheriff is commonly also 
tax-collector.

	1243. 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 administrative structure.  Sometimes, as in New 
York, Michigan, and Illinois, the county administrative authority is a board composed of 
the supervisors of all the townships; sometimes, as in Pennsylvania and Minnesota, the 
county authority is a board of three commissioners.  In Wisconsin the county board 
consists of members each of whom is chosen by two or more townships.  Where the 
county is given least power, as in New England, its administrative 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 control over the debt-contracting privileges of the 
smaller areas, often audit the accounts of local officers, and supervise taxation for 
purposes of equalization.

	1244. 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 function be given to the county), police, the 
construction and maintenance of highways, and sanitation; while the county is the area 
for the administration 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.

	1245. Villages, Boroughs, Cities. - Counties and townships are areas of rural 
organization only.  With the compacting of population in great towns and cities other and 
more elaborate means of organization became necessary, and a great body of 
constitutional and statutory law has grown up in the states concerning the incorporation 
of urban areas.  There is no complete 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 (sec 989): the largest 
towns are left to depend for their incorporation 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.

	1246. The electors or freeholders of less populous urban districts 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 classified according to population), may usually get from the courts as 
of course, upon proof of the necessary population and of the consent of the freeholders 
or electors, the privilege of erecting themselves into municipal corporations under 
general acts passed 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.

	[Footnote 1: The name town when used in New England always means, not an 
urban district, but a township.]

	1247. The town or borough is, however, a public, not a private, corporation, 
receiving by delegation certain powers of government; and many states have left with 
their legislatures the power to create all public corporations by special act.  The 
incorporation of towns is not, therefore, universally governed by general statute.

	1248. 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.  Baltimore and St. Louis have been 
made independent of county government 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.

	1249. A common model of organization for the smaller urban areas is: a mayor, 
president, or chief burgess; a small town council given extensive 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 executive boards often found in the townships and always found in the 
counties; 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.



THE STATE
Wilson, Woodrow
The Government Of The United States
    
Part VII.

	1250. 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 (sec. 1162), 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 sometimes also made quite independent of the counties in 
which they lie (sec. 1248).  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.

	1251. The Council of a great city usually consists of two sections or 'houses,' - a 
board of aldermen and a board of common councilmen, differing very much as the two 
houses of a state legislature differ, in 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 
Common Council.

	1252. These boards always constitute the law-making (or rather ordinance-
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 officers, - 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 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.  In her latest constitution (1894) 
New York has tried the experiment of giving the mayors of her cities a suspensive veto 
on state legislation touching municipal matters.  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.

	1253. School Administration. - Wherever the public school exists there we find 
the School District the usual administrative 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 
participation on the part of the people, gathered in district-meeting, in school 
administration, and generally a fuller power of local taxation.

	1254. In New England recent years have been witnessing the disappearance of 
the separate school district in some states, and its 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 an outside New England 
the same substitution has here and there been made, - as, for example, in 
Pennsylvania.

	1255. In the Northwest schools usually receive support from three distinct 
sources: from the land granted to each township by the federal government; from a 
general state tax for education, whose proceeds are distributed among the townships, 
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.

	1256. Nowhere is there sufficient centralization of control.  State superintendents 
or other central educational authorities are without real administrative powers 
(compare sec. 1205); county superintendents seldom have much authority; township 
trustees or committees, as a rule, have little more than a general 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.

	1257. 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 system, requisition is made upon the 
officers of the counties for the taxes voted by the legislature for state purposes, and 
the county boards raise them, together with the county taxes, upon the basis of the 
county assessment.  Where the township exists, the process goes one step further: 
requisition is made upon the townships for both the state and county taxes, and the 
townships raise these, together with their own taxes, upon the basis of the assessment 
made by their own assessors.

	1258. An effort is made in most of the states, however, to equalize 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 
equalization 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.

	1259. 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 executive 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.  (Compare sec. 1009.)

	(4) In the fourth place, relatively to the central organs of the state, local 
government is, administratively, the most vital part of our system: as compared either 
with the federal government or with local authorities, the central governments of the 
states lack vitality not only, but do 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. 

	1260. The Constitution of the United States does not contain all the rules upon 
which the organization of the federal government rests.  It says that there shall be a 
Congress which shall exercise the law-making power granted to the general 
government; 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 
Supreme Court shall be assisted in the exercise of its powers.  It leaves all detail of 
operation to be arranged by statute: and statute accordingly plays an all-important part 
in the organization of the government.

	1261. 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 
representative conventions in the states, it stands altogether apart from ordinary law 
both in character and sanction.

	1262. Amendment of the Constitution. - The Constitution cannot 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 
necessary; or (b) the legislatures of two-thirds of the states may petition Congress to 
have a general convention called for the consideration of amendments, and such a 
convention, being called, may propose changes.  In both cases the mode of adoption 
is the same.  Every change proposed must be submitted to the states, to be voted 
upon either by their legislatures or by state conventions called for the purpose, as 
Congress may determine.  Any amendment which is agreed to by three-fourths of the 
states becomes a part of the Constitution.

	1263. The fifteen amendments so far made to the Constitution were all proposed 
by Congress.  No general constitutional convention has been called since the 
adjournment of the great body by which the Constitution was framed in 1787.

	1264. None of the written constitutions of Europe are so difficult of alteration as 
our own.  In Germany, as we have seen (sec. 499), a provision changing the imperial 
constitution passes just as an ordinary law would pass, the only limitation upon its 
passage being that fourteen negative votes in the Bundesrath will defeat it (14 out of 
58).  In France (secs. 411, 412) constitutional amendments pass as ordinary laws do, 
except that they must be adopted by the two houses of the legislature acting, not 
separately in Paris, but jointly at Versailles, as a National Assembly.  In Switzerland 
such amendments must pass both houses of the federal legislature and must also be 
approved, in a popular vote, by a majority of the voters, and by a majority of the 
Cantons (sec. 698).  In England the distinction between constitutional law and statute 
law can hardly be said to exist (see sec. 917).  See, also, for a further exposition of 
constitutional differences between modern states, Chap. XII.

	1265. The Federal Territory. - The territory of the United States is of two different 
sorts: there is (a) the District of Columbia, 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 
authorities hold in trust for the nation as a seed-bed for the development of new states.

	1266. The District of Columbia. - It would have been inconvenient for the federal 
government to have no territory of its own on which to build its public offices and 
legislative halls, and where it could be independent of local or other state 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 government 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 government, 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.

	1267. 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 officers 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.

	1268. 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 government. Berne, too, is cantonal, not federal, 
ground.  Our government would have been in the same case as those of Germany and 
Switzerland had our federal authorities remained the guests of New York or 
Pennsylvania.

	1269. 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 property ceases to be used for the federal purposes specified.

	1270. 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 constituted by federal statute.  
First they have been given governors 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 
developed, they have been granted as full law-making powers as the states.  The 
territorial stage of their development passed, the most important of them have one by 
one been brought into the Union as states.

	1271. Until 1803 the only territory of the United States consisted of the lands this 
side the Mississippi which had belonged to the thirteen original states individually, and 
had by them been granted to the general government. In 1803 the vast tract known as 
'Louisiana' was bought; in 1848, by conquest, and in 1852, by negotiation, the Pacific 
coast lands were acquired from Mexico; in 1846 the right of the United States to a 
portion of "the Oregon country" was finally established, by treaty.

	1272. The post-offices, federal court chambers, custom houses, and other like 
buildings erected and owned by the general 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 corporation.  Their sites are not separate federal territory.

	1273. Congress. - As in the states, so in the federal government, 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 houses of Congress have distinct characters: the Senate differs from the House 
not only in the number of its members, but also in the principle of its composition.  It 
represents the federal principle upon which the government rests, for its members 
represent the states.  The House of Representatives, on the other hand, represents 
the national principle upon which also the government has now been finally 
established, without threat of change.  Its members represent the people.

	1274. The Senate. - The Senate consists of two representatives from each of the 
states of the Union.  It has, therefore, the states being forty-five in number (1897), 
ninety members.  Each senator is elected, for a term of six years, by the legislature of 
the state which he represents; and a state legislature 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 chosen to represent.

	1275. The Constitution directed that, immediately after coming together for its 
first session, the Senate should divide its members, by lot, as nearly as it could into 
three equal groups; that the members assigned to one of these groups should vacate 
their seats after the expiration of two years, the members assigned to another after the 
expiration of four years, and the members of the third after the expiration of six years; 
after which arrangement had been accomplished, the term of 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.

	1276. The Senate is, as I have said, the federal house of Congress. Its members 
represent the states as the constituent members of the Union. They are not, however, 
in any sense delegates of the governments of the states.  They are not subject to be 
instructed as to their votes, as members of the German Bundesrath are, by any state 
authority (sec. 501), not even by the legislatures which elected them.  Each senator is 
entitled and expected to vote according to his own individual opinion.  Senators, 
therefore, may be said to represent, not the governments of the states, but the people 
of the states organized as corporate bodies politic.

	1277. There is no rule which obliges senators from the same state to vote 
together, after the fashion once imperative in the Congress of our own Confederation 
(sec. 1068), and still imperative in the German Bundesrath (sec. 501).  Each senator 
represents his state, not in partnership, but singly.

	1278. The equal representation of the states in the Senate more strictly conforms 
to the federal principle than does the unequal representation characteristic of the 
German Bundesrath (sec. 501); 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.

	1279. 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.

	1280. 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 
principally concern themselves, and the most important feature of that organization is 
the division of the members of the Senate into standing committees; into small groups, 
that is, to each of which is entrusted the preparation of a certain part of the Senate's 
business.  The Senate itself would not have time to look into the antecedents and 
particulars, the merits and bearings, of every matter brought before it; these 
committees are, therefore, constituted to act in its stead in the preliminary examination 
and shaping of the measures to be voted on.  Whenever any proposal is made 
concerning any important question, that proposal is referred to the standing committee 
which has been commissioned to consider questions of the class to which the 
proposed action belongs.  The committee takes the proposal under consideration, in 
connection with all other pending proposals 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.

	1281. 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 Committee on Foreign Affairs, which prepares for 
consideration all questions touching our relations with foreign governments, etc.

	1282. 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 important characteristic of our system that our legislatures lead 
themselves, or, rather, that they suffer themselves to be led along the several lines of 
legislation by separate and disconnected groups of their members.

	1283. 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 government 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 
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 example, the Senate or its Finance Committee must constantly 
wish to know the experience of the Treasury.  But it is not always easy to get 
legislative questions fully and correctly answered; for the officers of the government 
are in no way responsible to either house for their official conduct.  They belong to an 
entirely separate and independent branch of the government: only such high crimes 
and misdemeanors as lay them open 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 
government, as we have seen (secs. 427, 428, 533, et seq., 580, 670, 868 - 871, etc.), 
the ministers are always present in the legislative bodies to be questioned and dealt 
with directly, face to face.

	1284. 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.

	1285. The House of Representatives. - The House of Representatives 
represents, not the states, but the people of the United States.  It represents them, 
however, not in the mass, but by states.  Representation is apportioned among the 
states severally according to population, and no electoral district crosses any state 
boundary.  (Compare secs. 517, 687.)

	1286. Apportionment of Representatives. - Congress itself decides 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 state is divided by its own 
legislature into as many districts as it is to have representatives, and the people of 
each of these districts are entitled to elect one member to the House.  The only 
limitation put by the Constitution itself upon the number of representatives is, that there 
shall never be more than one for every thirty thousand inhabitants.  The first House of 
Representatives had, by direction of the Constitution itself, sixty-five members, upon 
the proportion of one to every thirty- three thousand inhabitants.  The number has, of 
course, grown, and the proportion decreased, with the growth of population.  A census 
is taken every ten years, and the rule is to effect readjustments and a redistribution of 
representation after every census.

	1287. In states which send but one representative (there are now - 1897 - seven 
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.

	1288. At present there are three hundred and fifty-seven members in the House, 
and the states are given one member for every 173,905 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 173,905 inhabitants and a very large fraction over, it is given five members 
instead of four only. If any state have less than 173,905, it is given one member, 
notwithstanding, being entitled to at least one by constitutional provision.  The reason 
for allowing a state an extra representative when there is 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.

	1289. 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.'

	1290. 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 1895- 1897 was known as the 
fifty-fourth Congress, because the House of Representatives of that period was the 
fifty-fourth that had been elected since the government was established.

	1291. 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.

	1292. 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 male citizens who are 
twenty-one years of age the privilege of voting for members of the more numerous 
branch of its own legislature (and thus, by consequence, the privilege of voting for 
representatives in Congress), for any reason except that they have committed crime, 
its representation in Congress shall be curtailed in the same proportion that the 
number of persons 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.

	1293. 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 committees.  The committees of the 
House are not, however, elected by ballot, as the committees of the Senate are; they 
are appointed by the presiding officer of the House, the 'Speaker'; and this power of 
the Speaker to appoint the committees of the House makes him one of the most 
powerful officers in the whole government.  For the committees of the House are even 
more influential than those of the Senate in determining what shall be done with 
reference to matters referred to 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 committees, 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 
makes the Speaker's power of appointment so vastly important.  He determines who 
shall be on the committees, and the committees determine what the House shall do.  
He nominates those who shape legislation.  More than that, he shapes the rules and 
determines the course of business.  For he is chairman of the Committee on Rules, 
which has but two other members, whom he regards as his 'assistants,' and that 
committee guides the House quite absolutely in the use of its time. The Speaker will 
not 'recognize' (that is, will not give the floor to) any member who seeks to upset the 
programme it has fixed.



THE STATE
Wilson, Woodrow
The Government Of The United States
    
Part VIII.

	1294. The extraordinary power of the Speaker often makes his election a very 
exciting part of the business of each new House: for he is always selected with 
reference to what he will do in constituting the principal committees, and in shaping 
and administering the rules.

	1295. The House of Representatives is not given a president by the Constitution, 
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 Commons 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 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.

	1296. The House has so many standing committees that every representative 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 government, 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 recent 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.  It is, of course, to the appointment of such committees that the Speaker pays 
most attention.  Through them his influence is most potent.

	1297. Some members of the House are considered to be entitled, because of 
their long service and experience in Congress, to be put on important committees, and 
on every committee there must, by imperative custom, be representatives of both 
parties in the House.  But these partial limitations upon the Speaker's choice do not 
often seriously hamper him in exercising his preferences.

	1298. The House has to depend, just as the Senate does, upon its standing 
committees for information concerning the affairs of the government and the policy of 
the executive departments, and is just as often and as much embarrassed because of 
its entire exclusion from easy, informal, and regular intercourse with the departments.  
They cannot advise the House unless they are asked for their advice; and the House 
cannot ask for their advice except indirectly through its committees, or formally by 
requiring written reports.

	1299. 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.

	1300. 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 (b) by 
receiving the approval of a majority in each house, and not being acted upon by the 
President within ten days after its passage; or (c) by receiving the approval of two-
thirds of each house after having been refused signature by the President within ten 
days after its passage 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.

	1301. 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.

	1302. In the practice of some foreign legislatures the quorum is much less than a 
majority of the members.  In the English House of Commons, for instance, it is only 
forty members, although the total number of members of the House of Commons is six 
hundred and seventy.

	1303. When it is said that under certain 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 President 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.

	1304. A bill may 'originate' in either house, unless it be a bill relating 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.

	1305. If one of the houses pass a bill, and the other house amend it, the changes 
so proposed must be adopted by the house in which the 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 appointed by the other house, to see 
what can be done towards bringing about an agreement between the two houses upon 
the points in dispute.

	1306. The Federal Judiciary: its Jurisdiction. - The Judiciary of the United States 
consists of a Supreme Court, nine Circuit Courts of Appeals, nine Circuit Courts, sixty-
eight District Courts, and a Court of Claims. Its organization and functions rest more 
than those do those of either of the other branches of the general government upon 
statute merely, instead of upon constitutional provision.  The Constitution declares that 
"the judicial power of the United States shall be vested in one supreme court, and in 
such inferior courts as the Congress may, from time to time, ordain and establish," and 
that "the judges, both of the supreme and inferior courts, shall hold their offices during 
good behavior, and shall, at stated times, receive for their services a compensation 
which shall not be diminished during their continuance in office." It provides also that 
the judicial power of the federal government shall extend to all cases in law or equity 
which may arise under the Constitution, laws, or treaties of the United States; to all 
cases affecting ambassadors, other public ministers, and consuls; to all admiralty and 
maritime cases; to controversies in which the United Stated is a party, controversies 
between two or more states, between a state and 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 foreign states, citizens, or subjects.  And it directs 
that in cases affecting ambassadors, other public ministers and consuls, and in cases 
in which a state is a party the Supreme Court shall have original jurisdiction; while in all 
other cases it is to have appellate jurisdiction only, "with such exceptions, and under 
such regulations, as the Congress shall make."

	1307. 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 involved: 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.  (b) 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 privileges rest upon the 
sovereignty of the states they represent; or cases in which the state courts could not 
have complete jurisdiction because of the residence of the parties; for instance, suits 
arising between citizens of different states. It is always open to the choice of a citizen 
of one state to sue a citizen of another state in the courts of the latter's own domicile, 
but the courts of the United States are the special forum provided for such cases.

	1308. Power of Congress over the Judiciary. - But these provisions of the 
Constitution leave Congress quite free to distribute the powers thus set forth among 
the courts for whose organization it is to provide, and even, if it so chooses, to leave 
some of them entirely in abeyance.  In other words, the 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.

	1309. With regard to the organization of the judiciary Congress determines not 
only what courts shall be created inferior to the Supreme Court, but also of what 
number of judges the Supreme Court itself shall consist, what their compensation and 
procedure shall be, and what their specific duties in the administration of justice.  It 
might also determine, should it see fit, what qualifications should be required of 
occupants of the supreme bench.

	1310. 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.  As at present constituted, 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 constituting a quorum.  Next below 
the Supreme Court are two sets of Circuit courts, called respectively Circuit Courts and 
Circuit Courts of Appeals.  The Circuit courts are, in theory, courts held in different 
parts of the country by the justices of the Supreme Court sitting separately; but in 
reality the business of the Supreme Court is so great in amount and so engrossing in 
character that the justices can by no means regularly attend the sessions of the Circuit 
courts.  The area of the United States (exclusive of the territories) is divided into nine 
circuits, one justice of the Supreme Court is assigned, by the appointment of the court 
itself, to each of these circuits, and in addition special circuit judges are appointed who 
act quite independently of the justices, often holding court separately, in another part 
of the circuit, at the same time that the justices are themselves holding court in the 
same circuits.  There are at present (1897) thirteen ordinary circuit judges, the first, 
third, fourth, fifth, and sixth circuits having one each, and the second, seventh, eighth, 
and ninth two each.  The nine circuits are divided into sixty-eight districts, which, like 
Congressional districts, never cross state lines; and for each of these districts there 
has been established a district court.  Some of the less populous states constitute 
each a single district; others are divided into two, while still others furnish sufficient 
business to warrant their being divided into three.  The District courts are the lowest 
courts of the federal series, and have their own separate judges.  The Circuit courts sit 
in the several districts of each circuit successively, and the law requires that each 
justice of the Supreme Court shall sit in each district of his circuit at least once every 
two years.

	1311. A Court of Appeals was established by statute in 1891 for each of the nine 
circuits, in order to relieve the Supreme Court, in some degree, of the enormous 
pressure of business that had at last hopelessly congested its docket.  In each circuit a 
justice of the Supreme Court and two circuit judges, or one circuit judge and one 
district judge, constitute the court of appeals for the circuit, and nine additional circuit 
judgeships were created by the act for this service, one for each circuit. The Circuit 
Court of Appeals is the only court in which the decisions of the Circuit and District 
courts can be reviewed in civil cases involving less than $1000; in cases in which the 
jurisdiction of the federal courts is based upon the character or residence of the 
parties; in patent cases, criminal cases less than capital, revenue cases, admiralty 
cases.  In all such cases, however, the Supreme Court can assume jurisdiction if it will, 
by certiorari or otherwise; and the Circuit Courts of Appeals may themselves certify to 
that court such questions of law as they may deem it best it should pass upon.  
Appeals lie from the Circuit Courts of Appeals to the Supreme Court as of right in 
respect of questions of jurisdiction, in respect of all constitutional questions or 
questions affecting treaties, in all prize cases, and in all cases of conviction for capital 
"or otherwise infamous" crimes.

	1312. The Court of Claims was established in 1855, to relieve Congress of the 
necessity of determining the validity of claims against 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 jurisdiction; 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.

	1313. The Court of Private Land Claims was established in 1891, to relieve 
Congress of the decision of various claims to lands lying within the territory derived by 
the United States from Mexico in cases where the claims were made by virtue of such 
Mexican or Spanish grants, concessions, warrants, or surveys as the United States is 
bound to recognize and confirm by reason of the terms of the treaties of cession by 
Mexico to the United States, - excluding, of course, such claims as have already been 
confirmed or finally disallowed by act of Congress or otherwise.  The states within 
which such lands may lie are New Mexico, Arizona, Utah, Nevada, Colorado, and 
Wyoming. The court consists, like the Court of Claims, of one chief justice and four 
associates.

	1314. The Division of Jurisdiction between the Circuit and 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 court power in certain specified 
cases, and left the rest in abeyance, it would be impossible to give in brief compass a 
detailed account of the jurisdiction of the several courts.  It must suffice for present 
purposes to say, that the District courts are given cognizance of all ordinary civil cases 
falling within the federal jurisdiction (though if the sum involved exceed $2000 the suit 
may be brought in the Circuit Court); 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 $1000.  The Circuit courts, on their part, are given 
jurisdiction in civil cases where the sum involved exceeds $2000, in cases concerning 
patents, copyrights, or the revenue, in cases brought by the United States against the 
national banks, in cases where the rights of citizens are asserted against state laws, 
and in certain enumerated cases of claims in law or equity against the United States.  
No pecuniary limit to appeals from District or Circuit courts to a Circuit Court of 
Appeals is mentioned in the act of 1891.  In the trial of crimes punishable by federal 
law the jurisdiction of the District and Circuit courts is concurrent except in capital 
cases, over which the Circuit courts have exclusive jurisdiction.

	1315. 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 
sixty-eight federal judicial districts, and for each of these, as a rule, a special district 
judge is appointed, though in large, thinly populated sections of the country it has been 
customary to have one judge hold court in several districts.  Thus at present (1897) 
there are but sixty-five district judges.

	1316. Federal judges of the inferior courts are, so to say, interchangeable.  When 
necessary, a district judge can go into another district than his own and either aid or 
replace the district judge there. A district judge may 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.

	1317. The District Attorney and the Marshal. - Almost 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, 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.

	1318. The orders and processes of a state court are binding and operative only 
within the state to which the court belongs; the orders and processes of United States 
courts, on the contrary, are binding and operative over the entire Union.

	1319. The Courts of the District of Columbia and of the territories are courts of 
the United States, but they are not federal courts; they bear, so far as their jurisdiction 
is concerned, the character of state and federal courts; they bear, so far as their 
jurisdiction is concerned, the character of state and federal courts united.  The only 
laws of the territories 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.

	[Footnote 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.]

	1320. 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.

	1321. The procedure of a federal court follows, as a rule, the procedure of the 
courts of the state in which it is sitting; and state law is applied by the courts of the 
United States in all matters not touched by federal enactment.  Juries are constituted, 
testimony taken, argument heard, etc., for the most part, according to the practice of 
the state courts; so that, so far as possible, both as regards the outward forms 
observed and the principles applied, a federal court is domestic, not foreign, to the 
state in which it acts.

	1322. 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 (secs. 556, 703, 704).

	1323. 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 substantially correct to describe the President as simply presiding over 
and controlling by a general oversight the execution of the laws; which is doubtless all 
that the sagacious framers of the Constitution expected.  The Vice-President has no 
part in the executive function.  He is the President's substitute, and is chosen at the 
same time and in the same manner that the President is chosen.

	1324. 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 each state being thus equal to its total representation in Congress.

	1325. The electors are voted for on the Tuesday following the first Monday of 
November in the year which immediately precedes 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 houses of Congress 
sitting in joint session on the second Wednesday of the following February.  The 
President is inaugurated on the fourth of March.

	1326. 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 previous 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 conventions 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 conventions, of which the constitution knows nothing, 
are in fact by far the most important part of the machinery of election.

	1327. 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." ^1 In respect of age there is 
here only a slight advance upon the qualifications required of a senator; in respect of 
citizenship it is very much more rigorous than in the case of members of Congress.

	[Footnote 1: Constitution, Art. II., sec. i., par. 5.]

	1328. 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, it is provided that his compensation 
shall neither be diminished nor increased during his term.

	1329. Duties and Powers of the President. - It is the duty of the President to see 
that the laws of the United States are faithfully executed; he is made commander-in-
chief of the army and navy of the United States, and of the militia of the several states 
when called into the actual service of the United States; he is to regulate the foreign 
relations of the country, receiving all foreign ministers and being authorized to make 
treaties with the assent of two-thirds of the Senate; he is to appoint and commission all 
officers of the federal government; and he may grant reprieves and pardons. The 
Constitution makes all his appointments subject to confirmation by the Senate; but it 
also gives Congress the power to remove from the superintending view of the Senate 
the filling of all inferior official positions, by vesting the 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 necessary to the appointment of ambassadors, other public ministers, 
and consuls, of judges of the courts of the United States, of the chief military, naval, 
and departmental officials, of the principal post-office and customs officers, - of all the 
more important servants of the general government: but these constitute only a 
minority of all the persons receiving executive appointment.  The majority are 
appointed without legislative oversight.

	1330. 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 party from the states 
concerned, has frequently threatened to add to the improper motives of the Executive 
the equally improper motives of the Senate.



THE STATE
Wilson, Woodrow
The Government Of The United States
    
Part IX.

	1331. Reform of Methods of Appointment to Federal Offices. - The attempts 
which have been made in recent years to reform by law the system of appointments 
have not been directed towards the higher offices filled with the consent of the Senate, 
but only towards those inferior offices which are filled by the single authority of the 
President or of the heads of the executive departments; have touched in their results, 
indeed, only the less important 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 
President, 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 service 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."

	1332. 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.

	1333. 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 Postmaster-General, the Secretary of the Navy, or the 
Secretary of the Interior.  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 this arrangement was made, by act of 
Congress in 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.  These 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 Constitution, in the clause in which Congress is authorized to 
designate the 'officers' upon whom in such cases the presidential office was to 
devolve.

	1334. Relations of the Executive to Congress. - The only provisions 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 the 
sending of annual and special written 'messages.'

	1335. 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. (Compare sec. 861.) 
Possibly, had the President not so closed the matter against new adjustments, this 
clause of the Constitution 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 Congress.  Having 
been interpreted, however, to exclude the President from 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 government 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, with the result of giving coherence to the 
action of the one and energy to the action of the other.

	1336. 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 appointment of such inferior officers as it may see fit "in 
the heads of departments." The executive departments consequently owe their 
creation and organization to statute only.

	1337. The first Congress erected three such departments, namely, the 
departments of State, of the Treasury, and of War; providing, besides, for the creation 
and exercise of the office of 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 Department of the Navy; in 
1829 the post-office, which had been a subdivision of the Treasury, was created an 
independent Department; and in 1849 a Department of the Interior was organized to 
receive a miscellany of functions not easy to classify, except in the feature of not 
belonging properly within any department previously created. In 1870 the Attorney-
General was put at the head of a 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.

     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.

	1338. We have, thus, at present, eight 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.

	1339. (2) A Department of the Treasury, which is the financial agency of the 
government, and whose functions cover the collection of the public revenues accruing 
through the 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 departments; the supervision and regulation 
of the national banks and of the currency of the United States; the coinage of money; 
and the collection of certain industrial and other statistics.  This Department, therefore, 
contains within it the treasury and comptrolling functions which in the states are 
separated.

	1340. 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.  The Treasury Department has also charge of the Coast and 
Geodetic Survey, of marine hospitals, the maintenance of lighthouses, and of the Life 
Saving Service.

	1341. (3) A Department of War, which has charge of the military forces and 
defences of the Union.  It has charge of the Military Academy at West Point, and 
supervision of the various military schools to which Congress gives aid.

	1342. (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.

	1343. (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, in the service of the government.  It may be 
compendiously described as the lawyer force of the government.  It is presided over by 
an Attorney-General, all the other departments, except the Post-Office, being under 
'Secretaries.'

	1344. (6) A Post-office Department, under a Postmaster-General, 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.

	1345. These arrangements with foreign countries may be made without 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.

	1346. (7) A Department of the Interior, which has charge (i.) Of the taking of the 
Census, as from time to time ordered by Congress in accordance with the provision of 
the Constitution (Art. I., sec. i., par. 3) which makes it the duty of Congress to have a 
census taken every ten years as a basis for the redistribution of representation in the 
House of Representatives among the several states; (ii.) Of the management of the 
public lands (General Land Office); (iii.) 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 different parts of the Indian country.

	1347. It is through this Indian Bureau, for example, that all laws concerning the 
settlement, assistance, or supervision of the tribes are administered, as well as all laws 
concerning the payment of claims made upon the federal government for compensation 
for depredations committed by the Indians, and laws touching the distribution and tenure 
of land among the Indians.

	1348. (iv.) Of the paying of pensions and the distribution of bounty lands, a 
function which it exercises through a special Commissioner of Pensions; (v.) Of the 
issuing and recording of patents and the preservation of the models of all machines 
patented.  For the performance of these duties there is a Patent Office.  (vi.) Of the 
keeping and distribution of all public documents (Superintendent of Public Documents); 
(vii.) Of the auditing of the accounts of certain railway companies, to which the United 
States government has granted loans or subsidies, and the enforcing of the laws passed 
by Congress with reference to such roads (Office of the Commissioner of Railroads); 
(viii.) Of the collection of statistical and other information concerning education, and the 
diffusion of the information so collected for the purpose of aiding the advance and 
systematization of education throughout the country (The Office of Education); (ix.) Of 
the superintendence of the government hospital for the insane and the Columbia Asylum 
for the Deaf and Dumb; (x.) Of the Geological Survey; (xi.) Of the Freedmen's Hospital 
and the Howard University.

	1349. Many of these subdivisions of the Interior, though in strictness subject to 
the oversight and control of the Secretary of the Interior, have in reality a very 
considerable play of independent movement.

	1350. (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.

	1351. Set apart to themselves, and therefore without representation in the 
Cabinet, there are (1) The Department of Labor, which is charged with the collection and 
publication of statistical and other information touching the condition and interests of 
laborers, - information, for instance, bearing upon the relations of labor and capital, 
hours of labor, the housing of laborers, rates of wages and methods of payment, the 
food and expenses of laborers, etc. (2) The Interstate Commerce Commission, a semi-
judicial body by which the federal statutes forbidding unjust discrimination in railway 
rates in interstate freight or passenger traffic, prohibiting certain sorts of combinations in 
railroad management, etc., are interpreted and enforced.  (3) The Civil Service 
Commission by which the Act mentioned in sec. 1331 is administered.  (4) The 
Commission of Fish and Fisheries, whose duty it is to make the necessary investigations 
and prosecute the necessary measures for the preservation, improvement, and increase 
of the stock of fish in our rivers and lakes and on our coasts. (5) The Government 
Printing Office, which prints all public documents.  (6) The Smithsonian Institution, the 
National Museum, and the Bureau of Ethnology.

Some Representative Authorities. 

     Histories:

     Adams, Henry, "The History of the United States under the Administrations
of Jefferson and Madison," 9 vols., N.Y., 1889-1891; and "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 Political Science, 3d
Series, No. 1.

     American Statesmen Series, a series of biographies.  26 vols., 12 mo.
Boston, 1882-1891.

     Bancroft, George, "History of the United States," from the discovery 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 Working of
the American Government for Thirty Years, 1820-1850." 2 vols., 8vo. N.Y.,
1854-1856.

     Bishop, Cortlandt F., "History of Elections in the American Colonies"
(Columbia College Historical Studies), N.Y., 1896.

     Curtis, George T., "History of the Origin, Formation, and Adoption of the
Constitution of the United States." 3 vols., N.Y., 1854, 1858, 1896.

     Doyle, J. A., "The English Colonies in America," to the end of the
seventeenth century.  3 vols., N.Y., 8vo., London and N.Y., 1882-1889.

     Fisher, George P., "The Colonial Era," N.Y., 1892.

     Fiske, John, "The Critical Period of American History," Boston, 1888,
1897.

     Frothingham, Richard, "Rise of the Republic of the United States,"
Boston, 1872.

     Hart, Albert B., "Formation of the Union." 8th ed., revised.  London and
N.Y., 1897.

     Hildreth, R., "History of the United States from the Discovery of America
to the End of the Sixteenth Congress" (1821).  Two Series, 6 vols. New ed.
N.Y., 1879.

     Holst, H. von, "The Constitutional and Political History of the United
States." Translated 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.  And "The First Century of the Constitution," in the New Princeton
Review, September, 1887.

     Landon, 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.

     MacMaster, John B., "History of the People of the United States," 4
vols., N.Y., 1883-1895.

     Pitkin, Timothy, "Political and Civil History of the United States of
America from their Commencement to the Close of the Administration of
Washington." 2 vols., 8vo.  New Haven, 1828.

     Rhodes, James F., "History of the United States from the Compromise of
1850." 3 vols., 8vo.  N.Y., 1893-1895.

     Roosevelt, Theodore, "The Winning of the West," 4 vols., London and N.Y.,
1889-1896.

     Schouler, James, "History of the United States of America under the
Constitution," 5 vols., N.Y., 1889-1891.

     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.

     Stanwood, Edward, "A History of Presidential Elections." 2d ed., revised.
Boston, 1892.

     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." Vol.
I., introductory chapter.  Boston, 1889.

     Thwaites, Reuben G., "The Colonies, 1492-1750." 10th ed., revised. London
and N.Y., 1897.

     Tucker, George, "The History of the United States from their Colonization
to the End of the Twenty-sixth Congress in 1841," 4 vols. Phila., 1856-1857.

     Walker, Francis A., "The Making of the Nation," N.Y., 1895.

     Winsor, Justin, (editor), "Narrative and Critical History of America."
Vol. VII.  Boston, 1888.  Contains full bibliographical notes.

     Wilson, Woodrow, "Division and Reunion, 1829-1889," 13th ed., London and
N.Y., 1898.

     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," Boston, 4th ed.,
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:

     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., 3d ed., London and
N.Y., 1893-1895.

     Burgess, John W., "Political Science and Constitutional Law," 2 vols.,
Boston, 1891.

     Carter, C. H., "Connecticut Boroughs," in New Haven Historical Society'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." Boston, 2d
ed., 1871.  "The General Principles of Constitutional Law in the United States
of America," Boston, 1880, and several later editions.  And (with others)
"Constitutional 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.

     Coxe, Brinton, "Judicial Power and Unconstitutional Legislation," Phila.,
1893.

     Dicey, Albert V., "Lectures Introductory to the Study of the Law of the
Constitution." 5th ed., London and N.Y., 1897.  This book, though a commentary
on the English constitution, contains much excellent comment also on our own.

     Dupriez, L., "Les Ministres dans les principaux Pays d'Europe et
d'Amerique," 2 vols., Paris, 1892.  Vol. II., pp. 3 et seq.

     Ely, Richard T., "Taxation in American States and Cities." 8vo., 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, 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.  And "Municipal Home Rule," London and N.Y., 1895.

     Harrison, Benjamin, "This Country of Ours," N.Y., 1897.

     Holst, H. von, "Das Staatsrecht der Vereinigten Staaten von America," in
Marquardsen's "Handbuch des oeffentlichen Rechts der Gegenwart," Freiburg in
B., 1885.  Translated under the title, "The Constitutional Law of the United
States of America," Chicago, 1887.

     Howard, George E., "Local Constitutional History of the United States."
Vol. I., 8vo.  Balto., 1885.

     Jameson, J. F., "Introduction to the Constitutional and Political 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.

     Oberholzer, E. P., "The Referendum in America."

     Parker, Joel, "Jaffrey Address," 1873.  "Origin, Organization, and
Influence of the Towns of New England." Proceedings Mass. Hist. Soc'y, June,
1886.

     Poore, Ben: P., "Federal and State Constitutions, Colonial Charters, 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." Lippincott's Magazine, August,
1882.

     Stevens, C. E., "Sources of the Constitution of the United States,"
London and N.Y., 1894.

     Story, Joseph, "Commentaries on the Constitution." Ed. by T. M. Cooley.

     Tocqueville, Alexis de, "Democracy in America." Translated by Henry
Reeve.  New ed.  London, 1875.

     Wilson, Woodrow, "Congressional Government, A Study in American
Politics," Boston, 1885.



THE STATE
Wilson, Woodrow
    
Summary: Constitutional And Administrative Developments

	1352. 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 formations of habit.  The 
most absolute monarchs have had to learn the moods, observe the traditions, and 
respect the prejudices of their subjects; the most ardent reformers have had to learn 
that too far to outrun the more sluggish masses was to render themselves powerless. 
Revolution has always been followed by reaction, by a return to even less than the 
normal speed of political movement.  Political growth refuses to be forced; and 
institutions have grown with the slow growth of social relationships; have changed in 
response, not to new theories, but to new circumstances.

	1353. 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 according 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 clear and almost free from considerable 
irregularities.  Tested by history's long measurements, the lines of advance are seen to 
be singularly straight.

	1354. 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.

	1355. 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 
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 kingdom by a perfected legal title; the king whose realm is his 
estate.  This is the king who becomes the sole source of law and of justice, the king 
who, in our day, has granted out of his abundant grace rights and constitutions to his 
people.

	1356. England's Contribution. - Where the Feudal System 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 developments, the free, organic, self-conscious, self-directing nation, with its 
great organs of popular representation and its constitutional guarantees of liberty.

	1357. 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.

	1358. 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 taint of artificial thoroughness to attach 
itself to its political methods.  Slowly, and without much concern for theories of 
government, each has made compromise its method, adaptation its standing 
procedure.  Illogical, unimaginative their mode of procedure must be said to have been 
throughout, a mode for slow, practical men, without speed or boldness.  Revolution 
has never fallen within their calculations; even change they have seldom consciously 
undertaken.  If old institutions must perish, they must perish within the Roman 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 custom.  As the Roman Senate, from being the chief motive 
power of the state, came at last to exercise only such prerogatives as the people and 
the people's officers suffered it to retain, so the English House of Lords, from being the 
single coadjutor of the king in legislation, has been reduced to a subordinate part 
which it plays only upon 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.

	1359. 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 
political change.  The motive power was popular initiative: the process of change was 
the labored process of legislation, the piece-meal construction which is to be 
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-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 privileges 
which they coveted, the people in England making their way by long-protracted efforts 
towards the control they desired to exercise, have had to advance with painful 
slowness, and to be content with one piece at a time of the power they strove for.

	1360. Rome's Change of System under the Empire. - With the full establishment 
of imperial forms of government Rome 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 immemorial Roman 
habit, - the whole familiar process, in brief, of arbitrary power.  What Rome gained thus 
in discipline, in military 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. ^1

	[Footnote 1: The student ought to test in detail this likeness between Rome and 
England.  I can here only indicate in the most rapid way the line of study.]

	1361. 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 effectuation of policy must be understood in different senses in the 
two 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 everywhere now that the world has gone to school 
to the English in politics, were for a long time peculiar to England in their best features. 
They were the peculiar fruit of Teutonic political organization where that organization 
had grown most apart from the Roman influence, in England, not on the Continent, 
penetrated as the continental lands were everywhere by the Roman example.  Rome 
had had no similar means of holding her vast populations together in active political 
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 hold an extended empire together only by 
military force and the stern discipline of official subordination.

	1362. The Development of Legislatures. - Perhaps the most distinguishing 
feature of modern as compared with ancient politics is the difference between the 
sphere, the mode, and the instrumentalities of legislation now, and the character and 
methods of legislation among the classical nations. Representative law-making bodies 
are among the common- place institutions 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 
population 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.

	1363. 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 Newport in primary 
assembly for the purpose of electing the persons who were to represent them in the 
colonial legislature, thus as it were jointly inaugurating the session, to use Mr. Foster's 
words, and then leaving the legislature "to run for itself for the remainder of the time" 
(W. E. Foster, Town Government in Rhode Island, p. 26).

	1364. 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 judgments, 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 representative the 
privilege of following his own judgment upon public questions, of acting, not as the 
mouthpiece but rather as the fully empowered substitute of his constituents.

	1365. Scope of Modern Legislation. - The question is of the greater importance 
because of the extraordinary scope of legislation in the modern state, and of the 
extreme complexity nowadays attaching to all legislative questions.  Time was, in the 
infancy of national representative bodies, when the representatives 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 
government rests with him.  His task, therefore, is as complex as the task of governing, 
and the task of governing is as complex as is the play of economic and social forces 
over which it has to preside.  Law-making now moves with a freedom, now sweeps 
through a field unknown to any ancient legislator; it no longer provides for the simple 
needs of small city-states, but for the complex necessities of vast nations, numbering 
their tens of millions.  If the representative be a mere delegate, local interests must 
clash and contend in legislation to the destruction of all unity and consistency in policy; 
if, however, the representative be not a mere delegate, but a fully empowered member 
of the central government, coherence, consistency, and power may be given to all 
national movements of self-direction.

	1366. 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 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.

	1367. Modern politicians are, however, greatly shocked by such confusions of 
function.  They insist, as of course, that every constitution shall separate the three 
'departments' of government, and that these departments shall be in some real sense 
independent of each other; so that if one go wrong the others may check it by refusing 
to 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 legislator 
wrongly control the executive officer.

	1368. Charters and Constitutions. - This division of powers between distinct 
branches of government has been greatly emphasized and developed by the written 
constitutions so characteristic 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 definiteness to the organs and methods of 
government which illustrate the most salient points of modern political development.  
Our own constitutions, as we have seen (sec. 1062), originated 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.

	1369. In France, on the contrary, the people have as yet had no direct part in 
constitution-making.  French constitutions have in all cases been both made and 
adopted by constituent assemblies: at no stage are the people directly 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 Republic was even framed and 
adopted by a convention which could show no indisputable right to act as a constituent 
assembly (sec. 396).

	1370. 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 intermediate 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 (sec. 490), or framed later and 
more at leisure, as in Prussia (sec. 490), they have been in the form of royal gifts of 
right, have not confirmed but created liberties and privileges.

	1371. Our own charters and constitutions have, on the contrary, been little more 
than formal statements of rights and immunities which had come to belong to 
Englishmen quite independently 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 governors, courts, and legislatures, simply 
granted the usual rights of English freemen.  Our constitutions have formulated our 
political progress, but the progress came first.  European constitutions, on the other 
hand, have for the most part created the rights and immunities, as well as the popular 
institutions, which they embody: they institute reform, instead of merely confirming and 
crystallizing it.

	1372. The Modern Federal State: contrasted with Confederations. - In no part of 
modern political development have written constitutions played a more important, a 
more indispensable 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 distinguished history, were still not states in the proper 
sense of the term.

	1373. The most prominent example of a confederation in ancient times was the 
celebrated Achaean League (sec. 92).  In modern times we have had the early Swiss 
confederation (sec. 633), the several German confederacies (secs. 489, 491), and our 
own short-lived Confederation (sec. 1067).

	1374. They were composed of states, and their only constituent law was treaty.  
They were themselves, as confederacies, without sovereign power: sovereignty 
remained unimpaired with their component states.  Their members did not unite: they 
simply agreed, as equals, to act in concert touching certain matters of common 
interest.

	1375. The modern federal state, on the contrary, is a single and complete 
political personality among nations: it is not a mere relationship existing between 
separate states, but is itself a State.  To use two expressive German terms, a 
confederation is a Staatenbund, (a "Band of States") merely, while a federal state is a 
Bundesstaat (a "Banded State"). Confederation and federal state have this peculiarity 
in common, that they are both constituted by the association of distinct, independent 
communities: but under a confederation these communities practically remain distinct 
and independent, while within a federal state they are practically welded together into 
a single state, into one nation.

	1376. Under both forms, however, it has proved possible to make provision 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 surrender of their individuality or of their freedom to develop each its characteristic 
life. Nothing could well be conceived more flexible than a system which can hold 
together German, French, and Italian elements as the Swiss constitution does.

	1377. Distinguishing Marks of the Federal State. - The federal state has, as 
contrasted with a federation, these distinguishing features: (a) a permanent surrender 
on the part 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 what is practically 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: as regards the federal law there 
are no 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 authorities 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, originative of 
rights, and exercised at will.

	1378. All modern federal states have written constitutions; but a written 
constitution is not an essential characteristic of federalism, it is only a feature of high 
convenience; such delicate coordinate rights and functions as are characteristic of 
federalism must be carefully defined; each set of authorities must have its definite 
commission.

	1379. It is not certain that the federal state, as at present established, is not a 
merely temporary phenomenon of politics.  It is plain from the history of modern federal 
states, - a history as yet extremely 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.

	1380. Existing Parallels and Contrasts in Organization. - The differences which 
emerge most prominently upon a comparison of modern systems of government are 
differences of administrative organization chiefly and differences in the relationship 
borne by Executives to Legislatures.

	1381. 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.

	1382. Under our own system the heads of departments are brought together into 
at least nominal unity by their common subordination to the President. Although they 
are, as we have seen (sec. 1323), rather the colleagues than the servants of the 
President, his authority is yet always in the last resort final 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 sovereign but the Prime Minister speaks the decisive word in 
administration and in the initiation of policy, - and the Prime Minister only so far as he 
can carry his colleagues with him.  The headship of the President and the sovereign is 
in large part formal merely, being real only in proportion to the influence given them by 
their interior position as regards affairs.  The influence of the Prime Minister is the vital 
integrating force.  Perhaps it is safe to say that only in Germany, among constitutional 
states, have we an example of a really sovereign guiding will in administration.  The 
Emperor's own will or that of the vice-regent Chancellor is the real centre and source 
of policy, and the heads of department are 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.

	1383. Relations of the Administration as a Whole to the Ministers as a Body. - 
Scarcely less important from an administrative point of view than the relations of the 
ministers to the 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 (secs. 1185, 1206, 
1207) 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 lightly 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 Cabinet council.  But even in England the 
administrative control of the Cabinet is rather the result of the political responsibility of 
the Cabinet than of any conscious effort to integrate administration by the constitution 
of a body which shall habitually regulate, by semi- judicial processes, the main 
features and when 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 
harmonizing of methods, the proper distribution of business among the departments, 
etc. (sec. 422); 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 
jurisdiction between the departments, as well as to act as the supreme administrative 
tribunal (sec. 468).  In Prussia there is a like system: a Staatsministerium which to a 
certain extent combines the duties given in France to the Council of Ministers and to 
the Council of State, and also a Council of State which is by degrees being elevated to 
high judicial functions (secs. 576, 577).

	1384. 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 
administration 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.

	1385. The absence of such a cooperative understanding has led in France to the 
gravest financial impotency on the part of the government. The Chambers trust almost 
nothing concerning appropriations to the authoritative suggestion of the ministers.  The 
great Budget Committee (sec. 434) 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 responsibility, 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 
appropriation of the sums they ask for, because they are held strictly responsible to 
Parliament for the policy involved in every financial proposal. The means of raising the 
money desired Parliament is to a certain extent at liberty to suggest without implying 
distrust of the 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 (secs. 868, 871).  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.

	1386. The relations existing between the Executive and the Legislature 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 institutions, of political organization in the case of existing governments. 
Thus in England we have complete leadership in legislation intrusted to the ministers, 
and to complete leadership is added complete responsibility (secs. 868, 871).  In 
France we have partial leadership (financial matters being excluded) with entire 
responsibility (sec 427).  In Prussia, leadership without responsibility (sec. 533-536); 
and in Switzerland the same (sec. 670). Under our own system we have isolation plus 
irresponsibility, - 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.



THE STATE
Wilson, Woodrow
    
Nature And Forms Of Government

	1387. Government rests upon Authority and Force. - The essential characteristic 
of all government, whatever its form, is authority.  There must in every instance be, on 
the one hand, governors, and, on the other, those who are governed.  And the 
authority of governors, directly or indirectly, rests in all cases ultimately on force.  
Government, in its last analysis, is organized force.  Not necessarily or invariably 
organized armed force, but the will of a few men, of many men, or of a community 
prepared 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 sovereign 
men: the sovereign minority, or the sovereign majority.

	1388. Not necessarily upon Obvious Force. - This is not, however, 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 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 the Czar of Russia.  The difference lies in the display of coercive power.  
Physical force is the prop of both, though in the one it is the last, while in the other it is 
the first, resort.

	1389. 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 
discoverable upon a first view in primitive society. It is common nowadays when 
referring to the affairs of the most progressive nations to speak of 'government by 
public opinion,' 'government by the popular voice'; and such 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 convinced, but because they are outnumbered and 
have against them not the 'popular voice' only, but the 'popular power' as well, - that it 
is the potential might rather than the wisdom of the majority which gives it its right to 
rule.  When once majorities have learned to have opinions and to organize themselves 
for enforcing them, they rule by virtue of power no less than do despots with standing 
armies or concerting minorities dominating unorganized majorities. But, though it was 
clearly opinion which ruled in primitive societies, this conception of the might of 
majorities hardly seems to fit our ideas of primitive systems of government.  What shall 
we say of them in connection with our present analysis of government?  They were 
neither democracies in which the will of majorities chose the ways of government, nor 
despotisms, in which the will of an individual controlled, nor oligarchies, in which the 
purposes of a minority prevailed.  Where shall we place the force which lay behind the 
authority exercised under them?  Was the power of the father in the patriarchal 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 exercised; and yet it 
was not formulated by that consent.  That consent 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, then, 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.

	1390. 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 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, therefore, in the light of such 
cases, we conceive the throne of such a society as occupied by some native prince 
whose authority rested upon the laws of his country, it is plain to see that the real force 
upon which authority rests under a government so constituted is after all the force of 
public 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 observed. The force latent in that common will 
both backs and limits his authority.

	1391. 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 approbation.  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 modifications.  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 institutions.  Their stationary 
common thought contained the generic forces of government no less than does our 
own progressive public thought.

	1392. 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, latent, 
withheld except under extraordinary circumstances, what principle lies behind these 
phenomena, at the heart of government?  The answer is hidden in the nature of 
Society itself.  Society is in no sense artificial; it is as truly natural and organic as the 
individual man himself. As Aristotle said, man is by nature a social animal; his social 
function is as normal with him as is his individual function.  Since the family was 
formed, he has not been without politics, without political association.  Society, 
therefore, is compounded of the common habit and is an evolution of experience, an 
interlaced growth of tenacious relationships, a compact, living, organic whole, 
structural, not mechanical.

	1393. Society an Organism, Government an Organ. - 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, like other organisms, 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.

	1394. 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 organic character and development of the 
community.  "The obedience of the subject to the sovereign has its root not in contract 
but in force, - the force of the sovereign to punish disobedience"; ^1 but that force must 
be backed by the general habit (secs. 1435-1442).  The forms of government are, 
nevertheless, in every way most important to be observed, for the very reason that 
they express the character 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.

	[Footnote 1: John Morley, Rousseau, Vol. II., p. 184.]

	1395. 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 observing which we 
can the more clearly understand the latter.

	1396. Aristotle considered Monarchy, Aristocracy, and Democracy (Ochlocracy) 
the three standard forms of government.  The first he defined as the rule of One, the 
second as the rule 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, tendency for the pure forms to sink into the 
degenerate.

	[Footnote 2: Not of the absolute majority, as we shall see presently when 
contrasting ancient and modern democracy (secs. 1403, 1406).]

	1397. 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 would be the rule of a monarch, of the single strong man with sovereign power.  
This monarch would usually hand on his kingdom to his children.  They might 
confidently be expected to forget those pledges and those views of the public good 
which had bound and guided him. Their sovereignty would sink into tyranny.  At length 
their tyranny would meet its decisive check at some Runnymede.  There would be 
revolt; and the princely 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.

	1398. Modern Contrasts to the Aristotelian Forms of Government. - 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 immediate past, will have to record more 
divergencies from the cycle of Aristotle than correspondences with it.

	1399. The Modern Absolute Monarchy. - Taking the Russian government of to-
day as a type of the vast absolute Monarchies which have grown up in Europe since 
the death of Aristotle, it is evident that the modern monarch, if he be indeed monarch, 
has a much deeper and wider reach of power than had the ancient monarch.  The 
monarch of our day is a Legislator; the ancient monarch was not.  Antique society may 
be said hardly to have known what legislation was.  Custom was for it the law of public 
as well as of private life: and custom could not be enacted.  At any rate ancient 
monarchies were not legislative.  The despot issued edicts, - imperative commands 
covering particular cases or affecting particular individuals: the Roman 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 public affairs not only but private as well, - can even upset local custom and 
bring all his subjects under uniform legislative control.  Nor is he in the least bound to 
observe his own laws.  A word, - and that his own word, - will set them aside: a word 
will abolish, a word restore, them.  He is absolute over his subjects not only, - ancient 
despots were that, - but over all laws also, - which no ancient despot was.

	1400. 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 
has himself been bred in the atmosphere of the national life and unconsciously 
conforms to it (secs. 1435-1442).

	1401. The Modern Monarchy usually 'Limited.' - But the present government of 
Russia is abnormal in the Europe of to-day, as abnormal as that of the Turk, - a 
belated example of 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.  
Almost without exception in Europe, they are 'limited' by the resolutions of a popular 
parliament.  The people have a distinct and often an imperative voice in the conduct of 
public affairs.

	1402. Is Monarchy now succeeded by Aristocracy? - And what is to be said of 
Aristotle's cycle in connection with modern monarchies?  Does any one suppose it 
possible that when the despotism of the Czar falls it will be succeeded by an 
aristocracy; or that when the modified authority of the emperors of Austria and 
Germany or the king of Italy still further exchanges substance for shadow, a limited 
class will succeed to the reality of power? Is there any longer any place between 
Monarchy and Democracy for Aristocracy? Has it not been crowded out?

	1403. 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 this century the government 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 controlled a 
majority of the seats in the House of Commons.  England was 'represented' by her 
upper classes almost exclusively.  That Aristocracy has been set aside by the Reform 
Bills of 1832, 1867, and 1885; but it is worth while 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 think that it was.  They regarded their rule as eminently advantageous 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.

	1404. 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 and its vast development since have 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 imperative 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 representation, - by reducing all forms of government to 
Democracy.

	1405. 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 committees 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. 
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, 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 be necessity be small.  The modern representative State has no such limitation.  
It may cover a continent.

	1406. Nature of Democracy, Ancient and Modern. - The differences of nature to 
be observed between ancient and modern Democracies are no less wide and 
important.  The ancient Democracy was a class government.  As already pointed out, it 
was only a broader Aristocracy.  Its franchise was at widest an exclusive privilege, 
extending only to a minority.  There were slaves under its heel; there were even 
freedmen who could never hope to enter its citizenship.  Class subordination was of 
the essence of its constitution. From the modern Democratic State, on the other hand, 
both slavery and class subordination are excluded as inconsistent with its theory, not 
only, but, more than that, as antagonistic to its very 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 individual, 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.

	1407. 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 importance quite independent 
of his membership of a State.  I can here only indicate the historical steps of that 
change of thought; I cannot go at any length into its causes.

	1408. Subordination of the Individual in the Ancient State. - We have seen that, 
in the history of political society, if we have read that history aright, the rights of 
government, - the magistracies and subordinations of kinship, - antedate what we now 
call the rights of the individual.  A man was at first nobody in himself; he was only the 
kinsman of somebody else.  The father himself, or the chief, commanded only because 
of priority in kinship: to that all rights of all men were relative. Society was the unit; the 
individual the 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.

	1409. Individualism of Christianity and Teutonic Institutions. - There was no 
essential change in this idea for centuries.  Through all the developments of 
government down to 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 
Christianized world of the fifth century an individuality of another sort, - the idea of 
allegiance to individuals (sec. 293).  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 transformation 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, 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 volunteers ready to die 
for them in frays not directed by the State, but of their own provoking (secs. 291-293).  
There was with all German tribes freedom of individual movement and combination 
within the ranks, - a wide play of individual initiative.  When the German settled down 
as master amongst the Romanized populations of western and southern Europe, his 
thought was led captive by the conceptions of the Roman law, as all subsequent 
thought that has known it has been, and his habits were much modified by those of his 
new subjects; but this strong element of individualism was not destroyed by the 
contact.  It lived to constitute one of the chief features of the Feudal System.

	1410. 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 
(secs. 304-313).

	1411. Rise 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 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 (sec. 323); in England by the joint effort of people 
and barons against the throne, - but when it came it was the ancient unity with a 
difference.  Men were no longer State fractions; they had become State integers.  The 
State seemed less like a natural organism and more like a deliberately organized 
association.  Personal allegiance to kings had everywhere taken the place of native 
membership of a body politic.  Men were now subjects, not citizens.

	1412. Renaissance and Reformation. - Presently came the thirteenth century 
with its wonders of personal adventure and individual enterprise in discovery, piracy, 
and trade.  Following hard upon these, the Renaissance woke men to a philosophical 
study of their surroundings, - and above all of their 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 deliverance 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.

	1413. The Modern Force of Majorities. - It is thus no accident, but the outcome of 
great permanent causes, that there is no more to be found among the civilized races of 
Europe any satisfactory example of Aristotle's Monarchies and Aristocracies.  The 
force of modern governments is not now often the force of minorities.  It is getting to be 
more and more the force of majorities. The sanction of every rule not founded upon 
sheer military despotism is the consent of a thinking people.  Military despotisms are 
now seen to be necessarily ephemeral.  Only monarchs who are revered as seeking to 
serve their subjects are any longer safe upon their thrones.  Monarchies exist only by 
democratic consent.

	1414. New Character of Society. - And, more than that, the result has been to 
give to society a new integration.  The common habit is now operative again, not in 
acquiescence and submission merely, but in initiative and progress as well.  Society is 
not the organism it once was, - its members are given freer play, fuller opportunity for 
origination; but its organic character is again prominent.  It is the Whole which has 
emerged from the disintegration of feudalism and the specialization of absolute 
monarchy.  The Whole, too, has become self- conscious, and by becoming self-
directive has set out upon a new course of development.



THE STATE
Wilson, Woodrow
Law: Its Nature And Development
    
Part I.

	1415. What is Law? - Law is the will of the State concerning the civic conduct of 
those under its authority.  This will may be more or less formally expressed: it may 
speak either in custom or in specific enactment. Law may, moreover, be the will either 
of a primitive family-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) an organic community capable 
of having a will of its own, and (2) some clearly recognized body of rules to which that 
community has, whether by custom or enactment, given life, character, and 
effectiveness.  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.

	1416. The Development of Law: its Sources. - Law thus follows in its 
development, with slow, sometimes with uneven, but generally with quite certain steps, 
the evolution of the character, the purposes, and the will of the organized community 
whose creation it is.  The sources whence it springs are as various as the means by 
which an organic community can shape and express its will as a body politic.

	1417. 1. Custom. ^1 - The earliest source of Law is Custom, and custom is 
formed no one can say definitely how, except that it 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 public authority, a central part of Law.  It is difficult, if not 
impossible, to discover the exact point at which custom passes from the early inchoate 
state in which it is merely tending to become the express and determinate purpose of a 
community into the later stage in which it becomes Law; but we can say with 
assurance that it becomes Law only when it wins the support of a definite authority 
within the community.  It is not Law if men feel free to depart from it.

	[Footnote 1: I adopt here the classification usual in English writings on 
Jurisprudence.  See, e.g., T. E. Holland, Jurisprudence, pp. 48 et seq.]

	1418. 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 (sec. 835), the popular 
assemblies which 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.

	1419. 2. Religion. - In the earliest times Custom and Religion 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 Religion. All rules of life bore for the antique mind the 
same sanction (sec. 26). There were not in its conception rules moral and rules 
political: politics, morals, and religion were indistinguishable parts of one great 
indivisible Law of Conduct.  Religion 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.  But throughout a very long development, as we have seen (secs. 46, 53, 
120, 250), the magistrate either retained priestly functions or was dominated by rules 
which the priest declared and of which the priest was the custodian.

	1420. Thus the early law of Rome was little more than a body of technical 
religious rules, a system of means for obtaining individual rights through the proper 
carrying out of certain religious formulae (sec. 250); 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.

	1421. 3. Adjudication. - One of the busiest and one of the most useful, because 
watchful, open-minded, and yet conservative, makers of Law under all systems has 
been the magistrate, the Judge.  It is he who in his decisions recognizes and adopts 
Custom, and so gives it the decisive support of the public power; it is he who shapes 
written enactments into suitability to individual cases and thus gives them due flexibility 
and a free development. He is the authoritative voice of the community in giving 
specific application to its Law: and in doing this he necessarily becomes, because an 
interpreter, also a maker of Law.  Whether deliberately or unconsciously, in 
expounding and applying he moulds and expands the Law. It is his legitimate function 
to read Law in the light of his own sober and conscientious judgment as to what is 
reasonable and just in custom, what practicable, rational, or equitable in legislation.

	1422. It is this 'judge-made' law which is to be found, and is therefore so 
diligently sought for, in the innumerable law Reports cited in 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.

	1423. 4. Equity. - Equity too is judge-made Law; but it is made, not in 
interpretation of, but in addition to, the laws which already exist. The most conspicuous 
types of such Law are the decisions of the Roman Praetor (sec. 258-260) and those of 
the English Chancellor (sec. 847). 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 any 
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.

	1424. After the official decrees of the Praetors had been codified by the Praetor 
Salvius Iulianus, 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 Praetor's 'equity' 
became as rigid and determinate as the law which it had been its function to mend and 
ameliorate.  In the same manner, our own state codes, many of which have fused law 
and equity in the same courts and under common forms of procedure (sec. 1164), 
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 (sec. 920), shows at least that a strong tendency in 
the same direction exists in England.  The adjustments of Equity are less needed now 
that legislation is constantly active in mending old and creating new law and, when 
necessary, new procedure.

	1425. In the same case with Equity must be classed the numerous so- called 
'fictitious actions' which were the invention of the common-law courts and which, by 
means of imaginary suitors or imaginary transactions, duly recorded as if real, enabled 
things to be done and rights acquired which would have been impossible under any 
genuine process of the Common Law.

	1426. 5. Scientific Discussion. - The carefully formed opinions of learned text-
writers have often been accepted as decisive of the Law: more often under the Roman 
system, however, than under our own (secs. 273-277), though even we have our 
Cokes, our Blackstones, 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 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.

	1427. 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 representative bodies almost 
exclusively; but representation is no part of the essential character of the legislative 
act.  Absolute magistrates or kings have in all stages of history been, under one 
system or another, 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.

	1428. 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 (secs. 1024, 1088, 1089, 
1092, 1369).  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.

	1429. 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 
community, Custom still maintains a presiding and even an imperative part in legal 
history.  It is Custom, the silent and unconcerted but none the less prevalent 
movement, that is, of the common thought and action of a community, which 
recognizes changes of circumstance which judges would not, without its sanction, feel, 
or be, at liberty to regard in the application of old enactments, and which legislators 
have failed to give effect to, by repeal or new enactment.  Laws become obsolete 
because silent but observant 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 (secs. 
871, 1326, 1334, 1335). 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 abiding influences.  Habit may be 
said to be the great Law within which laws spring up.  Laws can extend but a very little 
way beyond its limits.  They may help it to gradual extensions of its sphere and to slow 
modifications of its practices, but they cannot force it abruptly or disregard it at all with 
impunity.

	1430. The history of France during the present century affords a noteworthy 
example of these principles in the field of constitutional law. There we have witnessed 
this singular and instructive spectacle: a people made democratic in thought by the 
operation of a speculative political philosophy has adopted constitution after 
constitution created in the exact image of that thought.  But they had, to begin 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 some day to be reached will be normal liberty, political vitality and vigor, civil 
virility.

	[Footnote 1: Albert Sorel, Montesquieu (Am. trans.), pp. 200, 201.]

	1431. 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 development.  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 
evolution of law.

	1432. The Order of Legal Development. - As tested by the history of these 
systems, the order in which I have placed the Sources of Law is seen to be by no 
means a fixed order of historical sequence.  Custom is, indeed, the earliest fountain of 
Law, but Religion is a contemporary, an equally prolific, and in some stages of national 
development an almost identical source; Adjudication comes almost as early as 
authority itself, and from a very antique time goes hand in hand with Equity.  Only 
Legislation, the conscious and deliberate origination of Law, and Scientific Discussion, 
the reasoned development of its principles, await an advanced stage of growth in the 
body politic to assert their influence in law-making.  In Rome, Custom was hardly 
separable from Religion, and hid the knowledge of its principles in the breasts of a 
privileged 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.

	1433. But in Rome 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 conclusive, authority in 
the courts; and when the days of codification came, great texts as well as great 
statutes and decrees were embodied in the codes of the Empire.  The legislation of the 
popular assemblies, which Englishmen might very easily have recognized, was 
superseded in the days of the Empire by imperial edicts and imperial codes such as 
the history of English legislation nowhere shows; and over the formulation of these 
codes and edicts great jurists presided.  The only thing in English legal practice that 
affords a parallel to the influence of lawyers in Rome is the cumulative 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.

	1434. Savigny would have us seek in the history of every people for a childhood 
in which law is full of picturesque complexities, a period of form for form's sake and of 
symbols possessed of mystic significance; a period of adolescence in which a special 
class of practical jurists make their appearance and law begins to receive a conscious 
development; a full young manhood in which legislation plies a busy work of legal 
expansion and improvement; and an old age amusing itself with external and arbitrary 
changes in legal systems, and finally killed by the letter of the law. ^1

	[Footnote 1: Bluntschli, Geschichte der neueren Staatswissenschaft, ed. 1881, 
pp. 627, 628.]

	1435. 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.  If that development bring forth monarchical forms of 
government, if the circumstances amidst which a people's life is cast eradicate habits 
of local self-rule and establish habits of submission to a single central authority set 
over a compacted state, that central authority alone will formulate and give voice to 
Law. If, on the other hand, the national development be so favorably cast that habits of 
self-reliance and self-rule are fostered and confirmed among the people, along with an 
active jealousy of any too great 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 
formulated, but such rules as the body of the nation is prepared by reason of its habits 
and fixed preferences to accept.  The function of the framers of Law is a function of 
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 individuals, but of the special needs, the special opportunities, 
the special perils or misfortunes of communities.  No 'law-maker' may force upon a 
people Law which has not in some sense been suggested to him by the circumstances 
or opinions of the nation for whom he acts.  Rulers, in all states alike, exercise the 
sovereignty of the community, but cannot exercise any other.  The community may 
supinely acquiesce in the power arrogated to himself by the magistrate, but it can in no 
case really make him independent of itself.

	1436. 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 Napoleon.  The facts were 
simply these.  They were keenly conscious that they were making a failure of the self-
government which 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 wanted.  The 
laws of Napoleon were in a very real sense their own creation.

	1437. The Power of the Community must be behind Law. - The law of some 
particular state may seem to be the command 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 passive as a vast 
immovable buttress to the great structure of absolute authority, the power of the 
community must support law or the law must be without effect.  The bayonets of a 
minority cannot long successfully seek out the persistent disobediences of the 
majority.  The majority must acquiesce or the law must be null.

	1438. This principle is strikingly illustrated in the inefficacy of the English 
repressive laws in Ireland.  The consent of the Irish community is not behind them, 
though the strength of England is; and they fail utterly, as all laws must which lack at 
least the passive acquiescence of those whom they concern.

	1439. There can be no reasonable doubt that the power of Russia's Czar, vast 
and arbitrary as it seems, derives its strength from the Russian people. It is not the 
Czar's personal power; it is his power as head of the national church, as semi-sacred 
representative of the race and its historical development and organization.  Its roots 
run deep into the tenacious, nourishing soil of immemorial habit.  The Czar represents 
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.

	1440. Both a Mirror of Conceptions and an Active Force. - Looked at from an 
abstract point of view, Law is a body of principles, and as such constitutes a mirror of 
the prevalent conceptions 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 operative in two ways.  It exercises both an ethical and a physical compulsion.  It 
involves (1), an Ought, in proportion as it is received as just or expedient. It is a source 
of conviction and motive in proportion as it is accepted as true.  This ethical force is its 
principal 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 together 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.

	1441. Roman Law an Example. - The law of Rome affords in this respect an 
admirable example of the normal character of law.  It was the fundamental thought of 
Roman law that it was the will of the Roman people. The political liberty of the Roman 
consisted in his membership of the state and his consequent participation, either direct 
or indirect, in the utterance of law. As an individual he was subordinated to the will of 
the state; but his own will as a free burgess was a part of the state's will: the state 
spoke his sovereignty.  He was an integral part of the organic community, his own 
power found its realization in the absolute potestas et majestas 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 individual liberty.

	1442. The Power of Habit. - Legislators, those who exercise the sovereignty of a 
community, build upon the habit of their so-called 'subjects.' If they be of the same 
race and sharers of the same history as those whom they rule, their accommodation of 
their acts to the national habit will be in large part unconscious: 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 sovereignty is not his, but only the leadership.

	1443. 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 (sec. 1431).  The despot may be 
grossly arbitrary; he may violate every principle 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 individuals whom he specially picks out 
for his enmity or displeasure.  He cannot violently turn about the normal processes of 
the national law.

	1444. Germanic Law. - We have in Germanic law an example of the influence of 
national character upon legal systems as conspicuous as that afforded by Roman law 
itself, and the example is all the more instructive when put alongside of the Roman 
because of the sharpness of the contrasts between Roman and Germanic legal 
conceptions.  Although so like the Romans in practical political sagacity and common-
sense legal capacity, the Germans had 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 organic unity.  The individual German was, 
so to say, given play outside the law; his rights were not relative, but absolute, self-
centered.  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 framework for the play of individual forces.  It lacked the 
organic energy, the united, triumphant strength of the Roman system; but it contained 
untold treasures of variety and of individual achievement.  It, no less than Roman law, 
rested broadly upon national character; and it was to supply in general European 
history what the Roman system could not contribute.

	1445. 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 community 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 understanding of the nature and genesis of law.  It will be best to approach our 
answers to them by way of illustrations.



THE STATE
Wilson, Woodrow
Law: Its Nature And Development
    
Part II.

	1446. In England, sovereignty is said to rest with the legislative 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 
Parliament prescribes is law, even though it contravene every principle, constitutional 
or only of private right, recognized before the passage of the Act as inviolable.  Such is 
the theory.  The well-known 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 repudiated by the nation, their will, failing to become indeed law, would pass 
immediately into the limbo of things repealed; Parliament itself would be purged of its 
offending members.  Parliament is master, can utter valid commands, only so far as 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.

	1447. Again, it is said, apparently with a quite close regard for the facts, that in 
Russia sovereignty is lodged with the Czar, the supreme master "of all the Russias." 
That his will is law Siberia attests and Nihilism recognizes.  But is there no de facto 
limitation to his supremacy? How far could he go in the direction of institutional 
construction?  How far could he succeed in giving Russia at once and out of hand the 
institutions, and Russians the liberties, of the United States and its people?  How far 
would such a gift be law?  Only so far as life answered to its word of command. Only 
so far as life answered to its word of command. Only so far as Russian habit, schooled 
by centuries of obedience to a bureaucracy, could and would respond to its invitation.  
Only so far, in a word, as the new institutions were accepted.  The measure of the 
Czar's sovereignty is the habit of his people; and not their habit only, but their humor 
also, and the humor of his officials.  His concessions to the restless spirit of his army, 
to the prejudices of his court, and to the temper of the mass of his subjects, his means 
of keeping this side assassination or revolution, nicely mark the boundaries of his 
sovereignty.

	1448. 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 politics.  The kings or parliaments who 
serve as its vehicles utter it, but they do not possess it.  Sovereignty resides in the 
community; but its organs, whether those organs be supreme magistrates, busy 
legislatures, or subtile privileged classes, are as various as the conditions of historical 
growth.

	1449. Certain Legal Conceptions Universal. - The correspondence of law with 
national character, its basis in national habit, does not deprive it of all universal 
characteristics.  Many common features it does wear among all civilized peoples.  As 
the Romans found it possible to put together, from the diversified systems of law 
existing among the subject peoples of the Mediterranean basin, a certain number of 
general maxims of justice out 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 conscience in mankind.

	1450. 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 principles 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.

	1451. 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 practice.  Ethics concerns the whole walk and 
conversation of the individual; it touches the rectitude of each man's life, the truth of his 
dealings with his own conscience, the whole substance of character and conduct, 
righteousness both of act and of mental habit.  Law, on the other hand, concerns only 
man's life in society.  It not only confines itself to controlling the outward acts of men; it 
limits itself to those particular acts of man to man which can be regulated by the public 
authority, which it has proved practicable to regulate in accordance with uniform rules 
applicable to all alike and in an equal degree.  It does not essay to punish 
untruthfulness as such, it only annuls contracts obtained by fraudulent 
misrepresentation and makes good such pecuniary damage as the deceit may have 
entailed.  It does not censure ingratitude or any of the subtler 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 characters, it only stands with a whip for those 
who give overt proof of bad character in their dealings with their fellow-men.  Its 
limitations are thus limitations both of kind and of degree. It addresses itself to the 
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.

	1452. Mala Prohibita. - Law thus plays the role neither of conscience nor of 
Providence.  More than this, it follows standards of policy only, not absolute standards 
of right and wrong.  Many things that are wrong, even within the sphere of social 
conduct, it does not prohibit; many things not wrong in themselves it does prohibit.  It 
thus creates, as it were, a new class of wrongs, relative to itself alone: mala prohibita, 
things wrong because forbidden.  In keeping the commands of the state regarding 
things fairly to be called morally indifferent in themselves men are guided by their legal 
conscience.  Society 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.

	1453. 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.

	1454. 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 opportunities 
for unfair dealing in such transactions. The law will under no circumstances hold the 
sale of a trust estate to the trustee valid.  Such purchases, however good the faith in 
which they are made, are mala prohibita.

	1455. Or take, as another example, police regulations whose only object is to 
serve the convenience of society in crowded cities.  A street parade, with bands and 
banners and men in uniform is quite harmless and is immensely pleasing to those who 
love the glitter of epaulettes and brass buttons and the blare of trumpets; but police 
regulations must see to it that city streets are kept clear for the ordinary daily 
movements of the busy city population, and to parade without license is malum 
prohibitum.

	1456. 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, organic political life.  It may be and is instructed by the ethical judgments of 
the community, 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 
development 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."

	1457. International Law. - The province of International Law may be described as 
a province half-way between the province of morals and the province of positive law.  It 
is law without a forceful sanction.  There is no earthly power of which all nations are 
subjects; there is no power, therefore, to enforce obedience to rules of conduct as 
between nation and nation. International Law is, moreover, a law which rests upon 
those uncodified, unenacted principles of right action, of justice, and of consideration 
which have so universally obtained the assent of men's consciences, which have so 
universal an acceptance in the moral judgments of men everywhere, that they have 
been styled Laws of Nature (secs. 270- 271), but which have a nearer kinship to 
ethical maxims than to positive law.  "The law of nations," says Bluntschli, "is that 
recognized universal Law of Nature which binds different states together in a humane 
jural society, and which also secures to the members of different states a common 
protection of law for their general human and international rights." ^1 Its only formal 
and definite foundations, aside from the conclusions of those writers who, like Grotius 
and Vattel, have given to it distinct statements of what they conceived to be the 
leading, the almost self-evident principles of the Law of Nature, are to be found in the 
treaties by which states, acting in pairs or in groups, have agreed to be bound in their 
relations with each other, and in such principles of international action as have found 
their way into the statutes or the established judicial precedents of enlightened 
individual states.  More and more, international conventions have come to recognize in 
their treaties certain elements of right, of equity, and of comity as settled, as always to 
be accepted in transactions between nations.  The very jealousies of European nations 
have contributed to swell the body of accepted treaty principles.  As the practice of 
concerted action by the states of the continent of Europe concerning all questions of 
large interest, the practice of holding great Congresses like those of Vienna in 1815, of 
Paris in 1856, and of Berlin in 1878, has grown into the features of a custom, so has 
the body of principles which are practically of universal recognition increased. 
International Law, says Dr. Bulmerincq, "is the totality of legal rules and institutions 
which have developed themselves touching the relations of states to one another." ^2

	[Footnote 1: Das Volkerrecht, sec. I.]

	[Footnote 2: Das Volkerrecht (in Marquardsen's Handbuch, Vol. I.), sec. I. of the 
monograph.]

	1458. International Law is, therefore, not law at all in the strictest sense of the 
term.  It is not, as a whole, the will of any state: there is no authority set above the 
nations whose command it is.  In one aspect, the aspect of Bluntschli's definition, it is 
simply the body of rules, developed out of the common moral judgments of the race, 
which ought to govern nations in their dealings with each other.  Looked at from 
another, from Dr. Bulmerincq's, point of view, it is nothing more than a generalized 
statement of the rules which nations have actually recognized in their treaties with one 
another, made from time to time, and which by reason of such precedents are coming 
more and more into matter-of-course acceptance.

	1459. These rules concern the conduct of war, diplomatic intercourse, the rights 
of citizens of one country living under the dominion of another, jurisdiction at sea, etc.  
Extradition principles are settled almost always by specific agreement between country 
and country, as are also commercial arrangements, fishing rights, and all similar 
matters not of universal bearing.  But even in such matters example added to example 
is turning nations in the direction of uniform principles; such, for 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.

	1460. Laws of Nature and Laws of the State. - The analogy between political 
laws, the laws which speak the will of the state, and natural laws, the laws which 
express the orderly succession of events in nature, has often been dwelt upon, and is 
not without instructive significance.  In the one set of laws as in the other, there is, it 
would seem, a uniform prescription as to the operation of the forces that make for life.  
The analogy is most instructive, however, where it fails: it is more instructive, that is, to 
note the contrasts between the laws of nature and laws of the state than to note such 
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 unsupported. . . . But the laws of 
nature are not the causes of the order of nature, but only our way of stating as much 
as we have made out of that order.  Stones do not fall to the ground in consequence of 
the law just stated, as people sometimes carelessly say; but the law is a way of 
asserting that which invariably happens when heavy bodies at the surface of the earth, 
stones among the rest, are free to move." Whatever analogies may exist between such 
generalized statements of physical fact and the rules in accordance with which men 
are constrained to act in organized civil society it may be profitable for the curious 
carefully to inquire into.  What it is most profitable for the student of politics to observe 
is the wide difference between the two, which Professor Huxley very admirably states 
as follows: "Human law consists of commands addressed to voluntary agents, which 
they may obey or disobey; and the law is not rendered null and void by being broken.  
Natural laws, on the other hand, are not commands, but assertions respecting the 
invariable order of nature; and they remain law only so long as they can be shown to 
express that order.  To speak of the violation or suspension of a law of nature is an 
absurdity.  All that the phrase can really mean is that, under certain circumstances, the 
assertion 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, admits of no exception." ^1 In brief, 
human choice enters into the law of the state, whereas from natural law that choice is 
altogether 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.

	[Footnote 1: These passages are taken from Professor Huxley's Science Primer, 
Introductory.]

	1461. Limitations of Political Law. - We have thus laid bare to our view some of 
the most instructive characteristics of political law.  The laws of nature formulate 
effects invariably produced by forces of course adequate to produce them; but behind 
political laws there is not always a force adequate to produce the effects which they 
are designed to produce. The force, the sanction, 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 (secs. 1387, 1440).  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 government; a weak, 
decadent state may speak the highest purposes in its statutes and yet do the worst 
things in its actual administration.  Commonly, however, law embodies the real 
purposes of the state, and its enforcement is a matter of administrative capacity or of 
concerted power simply.

	1462. 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.

	1463. 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.

	1464. It is to the Romans that we are indebted for a first partial recognition of this 
important division in the province of Law, though 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 (secs. 1482-1484); 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.

	1465. Jurisprudence. - Jurisprudence is a term of much latitude, 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 conceptions upon which it is 
based have been explored; and that genesis is a matter, not of logical analysis, but of 
history.  Many 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 discover 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.

	1466. In the hands of another school of writers, however, jurisprudence has been 
narrowed to the dimensions of a science of law in its modern aspects only.  They seek 
to discover, by an analysis of law in its present full development, the rights which 
habitually receive legal recognition and the methods by which states secure to their 
citizens their rights, and enforce upon them their duties, by positive rules backed by 
the 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.

	1467. 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.

	1468. The Analytical Account of Law. - In the thought of the analytical school 
every law is a command, "an order issued by a superior to an inferior." "Every positive 
law is 'set by a sovereign person, or sovereign body of persons, to a member or 
members of the independent political society wherein that person or body of persons is 
sovereign or superior.'" In its terms, manifestly, 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.

	1469. 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 rendering obedience and who are themselves not in the habit of 
rendering obedience to any human superior." It follows, of course, that no organic 
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 parliaments, 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 sovereignty of the parliament of England.

	1470. 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 (sec. 1091), which the federal authorities do not and cannot enter, 
within which their own people are habitually obedient to them, and in which they are 
not subject to any earthly superior?  It has been the habit of all our greater writers and 
statesmen to say that with us sovereignty is 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.

	1471. The difficulty of applying the analytical account of sovereignty to our own 
law is in part avoided if law be defined as "the command 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 organic law of the 
state; and this law is the direct command of the sovereign." ^1 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.

	[Footnote 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.]

	1472. 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.

Several Representative Authorities. 

     Austin, John, "Lectures on Jurisprudence, the Philosophy of Positive
Law," 2 vols.

     Bluntschli, J. C., "Allgemeines Staatsrecht." 6th ed. Stuttgart, 1885.

     Heron, D. C., "Introduction to the History of Jurisprudence," London,
1880.

     Holland, T. E., "Elements of Jurisprudence." 4th ed.  Oxford, 1888.

     Holtzendorff, F. v., "Encyklopadie der Rechtswissenschaft," Leipzig,
1882.

     Ihering, v., "Geist des Romischen Rechts." 3 vols., Leipzig.

     Jellinek, Georg, "Gesetz und Verordnung," Freiburg in B., 1887.

     Maine, Sir H. S., "Ancient Law," and "Early History of Institutions,"
Lectures XII., XIII.

     Markby, Sir Wm., "Elements of Law," Oxford (Clarendon Press), 1889.

     Pollock, Sir Frederick, "A First Book of Jurisprudence," London and N.Y.,
1896.

     Robertson, E., Article 'Law,' Encyclopoedia Britannica.  9th ed.

     Savigny, "Beruf unserer Zeit fur Gesetzgebung und Rechtswissenschaft."
Reprint, Freiburg in B., 1892.

     Thibaut, Anton F. J., "Ueber die Nothwendigkeit eines allgemeinen
burgerlichen Rechts fur Deutschland." New ed.  Heidelberg, 1840.



THE STATE
Wilson, Woodrow
    
The Functions Of Government

	1473. 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 governments and 
governments.  When asked, therefore, What are the functions of government?  we 
must ask in return, Of what government? Different states have different conceptions of 
their duty, and so undertake different things.  They have had their own peculiar origins, 
their own characteristic histories; circumstance 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 now old in complex practices of national 
self-government.

	1474. 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 confounded with that very 
widely different question, What ought the functions of government to be?  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.  What government does 
must arise from what government is: and what government is must determine what 
government ought to do.

	1475. Classification. - It will contribute to clearness of thought to observe the 
functions of government in two groups, I.  The Constituent Functions, II.  The 
Ministrant.  Under the Constituent I would place that usual category of governmental 
function, the protection of life, liberty, and property, together with 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 without constituting social organization.

	1476. Of course this classification is based primarily upon objective and practical 
distinctions and cannot claim philosophic completeness. 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.

	1477. "The admitted functions of government," said Mr. Mill, "embrace 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."

	1478. I. The Constituent Functions:

	(1) The keeping of order and providing for the protection of persons and property 
from violence and robbery.

	(2) The fixing of the legal relations between man and wife and between parents 
and children.

	(3) The regulation of the holding, transmission, and 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 are obnoxious not even to the 
principles of Mr. Spencer, ^1 and which persist under every form of government.

	[Footnote 1: As set forth in his pamphlet, Man versus the State.]

	1479. II. The Ministrant Functions. - It is hardly possible to give a complete list of 
those functions which I have called Ministrant, so various are they under different 
systems of government.  The following partial list will suffice, however, for the purpose 
of the present discussion:

	(1) The regulation of trade and industry.  Under this head I would include the 
coinage of money and the establishment of standard weights and measures, laws 
against forestalling and engrossing, the licensing of trades, etc., as well as the great 
matters of tariffs, navigation laws, and the like.

	(2) The regulation of labor.

	(3) The maintenance of thoroughfares, - including state management of railways 
and that great group of undertakings which we embrace within the comprehensive 
term 'Internal Improvements.'

	(4) The maintenance of postal and telegraph systems, which is very similar in 
principle to (3).

	(5) The manufacture and distribution of gas, the maintenance of water- works, 
etc.

	(6) Sanitation, including the regulation of trades for sanitary purposes.

	(7) Education.

	(8) Care of the poor and incapable.

	(9) Care and cultivation of forests and like matters, such as the stocking of rivers 
with fish.

	(10) Sumptuary laws, such as 'prohibition' laws, for example.

	1480. 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, 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 exercise of governmental 
functions; but changed conceptions have left the functions of government in kind the 
same.  Diversities of conception are very much more marked than diversities of 
practice.

	1481. The following may be mentioned among ministrant functions not included 
under any of the foregoing heads, and yet undertaken by more than one modern 
government: the maintenance of savings-banks, especially for small sums (e.g., the 
English postal savings-bank), the issuance of loans to farmers, and the maintenance 
of agricultural institutes (as in France), and the establishment of insurance for 
workingmen (as in Germany).

	1482. History of Governmental Function: Province of the Ancient State. - Notable 
contrasts both of theory and of practice separate governments of the ancient 
omnipotent type from 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 Rome 
more completely than the single Roman 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.

	1483. 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 suggestion 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, 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?

	1484. Roman Conception of Private Rights. - Roman principles, though equally 
extreme, were in some respects differently cast.  That superior capacity for the 
development of law, which 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 absorption 
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 division of 
functions.

	1485. A son was, for instance, in some things exempt from the authority of the 
City only because he was in those things still subject, 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.

	1486. 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 integrity 
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.

	1487. Powers of the Roman Senate. - The range of state power in ancient times, 
as a range broken only by limits of habit and convenience, 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. 
(Compare secs. 173, 174.)

	1488. Government the Embodiment of Society. - As little was there in Greek 
politics any seed of the thought which would limit the sphere of governmental action by 
principles of inalienable individual rights.  Both in Greek and in Roman conception 
government was as old as society, - was indeed nothing less than the express image 
and embodiment of society.  In government society lived and moved and had its being.  
Society and government were one, in some such sense as the spirit and body of man 
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, too keen a 
sense of the sane and possible, to attempt the Utopias of which the modern socialist 
dreams, and with which the ancient citizen's own writers sometimes amused him.  He 
bounded his politics by common sense, and so dispensed with 'the rights of man.'

	1489. Feudalism: Functions of Government Functions of Proprietorship. - 
Individual rights, after having been first heralded in the religious world by the 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 
liegemen, to see that their properties were enjoyed according to the custom of the 
manor (if the manor had been suffered to acquire custom on any point), and to exact 
fines of them for all privileges, whether of marrying, of coming of age, or of making a 
will.  The baronial conscience, bred in cruel, hardening times, was the only standard of 
justice; the baronial power the only conclusive test of prerogative.

	1490. This was between baron and vassal.  Between 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.  
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.

	1491. The Feudal Monarchy. - The monarchy which grew out of the ruins of this 
disintegrate system concentrated authority without much changing its character.  The 
old idea, born of family origins, that government was but the active authority of society, 
the magistrate but society's organ, bound by society's immemorial laws, had passed 
utterly away, and government had become the personal possession of one man.  The 
ruler did not any longer belong to the state; the state 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.

	1492. 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 Continent, 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.

	1493. In brief, the modern State has been largely de-socialized.  The modern 
idea is this: the state no longer absorbs the individual; it only serves him.  The state, as 
it appears in its organ, the government, is the representative of the individual, and 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.'

	1494. More Changes of Conception than of Practice. - Such are the divergencies 
of conception separating modern from ancient politics, divergencies at once deep and 
far-reaching.  How far have such changes of thought been accompanied by changes 
of function?  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 because every field of enterprise is 
vastly big nowadays, not because government is not somewhere in it: and we know 
that the tendency is for governments to make themselves everywhere more and more 
conspicuously present. We are conscious that we are by no means in the same case 
with the Greek or Roman: the state is ours, not we the state's.  But we know at the 
same time that the tasks of the state have not been much diminished.  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 
responsibility deeply modifies the way in which it does them.  Social convenience and 
advancement are still its ultimate standard of conduct, just as if it were still itself the 
omnipotent impersonation 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.

	1495. Functions of Government much the Same now as always. - This is indeed 
a great and profound change; but it is none the less important to emphasize the fact 
that the functions of government are still, when catalogued, 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.

	1496. The State's Relation to Property. - A very brief examination of the facts 
suffices to confirm this view.  Take, for example, the state's relation to property, its 
performance of one of the chief of those functions which I have called Constituent.  It is 
in connection with this function that one of the most decided contrasts exists between 
ancient and 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 
property. Their theory was extreme, but, outside of Sparta, their practice was 
moderate.

	1497. In Sparta. - Consistent, logical Sparta may serve as the point of departure 
for our observation.  She is the standing classical 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 individual tenure was looked upon as 
rather of the nature of a usufruct held of the state and at the state's pleasure than as 
resting upon any complete or indefeasible private title.  (Compare sec. 105.)

	1498. 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 Spartiatoe, upon an equal footing of fortune, to the end that they might remain 
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 calling 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.

	1499. 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 Spartiatoe.  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.

	1500. 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 forfeiture of right (atimia) those who squandered their property in dissolute 
living.  There was as little limit in Athens as in Sparta to the theoretical 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.

	1501. In Rome. - When we shift our view to republican Rome we do not find a 
simple city omnipotence like that of Greece, in 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 
individual.  Property was not private in the sense of being individual; it vested in the 
family, which was, in this as in other respects, an organ of the state.  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.

	1502. Under 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 contrasts are contrasts of 
policy, not of power.  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 property 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 hurtful interferences with rights of private ownership 
government has abandoned, one may suspect, rather because of difficulties of 
administration than because of difficulties of conscience.  It is of the nature of the state 
to regulate property rights; it is of the policy of the state to regulate them more or less. 
Administrators must regard this as one of the Constituent functions of political society.

	1503. 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 citizen 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 concessions from his 
mother, the commonwealth.  Those privileges accrued to him through law, as do ours; 
but law was to him simply the will of the organic community; never, as we know it in 
our constitutions, a restraint upon the will of the organic community.  He knew no 
principles of liberty save only those which custom had built up: which inhered, not in 
the nature of things, not in abstract individuality, but in the history of affairs, in concrete 
practice.  His principles were all precedents. Nevertheless, however radically different 
its doctrines, the ancient state was not a whit more completely master touching laws of 
citizenship than the state of to- day is.

	1504. 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 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: 
government 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 (sec. 1479).

	1505. (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 regulation of trade and commerce was necessary to the existence of 
government.  The only way in which communities which were then seeking to build up 
a dominant power could preserve an independent existence and work out an individual 
development was to draw apart to an absolutely separate life.  Commerce meant 
contact; contact meant contamination: the only way in which to develop 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 that 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 unhindered 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.

	1506. (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 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 timid and elementary as compared with 
the labor legislation about to be tried by the governments of our own day. The birth 
and development of the modern industrial system has changed every aspect of the 
matter; and this fact 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 regulate labor rigorously and minutely is as strong in 
England, where the state is considered the agent of the citizen, as it was in Athens, 
where the citizen was deemed the child and tool of the state, and where the workman 
was a slave.

	1507. (3) Regulation of Corporations. - The regulation of corporations is but one 
side of the modern regulation of the industrial system, and is a function added to the 
antique list of governmental tasks.

	1508. (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 
Romans.  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 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 
convenience than for reasons of conscience.

	1509. (5) Administration of the Conveniences of Society. - Similar considerations 
apply in the case of that modern instrumentality, the public letter-post, in the case of 
the still more modern manufacture of gas, and in the case of the most modern 
telegraph.  The modern no less than the ancient government unhesitatingly takes a 
hand in administering the conveniences of society.

	1510. (6) Sanitation. - Modern governments, like the government 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.

	1511. (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.

	1512. (8) Sumptuary Laws. - In sumptuary laws ancient states of course far 
outran modern practice.  Modern states have foregone most attempts to make citizens 
virtuous or frugal by law.  But even we have our prohibition enactments; and we have 
had our fines for swearing.

	1513. Summary. - Apparently it is safe to say with regard to the functions of 
government taken as a whole that, even as between ancient and modern states, 
uniformities of practice far out-number diversities of practice.  One may justly 
conclude, not indeed that the restraints which modern states put upon themselves are 
of little consequence, or that altered political conceptions are not of the greatest 
moment in 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 practices.  New theories are 
subsequent to new experiences.



THE STATE
Wilson, Woodrow
    
The Objects Of Government

	1514. Character of the Subject. - Political interest and controversy centre 
nowhere more acutely than in the question, What are the proper objects of 
government?  This is one of those difficult questions upon which it is possible for many 
sharply opposed views to be held apparently with almost equal weight of reason.  Its 
central difficulty is this, that it is a question which can be answered, if answered at all, 
only by the aid of a broad and careful wisdom whose conclusions are based upon the 
widest possible inductions from the facts of political experience in all its phases.  Such 
wisdom is quite beyond the capacity of most thinkers and actors in the field of politics; 
and the consequence has been that this question, perhaps more than any other in the 
whole scope of political science, has provoked great wars of doctrine.

	1515. The Extreme Views held. - What part shall government play in the affairs of 
society? - that is the question which has been the gauge of controversial battle.  What 
ought the functions of government to be?  On the one hand there are extremists who 
cry constantly to government, 'Hands off,' 'laissez faire,' 'laissez passer,' who look 
upon every act of government which is not merely an act of police with jealousy; who 
regard government as necessary, but as a necessary evil; and who would have 
government hold back from everything which could by any possibility 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 beneficence 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. Between these two extremes, again, there are all 
grades, all shades and colors, all degrees of enmity or of partiality to state action.

	1516. Historical Foundation for Opposite Views. - Enmity to exaggerated state 
action, even a keen desire to keep that action down to its lowest possible terms, is 
easily furnished with impressive justification.  It must unreservedly be admitted that 
history abounds with warnings of no uncertain sort against indulging the state with a 
too great liberty of interference with the life and work of its citizens.  Much as there is 
that is attractive 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 wholeness, 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 
minorities 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 confident 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, 
imitate them without an equally violent departure from our own normal development 
and a reversion to the now too primitive methods of their pocket republics.

	1517. 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 economist may be pardoned for wishing to see revived; and true though it be 
that the history of Prussia under some of the greater Hohenzollern gives at least 
colorable justification to the opinion that state interference may under many 
circumstances be full of benefit for the industrial upbuilding of a state, it must, on the 
other hand, be remembered that neither the feudal system, nor the mediaeval guild 
system, nor the paternalism of Frederic the Great can be rehabilitated now that the 
nineteenth century has wrought its revolutions in industry, in church, and in state; and 
that, even if these great systems of the past could be revived, we should be sorely 
puzzled to reinstate their blessings without restoring at the same time their 
acknowledged evils.  No student of history can wisely censure those who protest 
against state paternalism.

	1518. 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 thinkers, we ought all to 
regard ourselves and to act as socialists, believers in the wholesomeness and 
beneficence of the body politic.  If the history of society proves anything, it proves the 
absolute naturalness of government, its rootage in the nature of man, its origin in 
kinship, and its identification with all that makes man superior to the brute creation. 
Individually man is but poorly equipped to dominate other animals: his lordship comes 
by combination, his strength is concerted strength, his sovereignty is the sovereignty of 
union.  Outside of society man's mind can avail him little as an instrument of 
supremacy; and government is the visible form of society.  If society itself be not an 
evil, neither surely is government an evil, for government is the indispensable organ of 
society.

	1519. 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, ought certainly to be 
diligently sought, and, when found, sedulously fostered by every friend of society.  
Such is the socialism to which every true lover of his kind ought to adhere with the full 
grip of every noble affection that is in him.

	1520. Socialism and the Modern Industrial Organization. - It is possible indeed, to 
understand, and even in a measure to sympathize with, the enthusiasm of those 
special classes of agitators whom we have dubbed with the too great name of 
'Socialists.' The schemes of social reform and regeneration which they support with so 
much ardor, however mistaken they may be, - and surely most of them are mistaken 
enough to provoke the laughter of children, - have the right end in view: they seek to 
bring the individual with his special interests, personal to himself, into complete 
harmony with society with its general interests, common to all.  Their method is always 
some sort of cooperation, meant to perfect mutual helpfulness.  They speak, too, a 
revolt from selfish, misguided individualism; 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." ^1 It has magnified that self-interest which is grasping selfishness 
and has thrust out love and compassion 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.

	[Footnote 1: Compare F. A. Walker's Political Economy (Advanced Course), sec. 
346.]

	1521. 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 
gives wide freedom to the individual for his self-development and yet guards that 
freedom against the competition that kills, and reduces the antagonism between self-
development and social development to a minimum.  And such a doctrine can be 
formulated, surely, without too great vagueness.

	1522. The Objects of Society the Objects of Government. - Government, as I 
have said, is the organ of society, its only potent and universal instrument: its objects 
must be the objects of society.  What, then, are the objects of society?  What is 
society?  It is an organic association of individuals for mutual aid.  Mutual aid to what?  
To self-development.  The hope of society lies in an infinite individual variety, in the 
freest possible play of individual forces: only in that can it find that wealth of resource 
which constitutes civilization, with all its appliances for satisfying human wants and 
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 interference: it is the equalization of conditions, so far as possible, in all 
branches of endeavor; and the equalization of conditions is the very opposite of 
interference.

	1523. 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 indispensable means of industrial or social development in the hands of a 
few, and those few, not the few selected by society itself, but the few selected by 
arbitrary fortune, must be 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 private gain independently of its 
own strict regulation or oversight.

	1524. Natural Monopolies. - It is quite possible to distinguish natural monopolies 
from other classes of undertakings; their distinctive 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

	[Footnote 1: P. 71. Sir Thomas Farrer is Permanent Secretary of the English 
Board of Trade (sec. 876).]

	"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 supplied"; that is to say, at the favored spots 
or along the favored lines of land.

	"4. This article or convenience can in general be largely, if not indefinitely 
increased, without proportionate increase in plant and capital"; that is to say, the initial 
outlay having been made, the favored spot or line of land having been occupied, every 
subsequent increase of business will increase profits because it will not 
proportionately, or anything like proportionately, increase the outlay for services or 
machinery needed.  Those who are outside of the established business, therefore, are 
upon an equality of competition neither as 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.

	1525. 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 advantage.  Once established in any 
field, there can be no real competition between them and those who would afterwards 
enter that field.  No agency should be suffered to have such control except a public 
agency which may be compelled by public opinion to act without selfish narrowness, 
upon perfectly equal conditions as towards all, or some agency upon which the 
government may keep a strong hold of regulation.

	1526. 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 
competition.  Experience has proved that the self-interest of those who have controlled 
such undertakings for private gain is not coincident with the public interest: even 
enlightened self-interest may often discover means of illicit pecuniary advantage in 
unjust discriminations between individuals in the use of such instrumentalities.  But the 
proposition that the government should control such dominating organizations of 
capital may by no means be wrested to mean by any necessary implication that the 
government should itself administer those instrumentalities of economic action which 
cannot be used except as monopolies.  In such cases, as Sir T. H. Farrer says, "there 
are two great alternatives.  (1) Ownership and management by private enterprise and 
capital under regulation by the state.  (2) Ownership and management by Government, 
central or local." Government regulation may in most cases suffice.  Indeed, such are 
the difficulties in the way of establishing and maintaining careful business 
management on the part of government, that control ought to be preferred to direct 
administration in as many cases as possible, - in every case in which control without 
administration can be made effectual.

	1527. 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 limiting the employment of women in occupations hurtful to 
their health, by instituting official tests of the purity or the quality of goods sold, by 
limiting hours of labor in certain trades, by a hundred 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 moderation 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.

	1528. Society greater than Government. - Society, it must always 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 the social organism. The State exists for the sake of 
Society, not Society for the sake of the State.

	1529. 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 Society 
as a whole, the limit beyond which such combination ceases to be imperative for the 
public good and becomes merely convenient for industrial or social enterprise. 
Cooperation is necessary 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 relationships, indispensable because to omit it 
would inevitably be to hamper or degrade some for the advancement of others in the 
scale of wealth and social standing.

	1530. There are relations in which men invariably have need of each other, in 
which universal cooperation is the indispensable 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 
organization of government itself.  Churches, clubs, corporations, fraternities, guilds, 
partnerships, unions, have for their ends one or another special enterprise for the 
development of man's spiritual or material well-being: they are all more or less 
advisable.  But the family and the state have as their end a general enterprise for the 
betterment and equalization of the conditions of individual development: they are 
indispensable.

	1531. 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 
possible 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, conventional 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 
criterion 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.

	1532. 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 are private. Opinion is optional.  The state may 
intervene only where common action, uniform law are indispensable.  Whatever is 
merely convenient is optional, and therefore not an affair for the state.  Churches are 
spiritually convenient; joint-stock companies are capitalistically convenient; but when 
the state constitutes itself a church or a mere business 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.

	1533. The Family and the State. - It is the proper object of the family to mould the 
individual, to form him in the period of immaturity 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 '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 discipline 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.

	1534. 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 education is indispensable to that equalization of 
the conditions of personal development which we have taken to be the proper object of 
society.  Without popular education, moreover, no government which rests upon 
popular action can long endure: the people must be schooled in the knowledge, and if 
possible in the virtues, upon which the maintenance and success of free institutions 
depend.  No free government can last in health if it lose hold of the traditions of its 
history, and in the public schools these traditions may be and should be sedulously 
preserved, carefully replanted in the thought and consciousness of each successive 
generation.

	1535. Historical Conditions of Governmental Action. - Whatever 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. 
Nothing 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.

	1536. Summary. - This, then, is the sum of the whole matter: the end of 
government is the facilitation of the objects of society.  The rule of governmental action 
is necessary cooperation.  The method of political development is conservative 
adaptation, shaping old habits into new ones, modifying old means to accomplish new 
ends.

