\ 
 
THE THEORY OF THE STATE 
 
 BL UNTSCHLI 
 
JSon&on 
 
 HENRY FROWDE 
 
 OXFORD UNIVERSITY PRESS WAREHOUSE 
 
 AMEN CORNER, E.C 
 
 FOURTH AVENUE 
 
THE 
 
 THEORY OF THE STATE 
 
 J. K. BLUNTSCHLI 
 
 1LATE PROFESSOR OF POLITICAL SCIENCES IN THE UNIVERSITY OF HEIDELBERG 
 
 AUTHORISED ENGLISH TRANSLATION FROM THE 
 SIXTH GERMAN EDITION 
 
 SECOND EDITION 
 
 AT THE CLARENDON PRESS 
 
 M DCCC XCII 
 
PRINTED AT THE C I. A K Ett D O N PRESS 
 
 BY HORACE HAKT, PRINTER TO THE UNIVERSITY 
 
 IN MEMORIAM 
 
 PCItotrc) 
 
TRANSLATORS' PREFACE 
 
 THE ' Theory of the Modern State ' (Lehre vom modernen 
 Stat} by the late Professor Johann Kaspar Bluntschli, of 
 Heidelberg, may be described as an attempt to do for the 
 European State what x\ristotle accomplished for the Hellenic. 
 The material being far more complex, the task is very 
 much more difficult, but Bluntschli's is, at least, the 
 most successful attempt that has been made. We have 
 hardly any works in English which we can put beside 
 it in respect of intention and compass ; and of these, none 
 is equally useful for the student. No writer can escape the 
 influence of his surroundings, and although Germany was 
 only his adopted country, he being a native of Zurich, 
 Bluntschli's pojrrt_o view is sometimes joo exclusively 
 German. But perhaps this is not altogether a disadvantage 
 to us : the endeavour to understand a mode of looking at 
 some political subjects, different from that to which we are 
 accustomed, may not be without its uses. On the whole, 
 Bluntschli is a candid and fair critic both of actual con- 
 stitutions and of political theories. Occasionally he may 
 betray some of the prejudices of German officialism ; occa- 
 sionally, too, he may push to a somewhat amusing extreme 
 his * organic ' or l psychological ' conception of the State. 
 
 M141414 
 
vi TRANSLATORS' PREFACE, 
 
 Kut these are slight defects, more likely to throw light on 
 the individuality of the author than to mislead the judicious 
 reader. 
 
 The work here translated, the Allgemeine Statslehre, is only 
 the first part of the * Theory of the Modern State/ The 
 relation of the other two parts, the Allgemeines Statsrecht and 
 Politik, to it and to one another is explained in Chapter I 
 of the Introduction. This first part goes over the whole 
 ground of what we call ' Political Science, 7 though some 
 subjects are treated in much greater detail in the two other 
 parts *. 
 
 The translators have not aimed at a rigid uniformity. 
 Where there seemed a risk of misstating the author's ideas, 
 a more literal style has been employed than where the 
 meaning was quite obvious, and occasionally considerable 
 abridgment has been found possible. One of the chief 
 difficulties has arisen from the impossibility of getting exact 
 equivalents to the technical terms of German Law and 
 Politics. As the use of a translation is not limited to those 
 who know nothing of the original language, the practice has 
 been adopted of giving the German words in brackets, after 
 the English, in all cases where this seemed likely to save 
 ambiguity or to help the student. It is a peculiar misfortune 
 of our language to have no precise term for Recht (jus, 
 droit, dirittO) TO 8iKatov) as distinguished from Gesetz (lex, 
 loi, legge, yo>os). We are driven to use ' Law ' and ( legal ' in 
 a conventional way (thus StatsreM= Public Law, Rechtsstat 
 
 1 In 1852 Bluntschli published his Allgemeines Statsrecht geschicht- 
 lich begrundet in one volume. It afterwards grew into two volumes. 
 Finally, when a fifth edition (1875) became necessary, he added the 
 volume called Politik, the two other parts corresponding in the main 
 to the two volumes of the original Statsrecht. 
 
TRANSLATORS' PREFACE. vii 
 
 = legal state, etc.), though these terms fail to express the 
 distinction \ Sometimes, but rarely, the word ' Right ' has 
 been used, e. g. where it was necessary to bring out the 
 antithesis between Right and Might. Bluntschli himself 
 remarked on the difference between the German and 
 English uses of Volk and i people,' Nation and ' nation ' 
 (Book II, Ch. ii) ; but it will be found that he goes too far in 
 supposing our use to be the exact converse of the German 2 . 
 The fact is, our word ' people,' though often less political 
 in its signification than Volk, is more political than the 
 German word Nation. Thus we must translate Volksvertre- 
 tung by ' Representation of the people,' and we can only 
 render Populus Romanus by the Roman people.' In many 
 cases where Bluntschli uses the term f State ' (Stat) it would 
 be more idiomatic English to say ' nation,' which is more 
 exclusively political in its meaning than the German Volk ; 
 but the word ' State ' has been advisedly retained everywhere 
 as a technical term to translate Stat, except where it occurs 
 in compounds such as Statsrecht. It should be noted how- 
 ever that Stat is always much wider than our term ' Govern- 
 ment/ with which ( State ' is often used convertibly. 
 'Government,' again, because of this frequent equivalence 
 with ' State,' is wider than the German Regierung, which 
 
 1 A good account of the different terms for ' Law ' will be found in 
 Clark's Practical Jurisprudence, a Comment on Austin. It would be 
 interesting to trace the connexion between some peculiarities of English 
 Jurisprudence and this want of a distinctive word for Jus. On the 
 other side, we have escaped some of the temptations into which the 
 vagueness of the German Recht has led the theorists of Naturrecht. 
 Our phrase ' rights ' is at least shorter than Recht in subjectiver Hin- 
 sicht. (Cp. Sir F. Pollock in his History of the Science of Politics, pp. 
 114, 115 ; Prof. Holland's Jurisprudence, 2nd edit., pp. 63, 275 note.) 
 
 2 Steinthal, Allgemeine Ethik, p. 425, gives a meaning to the German 
 words which is the precise converse of that given by Bluntschli. 
 
viii TRANSLATORS' PREFACE. 
 
 excludes the function of legislation (see Book VII, Ch. vii) 
 and often means little more than i administration,' though 
 distinguished from it (p. 430). The word Stdnde has been 
 translated ' privileged classes, orders or estates,' though 
 1 Estates ' is generally limited to the estates as assembled in 
 Parliament (see Book II, Ch. vii). 
 
 The French version by M. Riedmatten, who has also 
 translated the Allgemeines Statsrecht (Le droit public general) 
 and the Politik, has been of great service, especially in 
 regard to those many political terms which we have in 
 common with the French rather than the German language. 
 
 The references given by Bluntschli in the foot-notes have 
 been carefully verified as far as possible. Several of them, 
 unfortunately, are to works not easily accessible in this 
 country. In many cases they have been corrected and 
 supplemented. Additional references have been made to 
 Aristotle's Politics. In these the books are quoted accord- 
 ing to the order of the MSS. and the old editions, not the 
 conjectural order of St. Hilaire, etc., adopted by Congreve 
 and Welldon. The chapters and sections are those of the 
 Oxford edition of Bekker, and the pages of the great Berlin 
 edition of Aristotle have in most cases been added. 
 
 The translation has been made with the sanction of the 
 German publishers : and the translators have had the ad- 
 vantage of using Professor Loning's corrections for a new 
 (sixth) edition of the work, which is in course of publica- 
 tion. Most of Professor Loning's additions and alterations 
 have been adopted. Where new notes are added by him 
 they are marked 1 , etc. Notes and additions for which the 
 translators alone are responsible are enclosed in square 
 brackets. Obvious corrections have been silently made. 
 A marginal analysis has been added, and has helped to free 
 
TRANSLATORS 1 PREFACE. ix 
 
 the text from an excess of italics, and occasionally to simplify 
 the translation. For convenience of reference, this analysis 
 is reproduced in the table of contents. 
 
 The translation was undertaken primarily in the interests 
 of the School of Modern History. As it was desirable 
 to avoid delay, the work was entrusted to three separate 
 hands, but it has been subjected to a mutual revision 
 by the translators. The original division of labour was as 
 follows : 
 
 Books I, IV, and VII, by D. G. RITCHIE, M.A., Fellow 
 and Tutor of Jesus College and sometime Tutor of Balliol 
 College. 
 
 Books II and III, by P. E. MATHESON, M.A., Fellow and 
 Tutor of New College. 
 
 Books V and VI, by R. LODGE, M.A., Fellow and Tutor 
 of Brasenose College. 
 
 IN this second edition the opportunity has been taken to 
 correct some slight errors. A few additional references have 
 been inserted by the Translators, chiefly to recent English 
 books on Political Science. No change of importance has 
 been made, except in the Translators' note on Book IV, 
 ch. ix, p. 294, where Locke's form of the Social Contract 
 theory has been more correctly represented than in the 
 first edition. 
 
 OXFORD, June, 1892. 
 
ANALYTICAL TABLE OF CONTENTS 
 
 INTRODUCTION. 
 
 PAGE 
 
 CHAPTER I. Political Science i 
 
 Political Science denned : it does not include certain sciences 
 which are auxiliary to it. Divided into Public Law and Politics. 
 These distinguished from Ethics : their relation to one another. 
 The Theory of the State in general to be considered first. 
 
 CHAPTER II. Scientific Methods 5 
 
 Methods true and false. False methods : Ideology and Empiri- 
 cism. True methods : The historical and the philosophical : 
 These united by the greatest writers: they supplement and 
 correct each other. 
 
 CHAPTER III. General and Special Political Science . . 10 
 General Political Science based on Universal History. What 
 periods and races are significant. 
 
 BOOK I. 
 
 THE CONCEPTION OF THE STATE. 
 
 CHAPTER I. The Conception and Idea of the State. The 
 
 general Conception of the State 
 
 The Conception of the State arrived at by history : the idea by 
 philosophy. Characteristics of all States : (i) a number of 
 men; (2) a fixed territory; (3) unity; (4) distinction between 
 rulers and subjects; (5) an organic nature. In what sense the 
 State is an organism : (a) It has spirit and body. () It has 
 members with various special functions, (c) It develops and 
 grows : yet is no mere natural growth. (6) The State is a moral 
 and spiritual organism : it has a personality. (7) It is masculine. 
 Note on the different names for State. 
 
xii ANALYTICAL TABLE OF CONTENTS. 
 
 PAGE 
 
 CHAPTER II. The human idea of the State. The Universal 
 
 Empire .......... 25 
 
 The common nature of mankind implies the need of a Universal 
 State. Attempts to realise this Universal State in the past : (i) 
 The Empire of Alexander the Great ; (2) The Roman Empire ; 
 
 (3) The Holy Roman Empire ; (4) The Empire of Napoleon I. 
 Tendencies towards a common organisation of humanity. 
 Notes, (i) Objections of Vinet : answers. (2) Objections of 
 Laurent : answers. 
 
 CHAPTER III. History of the development of idea of the 
 
 State. I. The Ancient World 35 
 
 A. The Hellenic idea of the State. Political ideas of the 
 Greeks: Plato; Aristotle. Defects of the Greek idea of the 
 State : Too much power was ascribed to it ; Limitations to this 
 absolute power. B. The Roman idea of the State. Influence 
 of the Greeks. Differences from the Greek idea : (i) Law dis- 
 tinguished from morality ; (2) The conception of the people (or 
 nation) ; (3) Tendency to Universal Empire. 
 
 CHAPTER IV. II. The Middle Ages 41 
 
 A. Christianity. Attitude of the Early Church to the State. 
 The Papacy. Pope and Emperor. B. 77ie Teutons. Their 
 power: their character. The idea of individual rights. ' Parti- 
 cularism' in politics. Surviving tradition from antiquity. 
 Feudal law. C. The influence of the Renaissance. The Roman 
 Church kept alive the ideas of the Roman Empire. The Holy 
 Roman Empire. Roman Law. Republican traditions. Greek 
 theories. The Renaissance : Influence of the Classical Revival. 
 
 CHAPTER V. III. The Modern idea of the State . . .50 
 
 A. When does the Modern Epoch commence? (i) The Renais- 
 sance? (2) The Reformation? () The English Revolution? (4) 
 The French Revolution? (5) 1740? The accession of Frederick 
 the Great of Prussia. Notes. The unity of history assumes the 
 unity of mankind. The duration of the human race. History 
 begins with the white man. 
 
 CHAPTER VI .58 
 
 B. Chief differences of the Modern Conception of the State from 
 the Ancient and Mediaeval. Differences between Ancient and 
 Modern State regarding: (i) Rights of man as man; (2) 
 Sphere of State-action ; (3) Individual freedom Private Law; 
 
 (4) Sovereignty; (5) Direct Government Representative Go- 
 vernment ; (6) The city the nation ; (7) Differentiation of 
 
ANALYTICAL TABLE OF CONTENTS. xiii 
 
 PAGE 
 
 functions ; (8) International relations. Differences between the 
 Mediaeval and Modern State regarding: (i) Divine human 
 origin; (2) Theology Science ; (3) Theocracy; (4) Religion ; 
 (5) The Church ; (6) Education ; (7) Public and Private Law ; 
 (8) Particularism Centralisation ; (9) Representation ; (10) Li- 
 berties Liberty; (n) Sphere of State-action ; (12) Unconscious 
 custom conscious legislation. 
 CHAPTER VII. The Development of different theories of the 
 
 State 64 
 
 (i) At the Renaissance: Machiavelli ; Bodin ; Grotius. (2) 
 Theories of the law of nature, of contract and association. (3) 
 System of authority. (4) The State as a ' legal State.' Legal 
 State versus Police State. In what sense the State is and is not 
 a ' legal State/ The State must pay regard to public welfare as 
 well as to Law. (5) The historical School. Organic theory of 
 the State. (6) Recent German political philosophy : Hegel ; 
 Stahl. (7) Union of philosophical and historical methods. 
 Criticism of the State from different points of view. Historical 
 criticism. The Juristic method. The Psychological. The 
 Comparative. Natural theory of the State. Notes. The organic 
 or psychological nature of the State (Schmitthenner, Vollgraff, 
 Ahrens, Waitz, Bluntschli). 
 
 BOOK II. 
 
 THE FUNDAMENTAL CONDITIONS OF THE STATE IN THE 
 NATURE OF MEN AND OF NATIONS. 
 
 CHAPTER I. Mankind. The Kaces of Men, and Families of 
 
 Nations . . . . . . . . . .81 
 
 Mankind: its unity and differences. Four main races: (i) 
 Ethiopian ; (2) Red ; (3) Yellow ; (4) White, with its two great 
 families, (a] the Semitic, () the Aryan. These differences of 
 : Race are ' natural ' ; those of Nationality are * historical.' 
 
 CHAPTER II. The Conceptions ' People ' and ' Nation ' . .86 
 A People implies a civilisation, a Nation is a political idea. 
 Origin of a People. Origin of a Nation. The influence of (a] 
 Religion ; . () Language ; (c) Habitation, customs, political 
 union, &c. ; (d] Fusion of Races. A People is characterised by 
 its common spirit and common civilisation, the product of an un- 
 
xiv ANALYTICAL TABLE OF CONTENTS. 
 
 PAGE 
 
 conscious process of growth. Definition of a People. Definition 
 of a Nation. A Nation is distinguished from a People by the sense 
 of political unity. No State, no Nation. A Nation is a collec- 
 tive personality, with a spirit and will of its own ; subject to the 
 changes of organic life. 
 
 CHAPTER III. The Bights of Nationalities . . . .93 
 Rights which a people may assert : (i) To its own Language ; 
 (2) To its own Laws ; (3) To its own Customs, within limits 
 determined by the good of the S,tate ; (4) To its Moral and In- 
 tellectual Life. 
 
 CHAPTER IV. Nationality as a Principle in the Formation 
 
 of States 97 
 
 Nationality always powerful. But not till lately recognised as 
 a principle in politics or in political Theory. Napoleon and the 
 nations of Europe. Nationality since the Forties. United Italy 
 and Germany. The extreme principle ' A State for each People.' 
 Modified by relative limits of Peoples and States : I. One 
 People includes several States ; Tendency to (i) Isolation, (2) 
 Combination. II. One State includes several Peoples : A. exist- 
 ing side by side, (i) Absorption ; (2) Separation ; (3) Union 
 of differences by (a) impartial government, (#) mechanical force: 
 B. intermixed, (4) Assimilation. The claims of Nationality 
 summed up: (i) Political capacity; (2) Diversity of spirit a 
 source of weakness or strength ; (3) Political vocation ; (4) The 
 national State; (5) The ideal State; (6) Unity; (7) Equality; 
 (8) The verdict of History. The State as the embodiment of 
 the Nation must grow with its growth. 
 
 CHAPTER V. Society 109 
 
 Relation of Society (i) to Nature and State ; (2) to People. 
 Gneist's * Society of Industry/ 
 
 CHAPTER VI. Tribes 112 
 
 Tribes express the inner differences of a People. Their influence 
 for good or evil. Tribal antagonism. The tribe as the germ of 
 a new nation. 
 
 CHAPTER VII. Castes 114 
 
 Divisions within the nation and tribe. The Indian Castes : (i) 
 The Brahmans ; (2) The Kshatriyas ; (3) The Visas ; (4) The 
 Sudras Intercourse between Castes. The origin of Castes 
 in differences of Race or of Religion. A stereotyped system 
 dominating the State. Order and permanence. But no progress 
 or freedom. Modern India. 
 
ANALYTICAL TABLE OF CONTENTS. xv 
 
 PAGE 
 
 CHAPTER VIII. Privileged Classes or Estates . . . 1 20 
 Estates or Orders widespread in Europe. Their legendary 
 origin. (i) Priests ; (2) Nobility ; (3) Freemen ; (4) Dependents. 
 Estates the basis of mediaeval law and politics. At first 
 hereditary, they become professional, and finally decay. 
 
 CHAPTER IX. I. The Clergy 124 
 
 The Clergy not a national order. They stand outside the State, 
 and above it. Growth of their political power Italy, Germany: 
 (i) The imperial constitution ; (2) Provincial constitutions. The 
 Reformation. England and France. 
 
 CHAPTER X. II. The Nobility ...... 131 
 
 A. The French Nobility. The old Nobility of Birth at Rome be- 
 came a Political Nobility of personal merit. Maecenas* Ideal. 
 The French Nobility : (i) The Merovingian Period, 481-752 ; (2) 
 The Carolingian Period, 752-987; (3) The Period of the Capets, 
 987-1226 (The higher Nobility ; The lower Nobility) ; (4) From 
 St. Louis to the Revolution : The feudal nobility becomes a court 
 nobility. Noblesse de Lettres. The Revolution. Napoleon I. 
 Louis XVIII. 1830 and 1848. Napoleon III. 
 
 CHAPTER XI 142 
 
 B. The English Nobility. Fusion of Races. Power of the 
 Crown. -^William I. Power of the Nobles in Parliament. 
 Magna Charta. The Upper arid Lower House. The enlarge- 
 ment of Parliament. Knights. Gentlemen. Public spirit of the 
 English Nobility. The Peerage confined to one heir. Marriage. 
 New creations. 
 
 CHAPTER XII 149 
 
 C. The German Nobility, (i) Princes. Princes secular and 
 ecclesiastical ; Counts ; Barons. Their political rights. Their 
 selfish and exclusive spirit. Multiplication of titles. Decline. 
 1797-1803. 1806. 1815. 1815-1866. The new Aristocracy. 
 
 CHAPTER XIII. . . . . . . , .155 
 
 C. The German Nobility. (2) Knights. The lower Nobility 
 becomes hereditary and exclusive. Their privileges. Decline, 
 from the sixteenth century. 1815. The German nobility as it 
 is. Its Reform. 
 
 CHAPTER XIV. HI. The Citizens 160 
 
 Tendency to Serfdom in the country. Freedom in the Towns. 
 Population of the Towns. Growth of the Citizen Class. Rise 
 of Councils in Lombardy, &c. Communes in France. Guild 
 societies. The personal tie supersedes the feudal. Enfranchise- 
 ment of serfs. Citizenship in Germany : Free householders ; 
 
xvi ANALYTICAL TABLE OF CONTENTS. 
 
 PAGE 
 
 Merchants; Artisans. Citizenship of personal freedom. Pro- 
 vincial and Imperial Towns. Decline of the Towns. Charac- 
 teristics of the mediaeval Citizen Class. The Third Estate. 
 Citizenship in the State. 
 
 CHAPTER XV. IV. The Peasants . . - .. . . .169 
 Rise of the serf- class. Enfranchisement. Guilds in France 
 and Germany. Serfdom in the country. Enfranchisement. 
 The peasants acquire private rights. France. England. The 
 German Peasant War. Political rights. 
 
 CHAPTER XVI. V. Slavery and its Abolition . . -174 
 Aristotle on Slavery. Roman Law. German Law. Slavery 
 passes into Serfdom. Christianity. The Teutonic spirit. 
 Russia. American slavery. Montesquieu. Jefferson. Wilber- 
 force. American Civil War. Rights of the Negro. The State 
 and Slavery. 
 
 CHAPTER XVII. VI. Principle of Modern Classes . .181 
 Privileged classes pass away. Classes and Estates. Property 
 Classes. Modem Classes. 
 
 CHAPTER XVIII. Survey of Modern Classes . . . 185 
 
 (i) The Governing Class; (2) The Aristocracy; (3) The Citizen 
 Class; The 'third estate' in France since 1789; in Germany. 
 The Citizen Class not an Estate, but a popular middle class. Its 
 political power ; (4) The lowest class, ' The People.' Its com- 
 position. Its present importance. Its want of organisation. The 
 Proletariate. Political claims of the Fourth Class. 
 
 CHAPTER XIX. The Relation of the State to the Family. 
 I. The Tribal State. Patriarchal Government. Mar- 
 riage 195 
 
 Differences between the State and the Family. Tribal constitu- 
 tion. The Patriarchal State. The influence of the Family on 
 the State. Marriage, the highest form of which is Monogamy. 
 The law of husband and wife. Marriage ceremony. En- 
 couragement of Marriage. Restraints on Marriage. Marriage 
 and divorce. 
 
 CHAPTER XX. II. The Position of "Women . . .204 
 Political rights of women. Mill. The anomaly of queens. 
 Arguments against women's franchise. Indirect influence of 
 women. 
 
ANALYTICAL TABLE OF CONTENTS. xvii 
 
 PAGE 
 
 CHAPTER XXI. Kelation of the State to Individuals. I. 
 
 Natives and Aliens . . . . . . . .209 
 
 What makes a native : (a) Birthplace ; () Domicile ; (c) Mem- 
 bership in a commune ; (d) Personal relation to the State.- 
 What terminates membership in a State. English Law. 
 French Law. Native rights in two States. Conflict of duties. 
 The position of a Native : (a) Private rights ; () Public rights. 
 
 CHAPTER XXII. II. Citizens , .217 
 
 Full citizenship. Its limits. Independence. Property. Re- 
 ligion. Religious Freedom, not yet fully realised. 
 
 BOOK III. 
 
 THE CONDITIONS OF THE STATE IN EXTERNAL NATURE. 
 
 THE LAND. 
 CHAPTER I. Climate 225 
 
 Influence of Climate on national character. The temperate 
 zones. Extremes of cold and heat. Position of capital cities. 
 Climate and legislation. 
 
 CHAPTER II. Watural Features 229 
 
 Rivers. The Sea. Mountains. Inland countries. Man's power 
 over nature. Advantage of a temperate climate. 
 
 CHAPTER III. The Fertility of the Soil 232 
 
 Barren soil. Fruitful soil tends to produce : (i) Indolence ; (2) 
 Degradation of labour; (3) Inequality of property. India, 
 Egypt, Mexico and Peru. Moderately fertile soil the best. 
 Legislation. 
 
 CHAPTER IV. The Land 237 
 
 The State and its Territory. Tendency to large States, pro- 
 moted by modern civilisation. Limits to the size of a territory. 
 Population more important than area. Strength and weakness 
 of large States. Boundaries. Union of several territories. The 
 Ideal Territory. 
 
 CHAPTER V. Territorial Sovereignty 243 
 
 State property. State sovereignty ; its consequences and limita- 
 tions. 
 
 CHAPTER VI. Division of the Country 246 
 
 (i) Provinces; (2) Circles; (3) Districts; (4) Communes. 
 Principles of Division. 
 
 b 
 
xviii ANALYTICAL TABLE OF CONTENTS. 
 
 PACK 
 
 CHAPTER VII. The Relation of the State to Private Pro- 
 perty . . 249 
 
 The history of Property. Communism. Socialism. The State 
 protects property. Limits of private property. Survival of the 
 idea of State-ownership. Expropriation. Compensation. As- 
 sessment of compensation. 
 
 BOOK IV. 
 
 THE RISE AND FALL OF THE STATE. 
 
 CHAPTER I. Introduction 259 
 
 Two questions about the rise of the State : one historical, the 
 other speculative. Three historical forms of the rise of States. 
 
 CHAPTER II. Historical Formations. I. Original . . 262 
 
 (i) Creation of an absolutely new State. (2) Political organisa- 
 tion of the inhabitants of a definite territory. (3) Occupation of 
 tenitory by an already existing nation. Conquest. Might and 
 right. Peaceful settlement. 
 
 CHAPTER III. II Secondary Formations . . . .268 
 (A.) Formation of a Composite State by a league between states: 
 (i) Confederation ; (2) Federation ; (3) Federal Empire. 
 Differences between the German Empire and Republican Federa- 
 tions. (B.) Union: (4) Personal Union; (5) Real Union; (6) 
 Complete Union. (C.) Division: (7) National Division; (8) 
 Division by inheritance ; (9) Declaration of Independence. 
 
 CHAPTER IV. III. Derived Formations . . . . 2 76 
 
 (i) Colonisation: (a] Greek; (#) Roman; (c) Modern. (2) 
 Concession of sovereign rights. (3) Institution by a foreign 
 ruler. 
 
 CHAPTER V. Fall of States 279 
 
 The common cause of the mortality of the State to be found in 
 its organic nature. Special forms of the fall of States : (i) Na- 
 tional disorganisation; Anarchy; (2) Migration; (3) Conquest; 
 (4) Voluntary absorption ; (5) Voluntary separation and Com- 
 pulsory partition ; (6) Withdrawal or renunciation of sovereign 
 rights. 
 
 CHAPTER VI. Speculative Theories. I. 'The State of 
 Nature' 283 
 
 (i) The Golden Age. The State as a necessary evil. (2) The 
 
ANALYTICAL TABLE OF CONTENTS. xix 
 
 PAGE 
 
 state of nature as a state of war. Both views overlook man's 
 political nature. 
 
 CHAPTER VII. II. The State as a divine institution . . 286 
 
 (l) The State as directly founded by God. (2) As indirectly 
 founded by God. Erroneous views of the divine nature of the 
 State : Monarchical prejudice ; The prince as God's represent- 
 ative ; Authority as such divine ; Divine right ; Irresponsibility. 
 Note. History of the expression f by the grace of God.' 
 
 CHAPTER VIII. III. The Theory of Force . . . .292 
 ' Might is right.' Is this the teaching of History ? Element of 
 truth in the doctrine. 
 
 CHAPTER IX. IV. The Theory of Contract . . . . 294 
 Influence of the theory of the social contract. The theory un- 
 historical ; illogical ; practically dangerous. Yet contains an 
 element of truth. Note. Haller's views on the State. 
 
 CHAPTER X. V. The Natural Sociability and Political Con- 
 sciousness of Man ........ 300 
 
 The State arises from the social impulses of human nature. This 
 social impulse passes from the unconscious to the conscious 
 stage. This view contains the truth in the various false theories. 
 The State a necessary good. 
 
 BOOK V. 
 
 THE END OF THE STATE. 
 
 CHAPTER I. The State an End or a Means? How far is it 
 
 End or Means ? 305 
 
 Ancient theory : the State as an end. Modern theory : the State 
 as a means. Both these theories are one-sided. Danger of the 
 ancient theory : and of the modern theory. Modern considera- 
 tion of the individual. The State is a reality. The welfare of 
 the State and the individual are inseparable. 
 
 CHAPTER II. False views of the End of the State . . 310 
 i. That it is to maintain the ruling power. 2. That it is to 
 carry out the divine will. 3. That it has to secure some external 
 object. 
 
 CHAPTER III. Insufficient or Exaggerated Views of the End 
 
 of the State 314 
 
 i . That its end is to secure the rights of person and property, 
 b 2 
 
xx ANALYTICAL TABLE OF CONTENTS. 
 
 PAGE 
 
 Defects of this view. Its results. 2. That its end is to secure 
 general happiness. Harmful results of this view. 
 
 CHAPTER IV. The True End of the State . . . .318 
 There is only one general end of the State. l Justice ' is too 
 narrow. ' Morality ' is too wide. The ' securing of the public 
 welfare ' is not incorrect, but is insufficient in times of crisis. 
 The true definition. This general definition includes special 
 tendencies, e. g. the development of external power ; or of 
 economic interests ; or of intellectual interests ; or of legal 
 guarantees for freedom ; or of national unity. Indirect functions 
 of the State. Limitations of State action. 
 
 BOOK VI. 
 
 THE FORMS OF THE STATE. 
 
 CHAPTER I. The Division of Aristotle 329 
 
 Normal States and Perversions. Quality is more important 
 than quantity. Aristotle's division is incomplete. Ideocracy. 
 
 CHAPTER II. The so-called Mixed State .... 332 
 The Roman Republic. What is meant by a Mixed State? 
 The English Constitution. The government, not the legislature, 
 is to be considered. 
 
 CHAPTER III. Later Developments of Aristotle's Theory . 335 
 Montesquieu. Schleiermacher. 
 
 CHAPTER IV. The Principle of the Four Fundamental 
 
 Forms 338 
 
 Four forms of State : Ideocracy, Democracy, Aristocracy, 
 Monarchy. Consideration of these forms. 
 
 CHAPTER V. The Principle of the Secondary Forms of the 
 
 State 342 
 
 Division of States according to the rights of the subjects : Unfree: 
 Half-free ; Free States. Application of this division to the four 
 fundamental forms. 
 
 CHAPTER VI. Theocracy or Ideocracy 345 
 
 Theocracy is natural in early times. It involves the rule of 
 priests. Examples : Meroe ; Egypt ; India ; Persia ; the Jewish 
 Theocracy; Theocracy in Europe; the Mohammedans. General, 
 characteristics of Theocracy. 
 
ANALYTICAL TABLE OF CONTENTS. xxi 
 
 PAGE 
 
 CHAPTER VII. The Chief Kinds of Monarchy . . . 356 
 Despotism. Civilised Monarchy. Patriarchal Kingship. 
 Feudal Monarchy. Military and Judicial Principalities. 
 Absolute Monarchy. Limited Monarchy. Kingship and 
 Empire. 
 
 CHAPTER VIII. I. Family Kingship among the Greeks and 
 
 Germans 360 
 
 Characteristics of early Greek and German Monarchy. Limits to 
 the royal power. The German Comitatus. 
 
 CHAPTER IX. II. National Monarchy in Ancient Kome . 365 
 Conception of Roman Monarchy. Administrative power. Ex- 
 ternal ensigns. Legislative power. Judicial power. Military 
 power. Officials. Important position of the Roman King. 
 
 CHAPTER X. III. The Eoman Empire 370 
 
 The Empire was not a mere collection of Republican Offices. 
 Election to the Empire. Analysis of the imperial power. 
 
 CHAPTER XL IV. The Frankish Monarchy . . . .375 
 Carolingian Monarchy. Causes of its strength. Hereditary 
 succession. Legislation among the Franks. Government. 
 Military power. Judicial power. Administrative officials. 
 Close connexion with the Empire and the Church. 
 
 CHAPTER XII. V. Feudal Monarchy and Monarchy Limited 
 
 by Class Privileges 382 
 
 A. Feudal Monarchy : its characteristics : It is based upon 
 Classes. Fealty and homage. Tenure of land. Authority 
 derived from the Kkig. Power of the nobles. Guizot's account 
 of Feudalism. The system was not wholly oppressive. Exist- 
 ence of political rights. B. Monarchy Limited by Class Privi- 
 leges: Legislation. Administration. Jurisdiction. Police. 
 Military powers. Taxation. 
 
 CHAPTER XIII. VI. Modern Absolute Monarchy . . .391 
 Rise of Absolutism in the Romance countries, e. g. Spain and 
 France. Principles of Absolute Monarchy. Influence of theorists 
 and clergy. Decline of Absolutism, first in England, then in 
 other countries. Russia. 
 
 CHAPTER XIV. VII. Constitutional Monarchy . . . 397 
 A. Its origin and progress. Rise of Constitutional Monarchy. 
 I. In England. English Revolutions. Characteristics of 
 Constitutional Monarchy. Results of the Revolution of 1688. 
 II. France. Constitution of 1791. The First Empire. The 
 
xxii ANALYTICAL TABLE OF CONTENTS. 
 
 PAGE 
 
 Charter of 1814. The Revolution of 1830. Revolution of 
 1848 and the Second Republic. The Second Empire. Revo- 
 lution of 1870 and the Third Republic. III. Romance Coun- 
 tries, i. Sicily. 2. Spain. 3. Portugal. 4. Brazil. 5. Italy. 
 6. Belgium. IV. Teutonic countries outside Germany. i. 
 Sweden. 2. Norway. 3. Denmark. 4. Holland. V. German 
 States. The Empire. The rise of Prussia. The Confederation 
 of the Rhine. The Confederation of 1815. Constitutions after 
 1815. New movements after 1830. Prussia. Austria. Pro- 
 posed German Constitution of 1849. North German Con- 
 federation, 1867. The German Empire, 1871. Resume. 
 
 CHAPTER XV 426 
 
 B. False ideas of Constitutional Monarchy. Errors : i. That 
 the king has executive power only. 2. That the king is purely 
 passive. 3. That the royal power is exercised by the ministers. 
 4. That the king's personal character is unimportant. 5. That 
 the king 'reigns but does not govern.' 6. That the king must 
 obey the will of the majority. 
 
 CHAPTER XVI . . 431 
 
 C. The Monarchical Principle and the Conception of Constitu- 
 tional Monarchy. The essential characteristics of Monarchy. 
 They allow legislative checks and ministerial responsibility, but 
 not a merely formal or subordinate monarchy. Necessary free- 
 dom of the monarch. His relations with the legislature and 
 ministers. Power and rights of the Constitutional Monarch. 
 General characteristics of Constitutional Monarchy. 
 
 CHAPTER XVII. Aristocracy. I. The Greek Form. Sparta 439 
 Origin of the Spartan Aristocracy. Its exclusiveness. Educa- 
 tion. Internal equality. Institutions : the Ecclesia ; the Senate ; 
 Kings and Ephors. Artificial character of the Constitution. Its 
 durability. 
 
 CHAPTER XVIII. II. The Roman Aristocracy . . . 444 
 
 Comparison of the Spartan and Roman constitutions. Aristo- 
 cratic character of the latter is obvious in (i) the relations of 
 classes ; (2) the national assemblies, the Comitia Tributa, the 
 Comitia Curiata, the Comitia Centuriata ; (3) the Senate ; 
 (4) the Magistracies. 
 
 CHAPTER XIX. III. Remarks upon Aristocracy . . .451 
 
 The essential principle of Aristocracy. Its exclusiveness is often 
 fatal. Various forms of Aristocracy. General characteristics : 
 
ANALYTICAL TABLE OF CONTENTS. xxiii 
 
 PAGE 
 
 (i) external pomp ; (2) harshness of rule ; (3) excessive rigidity ; 
 
 (4) excessive attachment to hereditary right ; (5) devotion to 
 law. Decline of Aristocracy. 
 
 CHAPTER XX. Democratic Forms of the State. I. Direct 
 
 Democracy (Ancient) 458 
 
 Difference between ancient and modern Democracy. Demo- 
 cracy in Greece. The Athenian Constitution : the Ecclesia, its 
 powers and character ; the Senate ; the Archons ; the Judicial 
 Courts. 
 
 CHAPTER XXI. II. Criticism of Direct Democracy . . 464 
 Characteristics of Direct Democracy. Danger of popular passion 
 and caprice. Importance of national character. The love of 
 equality. Ostracism. Direct Democracy can only thrive in a 
 small and backward state. 
 
 CHAPTER XXII. III. Representative Democracy and the 
 Modern Bepublic 469 
 
 Direct has been superseded by Representative Democracy. I. 
 Representative Democracy originates in America. Causes of its 
 origin. New England. Virginia. Carolina. New York and 
 Pennsylvania. Common elements of the Colonial Constitutions. 
 The Union. 2. France. 3. Switzerland. Differences of ancient 
 and modern Democracy. The sovereignty in representative 
 Democracies. The administrative power. Jurisdiction. Local 
 administration. 
 
 CHAPTER XXIII. IV. Consideration of Representative Demo- 
 cracy ..... ...... 480 
 
 Difficulty of securing the best representatives. Danger of re- 
 garding quantity rather than quality. Practical rules. Advan- 
 tages and disadvantages of Representative Democracy, (i) The 
 weakness of authority. (2) Want of pomp and concentration. 
 (3) Excellence of public institutions. (4) Neglect of culture. 
 
 (5) Elevation of public character. 
 
 CHAPTER XXIV. Composite Forms of the State . . .485 
 Various forms of Composite States. i. The Absolute rule of one 
 State over others. 2. The suzerainty or protectorate of one State 
 over others. 3. The rule of the Mother-country over Colonies. 
 4. Confederation and Personal Union. 5. Federation, Federal 
 Empire, and R.eal Union. Necessary conditions of Composite 
 States. 
 
xxiv ANALYTICAL TABLE OF CONTENTS. 
 
 BOOK VII. 
 
 SOVEREIGNTY AND ITS ORGANS. PUBLIC SERVICES AND 
 PUBLIC OFFICES. 
 
 CHAPTER I. The Conception of Sovereignty .... 493 
 The term ' Sovereignty.' Conception of Sovereignty in France. 
 Sovereignty as absolute power. German terms for Sovereignty. 
 Characteristics of Sovereignty. 
 
 CHAPTER II. Sovereignty of the People or of the State, and 
 
 Sovereignty of the Ruler 497 
 
 (i) Sovereignty of the People as the sum of individuals. This 
 is anarchy. (2) Sovereignty of the People as citizens in their 
 assemblies. This only possible in direct Democracy. (3) Yet 
 these views have been put forward as universally valid. (4) The 
 Sovereignty of Reason or Justice ? (5) Of the People as a unity. 
 (6) Sovereignty of the Nation or the State. (7) Sovereignty of 
 the Ruler. 
 
 CHAPTER III. I. Analysis of the Sovereignty of the State . 506 
 (i) Majesty. (2) Independence. (3) Power of choosing and 
 altering the form of government : Reform : Revolution. Is there 
 a ' right of revolution '? (4) Legislation. (5) Dependence on it 
 of all other powers in the State. (6) Irresponsibility. (7) Re- 
 sponsibility to it of all other powers in the State. 
 
 CHAPTER IV. II. Sovereignty of the Prince . . . .511 
 The Sovereignty of the chief of the State not recognised in 
 modern Republics, but in all Monarchies, elective as well as here- 
 ditary. -It may be either (i) Original, or (2) Derived. 
 
 CHAPTER V. The Division of Powers. I. The Primary As- 
 semblies of Antiquity . . . . . . -513 
 
 Direct legislative assemblies : inferior to representative. * 
 
 CHAPTER VI. II. Ancient Distinction of Political Functions 515 
 Ancient Distinction of Political Functions. Aristotle's division. 
 Different functions often exercised by the same persons in 
 Greece and Rome. Distinction between Civil and Military 
 offices in the Byzantine Empire. In the Middle Ages little differ- 
 entiation. Bodin urges the separation of the judicial functions, 
 
 CHAPTER VII. III. The Modern Principle of division of 
 
 Powers . . . . . . . . . .518 
 
 Montesquieu. The higher organism has the more differentiated 
 functions. Distinction, not separation. The threefold division. 
 
ANALYTICAL TABLE OF CONTENTS. xxv 
 
 PAGE 
 
 Additions to it. These different powers not equal. Not the 
 propositions of a syllogism. A. The legislative power. Views 
 of Rousseau and Stein criticised. B. The other powers of the 
 State. I. Government or Administration. The term i Execu- 
 tive' criticised: The essence of Government. II. The Judicial 
 power. Other powers : III. and IV. Superintendence of intel- 
 lectual and material interests. 
 
 CHAPTER VIII. Public Service and Public Functions . .526 
 Public Service in a wider and narrower sense. Not all public 
 servants are State officials. Difference between administrative 
 and judicial functionaries. Official assistants. Distinction be- 
 tween civil and military offices. Distinction between collegiate 
 and individual offices. Distinction according to locality. What 
 office implies. Relation between the State and its servants. 
 Salary. 
 
 CHAPTER IX. Appointment of Officials 531 
 
 Hereditary offices. Distinction between professional and hon- 
 orary offices. Officials in Germany ; in England ; in the United 
 States; in France. In Republics appointments generally for a 
 definite period. Liberty of acceptance or refusal. When an ap- 
 pointment begins. 
 
 CHAPTER X. Bights and Duties of Public Officials . .537 
 
 Exercise of functions. Title and rank. Indemnity for expenses. 
 Salary. Pension. Duties of Obedience, Fidelity. Secrecy. 
 Punishment and discipline. 
 
 CHAPTER XI. Termination of Public Service . . . 545 
 i. Suppression of an office. 2. Resignation 3. Retirement. 
 4. Dismissal. 5. Suspension. 
 
THE THEORY OF THE STATE 
 
INTRODUCTION. 
 CHAPTER I. 
 
 POLITICAL SCIENCE. 
 
 POLITICAL Science (die Statswissenschaft) in the proper Political 
 sense is the science which is concerned with the State, fined" 06 
 which endeavours to understand and comprehend the State 
 in its conditions (Grundlageri), in its essential nature 
 ( Wesen\ its various forms or manifestations (Erscheinungs- 
 formeri], its development. 
 
 Thus many sciences, which are sometimes regarded as it does not 
 political sciences, are not really such, although they relate certafn 
 to the State and must of course be taken account of as whlSTare 
 auxiliary. Such are : ?" h iHary 
 
 (a) The History of a people or nation, except in so far 
 as it is exclusively political or constitutional history. The 
 general course of events in a people's life, the acts of 
 individuals, the history of art, science, economic conditions, 
 morals, diplomatic and political struggles, military affairs 
 all these form no part of political science. 
 
 (b) Statistics, so far as they include social and private 
 matters and are not exclusively political. 
 
 (c) Political Economy (Nationalokonomie), so far as it is 
 an enquiry into economic laws which are applicable to 
 every one and not merely to the State. 
 
 B 
 
2 INTRODUCTION. [Chap. I. 
 
 (cl) The study of society, so far as the life of society goes 
 on of itself and is; not .identical with the life of the State. 
 Political The ancient Greeks applied the name TroXmio; to all 
 
 videlTimo' political science. We [Germans] distinguish Public Law 
 SdFoliSS. (Statsrechf] and Politics (PolitiK) as two special sciences. 
 Alongside of these we put many special branches with 
 distinct names, e. g. Political Statistics, Administration, 
 International Law ( Volkerrecht\ Police, &c. 
 
 Public Law and Politics both consider the State on the 
 whole, but each from a different point of view and in a 
 different direction. In order to understand the State more 
 thoroughly, we distinguish its two main aspects its existence 
 and its life. We examine the parts in order more completely 
 to comprehend the whole. In this procedure there are not 
 only theoretic but practical advantages. Law (das Rechf) 
 has gajned in clearness, moderation, and strength, since it 
 has been more sharply distinguished from politics ; and 
 Politics has gained in fullness and in freedom by being 
 considered separately. 
 
 Public Law (Statsrechf) deals with the State as it is, 
 i.e. its normal arrangements, the permanent conditions of 
 its existence. 
 
 Politics (PolitiK], on the other hand, has to do with the 
 life and conduct of the State, pointing out the end towards 
 which public efforts are directed and teaching the means 
 which lead to these ends, observing the action of laws upon 
 facts and considering how to avoid injurious consequences 
 and how to remedy the defects of existing arrangements. 
 
 Public Law is thus related to Politics as order to freedom, 
 as the tranquil fixedness of relations to their complex move- 
 ment, as bodies are related to their actions and to the 
 various mental movements. QPublic Law asks whether what 
 is conforms to law : Politics whether the action conforms to 
 the end in view.^ 
 
 Public Law Both Public Law and Politics have a moral content (em 
 distingd^cd sittlicher Gehalt\ The State has a moral nature (ist ein 
 from Ethics. ^///^ Weseri) and moral duties. But Law and Politics 
 
Chap. I.] POLITICAL SCIENCE. 3 
 
 are not determined solely nor completely by moral laws 
 (Sittengesetz}. They are independent sciences, and not 
 simply chapters of a Moral Philosophy. On the contrary, 
 their basis and their end are to be found in the State : they 
 are Political Sciences. Ethics, however, is not a Political 
 Science, because its fundamental principles cannot be 
 explained out of the State, but have a wider and nobler 
 basis in the universal nature of mankind and in the divine 
 ordering of the world. 
 
 Public Law and Politics must not be absolutely separated Their rek- 
 from one another. The actual State lives, i. e. it is a com- another?" 
 bination of Law and Politics. Again, Law is not absolutely 
 fixed or unalterable ; and the movement of Politics has rest 
 as its aim. Law is not merely a system, it has a history ; 
 on the other hand, Politics has to do with legislation. As 
 with all organic beings, the influence is reciprocal. The 
 difference we have recognised is not thereby set aside, but 
 is better explained. The distinction between the history of 
 Law (Rechtsgeschichte) and political history is just this : the 
 former has only to point out the development of the normal 
 and established existence of the State and to describe the 
 rise and change of permanent institutions and laws : the 
 latter lays stress chiefly on the changing fortunes and cir- 
 cumstances of the nation, the motives and conduct of its 
 statesmen, and the actions and sufferings of both the nation 
 and its statesmen. The highest and purest expression of 
 Public Law is 10 be found in the Constitution or enacted 
 positive laws (die Verfassung: das Gesetz] : the clearest and 
 most vivid manifestation of Politics is the practical conduct 
 or guidance of the State itself, viz. Government (Regierun^. 
 \ Politics is more of an art than a science. Law is a pre- 
 supposition of Politics, a fundamental (though not of course 
 the only) condition of its freedom. Politics in its course 
 must have regard to legal limits, caring as it does for the 
 varying needs of life. Law, on the other hand, requires 
 the help of Politics in order to escape the numbness of 
 death and to keep step with the development of life. 
 
 B 2 
 
4 INTRODUCTION. 
 
 Without the animating breath of politics the corpus juris 
 (Rechtskorper) would be a corpse ; without the foundations 
 and the limits of Law, Politics would perish in unbridled 
 selfishness and in a fatal passion for destruction. 
 
 The Theory It is solely for the sake of clearness and simplicity that 
 inrZterai before these two branches of the Theory of the State 
 siderecTfirst. Public Law and Politics we place a third, or rather a first, 
 division of Political Science, viz. The Theory of the State 
 in general (Allgemeine Statslehre). In this we consider the 
 State as a whole without as yet distinguishing its two aspects 
 (Law and Politics). The conception of the State, its basis, 
 its principal elements (the people, the country), its rise, 
 its end or aim, the chief forms of its constitution, the 
 definition and the division of sovereignty (Statsgcwalf) form 
 the subjects of the Theory of the State in general, and 
 this in turn is at the base of the two special political 
 sciences, Public Law and Politics. 
 
 The first part of this work is devoted to the Theory of 
 the State in General, the second to Public Law, and the 
 third to Politics. 
 
 [Note. The present translation only comprises this first part.] 
 
CHAPTER II. 
 
 SCIENTIFIC METHODS. 
 
 THE scientific study of the State may be undertaken 
 from different points of view and in different ways. There 
 are two sound methods of scientific enquiry, and two false Methods 
 methods which are the one-sided perversions of them. The fd s e e . an 
 correct methods, we may call the philosophical and the 
 historical. The perversions come from pushing to an 
 extreme one prominent aspect of the first two methods. 
 Abstract ideology is the exaggeration and caricature of the 
 philosophical, mere empiricism of the historical method. 
 
 The contrast between the two methods is connected 
 partly with the characteristics of both Law and Politics, 
 partly with the difference in the intellectual temperaments 
 of those who have pursued these studies. 
 
 All Law and all Politics have an ideal side a moral and 
 spiritual element, but both at the same time rest on a real 
 (actual) foundation and have a material form and value. 
 This latter side is misunderstood and disregarded by the 
 ideologist, who thinks out some political principle in its ideology, 
 abstractness and draws from it a series of logical con- 
 sequences without paying any regard to the facts of actual 
 political society. Even Plato in his Republic has fallen into 
 this error and adopted opinions contrary to nature and the 
 needs of mankind ; and yet the richness of Plato's spirit 
 and his feeling for beauty have saved him from those 
 miserably arid formulas which we find so often in the 
 
INTRODUCTION. 
 
 [Chap. II. 
 
 political philosophy of modern writers. The State is a 
 moral organism and not the product of mere cold Logic : 
 Public Law is not a collection of speculative opinions. 
 
 This method leads to unfruitful results in theory, and 
 when transferred to practice gives a most dangerous in- 
 fluence to fixed ideas and tends to break up and destroy 
 existing political institutions. In times of revolution men's 
 passions are set free and they are attracted by these abstract 
 doctrines, the more so that they hope by their aid to break 
 through the bounds of law : and this sort of ideology easily 
 obtains a terrible force, and, incapable of creating a new 
 organism, throws down everything before it with the energy 
 of a demon. The truth of this observation is proved in a 
 fearful way by certain phases of the French Revolution. 
 Napoleon was right when he said : ' The Metaphysicians, 
 the Ideologists have, destroyed France.' The ideological 
 acceptation of ' Liberty and Equality ' has filled France 
 with ruins and drenched it with blood. The doctrinaire 
 application of the * monarchical principle,' has repressed the 
 political freedom of Germany and hindered the growth of 
 her power. The carrying out of the abstract principle of 
 nationality has threatened the peace of all Europe. The 
 truest and most fruitful ideas become mischievous if they 
 are taken up by ideologists and then transferred to practice 
 by narrow fanatics. 
 Empiricism. The exclusively empirical method is one-sided in the 
 opposite way ; it holds to the mere outward form, to the 
 letter of the law or to the apparent fact. This method in 
 science is valuable at the most in amassing material in 
 compilations; in actual politics it frequently gains many 
 adherents, especially among the officials of a bureaucracy. 
 Empiricism does not often, like ideology, directly endanger 
 the whole State ; but it makes the bright sword of justice 
 rust, hinders the public welfare in all sorts of ways, causes 
 a quantity of small injuries, weakens the moral vigour and 
 enfeebles the health of the State in such wise that in 
 critical times its salvation is made always difficult and 
 
Chap. II.] SCIENTIFIC METHODS. 7 
 
 sometimes impossible. While the practical application of 
 mere ideology brings the State into the acute crisis of 
 political fever, this mere empiricism rather produces chronic 
 maladies. 
 
 The advantage of the historical over the merely empirical The histori- 
 method is that it does not thoughtlessly and servilely honour 
 actual institutions and actual facts, but recognises, explains, 
 and interprets the inner connection between Past and 
 Present, the organic development of national life and the 
 moral idea as revealed in its history. This method cer- 
 tainly starts from the actual phenomena, but regards them 
 as living, not as dead. 
 
 Akin to the truly historical is the truly philosophical Thephiio- 
 method, which is not one of mere abstract speculation but s 
 of ' concrete thinking ' a (concret denkt\ i. e. it unites together "" 
 Ideas and Facts (Idee und Realitaf). While the historical 
 method is based upon the course of outward events and 
 their evolution, the philosophical starts from the knowledge 
 of the human mind, and from that point of view considers 
 the revelation of the spirit of man in history. 
 
 Most of those who have attained to a higher scientific These 
 standpoint have through natural temperament gone in either United by 
 the one or the other direction. Only a few have had the wrltfrs ate ' 
 genius to unite both. Among these Aristotle especially 
 deserves our admiration. His ' Politics/ although written 
 in that youthful period of the world's history which preceded 
 the more advanced development of the State, has yet re- 
 mained for two thousand years one of the purest sources of 
 political wisdom. Cicero imitated, in the form of his rea- 
 soning and his mode of exposition, the philosophical manner 
 of the more richly gifted Greeks, but the best part of the 
 material of his work he rightly took from the practical 
 politics of Rome. Among modern writers, Bodin, Vico, 
 and Bacon may be named as early representatives of the 
 philosophic-historical method. Burke, who resembles Cicero 
 
 a [For an explanation of this phrase of German philosophy see 
 Wallace's Translation of Hegel's Logic, Prolegomena, Ch. x.] 
 
8 INTRODUCTION. [Chap. II. 
 
 in the grandeur and charm of his eloquence, resembles him 
 also in the way in which he grasped the principles of politi- 
 cal wisdom from the history and life of his country, and ex- 
 pressed them with the dignity of philosophy and the 
 splendour of genius. Machiavelli, who has stored up in 
 his works the abundant and sad experience of a profound 
 and shrewd knowledge of mankind, and Montesquieu who 
 looked on the world with a frank, cheerful glance and 
 abounds in acute remarks and exact observations, some- 
 times adopt one method, sometimes the other. Yet the 
 former is more given to the historical, the latter to the 
 philosophical *. On the other hand, Rousseau and Ben- 
 tham, like most of the Germans, keep rather to the philo- 
 sophical method, but, more often than their great model 
 Plato, they fall into the one-sided error of mere ideology. 
 The his- It is thus clear that the two methods, the historical and 
 
 philosophical philosophical, do not conflict : they rather supplement and 
 supplement correct one another. He assuredly takes a limited and 
 each < other t narrow view of history who thinks that with him history is 
 at an end and no new legal conception (Rechf) can arise ; 
 and he is a vain and foolish philosopher who thinks that he 
 is the beginning and end of all truth. The genuine his- 
 torian as such is compelled to recognise the value of philo- 
 sophy, and the true philosopher must equally take counsel 
 . of history. 
 
 ^ Each of the two methods has its peculiar advantages and 
 
 its peculiar weaknesses and dangers. The chief advantage 
 of the historical method is the abundance and the positive 
 character of its results ; for history is full of the complexity 
 of life and at the same time is thoroughly positive. What- 
 ever the most prolific thinker may think out in his head will 
 always be only a poor fragment compared with the thoughts 
 which are revealed in the history of mankind, and will 
 generally attain only an uncertain and misty shape. But, 
 on the other hand, there is the dangi that, in following the 
 
 b [So in German (ed. 1875). The French Transl. (2nd edit.) re- 
 verses the remark.] 
 
Chap. II.] SCIENTIFIC METHODS. 9 
 
 " paths of history, we may forget and lose unity in abundant 
 multiplicity ; we may be oppressed by the weight of the 
 material, overwhelmed by the mass of historical experience, 
 and above all, attracted and enchained by the past, we may 
 lose the fresh outlook on the life of the present and the 
 future. Certainly these are by no means necessary conse- 
 quences of the historical method, but history itself shows 
 us how often men who have given themselves ardently to the 
 study of it go wrong in this way. 
 
 The advantages of the philosophical method, on the con- 
 trary, are : purity, harmony and unity of system, fuller satis- 
 faction of the universal striving of man towards perfection, 
 ideality. Its results have an especially human character, an 
 especially ideal stamp. And yet, in turn, it has its peculiar 
 dangers : philosophers, in their striving after unity which 
 they often regard as their sole aim, overlook the inner 
 complexity of nature, and the rich content of actual exist- 
 
 _ence ; following the swift flight of free thought, not infre- 
 quently, instead of discovering real laws, they find barren 
 formulae, empty husks, and take to playing with these ; mis- 
 understanding the natural development, they pluck unripe 
 fruit, plant trees without roots in the ground, and sink into 
 the delusions of ideology. Only a few philosophical spirits 
 have succeeded in avoiding these errors. 
 
 Note. In what I wrote in 1841 on l The modern schools of Juris- 
 prudence in Germany* (Die neueren Rechtsschulen der deutschen 
 Juristen, 2nd edit. Zurich, 1862), these and similar ideas have been 
 followed out in closer connection with German scientific study. Long 
 ago, however, the English Lord Chancellor, Bacon, censured the errors 
 of the Law of Nature and the positive jurisprudence as studied in his 
 time and expected the necessary reform in the science of law from the 
 combination of history with philosophy. [Cp. De Augm. Scient. viii, 
 c. 3. But see Flint's Vico, p. 151.] 
 
CHAPTER III. 
 
 GENERAL AND SPECIAL POLITICAL SCIENCE. 
 
 SPECIAL Political Science is limited to a particular nation 
 and a single State, e. g. the ancient Roman Republic, the 
 modern English Constitution, the German Empire of to-day. 
 
 General Political Science, on the other hand, rests upon 
 a universal conception of THE State. The particular State 
 is based on a particular people, the State in general on 
 mankind \ 
 
 The general theory of the State, and especially general 
 Public Law, is very often held to be the product of pure 
 speculation, and the attempt is made to deduce it, by mere 
 logical consequences, from a speculative view of the world. 
 Thus there have arisen various systems of Natural or 
 Philosophical ' Public Law,' as distinct from that which is 
 Positive and Historical. I understand the difference other- 
 wise. The State must be philosophically comprehended as 
 well as historically. Neither General nor Special Public 
 Law can dispense with this twofold work. 
 
 The special theory of the State presupposes the general, 
 as the particular character of a people presupposes the 
 
 1 The same idea is at the base of the Roman view. L. 9 (Gains} D. 
 de Justitia et Jure : ' Omnes populi, qui legibus et moribus reguntur, 
 partim suo proprio, partim communi omnium hominum jure utuntur. 
 Nam quod quisque populus ipse sibi jus constituit, id ipsius proprium 
 civitatis est, vocaturque/w^ civile ; quod vero naturalis ratio inter omnes 
 homines constituit, id apud omnes peraeque custoditur, vocatnrque jus 
 gentium, quasi quo jure omnes gentes utuntur.' [Justinian, Inst. Lib. I. 
 Tit. ii. i.] 
 
GENERAL POLITICAL SCIENCE. 1 1 
 
 common nature of mankind. General Political Science has General 
 to do with the fundamental conceptions, which appear in all science is 
 sorts of ways, in the theories of particular States. The his- j^nfvlrsai 
 tory to which the former pays regard is the history of the Hlstor y- 
 World or universal history, not the history of a particular 
 country, and of a particular State. The speculations of 
 Political Philosophy must be tested and supplemented by 
 the actual history of mankind. Universal history shows us 
 the different stages of development which mankind has lived 
 through since its infancy ; each stage has its ow r n peculiar 
 views of the State, and its own political formations. We 
 learn to understand in what ways the various nations have 
 taken part in the common task of the human race. 
 
 Not all. periods of universal history, nor all nations, have what periods 
 the same significance for our science. We are specially raceslu-e 1 
 concerned with the modern State. The ancient and si g" ificant - 
 mediaeval forms of the State need only be considered as 
 preliminary, and in order, by contrast, to bring out more 
 clearly the character of the modern State. The value of 
 different peoples for the formation of the modern State is 
 determined in general by their share in the progress of 
 political civilisation, i. e. of a community of men at once 
 orderly and free. In the history of the world, the Aryan or 
 Indo-Germanic race is as significant for politics as the 
 Semitic race for religion ; but not until they came to Europe 
 did even the Aryans attain a high and conscious political 
 development. Among them the Greeks and Romans took 
 precedence in antiquity, the Teutons (Germanen) in the 
 Middle Ages ; but our modern political civilisation depends 
 chiefly on the mixture of Graeco-Roman and Teutonic 
 elements. The chief share in this modern political develop- 
 ment has been taken by: (i) the English, whose very race 
 is a mixed one, (2) secondly by the French, who combine 
 Old Celtic and Romance with Teutonic elements, and (3) 
 lastly the Prussians, in whom the manly self-confidence and 
 sense of Law (Rechtssinn) of the Teuton is combined with 
 the pliancy and submissiveness of the Slav. The political 
 
12 INTRODUCTION. 
 
 life of America is derived from that of Europe, but it is 
 only in the United States that it has made progress of its 
 own. 
 
 General political science has thus to do with the common 
 political consciousness of civilised mankind at the present 
 time, and the fundamental ideas and essentially common 
 institutions which appear in various ways in different States. 
 Even General Public Law is no mere theory it has a 
 positive although indirect influence, as it operates through 
 various particular States, and not through one universal 
 State. Like mankind and his history, it has a real, and not 
 merely an ideal existence. 
 
 Note. The contrast in Aristotle's Rhetoric (i. 10. 1368 b. 7) between 
 VOJJLOS 'tSios and VO^DS KOIVOS is different from that which we have been 
 considering. The former means the Law which a particular state has 
 worked out for itself, whether written or unwritten, the latter that which 
 is right by nature ((pvafi KOIVOV Sifcaiov) without regard to any political 
 community. 
 
BOOK I. 
 
 THE CONCEPTION OF THE STATE. 
 
CHAPTER I. 
 
 THE CONCEPTION AND IDEA OF THE STATE. 7 HE 
 GENERAL CONCEPTION OF THE STATE. 
 
 THE conception (Begriff] of the State has to do with the 
 nature and essential characteristics of actual States. The 
 idea or ideal (Idee) of the State presents a picture, in the 
 splendour of imaginary perfection, of the State as not yet 
 realised, but to be striven for. 
 
 The conception of the State can only be discovered by The concep- 
 history ; the idea of the State is called up by philosophical sSL ar- e 
 speculation. The universal conception of the State is re- SSj^. b t he 
 cognised when the many actual States which have appeared ^osophy 
 in the world's history have been surveyed, and their common 
 characteristics discovered. The highest idea of the State is 
 beheld when the tendency of human nature to political 
 society is considered, and the highest conceivable and 
 possible development of this tendency is regarded as the 
 political end of mankind. 
 
 If we consider the great number of States which history character- 
 presents to us, we become aware at once of certain common Itatesf ** 
 characteristics of all States ; others are only seen on closer 
 examination. ^ 
 
 First, it is clear that in every State a number of men are i. a number 
 combined. In particular States the number may be very 
 different, some embracing only a few thousands, others 
 many millions ; but, nevertheless, we cannot talk of a State 
 
1 6 THE CONCEPTION OF THE STATE. [Book I. 
 
 until we get beyond the circle of a single family, and until 
 a multitude of men (i.e. families, men, women, and chil- 
 dren) are united together. A family, a clan, like the house 
 of the Hebrew patriarch, Jacob, can become the nucleus 
 round which, in time, a greater number gathers, but a real 
 State cannot be formed until that has happened, until the 
 single family has broken up into a series of families, and 
 kindred has become extended to the race. The horde is 
 not yet a tribe (V others chaff}. Without a tribe, or, at a 
 higher stage of civilisation, without a nation ( Volk\ there is 
 no State. 
 
 There is no normal number for the size of the population 
 of a State rt ; Rousseau's number of 10,000 men would cer- 
 tainly not be sufficient. In the middle ages such small 
 States could exist with security and dignity ; modern times 
 lead to the formation of much greater States, partly because 
 the political duties of the modern State need a greater 
 national force, partly because the increased power of the 
 great States readily becomes a danger and a menace to the 
 independence of the small. 
 
 2. afixedf Secondly, a permanent relation of the people to the soil 
 is necessary for the continuance of the State. The State 
 requires its territory : nation and country go together. 
 
 Nomadic peoples, although they have chiefs to command 
 them and law to govern them, have not yet reached the 
 full condition oY States until they have a fixed abode. The 
 Hebrew people received a political training from Moses, 
 but were not a State until Joshua settled them in Palestine. 
 In the great migrations at the fall of the Roman empire, 
 when peoples left their old habitations and undertook to 
 conquer new ones, they were in an uncertain state of tran- 
 sition. The earlier States which they had formed no longer 
 existed : the new did not yet exist. The personal bond 
 continued for a while the territorial connection was broken. 
 
 a [For Aristotle's views on this subject, cp. Pol. vii. 4 : in Eth. Ntc. 
 ix. 10. 3, he says there cannot be a State (TTO\IS} of ten men nor of 
 100,000. Cp. also Pol. Hi. 3. 5.] 
 
Chap. I.] WHAT THE STATE IMPLIES. 17 
 
 Only if they succeeded in regaining a sure footing were 
 they enabled to establish a new State. The peoples who 
 failed perished. The Athenians under Themistocles saved 
 the State of Athens on their ships, because after the victory 
 they again took possession of their city ; but the Cimbri 
 and Teutones perished, because they left their old home 
 and failed to conquer a new one. Even the Roman State 
 would have perished, if the Romans, after the burning of 
 their city, had migrated to Veii. i 
 
 Another characteristic of the State is the unity of the 3- unity; 
 whole, the cohesion of the nation. Internally there may 
 indeed be different divisions with considerable indepen- 
 dence of their own. Thus in Rome there was the patrician 
 populus, and alongside of it the plebs. In the older Teutonic 
 states of the middle ages there was the constitution of the 
 people alongside of the feudal constitution. The State 
 may also be composed of several parts which in their turn 
 constitute States : thus from the old German Empire several 
 territorial States have gradually grown up : in the modern 
 federations of North America and Switzerland, and in the 
 new German Empire, a common collective State (Gesammt- 
 staf] and a number of confederated local States exist 
 together. But unless the community forms a coherent 
 whole in its internal organisation, or can appear and act as 
 a unit in external relations, there is no State. 
 
 In all States we find the distinction (Gegensatz) between 4- distinction 
 
 between 
 
 governors and governed, or to adopt an old expression rulers and 
 which has been sometimes misunderstood, sometimes 'mis- S1 
 used, but which in itself is neither hateful nor slavish 
 between sovereign and subjects. This distinction appears 
 in the most manifold forms, but is always necessary. Even 
 in the most extreme democracy in which it may seem to 
 vanish, it is nevertheless present. The assembly of the 
 Athenian citizens was the sovereign, the individual Athe- 
 nians were its subjects. 
 
 Where there is no longer any sovereign possessing 
 authority, where the governed have renounced political 
 
 C 
 
1 8 THE CONCEPTION OF THE STATE. [Book r. 
 
 obedience, and every one does that which is right in his 
 own eyes, this is anarchy and the State is at an end. 
 Anarchy, like all negations, cannot last, so that out of it 
 there at once arises, perhaps in a rude and often cruel form 
 of despotism, some sort of new sovereignty which compels 
 obedience, and thus reproduces that indispensable distinc- 
 tion. Communists deny this in theory, but in doing so, 
 they deny the State itself. Even they have nowhere been 
 able by annihilating the State to introduce a merely social 
 union, and, if they ever succeed in temporarily winning 
 over the masses to their projects, we may be certain, from 
 the example of the religious communists of the sixteenth 
 century, the Anabaptists, and from the natural consequences 
 of events, that they too would again set up a domination, 
 and that the harshest that has ever been. 
 
 Amt)IIgme Slavonic peoples we find the old idea that 
 
 only the unanimity of all the members of a community 
 represents the common will, and that neither the majority 
 nor any higher authority can decide. This principle how- 
 ever can at the most only serve as a principle of local 
 communities, and that only among a people where all easily 
 and quickly agree ; it can never be a political principle, for 
 the State must override the unavoidable opposition of 
 individuals. 
 
 5. an organic The State is in no way a lifeless instrument, a dead 
 machine : it is a living and therefore organised being. This 
 organic nature of the State has not always been understood. 
 Political peoples had indeed an image ( Vorstellung) of it, 
 and recognized it consciously in language, but the insight 
 into the political organism remained long concealed from 
 political science, and even at the present day many publi- 
 cists (Statsgelehrte) fail to understand it. It is the especial 
 merit of the German school of historical jurists to have 
 recognized the organic nature of the Nation and the 
 State. This conception refutes both the mathematical and 
 mechanical view of the State, and the atomistic way of 
 treating it, which forgets the whole in the individuals. An 
 
Chap. I.] WHAT THE STATE IMPLIES. 19 
 
 oil-painting is something other than a mere aggregation of 
 drops of oil and colour, a statue is something other than a 
 combination of marble particles, a man is not a mere quan- 
 tity of cells and blood corpuscles ; and so too the nation is 
 not a mere sum of citizens, and the State is not a mere 
 collection of external regulations. 
 
 The State indeed is not a product of nature, and there- 
 fore it is not a natural organism ; it is indirectly the work 
 of man. The tendency to political life is to be found in / 
 human nature, and so far the State has a natural basis ; / 
 but the realisation of this political tendency has been left to / 
 human labour a , and human arrangement, and so far the ' 
 State is a product of human activity, and its organism is a 
 copy of a natural organism. 
 
 In calling the State an organism we are not thinking of in what 
 the activities by which plants and animals seek, consume state is In 
 and assimilate nourishment, and reproduce their species. orgam 
 We are thinking rather of the following characteristics of 
 natural organisms : 
 
 (a) Every organism is a union of soul and body, i. e. of 
 material elements and vital forces. 
 
 (b) Although an organism is and remains a whole, yet in 
 its parts it has members, which are animated by special 
 motives and capacities, in order to satisfy in various ways 
 the varying needs of the whole itself. 
 
 (c) The organism develops itself from within outwards, 
 and has an external growth. 
 
 In all three respects the organic nature of the State is 
 evident. 
 
 In the State spirit and body, will and active organs are () The 
 necessarily bound together in one life. The one national spirit and 
 spirit, which is something different from the average sum of y< 
 the contemporary spirit of all citizens, is the spirit of the 
 State; the one national will, which is different from the 
 
 a [Cp. Arist. Pol. i. 2. 15, 1253 a. 30: &vffi nlv ovv fj opfjirj 
 irdffiv km TT)J/ TOiavTrjv Koivwiav 6 8 irpuros ffvarrjaas fj.eyiarojv 
 curtof,] 
 
 C 3 
 
20 THE CONCEPTION OF THE STATE. [Book I. 
 
 average will of the multitude, is the will of the State. The 
 constitution, with its organs for representing the whole and 
 expressing the will of the State in laws, with a head who 
 governs, with all sorts of offices and magistracies for admin- 
 istration, with courts to exercise public justice, with institu- 
 tions of all kinds to provide for the intellectual and material 
 interests of the community, with an army to express the 
 public force this constitution is the body of the State, it 
 is the form in which the nation manifests its common life. 
 Individual States differ like individual men in spirit, 
 character, and form. The progress of mankind depends 
 essentially on the emulation of its component peoples and 
 states. 
 
 </ it has The constitution is likewise the articulation of the body 
 
 wh various politic. Every office and every political assembly is a par- 
 funcdons. ticular member with its own proper functions. An office is 
 not like part of a machine, it has not to exert merely 
 mechanical activities which always remain the same, like 
 the wheels and spindles in a factory, which always do the 
 same thing in the same way. Its functions have a spiritual 
 character, and vary on particular occasions according to the 
 needs of public life, which they have to satisfy : they serve 
 life, and are themselves living. Where an office becomes 
 lifeless, sinks into unthinking formalism, and becomes like 
 a machine, there the office itself is ruined, and the State, 
 by becoming a machine, inevitably falls. 
 
 Not only the official, but the office itself has a psychical 
 (The spirit significance, it is animated by a soul. An office has a 
 
 of office.) . _ 
 
 character and a spirit which in its turn influences the person 
 who acts in it. Even a very ordinary man when elected to 
 the Roman consulship had his character elevated and his 
 natural vigour increased by the dignity, majesty, and power 
 of his office. The office of judge is so sacred, so con- 
 secrated to justice, that even a weakling when appointed to 
 it has his mind ennobled and his determination aroused to 
 maintain the right. The spirit of the office cannot indeed 
 alter the nature of the official, it is not powerful enough so 
 
Chap. I.] WHA T THE STA TE IMPLIES. 2 1 
 
 to permeate the character that the individual always fully 
 represents the significance of his office ; yet every official 
 experiences some psychical influence on his spirit and dis- 
 position, and if he has an impressionable mind it cannot 
 escape him that his office itself has a soul which, for the 
 present, is in a close and immediate connection with his 
 own individuality, but which is different from him, and 
 more enduring. 
 
 Nations and States have a development and a growth of (c) it de- 
 their own. The periods of national and political history are grows. an< 
 to be measured by great eras which far surpass the age of 
 individual men ; the latter may be measured by years and 
 tens of years, the former extend beyond centuries. Every 
 period again has its special character, and the collective 
 history of a nation and state is a coherent whole. The 
 childhood of nations has a different character from their 
 maturity, and every statesman is compelled to consider the 
 time of life in which his State happens to be. ' There is a 
 time for everything.' 
 
 Along with this affinity to the development of natural Yet is no 
 
 ., . . , . -- r mere natural 
 
 organism there is an important difference. The life of growth, 
 plants, animals, and men grows and decays in regular 
 periods and stages, but the development of States and 
 political institutions is not always as regular. The influence 
 of human free will or of external fate frequently produces 
 considerable deviations, checking, hastening, sometimes re- 
 versing the normal movement, according as it is broken in 
 upon by great and strong individuals, or by the wild passions 
 of the nation itself. These deviations are indeed neither so 
 numerous, nor are they commonly so important as to in- 
 validate the general rule. On the contrary, they are much 
 rarer and generally much slighter than is fancied by those 
 whose opinions are determined by the immediate impres- 
 sions of contemporary events. Yet they are weighty enough 
 to show that the idea of a mere natural growth of the State 
 is one-sided and unsatisfactory, and that we must allow full 
 play even here to the free action of individuals. 
 
22 
 
 THE CONCEPTION OF THE STATE. 
 
 [Book I. 
 
 6. The 
 State is a 
 moral and 
 spiritual 
 organism. 
 
 The State 
 has a per- 
 sonality. 
 
 Whilst history explains the organic nature of> the State, 
 we learn from it at the same time that the State does not 
 stand on the same grade with the lower organisms of plants 
 and animals, but is of a higher kind ; we learn that it is a 
 moral and spiritual organism, a great body which is capable 
 of taking up into itself the feelings and thoughts of the 
 nation, of uttering them in laws, and realising them in acts ; 
 we are informed of moral qualities and of the character of 
 each State. History ascribes to the State a personality 
 which, having spirit and body, possesses and manifests a 
 will of its own. 
 
 The glory and honour of the State have always elevated 
 the heart of its sons, and animated them to sacrifices. For 
 freedom and independence, for the rights of the State, the 
 noblest and best have in all times and in all nations ex- 
 pended their goods and their lives. To extend the reputa- 
 tion and the power of the State, to further its welfare and 
 its happiness, has universally been regarded as one of the 
 most honourable duties of gifted men. The joys and 
 sorrows of the State have always been shared by all its 
 citizens. The whole great idea of Fatherland and love of 
 country would be inconceivable if the State did not possess 
 this high moral and personal character. 
 
 The recognition of the personality of the State is thus 
 not less indispensable for Public Law (Sfatsrech?) than for 
 International Law ( Volkerrecht]. 
 
 A person in the juridical sense is a being to whom we 
 can ascribe a legal will (Rechtswille), who can acquire, 
 create and possess rights. In the realm of public law 
 this conception is as significant as in the realm of private 
 law. The State is par excellence a person in the sense of 
 public law (pffentlich-rechtliche Person). The purpose of 
 the whole constitution is to enable the person of the State 
 to express and realise its will (Statswille\ which is different 
 from the individual wills of all individuals, and different 
 from the sum of them. 
 
 The personality of the State is ; however, only recognised 
 
Chap. I.] WHA T THE ' STA TE IMPLIES. 2 3 
 
 by free people, and only in the civilised nation-state has it 
 attained to full efficacy. In the earlier stages of politics 
 only the prince is prominent ; he alone is a person, and the 
 State is merely the realm of his personal rule. 
 
 The same is true with regard to the masculine character 7 . The 
 of the modern State. This becomes first apparent in con- masclifme. 
 trast with the feminine character of the Church. A religious 
 community may have all the other characteristics of a 
 political community, yet she does not wish to be a State, 
 and is not a State, just because she does not consciously 
 rule herself like a man, and act freely in her external life, 
 but wishes only to serve God and perform her religious 
 duties. To put together the result of this historical con- 
 sideration, the general conception of the State may be 
 determined as follows : the State is a combination or 
 association (Gesammtheif) of men, in the form of govern- 
 ment and governed, on a definite territory, united together 
 into a moral organised masculine personality ; or, more 
 shortly-ythe State is the politically organised national person-^J 
 of a definite country. 
 
 Notes. i. It is not without interest to observe how different peoples Different 
 have named the State. The Greeks still signified city and state by the ^state* 
 same word, 7ro\ts a sign that their conception of the State was based 
 on the city, and was limited by the city point of view. The Roman 
 expression, civitas, refers likewise to the citizenship of a city as the 
 nucleus of the State, but has more of a personal character than the 
 Greek word, and is better adapted to take up into itself greater masses 
 of people. It speaks too for the high significance of the State, that the 
 expression ' civilisation ' is derived from the name of the State, and 
 practically coincides with the extension and realisation of the State. 
 
 In a certain way the other Roman name, res publica, stands still 
 higher, in so, far as it contains not merely a reference to the citizenship 
 of a city, but to a people (res populi}, and a regard to the people's 
 welfare. In the sense of the ancients the expression Republic does not 
 exclude Monarchy but does not apply to despotic governments. [Cp. 
 Engl. ' Commonwealth.'] 
 
 In modern languages the expression ' State ' is the prevailing one, not 
 only in the Romance but in the Teutonic languages (stato, etat> Staf). 
 In itself completely indifferent (it signifies originally any condition, and 
 
24 THE CONCEPTION OF THE STATE. 
 
 at first the fuller expression status reipublicae was required in order to 
 bring out a more exact reference to the State), this term in course of 
 time has become the most universal denomination of the State, un- 
 ambiguous and needing no qualification. Although ' the established,' 
 * what stands,' is brought into prominence, this connexion is put aside, 
 and the word signifies not the existing arrangement and constitution of 
 the State (iroXireia), but the State which can outlive even a complete 
 transformation of the form of government. 
 
 All other modern expressions have only limited validity ; e.g. the 
 proud word Reich only applies to great states under a monarchical 
 organisation, and suggests likewise a combination of several relatively 
 independent countries, like the Latin word imperium (Fr. and EngL 
 empire), in which at the same time there is an allusion to the imperial 
 (kaiscrlick) rule. More narrow is the sense of the word ' country ' 
 (Land), which primarily signifies the external territory of the State 
 (and of a state that is not broken up into separate parts), but secondarily 
 is applied to the State itself which has this territory. This expression 
 forms the natural counterpart to the Greek -noXis, since it bases the 
 State primarily on the country (Landschaft), while the other bases it on 
 the city. The fine word ' Fatherland ' is still narrower, by virtue of 
 its relation to the individual ; but at the same time it is elevated and 
 spiritualised by the reference to the personal connexion and transmission 
 of blood relationships in the country : in this word is expressed with 
 clearness and with feeling the whole love and devotion of the individual 
 citizen to the great and living whole to which he belongs with his 
 body, with whose existence his own is bound up, and for which to 
 sacrifice himself is the highest glory of man 1 . 
 
 2. In my Pyschological Studies on State and Church (Zurich, 1845) 
 the masculine character of the State has been more exactly worked out. 
 The French expression, L'etat cest I'homme, does not merely signify 
 ' the State is Man in general' (der Mensch im Groszen), but ' the State 
 is the man, the husband (der Mann] in general,' as the Church repre- 
 sents the womanly nature in general, the wife (die Frau\ 
 
 [It may be as well to note that in German the word Stat is masculine 
 and the word Kirche feminine !] 
 
 1 Cp. Eurip. Phoenissae 369-371 : 
 
 dX 
 
 HarpiSos tpav airavras. os 5' a\\ojs 
 Aoyoiai xaipei, rbv 8e vovv exetcr' %x fl ' 
 
 Schiller's William Tell : 
 
 ' Cleave to thy fatherland, thy country dear, 
 And with thy whole heart cling thou closely to it. 
 For rooted in thy country is thy strength ; 
 Away in yon strange world thou stand 'st alone.' 
 
CHAPTER II. 
 
 THE HUMAN IDEA OF THE STATE. THE 
 UNIVERSAL EMPIRE. 
 
 CAN we rest satisfied with such a conception of the State 
 as may be arrived at from a consideration of the various 
 actual states which have existed ? The historical school is 
 content to study the State as simply the body of this or that 
 particular nation. 
 
 Philosophy requires us to go deeper. We find in human The com- 
 
 , , , , , ,. , . . , mon nature 
 
 nature the tendency to, and the need for, political existence, of mankind 
 Aristotle long ago uttered the pregnant truth, ' Man is by nedof I* 16 
 nature a political animal' (avQpuiros (frvo-u iroXiriKov foW. g?ate. rsal 
 Pol. i. 2, 9). It is not any national peculiarity which 
 makes him require the State, and capable of it, but the 
 common nature of mankind. Further, in enquiring into 
 the organism of different States, we discover that the same 
 essential organs are to be found in very different nations. 
 There is everywhere to be recognised a common human 
 character, compared with which the special national forms 
 are only like variations on the same theme. Finally, the 
 conception of the nation is not fixed and determinate in 
 itself : it points with inner necessity to the higher unity of 
 mankind of which the nations are only members. How 
 then could the State be based upon the nation without 
 regard to a higher unity? and if mankind is in truth a 
 whole, if it is animated by a common spirit, how can it 
 avoid striving after the embodiment of its own proper 
 essence, i. e. seeking to become a State ? 
 
26 THE CONCEPTION OF THE STATE. [Book I. 
 
 Merely national States have thus only a relative truth 
 and significance. The philosopher cannot find in them the 
 fulfilment of the highest idea of the State. To him the 
 State is a human organism, a human person ; but if so, the 
 human spirit which lives in it must also have a human 
 body, for spirit and body belong to one another, and 
 between them make up the person. In a body which is 
 not organised and human the spirit of man cannot truly 
 live. The body politic must therefore imitate the body 
 natural of man. The perfect State is, as it were, the visible 
 body of Humanity. The universal State or universal Empire 
 ( WeltrcicK) is the ideal of human progress. 
 
 Man as an individual, mankind as a whole, are" the 
 original and permanent antithesis of creation. On this, 
 in the last resort, depends the distinction between Private 
 and Public Law. It is true the common consciousness of 
 mankind is still confusedly dreaming : it has not yet awaked 
 to full clearness, nor advanced to a unity of will. Mankind 
 * has therefore not yet been able to evolve its organic exist- 
 ence. It will take many centuries to realise the Universal 
 State. But the longing for such an organised community 
 of all nations has already revealed itself from time to time 
 in the previous history of the world. Civilised Europe has 
 already fixed her eye more firmly on this high aim. 
 Attempts It is true that all historical attempts to realise the universal 
 
 this universal State have, in the end, failed. It does not therefore follow 
 past! in ' that the end is unattainable. The Christian Church cherishes 
 the hope of one day including the whole of mankind, and, 
 though this hope has not yet been fulfilled, its fulfilment is 
 not therefore impossible. The Christian Church cannot 
 give up the belief that it will become universal, and human 
 politics cannot give up the effort to organise the whole of 
 humanity. The idea of the universal State (WeltreicK) 
 corresponds to the idea of the universal Church. 
 
 History itself, if studied without prejudice, points out 
 clearly enough the way which leads to this end, and warns 
 us at the same time against the erroneous paths into which 
 
Chap. II.] THE UNIVERSAL STATE. 27 
 
 even political genius has strayed in attempting with the 
 rashness of zeal to realise the universal State prematurely. 
 
 Since first a human consciousness of the State arose in 
 Europe, each age has made the attempt in its own way. 
 
 First, Alexander the Great. In the marriage festival of i. The Em- 
 a hundred couples at Susa, Alexander gave the world a Alexander 
 symbol of his idea l . He wished to wed the manly spirit of the Great " 
 the Greeks with the feminine quickness and susceptibility 
 of the Asiatics. The East and the West were to be united 
 and mingled together, and from the mingling of both, as in 
 a cup of love, the new mankind was to issue, which should 
 find its satisfaction in the realisation of a great divine and 
 human empire. The culture of the following centuries was 
 at all events determined by Alexander in this way, and the 
 Greek seeds of civilisation grew luxuriantly in the new soil 
 of Asia. But this first brilliant attempt to establish a world- 
 state did not endure, and was hopelessly wrecked with the 
 death of Alexander. This was not merely due to the sad 
 fate which snatched away the founder of the new universal * 
 state in the bloom of his youth, before he had established 
 uniform institutions and taken care for the future. The 
 mingling of diverse elements was unnatural, the leading idea 
 itself was not clear. 
 
 Political ideas were confused by the mixture : the free 
 human view which the Greeks took of the State could not 
 be united with the religious regard of the Persians for a 
 divine kingdom. The Macedonian monarchy could not at 
 
 1 ' Accepto deinde imperio regem se terrarum omnium ac mundi 
 appellari jussit/ Justin, xii. 16. 
 
 Laurent, Hist, du droit des gens, ii. 5, 262 : [* Une barriere qui 
 paraissait insurmontable separait les Grecs des etrangers. Alexandre 
 s'eleva le premier au-dessus des prejuges de sa nation. Superieur au phi- 
 losophe, son maitre, qui lui conseillait de traiter les Hellenes comme des 
 amis et les Barbares comme des brutes, il concut la pensee de les unir, 
 en abolissant toute difference entre les vainqueurs et les vaincus ... II 
 epousa la fille de Darius et maria ses amis avec les Persanes les plus 
 illustres : la ceremonie se fit a la maniere orientale. On celebra, par 
 une fete magnifique, les noces de tons les Mace'doniens qui avaient 
 epotise des Asiatiques : leurs noms, inscrits sur les registres, se mon- 
 taient a plus de dix mille.'J 
 
28 THE CONCEPTION OF THE STATE. [Book I. 
 
 the same time be an Asiatic theocracy. The Orientals 
 willingly believed that Alexander was the son of the most 
 high God ; the Europeans were disgusted by his pretensions 
 to divine honours. 
 
 And races were confused. Hellenic science and culture 
 freed the Oriental world from the limitations of its religious 
 and political bonds ; but their effect was rather to break up 
 the old than to create a new world. The deification of a 
 man drove out reverence for the old gods : European civi- 
 lisation became dissolute luxury, and helped to complete 
 the degeneracy of the East. 
 
 2 . The The attempt of the Romans to attain a universal dominion 
 Empire. had a more enduring result. The Roman Empire was a 
 
 universal empire. The whole Roman people felt itself 
 called to extend its idea of the State over the earth, and 
 to subject all the nations to the Roman supremacy. The 
 manly power and iron force of the Roman character over- 
 came the numerous peoples who dared to oppose Rome's 
 * victorious career, and already the Roman State with its 
 legal institution as strong as rock had been built upon firm 
 foundations in three continents. The greatest of the Romans, 
 Julius Caesar, left to posterity the imperial idea (Kaiseridee) 
 as an inheritance, and in it he has founded an authority 
 which transcends national limits and embraces the world. 
 
 Even the effort of the Romans has been judged at the 
 bar of universal history. It was not,, like that of Alexander, 
 based upon a mixture of peoples, but upon the higher nature 
 of one people which sought to stamp its national character 
 upon mankind, to Romanise the world. That was its crime. 
 No people is great enough to include mankind, and to stifle 
 other peoples in its embrace. The Roman universal State 
 was wrecked by the resistance of the Teutons in the fresh- 
 ness of their youth. It could not conquer the Germans ; 
 and after centuries of struggle, it succumbed to them. 
 
 3. The The idea of the universal State has since then never 
 
 Holy 
 
 Roman shone with such splendour on the political horizon, but has 
 never altogether set. The middle ages, with their com- 
 
Chap. II.] THE UNIVERSAL STATE. 29 
 
 bination of Romance and Teutonic elements, again at- 
 tempted in their way to realise it, first in the Frankish 
 monarchy and secondly in the Roman-German Empire 
 on a more modest scale it -is true, but not without having 
 made important progress in the knowledge of truth. There 
 was no longer to be one supreme and absolute dominion 
 ruling equally the whole life of the community. Christi- 
 anity had in the meantime revealed the great opposition 
 between State and Church, so full of consequences for 
 mankind. The State gave up the claim to rule conscience 
 by its laws ; it recognised that beside it there was a religious 
 community with its own principle of life, and likewise a 
 visible body different from itself, and essentially independent. 
 This was a limit preventing it from exercising omnipotent 
 sway. It was compelled to hand over religious life to 
 the guidance of the Church. It never indeed attained 
 to full clearness with regard to its relation to the Church, 
 but the freedom of religious belief and the reverence for 
 God were saved from the arbitrary will of the temporal 
 ruler. The authority of Christianity depended not on 
 him. 
 
 Further, the Christian universal empire was no longer to 
 devour and annihilate the various nations, but to assure to 
 all of them peace and justice. The mediaeval Roman 
 emperor was not absolute lord over all nations, but the just 
 protector of their rights and freedom. The imperial idea 
 was thus purified and became the inspiration of a statesman 
 like Frederick II 2 and of a thinker like Dante 3 . The 
 mediaeval empire embraced a great number of essentially 
 independent States, united indeed in a common order and 
 formally subject to the Emperor, but independent in all 
 
 2 Frederici Constit. Regni Siculi, i. 30 : ' Oportet Caesarem fore 
 justitiae patrem et nlium, dominum et ministrnm ; patrem et dominum 
 in edendo justitiam et editam conservando : sic et in venerando justitiam 
 sit rilius et in ipsius copiam ministrando minister.' 
 
 3 His work, De Monarchia, glorifies the empire ; and . in his Divine 
 Comedy he reverences the Emperor as the head of the divine ordering 
 of the world. Cp. Wegele, Dante's Leben und IVerke, Jena, 1852. 
 
30 THE CONCEPTION OF THE STATE. [Book I. 
 
 essential matters, and living in their own way. Even the 
 diversity of peoples and races found favour and protection. 
 But what in itself was an advance in the development of the 
 Universal State led to its dissolution, because pursued in 
 a too one-sided manner. The tendency to separation was 
 stronger than the impulse to unity. The difference of 
 nationalities, the opposition of languages separated France 
 and Germany and tore into two parts the Frankish universal 
 monarchy. The slender powers of the German king and 
 Roman emperor could not oppose the rise of princes and 
 local lords. The central institution had no central basis, j 
 and so the centrifugal forces were too strong for it, and the 
 empire went to pieces ; the attempt failed again, but left 
 important lessons to succeeding generations. 
 
 4 . The In the present century the Emperor Napoleon I again 
 
 Napoleon i. attempted to revive the idea which for a time had been 
 neglected. He avoided the error of the middle ages, and 
 took precautions for a strong and active central power, but 
 he did not retain the true advances of the middle ages with 
 sufficient care. He paid too little regard to foreign nationa- 
 lities, and thus went back on the course which the Romans 
 had previously adopted, although acting with more modera- 
 tion than they. He wished to organise Europe as a vast 
 international State, with individual States as its members. 
 The imperial power was to belong to the French nation, 
 which was to take the place of head in the great family of 
 nations. He hoped to attain in one generation what the 
 Romans had taken centuries to do. His plan failed. Not 
 this time because of the resistance of the German people. 
 They submitted reluctantly to the French supremacy ; but 
 despairing of their own old empire, and discontented with 
 the circumstances of their fatherland, they appeared to 
 submit to Napoleon's arrangements. Only the two great 
 German States, aspiring Prussia and Austria with its com- 
 plexity of countries and peoples, the former anxious about 
 its very existence, the latter feeling itself an imperial State, 
 sought in repeated wars to resist the supremacy of France ; 
 
Chap. II.] THE UNIVERSAL STATE. 31 
 
 but they too were conquered by superior statesmen and 
 generals. But Napoleon failed to overcome the resistance 
 of the English, in whom a great and historical national sen- 
 timent was united with Teutonic ideas of freedom : and the 
 still half barbarian Russians withdrew to their steppes, de- 
 feated but not subdued. The French did not hold out in 
 
 ^*l .X ff^ 
 
 misfortune when united Europe turned upon them. Thus y^/ 
 the Napoleonic idea failed of fulfilment like the Roman 
 before it, and for similar reasons. The remaining nations \ 
 felt themselves threatened by the universal monarchy with- 
 out being assured or contented by the new government of 
 the world, and the French nation was not powerful enough 
 to keep them permanently subject. 
 
 Meanwhile unconquerable time itself works on unceas- Tendencies 
 
 ,,.... . , towards a 
 
 mgly, bringing the nations nearer to one another, and common 
 awakening the universal consciousness of the community of ofluTmanity. 
 mankind ; and this is the natural preparation for a common 
 organisation of the world. It is no mere matter of accident 
 that modern discoveries and numerous new means of com- 
 munication altogether serve this end, that the whole science 
 of modern times follows this impulse and belongs in the 
 first place to humanity, and only in a subordinate way to 
 particular peoples, while a number of hindrances and 
 barriers that lay between nations are disappearing. Even 
 at the present day all Europe feels every disturbance in any 
 particular State as an evil in which she has to suffer, and what 
 happens at her extremest limits immediately awakens uni- 
 versal interest. The spirit of Europe already turns its ! 
 regards to the circuit of the globe, and the Aryan race feels 
 itself called to manage the world. 
 
 We have not yet got so far : at the present day it is not 
 so much will and power that are wanting as spiritual 
 maturity. The members of the European family of nations 
 know their superiority over other nations well enough, but 
 they have not yet come to a clear understanding among 
 themselves and about themselves. A definite result is .not 
 possible until the enlightening word of knowledge has been 
 
32 THE CONCEPTION OF THE STATE. [Book l. 
 
 uttered about this and about the nature of humanity, and 
 until the nations are ready to hear it. 
 
 Till then, the universal empire will be an idea after which 
 many strive, which none can fulfil. But as an idea of the 
 future the general theory of the State cannot overlook it. 
 Only in the universal empire will the true human State be 
 revealed, and in it international law will attain a higher 
 form and an assured existence. To the universal empire the 
 particular states are related, as the nations to humanity. 
 Particular states are members of the universal empire and 
 attain in it their completion and their full satisfaction. The 
 purpose of the universal State is not to break up particular 
 states and oppress nations, but better to secure the peace of 
 the former and the freedom of the latter. The highest con- 
 ception of the State which however has not yet been 
 realised is thus : The State is humanity organised, but 
 humanity as masculine, not as feminine : the State is the 
 man. 
 
 (i) Objec- Notes. T. A man of genius and a lover of truth, the Vaudois 
 
 V?net Vinet (in L? Individtialisme et le Socialisme} objected to the idea of the 
 
 Universal State, that it would absorb all the life of humanity, do away 
 with the principle of individual liberty, and exercise an improper 
 temporal rule over conscience and knowledge. This objection compels 
 us to limit this idea more exactly. 
 
 Answers First of all, it must be recognized, that the State is not the sole 
 
 t( ? . the ^ e human community, is not the only form in which humanity embodies 
 itself. The Church, as visible and on earth, is also a community and 
 an embodiment of humanity. This however is a recognition that the 
 political rule of the State does not determine the religious life of man, 
 nor endanger the freedom of conscience and the faith of the individual. 
 
 Secondly, it in no way follows from the human character of the State, 
 that the State has a complete dominion over the individual. In every 
 single man may be distinguished two natures, the one individual, the 
 other common to humanity. The individual with his life does not 
 belong exclusively nor altogether either to the community with other 
 individuals or to the earth, nor therefore to the State as a com- 
 munity of life upon earth. The State is based upon human nature,l 
 not in so far as this is variously manifested in millions of individuals,! 
 but. in so far as the common nature of humanity appears in one being, > 
 and the authority of the State does not therefore extend further than is 
 
Chap. II.] THE UNIVERSAL STATE. 33 
 
 required by the common interests and the association of mankind. The 
 State itself, when it wrongly trespasses on the domain of Individ;.' ' 
 freedom, is not able to enforce its rule, for it cannot chain the individual 
 spirit, it cannot kill the individual soul. 
 
 2. Quite lately Laurent also has declared himself against the idea of (?) Objec- 
 the Universal State (Histoirt du droit des gens , i. p. 39 ff.). His reasons Laurent, 
 are as follows : 
 
 (a} The world-state would be universal monarchy, and this would be 
 incompatible with the sovereignty of states. 
 
 (ft) There is a difference between individuals as natural and nations 
 as artificial persons. The former are defective and are moved by bad 
 passions ; the latter are perfect and moral beings. That the former 
 may live together, there is needed the incessant activity of the power of 
 the State ; that the latter may live together, this is not needed, or only 
 exceptionally. 
 
 (c) The individual is weak, and must submit to the power of the 
 State. States are strong, and therefore will not yield to a higher power. 
 
 (d) If the Universal State were powerful enough to force the States \ 
 against their will, this superiority would oppress justice and freedom ; 
 for where resistance is impossible, freedom cannot exist. 
 
 (e) For the development of the individual the national State is 
 necessary, but it is sufficient. The world-state is not required for the 
 welfare of individuals, and would be dangerous to the development of 
 nations. 
 
 These reasons of my honoured friend have not convinced me : I Answers to 
 should answer them as follows : jections." 
 
 (a) The Universal State may be thought of with a monarchical head 
 (empire, Kaiserthuni) but also as republic, whether a directory (I am 
 thinking of the European pentarchy) or a confederation or union of 
 States. In no case need we think of the universal government having 
 absolute power, and the continued existence of national States makes a 
 distinction of spheres (Competenzeri) necessary. There is no reason for 
 extending the sphere of the latter beyond the common affairs of the 
 world, e.g. maintaining the peace of the world, protecting its com- 
 merce, and especially what we consider the province of international 
 law. We may find a model in the form of a federal State (fiundesstat}, 
 or a federal empire (Bundesreich\ in which common federal matters 
 are cared for by a common legislature, administration, and judicature, 
 while in matters affecting each country the sovereignty of particular 
 States is still recognised. 
 
 (b) Nations have their defects and their passions like individuals, 
 and if there were no international law, those which are weak and help- 
 less would be an easy prey to the strong and ambitious. The basis of 
 international law is also the basis of the Universal State. 
 
 D 
 
34 THE CONCEPTION OF THE STATE. 
 
 (c) The strength of national States, even as against a universal 
 empire, is the best guarantee that the former will not be oppressed by 
 the latter ; but the greatest national State is not strong enough, if it is 
 in the wrong, to engage alone in a struggle with the world. War will 
 only be possible if groups of States or parties oppose one another. In 
 all other cases war will become the execution of the judicial sentences 
 of the universal tribunals. The best political arrangements cannot 
 completely ensure us against civil war, and we must be content if a 
 stronger organisation of international law makes war between States 
 rarer. Justice never attains its ideal, but in the best cases approximates 
 to it. 
 
 (d) The universal empire would be in every way less powerful in 
 comparison with national States than a national State in comparison 
 with its citizens. And yet the freedom of the citizens is not threatened 
 but protected by the organisation of the State. 
 
 (e) The State does not satisfy all individual needs. There are cos- 
 mopolitan interests both spiritual and material (the science, literature, 
 art and trade of the world) which can only find a complete satisfaction 
 in a universal empire. The history of Europe and America shows us 
 how little in our days the rights of entire peoples are secured. 
 
 Laurent bases international law on the unity of the human race, and 
 no other basis can be found for it ; but he recognises this unity only as 
 an internal one. In my opinion logic and psychology both require 
 that this internal power should manifest itself outwardly. If mankind 
 is internally one being, in its complete development it must reveal itself 
 as one person. The organisation of humanity is the Universal State. 
 
 I know that the most of my contemporaries regard this idea as a 
 dream; but that cannot keep me from expressing and defending my 
 conviction. Later generations, perhaps centuries hence, will finally 
 decide the question. 
 
CHAPTER III. 
 
 HISTORY OF THE DEVELOPMENT OF IDEA OF 
 THE STATE. 
 
 I. THE ANCIENT WORLD. 
 A. The Hellenic idea of the State, 
 
 POLITICAL science does not properly begin till we come 
 to the Greeks. As it was in Greece that the self-conscious- 
 ness of man first unfolded itself in art and philosophy, so it 
 was in politics. 
 
 Small as was the territory, and limited as was the power The poii- 
 of the Greek State, the principles upon which the Greek ofThe deas 
 political conceptions were based were broad and compre- Greeks - 
 hensive, and the political idea expressed by Greek thinkers 
 is lofty and noble. They base the State upon human 
 nature, and hold that only in the State can man attain his 
 perfection and find true satisfaction. The State is for them ) 
 the moral order of the world in which human nature fulfils ( 
 its end. 
 
 Plato (Rep. v. p. 462) utters the great saying : 'The best Plato. 
 State is that which approaches most nearly to the condition 
 of the individual. If a part of the body suffers, the whole 
 body feels the hurt and sympathises altogether with 'the 
 part affected.' In this he has already recognised the or- * 
 
 ganic and even the human-organic nature of the State, 
 although without following out in its consequences this 
 pregnant thought. 
 
 D*. 
 
36 THE CONCEPTION OF THE STATE. [Book I. 
 
 The State, according to Plato, is the highest revelation of 
 human virtue, the harmonious manifestation of the powers 
 1 of the human soul, humanity perfected. As the soul of 
 man consists of a rational, a spirited, and a desiring ele- 
 ment, and as reason and spirit ought to rule the desires, so 
 v in\ the Platonic ideal, the wise ought to rule, the brave 
 warriors should protect the community, and the classes 
 which are occupied with material acquisition and bodily 
 work should obey the two higher orders. In the body 
 politic justice requires that each part should do its own 
 work. (Ref.\v. pp. 428-33.) 
 
 Aristotle. Aristotle, for whose political philosophy our 'admiration 
 
 rises, the more we consider the works of his successors, is 
 less guided by imagination than Plato, examines reality 
 more carefully and recognises more acutely the needs of 
 man. Plato cuts off from family lite the ruling classes of 
 the philosophers and the guardians in ord^r that they may 
 live completely for the State, a'nd demands for them a 
 community of wives and property. Aristotle, on tfie con- 
 trary, wishes to maintain the great institutions of marriage, 
 the family and private property. He declares* the State to 
 be ( the association of clans and village-communities in a 
 complete and self-sufficing life V He says that ' man is by 
 nature a political animal ' and he considers the State as a 
 product of human nature. ' The State comes into being 
 for the sake of mere life, but exists (or continues to exist) 
 for the sake of the good life 2 .' 
 
 In this idea (or ideal) of the State are combined and 
 mingled all the efforts of the Greeks in religion and in law, 
 in morals and social life, in art and science, in the acquisi 
 tion and management of wealth, in trade and industry. 
 The individual requires the State to give him a legal 
 existence : apart from the State he has neither safety nor 
 
 \ 
 
 1 Arist. Pol. iii. 9. 14, I28ob. 40: iruXts 5* 77 yevuv KCLL KCU/J.UV 
 Koivavia 077? rsXtias KOI airapKovs. Cp. iii. I. 12, 1275 b. 20. 
 
 2 Arist. Pol. i. 2. 8, r2<;2b. 30: 77 TTU\IS . . . ^ivo^vrj plv ovv rov 
 TIV V(KCV, ovaa 8e rov v ^TJV. 
 
Chap. III.] THE ANCIENT WORLD. 37 
 
 freedom. The barbarian is a natural enemy, and conquered 
 enemies become slaves, who are excluded from the political 
 community, and are therefore thrust down into a degraded 
 and ignoble position. 
 
 The Hellenic State, tike the ancient -State in general, Defects of 
 because it was considered all-powerful, actually possessed idea of the 
 too much power. It wa% all in all. The citizen was Too^much 
 nothing, except as a member of the State. His whole S^ed^o 
 existence depended on and was subject to the State. The il - 
 Athenians indeed possessed and exercised intellectual free- 
 dom, but that was only because the Athenian State valued 
 freedom in general highly, not b.ecause it recognised the 
 rights of man. This same freest of states allowed Socrates 
 to be executed, and thought it was justified in doing so. 
 The independence of the family, home-life, education, even 
 conjugal fidelity, were in no way secure from'tate inter- 
 ference ; still less of course the private property of the 
 citizens. The State meddled in everything, and knew 
 neither moral nor legal limits to its power. It disposed 
 of tj^e bodies, and even of the talents of its members. It 
 co'mpelled men to accept office as well as to render military 
 service. The Individual must first be dead in the State 
 before he could, by means f the State, be born again to 
 a free and noble life. 'The absolute power of the State, Limitations 
 apart from the influence of ancient customs, had almost no lute power, 
 other limits than the following : In the first place, the 
 citizens themselves had a share in the exercise of this 
 power, and lest the despotism of the demos might become 
 injurious to themselves also, they avoided the extreme 
 consequences of political communism. In the second 
 place, insignificant matters only supplied small material for 
 their passions to work upon, and they were compelled to 
 pay regard to their neighbours. The Greek States were 
 moreover only composed of fragments of the Hellenic 
 people and sub-races of them. They did not rise much 
 beyond mere city-communes (Stadtgemeinde). The lofty 
 idea had thus only a humble form ; although referring to 
 
38 THE CONCEPTION OF THE STATE. [Book I. 
 
 mankind, it could only obtain a childish expression in the 
 narrow limits of a mountain valley or a tract of sea-shore. 
 
 The ideal omnipotence and actual impotence of the State 
 are thus closely connected ; they are the two chief defects 
 of the Hellenic conception of the State, which is in other 
 respects most worthy, true to human nature, and fruitful in 
 results. 
 
 B. The Roman idea of the State. 
 
 The Romans had a greater genius for Law and Politics 
 than any other people of classical antiquity, and this more 
 by their moral character than by their intellect. They had 
 therefore a greater influence on the world than the Greeks. 
 
 influence of At first sight the Roman idea of the State is closely 
 e s ' connected with the Greek. Cicero, in his political writings, 
 has Athenian models constantly before his eyes. The 
 Roman jurists, when explaining law and the State in 
 general, follow the Greek philosophers, especially the 
 Stoics. 
 
 Cicero declares the State to be the highest product of 
 human power (virtus\ and says that there is nothing in 
 which human excellence comes nearer the will of the gods 
 than in the founding and maintenance of States 3 . Occa- 
 sionally he too compares the State to the individual, and 
 the head of the State to the spirit which rules the body 4 . 
 
 Differences But in some essential particulars the Roman conception of 
 
 Greek idea, the State is different from the Greek idea. 
 
 (i) Law The Romans^ first dijrtinguishedja^ and 
 
 from n mora- e g ave ^ a definite form, and thus they brought ^outTmore 
 distinctly the legal nature (Rechtsnatur) of the State. 
 Thereby they limited JtheJStat_e, and gave it greater firm- 
 
 3 Cicero, de Rep. i. 7 : ' Neque est ulla res, in qua propius ad Deorum 
 numen virtus accedat hum ana, quam civitates aut condere novas aut 
 conservare jam conditas.' 
 
 * Cicero, de Rep. iii. 25 : ' Sic regum, sic imperatorum, sic magistra- 
 tuum, sic patrum, sic populorum imperia civibus sociisque praesunt, ut 
 corporibus animus.' 
 
Chap. III.] THE ANCIENT WORLD. 39 
 
 ness and power. It no longer summed up for them the 
 ethical ordering of the world, but was primarily a common 
 legal organisation (gemeinsame Rechtsordnung}. The Romans 
 left very much to social customs and to the religious nature 
 of man. The Roman family was more free as against the 
 State. Private property and private rights were in general 
 better protected against the arbitrary exercise even of public 
 authority. Of course they too made the welfare of the 
 State the highest law (salus populi suprema lex). They 
 arranged even the worship of the gods from a political 
 point of view. No one could resist the State if it uttered 
 its will. But the Roman State limited itself; it restricted 
 the province of its own power and its own action. 
 
 Further, the Romans recognised the conception of the ( 2 ) The con - 
 
 ception of 
 
 People, and brought the constitution into an organic con- the People 
 nexion with the People. They declared the State to be the 
 People organised, and declared the will of the People to be 
 the source of all law 5 . The Roman State was thus not a 
 mere commune (Gemeinde)^ it raised itself to a national 
 State (res publica). 
 
 Besides, the Roman State was destined to embrace the ( 3 ) Tendency 
 world. Through all Roman , history runs this tendency Empire. 6 "' 
 to universal dominion ; the national jus civile was supple- 
 mented by the jus gentium. The eternal city, the urbs^ 
 became the capital of the world, orbis. The imperium of 
 the Roman magistrate became imperium mundi, the Roman 
 senate became a senate of all peoples and their kings. The 
 majesty of the Roman People culminated in the majesty of 
 the imperial power. The history of Rome, according to 
 the proud expression of Florus", became the history of 
 mankind. This effort gave the Roman idea of the State 
 
 5 Cicero, de Rep. i. 25 : c Est igitur, inquit (Scipio) Africanus, res 
 publica res populi ; populus autem non omnis hominum coetus quoquo 
 modo congregatus, sed coetus multitudinis juris consensu et utilitatis 
 communione sociatus.' i. 26 : ' Civitas est constitutio populi? Gaius, 
 Inst. i. i : ' Nam quod quisque populus ipse sibi jus constituit, id 
 ipsius proprium civitatis est, vocaturque jus civile/ 
 
 a [Florus Prooem. ' Non unius populi sed generis humani facta.'] 
 
40 THE CONCEPTION OF THE STATE. 
 
 an impetus which left the Greek States far behind, and a 
 greatness before which they were compelled to bow. It 
 was not an illusion but a reality which ruled the ancient 
 world, and which only the Germans in the West and the 
 Persians in the East had the courage and the strength to 
 resist. 
 
CHAPTER IV. 
 
 II. THE MIDDLE AGE. 
 
 THE two new forces which partly transformed and partly 
 destroyed the universal empire of Rome were Christianity 
 and the Teutonic race. 
 
 A. Christianity. 
 
 The Christian religion extended its power over the minds Attitude of 
 of men, denying alike the authority of the Jewish State and church 1 to 
 the Roman Empire. Its founder was not a prince of this th 
 world. The ancient State persecuted him and his disciples 
 to the death. If the first Christians were not directly hos- 
 tile to the State, they cared for other things than political 
 organisation and political interests. When the Christian 
 world made its peace with the old Graeco-Roman State the 
 religious community the ' Church ' was already conscious 
 of her peculiar spiritual existence, and did not regard her- 
 self as a mere State institution. The new idea prevailed 
 that the whole religious life of the community, although 
 not altogether withdrawn from the care and influence 
 of the State, was yet essentially independent. The pro- 
 minently marked dualism of Church and State became 
 an essential limitation of the State, which was now only a 
 community of law and politics, no longer also of religion 
 and worship. 
 
 When the Church had received in the Pope a visible The Papacy, 
 head independent of the Emperor, and Rome for her 
 
42 THE CONCEPTION OF THE STATE. [Book I. 
 
 capital, the old Roman idea of universal dominion re- 
 appeared in a spiritual form. Although, even at the height 
 of her mediaeval reputation, the Church did not succeed in 
 abasing the State into a mere ecclesiastical institution, and 
 setting up one universal spiritual dominion of Rome ; yet 
 the idea of the State was for a long time far outshone by 
 her splendour. She could compare herself with the sun, 
 and the State with the moon, and as the ruler over men's 
 souls claimed precedence over the ruler of their bodies. 
 But the dualism of State and Church continued to be 
 recognised, and thus in the main point the independence of 
 Pope and the State was saved. The sword of the Emperor, as well as 
 that of the Pope, was derived from God, the supreme and 
 true ruler of the world 1 . 
 
 As far as the teaching of the Church prevailed, the idea 
 of the State again, as formerly in the East, received a 
 religious foundation ; the power of the State was derived 
 from God (Gottes!ehen\ but at the same time the spiritual 
 significance of the State was overlooked and misunder- 
 stood ; all spiritual life was to come from the Church, and 
 the State being regarded as merely bodily was put in an 
 inferior position. The elevation of the idea of the State 
 above the narrow limits of nationality was an insufficient 
 compensation. Not humanity, but Christendom was to be 
 organised and governed by it in outward things. The 
 Roman empire was so far renewed in mediaeval forms, but 
 was represented in a superior form by the Roman Church, 
 and in an inferior by the holy Roman Empire of the 
 German people. 
 
 B. The Teutons. 
 
 The power of The old Roman universal empire could not permanently 
 ls ' maintain itself against the Teutonic races. These warlike 
 
 1 Hincmari de Ordine Palatii, 5 : ' Duo sunt, quibus principaliter 
 mundus hie regitur : auctoritas sacra Pontificum et Regalis potestas.' 
 Sachsenspiegel, i. i : * Tvei svert lit got in ertrike to bescermene de 
 kristenheit. Deme pavese is gesat dat geistlike, deme kaisere dat wert- 
 like ' (God has given two swords for the government of Christendom : 
 to the pope the spiritual, to the emperor the temporal). 
 
Chap. IV.] THE MIDDLE AGES. 43 
 
 tribes forcibly wrested one province after another from 
 Roman rule; or it happened that the Roman provincials 
 or the emperors themselves called in to their aid the arms 
 of Teutonic princes, who thus in a peaceable manner 
 acquired territorial sovereignty (Landeshoheit]. During the 
 middle ages the Teutons ruled everywhere in the West. 
 They came under the Christian instruction of the Roman 
 Church and the influence of Roman civilisation ; but they 
 maintained themselves upon the thrones of princes, and in 
 the fortresses of the aristocracy. The sceptre and the 
 sword were in their hands. 
 
 The Teutons are not, like the Romans, an eminently The Teu- 
 political people ; it is with reluctance that the individual acter. 
 submits to the sovereignty of the whole body. Their 
 strong, confident and self-willed individuality interferes 
 with the common consciousness, and checks its power. 
 (Thus the Teuton stood in need of the political discipline 
 of the Roman.) But in spite of this the development of 
 the State in the world's history owes much to them. Above 
 all the Teutons broke the absolutism of the Roman State, 
 and they have won a place in all modern political institu- 
 tions for the freedom of persons, associations, and ' Estates ' 
 (Stdnde). Montesquieu said very truly, that the germs of 
 parliamentary constitutions are to be found in the forests 
 of Germany. In the primitive forms described by Tacitus a , 
 in which the Teutonic kings cooperated with the local 
 princes and other chiefs on the one side, and with the 
 great community of freemen on the other, we recognise 
 clearly the rude beginnings of the free representative govern- 
 ment, which later centuries produced. 
 
 The Teuton does not derive law, at least not directly, The idea of 
 from the will of the nation : he claims for himself an inborn rights. ua 
 right which the State must protect, but which it does not 
 create, and for which he is ready to fight against the whole 
 world, even against the authority of his own government. 
 He rejects strenuously the old idea that the State is all in 
 [Tac. Germ. c. n.] 
 
44 THE CONCEPT/ON OF THE STATE. [Book I. 
 
 all. The whole relation is reversed. To the Teuton in- 
 dividual freedom is the supreme thing. He is induced to 
 sacrifice a part of it to the State in order to keep the rest all 
 the more securely. 
 
 It is a necessary consequence of this character, that the 
 Teutonic idea of the State respects the independence of 
 private rights more decidedly than the Roman. The free- 
 dom of the person, the family, the association is thus more 
 assured and more extended than in the old Roman empire. 
 The rights of the State are thus limited by the rights of the 
 individual as well as by those of the Church. 
 Particu- A further consequence for Public Law is that the Teu- 
 
 larism 'in . 
 
 politics. tons in general admit no absolute power of the State, even 
 in matters affecting the community. The Roman concep- 
 tion of imperium is foreign to them. Before obeying they 
 wish to deliberate and vote. Their estates (Stdnde) are a 
 political power with which that of the king must be united 
 in order to make laws. Yet the idea of the State as a 
 collective person is still, as a rule, unintelligible to them. 
 They tend rather to break up the State into actual persons 
 or groups of persons. They understand it primarily as 
 embodied in the king or other princes, who are at the head 
 of the courts of justice, and of the assembly of the people, 
 in the chief of the hundred (Gau), the tithing (Zent\, and 
 the township (Volksgemeinde}. One set of persons some- 
 times strengthens and sometimes limits another ; thus the 
 whole organisation of the community, even in its parts, is 
 filled with the spirit of freedom. Unity is relatively weak, 
 but the independence of the parts is strong. 
 
 These alterations of the idea of the State in which we 
 
 recognise considerable advance showed themselves rather 
 
 in practice than in theory. The Teutons had no political 
 
 Surviving philosophy of their own. Science in the middle ages was 
 
 from an- at first in the hands of the Church, and was afterwards 
 
 determined by the traditions of Roman jurisprudence and 
 
 Greek philosophy. Even in the old tribal laws are to be 
 
 found reminiscences of this sort : e. g. in the laws of the 
 
Chap. IV.] THE MIDDLE AGES, 45 
 
 Visigoths, after the model of classical literature, the body 
 politic is compared with a man, the king with the head, and 
 the people with the members of the body 2 . But this was 
 only a borrowed rhetorical ornament without deeper sig- 
 nificance, and with no definite reference to the actual 
 mediaeval State. 
 
 In some other respects the idea of the State suffered 
 degradation, and that not merely because it was disparaged 
 by the Church. 
 
 The mediaeval State might be called a legal State (Rechts- Feudal Ui\v 
 stat\ but in a different sense from that of the Romans. It was 
 not the organisation of Public Law only : all its institutions 
 were interfused with elements of Private Law. Territorial 
 sovereignty was regarded as the hereditary property of a 
 family, and public duties were treated as burdens upon 
 land. The whole feudal law and the patrimonial State in 
 all its aspects suffer from this admixture Roman Public 
 Law only served as a starting-point. The feudal law of the 
 middle ages appeared to be the essential end of the me- 
 diaeval State, and the welfare of the people was neglected 
 for it. 
 
 The idea of the national State had perished, destroyed 
 by the breaking up of the national and political unity, by 
 the feudal system, by the conflicting claims of territories, 
 estates, and dynasties. What remained of the Roman 
 empire was rather an ideal international, than a political, 
 union of Western Christendom, and this union was held 
 together more by the authority of the Pope and the Roman 
 clergy than by the Empire. 
 
 On the whole the seeds of a freer and better develop- 
 ment of the State had been sown, but the idea of the State 
 
 2 Lex Visigothorum, ii. i. 4 : ' Bene Deus conditor rerum disponens 
 humani corporis formam, in sublime caput erexit, atque ex illo cunctas 
 membrorum fibras exoriri decrevit. Hinc est et peritorum medicorum 
 praecipua cura, ut ante capiti quam membris incipiant adhibere me- 
 delam. Sicque in Statu et negotiis plebium ordinatio dirigenda, ut dum 
 salus competens prospicitur Regum, fida valentibus teneatur salvatio 
 populoium.' 
 
46 THE CONCEPTION OF THE STATE. [Book I. 
 
 had in the middle ages become less precise and vigorous 
 than among the Romans. 
 
 C. The influence of the Renaissance. 
 
 The Roman Even during the middle ages the memory of the ancient 
 aiivethe ep State had never been completely lost. Rome had remained 
 Roman f ** the spiritual capital of the West. The old Roman Empire 
 Empire. j^ j n( j ee( j Deen broken to pieces by the Teutons, but the 
 Teutons who had formed independent kingdoms out of 
 Roman provinces received their civilisation, and, above all, 
 their religion from Rome, and in the place of the fallen city 
 the Roman Church became the ruling power of the middle 
 ages, to which the Teutons themselves in time submitted. 
 In the institutions, method, morals, law and language of 
 the Roman Church, a great, nay the chief, part of the old 
 Roman State was preserved. The old Empire was trans- 
 formed into the new Papacy, the universal State into the 
 universal Church, in order to rule the nations more easily. 
 The old Roman Emperor had exercised his sway by his 
 representatives and officials with the help of Roman law, in 
 the name of the Roman people, and enforced it by the 
 power of his legions ; similarly the Roman Pope com- 
 manded reverence in the name of God and the Church by 
 means of his bishops, and with the help of canon law and 
 ecclesiastical discipline, and enforced his decrees by means 
 of the numerous monastic orders. 
 
 Roman ly ^ ut a ^ on g s ^e of the Church the memory of the old 
 Empire. Empire still remained. We know nowadays how totally 
 unlike was the Roman Empire of the Frankish kings from 
 Charles the Great and of the German kings from Otto the 
 Great to the old Roman Empire, which had had its seat in 
 Rome and in Constantinople. But the whole middle ages 
 believed that the one was only a continuation of the other, 
 and that the Frankish Emperor, or the Roman Emperor 
 of the German people, was the regular successor of 
 Claudius, Antoninus, and Constantine. In any case the 
 
Chap. IV.] THE MIDDLE AGES. 47 
 
 renewed dignity of the Emperors implied a reminiscence of 
 the old Roman Empire, and an ideal union of mediaeval 
 ideas and institutions with the ancient world. 
 
 To this must now be added the rediscovery of the old Roman Law. 
 imperial code, the Corpus Juris Romani, which from the 
 twelfth century had been expounded at the Italian univer- 
 sities, and was revered as a revelation of all human law. 
 From Italy its authority spread victoriously over all Western 
 Europe, from the thirteenth century in France, and with 
 still greater consequences from the fifteenth century in 
 Germany. However the learned jurists were thinking 
 rather of private law, and perhaps of criminal law, than of 
 public law. But many fundamental views about the State, 
 about its legislation, and about its sovereignty which had 
 been expressed by the Romans, became in this way part of 
 the ordinary ideas of the learned class. 
 
 Recollections of the old Roman republic and its majesty Republican 
 sometimes revived and animated the citizens of towns in 
 their effort to found new city republics. The very names of 
 the civic magistrates in Italy and in Germany implied a dim 
 memory of the consuls of the Roman Republic. Twice 
 over in the middle ages the Roman populace in romantic 
 enthusiasm attempted to reawaken and reanimate the long 
 dead republic ; once in the twelfth century under the leader- 
 ship of Arnold of Brescia, and a second time in the fourteenth 
 century under the tribune Cola Rienzi. Both attempts 
 failed through the political incapacity of the mediaeval 
 Romans, but both testify to the power of the ancient tradi- 
 tion. 
 
 Even Greek political theories were not quite unknown to Greek 
 the Romance civilisation of the middle ages. The Politics of th 
 Aristotle were studied in many monasteries, and that most 
 famous theologian, Thomas of Aquino, wrote a commentary 
 on the celebrated work of the Greek philosopher. 
 
 Nevertheless the legal system, and still more the political 
 organisation of the middle ages, were totally different from 
 those of antiquity. The institutions of the time were. 
 
48 THE CONCEPTION OF THE STATE. [Book I. 
 
 moulded mainly under Teutonic influences, and its ideas 
 dominated by the theology of the Church. 
 
 The RC- In the second half of the fifteenth century the recollection 
 
 of the classical period awoke more vigorously, and the 
 classical spirit of the Greeks and the Romans was born 
 again (the ' Renaissance '). The works of ancient art pro- 
 duced a liberating and elevating effect on the Italian artists, 
 in architecture, sculpture, painting, and poetry. The ideas 
 of ancient science were again held in honour, and broke 
 through the bounds set by mediaeval scholasticism and 
 monastic theology. Humanism rose above the ecclesias- 
 tical contempt of the world, and a brighter and more joyous 
 way of looking at life found wide acceptance at courts and 
 in cities. As nearly 2000 years before the Sophists became 
 the teachers of young Greeks of good family, so now the 
 Humanists became the chosen instructors of ambitious 
 youth in Italy, France, and Germany. Educated men were 
 no longer terrified by the reproach that from Christians they 
 were again becoming Pagans. Even the Popes put them- 
 selves at the head of this intellectual movement. Nicolas V 
 (1447-1455), Pius II (Aeneas Sylvius, 1458-1464), Julius II 
 (15031513), Leo X (15 13-152 1 \ protected and encouraged 
 the artistic freedom of the Renaissance. The princely 
 Medici, especially Cosimo (1434-1464) and Lorenzo (1469- 
 1492), made Florence an Italian Athens. 
 
 inauence of The ancient conception of the State and ancient political 
 
 the Classical ...... . . . . _ f . ,. 
 
 Revival. theories likewise reappeared in part and influenced public 
 affairs, especially in the following ways : (i) A few bold 
 thinkers dared to explain the rise of States and the nature 
 of political authority by human considerations, and thus to 
 oppose theocratic opinions. 
 
 (2) Secondly, the idea of policy, consciously and calmly 
 considering means and ends for the guidance of the State 
 and the government of nations, became decisive in political 
 practice and theory, and received its clearest expression in 
 the writings of Machiavelli (1469-1527). His Discourses 
 on Livy, in which he glorifies the Roman republic, and his 
 
Chap. IV.] THE MIDDLE AGES. 49 
 
 Prince^ in which he points out the way to the ambition of 
 rulers, are filled with the political spirit of the Renaissance. 
 
 (3) Thirdly, we mark the renewal of a political Imperium 
 and a political Sovereignty before whose single authority 
 everything else must bow. In the hands of the prince who 
 ruled the State, this authority, freed from the limitations 
 of feudalism and of the mediaeval ' estates, 7 grew to an 
 absolutism like that of the Roman Emperor. 
 
 (4) Finally, the Renaissance manifested itself also in an 
 opposite form, to which this growing tyranny incited. With 
 the recollection of the Caesars there awoke also the memory 
 of Brutus ; tyrannicide was praised as republican virtue, and 
 even ' Catilinarian ' conspirators reappear 3 . 
 
 But all this revival of ancient political ideas and tenden- 
 cies was limited to a comparatively narrow circle of highly 
 educated men. The masses had no understanding and no 
 capacity for it. The whole influence of the Renaissance onfl 
 politics was only partial, and quickly passed by, helping to/ 
 break up the mediaeval, and to prepare the way for the 
 modern State, but bringing -forth no new political organisa- 
 tion of its own. 
 
 3 Burckhardt, Die Renaissance , p. 44 ff. [Engl. Tr. I. p. 81.] 
 
CHAPTER V. 
 
 III. THE MODERN IDEA OF THE STATE. 
 
 A. When does the Modern Epoch commence ? 
 
 THE historical consciousness of Europeans and Americans 
 at the present day is unanimous in accepting the idea of a 
 period of many centuries in the life of humanity which is 
 called l the middle ages'; and in believing that we are 
 living in a new age. But opinions are still divided as to 
 what point of time separates the modern from the mediaeval 
 period. We have learned that the past is bound up with 
 the future. Presentiments and tendencies of the coming 
 age make themselves felt long before, and countless effects 
 of bygone days continue to operate in changed times. In 
 the depth of the middle ages a few distinguished men gave 
 utterance to ideas which have not been understood until the 
 present century, and even to-day we still find many survivals 
 of mediaeval institutions carefully preserved, and that not 
 merely in monasteries or the castles of the nobility. The 
 old and the new are linked together by the very unity of 
 human life, and it shows a want of sense to sever them 
 sharply from one another. It is the same with the different 
 ages in the life of the individual. Nevertheless it is necessary 
 to determine the different periods of time which, though 
 passing over into one another, may yet on the whole be 
 clearly distinguished. 
 
 Many date the beginning of the new age as far back as 
 
THE MODERN IDEA OF THE STATE. 51 
 
 the second half of the fifteenth century. The period of the * Th e Re- 
 
 . . . naissance? 
 
 Renaissance appears to them the transition from the middle 
 ages to the modern world. The reawakening of the philoso- 
 phical spirit after the slumber of more than a thousand 
 years, the revival of ancient ideas and memories in opposi- 
 tion to mediaeval beliefs and institutions, the reappearance 
 of a freer and more joyous art under the influence of classi- 
 cal models, above all the rise of the Italian cities which did 
 not shrink from withdrawing themselves as occasion offered 
 from the protection of the Papal hierarchy, the extension of 
 Roman and the disparagement of Canon law, the invention 
 of printing and the diffusion of printed books, the invention 
 of gunpowder and the consequent changes in warfare, the 
 greater enterprise in navigation, and the discovery of un- 
 known countries on the coasts of Africa and in India and of 
 a whole new continent in the West all this certainly marks 
 a transition from the old to the new. But it is not so much 
 the conclusion as the decline of the mediaeval period, and 
 the preparation for the rising tendencies of the new era. 
 The spirit of the age (Zeitgeist} at the Renaissance had 
 rather the character of maturity than of youth or childhood. 
 It was less inclined to create what was new than to revive 
 what was old ; its efforts were directed throughout to the 
 revival of ancient ideas and the imitation of ancient models. 
 It partly reformed and partly destroyed the institutions 
 of the middle ages, but it did not overthrow them nor 
 replace them by creations of its own. The movement, 
 ended by stiffening into the absolutism of princes, great\ 
 and small. 
 
 Still more often the period of the ecclesiastical Reforma- 2. The Re- 
 
 .,,,,.. r , , formation ? 
 
 tion is considered the beginning of the new period not 
 indeed the incomplete attempts at reform in the German 
 Empire at the Diet of Worms of 1495, but the reform of 
 the sixteenth century, which is usually dated from the i3th 
 October, 1517, when Martin Luther nailed his theses to the 
 church door of Wittenberg. 
 
 As a matter of fact the world-historical breach with the 
 E 2 
 
52 THE CONCEPTION OF THE STATE. [Book I. 
 
 mediaeval authority of the Roman Church was then complete, 
 and the foundation of Protestant churches was actually a 
 new creation in the ecclesiastical sphere. The liberation of 
 the religious conscience from servitude to Rome undoubtedly 
 gave a powerful impulse to the subsequent liberation of 
 science from all ecclesiastical authority. The moral purifi- 
 cation and elevation of the idea of the State prepared the 
 way for modern politics. 
 
 Nevertheless the fundamental idea of the German Refor- 
 mation . was not the production of anything new, but the 
 purging of the ancient Church from long-standing abuses, 
 and the restoration of the primitive purity of Christianity. 
 The old historical authority of the Papal Church and its 
 tradition was broken, but the still older and equally historical 
 authority of the Holy Scriptures was retained with greater 
 strictness than before. It was indeed as impossible for the 
 Church reformers to restore primitive Christianity as it was 
 for the Italian masters to reproduce the classical art of 
 Athens and Rome. The world had changed and old ideas 
 could only reappear in new forms. The life of Europe was 
 still advancing, and the Protestant Church, as well as the 
 State which was influenced by Protestantism, were thus 
 relatively new phenomena. But the idea of the State itself 
 remained essentially that of the middle ages. The State 
 was still the kingdom of this world and of the body, the 
 Church was still mainly the spiritual community of the 
 saints preparing for heaven. 
 
 A decisive proof that the Reformation of the sixteenth 
 century belongs rather to the advancing age of the mediaeval 
 period than to the youthful efforts of the modern era is to 
 be found in the character of the two centuries from 1540 to 
 1740. This long period gives the impartial observer the 
 impression, not of youth but of old age. Even in the Pro- 
 testant Church a dead and rigid orthodoxy straightway 
 regained the upper hand, allowing no fresh movements, and 
 fettering and repressing the advance of science. In the 
 Catholic Church we mark the growing influence of the 
 
Chap. V.] THE MODERN IDEA OF THE STA TE. 53 
 
 Jesuits, the most pronounced supporters of the artificially 
 maintained mediaeval hierarchy. The absolute monarchy 
 dominated over the mediaeval nobility and broke up the 
 feudal system, but there was no new blood in the veins of 
 this despotic system which prevailed over the whole continent 
 of Europe, and was repulsed in England alone. It was 
 supported mainly by old ideas, dynastic and Roman, patri- 
 monial and theocratic. The rococo style, which gradually sup- 
 planted that of the Renaissance, is a manifestation of senility. 
 Everywhere there is rather breaking up and decay of the 
 mediaeval period than a fundamentally new era. The young 
 Leibnitz received so vivid an impression of this that he wrote 
 in 1669, ' We may well believe that the world has entered 
 on its old age V 
 
 The same considerations prevent us from finding the be- 3- The Eng- 
 lish Revolu- 
 ginning of the modern period m the English Revolution, tion? 
 
 whether that of 1640 or the so-called " glorious " Revolution 
 of 1668. Certainly they brought about something new 
 constitutional monarchy. But the more carefully we compare 
 the English with the French Revolution, the more is our 
 conviction strengthened that the former belongs to the end 
 of the Mediaeval and the latter to the Modern period. The 
 English were struggling mainly for the old Anglo-Saxon 
 liberties and for the traditional rights of Parliament against 
 the absolutism of the king, whereas the French strove to 
 realise a new and rational organisation of the State and a new 
 social freedom. 
 
 Many therefore see in the French Revolution the first 4- The 
 decided movement of the modern period, and date this from Revolution? 
 1789, an opinion which flatters French vanity. It is incon- 
 testable that the French Revolution was filled and animated 
 by the modern spirit, but it had begun to work before this. 
 The " age of enlightenment " (Aufk/drung) which preceded 
 had already the unmistakable stamp of the new time. 
 
 Among many others, Thomas Buckle, the learned historian 5-1740? 
 
 [The acces- 
 
 of modern civilisation, has remarked that in the year 1740 a sion of 
 1 Pichler, Theologie von Leibnitz, i. p. 23. 
 
54 THE CONCEPTION OF THE STATE. [Book I. 
 
 Frederick change in the current of men's ideas becomes perceptible. 
 
 the Great * 
 
 of Prussia. As the sun first lights up the mountain-tops, and only after- 
 wards shines down into the valley, so the new spirit first 
 manifests itself in great men, and only gradually diffuses itself 
 among the multitude. In the second half of the eighteenth 
 century the new spirit animated not only a chosen few, the 
 prophets and forerunners of a coming age : everywhere 
 new ideas rose on the horizon, and the demand for 
 change was universally felt. Men's hearts swelled with 
 the hope of a new life. Art, literature, the state, and 
 society were transformed, the sentiments of the world were 
 turned away decisively from the middle ages towards a new 
 creation. 
 
 If we compare men and events since 1 740 with those of the 
 preceding centuries, we are struck by the vast change in the 
 character of the times. Not merely are the individuals 
 different, but the conditions of their existence, the ground on 
 which they stand, the air which they breathe. Compare, e. g., 
 Frederick the Great of Prussia, the most significant represen- 
 tative of the modern State and the modern view of life not 
 merely with Louis XIV of France, the clearest representative 
 of the absolute monarchy by the grace of God, which closes 
 the middle ages but even with his own great ancestor, the 
 Elector Frederick William ; or compare the liberation of the 
 Netherlands from Spanish rule with the liberation of North 
 America from English rule ; or compare the French with the 
 English Revolution, or Rousseau with Ulrich von Hutten, 
 or Lessing with Luther, and the vast difference is at once 
 apparent. 
 
 The newness of the period on which civilized mankind has 
 entered since the middle of last century, appears in the uncer- 
 tain probing and experimenting of political theory and prac- 
 tice, in the daring attempts at a complete new creation, in the 
 momentary despair which succeeds failure, in the oscillations 
 between revolution and reaction. If the modern era has 
 on the whole the character of self-conscious manhood, in a 
 higher degree than any previous period of history, these 
 
Chap.V.] THE MODERN IDEA OF THE STATE. 55 
 
 traits, which we have noticed, show that we have only ex- 
 perienced the first stage of this manhood, and that it has 
 still an immature and youthful, sometimes even childish 
 appearance, just as the last centuries of the middle ages 
 have a senile aspect. The organic and psychological law of 
 growth does not only govern the entire life of humanity : 
 it repeats itself in recurring circles in particular periods 
 within the various ages of the world. 
 
 Thus we date the modern era from the year 1 740. The 
 rise of the Prussian kingdom, Joseph II's reforms in Austria, 
 the foundation of the United States of North America, the 
 changes of the French Revolution and the Napoleonic em- 
 pire, the transplanting of constitutional monarchy to tne 
 continent, the attempted introduction of representative de- 
 mocracy, the foundation of national states, the gradual 
 removal of religious privileges and disabilities in public law, 
 the separation of Church and State, or at least the clear de- 
 marcation between their spheres, the abolition of feudalism 
 and of all privileged orders, the rise of the conception of 
 national unity, the recognition of the freedom of society, 
 all these are the achievements or at least the attempts of the 
 modern State. 
 
 Note. We are accustomed to consider the history of the human race 
 in its inner connection, and in a regular order. We therefore distinguish 
 the different ages of the world, in the same way that we distinguish the 
 ages of the individual's life. We speak of a childhood and of a youth 
 of mankind, and we consider the latter to end with the classical period 
 of Greek and Roman civilisation. In the same way we separate the 
 middle ages from the youthful and brilliant era of the old Greeks and 
 Romans, and on the other side from the more mature and manly modern 
 world. 
 
 Whilst the life of the individual is measured by years and decades, 
 the life of humanity has to be reckoned by hundreds or thousands of 
 years. Within particular eras we sometimes discover the same cycle, 
 and the same succession of ages, and find first ascending and then 
 descending stages. Just as great eras of the world's history have a de- 
 finite character and spirit, so it is with the periods and phases which we 
 find within them. Thus, the first and second halves of the eighteenth 
 
56 THE CONCEPTION OF THE STATE. [Book I. 
 
 century belong to thoroughly different types, and so too the first and 
 second halves of the sixteenth century. 
 
 The unity This whole manner of contemplating the history of the world is how- 
 
 ^ hjstory ever Qn ^ va ^j ( j on ^ e presupposition that humanity is not merely a sum 
 unity of of individuals, and its life not a mere sum of individual lives. It depends 
 md ' on the assumption that humanity is a whole, and has a development of 
 its own, which requires for its movement and advance greater periods of 
 time than those of the individual life. In viewing whole periods of 
 hundreds and thousands of years, we cannot but be impressed by this 
 mighty continuity, this fixed order of development, and we infer there- 
 from the unity of the human race, and the destiny of humanity whose 
 great life advances regardless of the little lives of individuals, which 
 consciously or unconsciously contribute to it. 
 
 The duration If this view is correct, we are led to ask what is the duration of that 
 race 16 humnn humanity whose life is described by universal history. It is not prob- 
 able that the unknown or little known infancy of mankind should stretch 
 back immeasurably, whilst its youth and advancing maturity does not 
 exceed a few thousands of years. There must be some proportion. Yet 
 this presumption seems to be contradicted by the natural science of the 
 present day. 
 
 The Semitic account of the creation reduces the age of the earth 
 to a few thousands of years. A more profound examination has vastly 
 extended it, and we have learnt to count by millions, or even by milliards 
 of years. The same researches have put the beginnings of the human 
 race further back to a time which it is difficult to determine exactly, 
 and the remoteness of which is immeasurably more vast than any known 
 periods of later history. It is at least very probable, if not certain, that 
 hundreds of thousands of years ago there were beings like men. Natural 
 History has discovered remains of primitive human bones and sculls, 
 which must have belonged to the same unknown pre-historic age as the 
 cavern bears. Even the connection and the transitional stages which 
 link the human body with the older forms of animal life have been 
 pointed out. It has been made probable that the pre-historic man was 
 more nearly related to apes and other animals, than his present repre- 
 sentatives. This at first sight appears to increase our difficulties, but on 
 further examination affords a solution of them. 
 
 The history of man's creation may go back to far earlier times than 
 
 the traditional view suspects, but there is no reason for extending the 
 
 history of civilisation, and what we call universal history, as far back. 
 
 History be- History could not begin until a higher race showed the capacity of 
 
 wnTt<Tman e tnernse l ves working creatively at the perfection of mankind. It begins 
 
 therefore with the appearance of the white races, the children of light, 
 
 who are the bearers of the history of the world. The white man cannot 
 
 be so old as the anthropoid ape. 
 
Chap. V.] THE MODERN IDEA OF THE STA TE. 57 
 
 The law of the organic and psychological development of universal 
 history, must not be confused with the natural law of bodily descent. 
 The common feeling and the common spirit of humanity, the progressive 
 and changing forms of sentiment and thought which are manifested in 
 the works of man, belong essentially to his higher nature, and not to 
 that of the animals. 
 
 The first appearances of inferior human races may be regarded as the 
 material cause [v\rj'] of the higher forms of humanity, but bear only the 
 same relation to his proper history that the pigments and brushes do to 
 the work of the artist. 
 
CHAPTER VI. 
 
 B. Chief differences of the Modern Conception of the 
 State from the Ancient and Mediaval. 
 
 These may be exhibited as follows : 
 
 ANCIENT STATE. 
 i. The ancient State did not 
 
 Differences 
 between the 
 Ancient and 
 
 Modern recognise the personal rights 
 ganfin^ f man ? nor consequently the 
 Rights of right of individual freedom. 
 man as man. In all anc j ent States at least a 
 half of the population consisted 
 of slaves without rights, and 
 only the smaller half of free 
 citizens. Agriculture, and the 
 rearing of cattle, manufactures, 
 household service, even trade 
 in great measure were chiefly 
 looked after by slaves. Con- 
 sequently labour was little es- 
 teemed, and the labourer of 
 little account. The slaves were 
 only connected with the State 
 through their masters. They 
 had no share in the State : 
 they had no fatherland. The 
 rights of man were almost 
 altogether denied them. Cus- 
 tom was indeed often better 
 than the law, but even at the 
 best their actual situation was 
 
 MODERN STATE. 
 i. The modern State recog- 
 nises the rights of man in every 
 one. Everywhere slavery has 
 been abolished as a wrong. 
 Even the milder form of serf- 
 dom and hereditary subjection 
 has been set aside as incon- 
 sistent with the natural freedom 
 of the person. Man has no 
 property in man, for man is not 
 a thing, but always a person, 
 i. e. a subject of rights (Rechts- 
 weseri}. Labour is free and 
 esteemed. All classes of the 
 people have a political position 
 in the State, and the suffrage 
 has been extended, even to 
 labourers and servants. The 
 danger of slave revolts has dis- 
 appeared. The whole State 
 rests on a broader basis, its 
 roots extend through the whole 
 population. 
 
ANCIENT AND MODERN IDEAS. 
 
 59 
 
 uncertain, and might suddenly 
 change to the worst. From 
 time to time servile revolts 
 broke out, and were cruelly 
 suppressed. 
 
 2. The ancient idea of the 
 State embraced the entire life 
 of men in community, in re- 
 ligion and law, morals and art, 
 culture and science. The 
 priesthood was a political 
 office. The ancient State did 
 not yet recognise the full 
 spiritual freedom of the indi- 
 vidual. 
 
 3. Man had only full rights, 
 qua citizen. Among the Greeks 
 private and public law were 
 not yet distinguished. The 
 Romans separated them in 
 principle, but their private law 
 still remained completely de- 
 pendent on the will of the 
 people and the State. Indi- 
 vidual freedom as against the 
 State was not yet recognised. 
 
 4. The sovereignty of the 
 State was absolute. 
 
 5. Public authority was di- 
 rectly exercised by its holders. 
 In the ancient republic the 
 citizens appeared in great popu- 
 lar assemblies 
 
 2. The modern State has be- Sphere of 
 
 - . ,. . State-action. 
 
 come conscious of the limits 
 of its power, and its rights. It 
 considers itself essentially a 
 legal and political community. 
 It gives up its claim to domin- 
 ate religion and worship, and 
 leaves both to churches and 
 individuals. The priesthood 
 is an ecclesiastical office. The 
 modern State claims no scien- 
 tific and no artistic authority, 
 it esteems and protects free- 
 dom of scientific enquiry and 
 of expression of opinion. 
 
 3. Man has his rights as Individual 
 an individual, private law is privauflaw 
 sharply distinguished from pub- 
 lic law, and is rather recog- 
 nised than created by the State, 
 
 rather protected than com- 
 manded. The free person is 
 not absorbed in the State, but 
 develops himself independ- 
 ently, and exercises his rights, 
 not according to the will of the 
 sovereign State, but according 
 to his own. 
 
 4. The sovereignty of the Sovereignty. 
 State is constitutionally limi- 
 ted. 
 
 5. The modern State is re- Direct 
 
 T , c , Government 
 
 presentative. In place of these _R e pre- 
 mass assemblies comes a re- g^*^ 
 presentative body chosen by 
 the citizens. These represen- 
 
6o 
 
 THE CONCEPTION OF THE STATE. 
 
 [Book I. 
 
 a,) &c.), and decided direct- 
 ly on important public affairs. 
 
 The city 
 The nation. 
 
 Differen- 
 tiation of 
 functions. 
 
 Inter- 
 national 
 relations. 
 
 6. The Greek States were 
 essentially city States (TTO\LS). 
 Rome expanded from a city 
 State to a world State. 
 
 7. In the ancient State pub- 
 lic activities were distinguished 
 by their nature and objects, 
 but usually the same assem- 
 blies and magistrates exercised 
 different functions, legislative 
 and administrative, imperium 
 and jurisdictio. 
 
 8. The ancient State felt 
 itself limited externally only 
 by the resistance of other 
 States, and not by a common 
 international law. Rome pur- 
 sued without scruple the do- 
 minion of the world as her 
 natural privilege. 
 
 tative bodies have more capa- 
 city than the ancient popular 
 assemblies to examine laws, to 
 decide and exercise control. 
 
 6. Modern States are essen- 
 tially national States. The 
 city is only a community in 
 the State, and not the heart of 
 the State. 
 
 7. In the modern State dif- 
 ferent activities have different 
 organs, and thus the earlier 
 distinctions in the objects of 
 authority have passed into a 
 personal separation of func- 
 tions. 
 
 8. Modern States recognise 
 international law (Volkerrecht] 
 as a limit to their dominion. 
 International law protects the 
 existence and freedom of all 
 nations and States, and rejects 
 the universal dominion of one 
 State over all peoples. 
 
 The chief differences between the Modern and Mediaeval 
 
 Differences 
 
 between the ~ _ ,. 
 
 Mediaeval State are as follows : 
 
 and the Mod- 
 ern State 
 
 human 
 ori * in - 
 
 Theology- 
 Science. 
 
 MEDIEVAL STATE. 
 
 1. The middle ages derived 
 the State and the authority of 
 the State from God. The State 
 was held to be an organisation 
 willed and created by God. 
 
 2. The conception of the 
 State was based on and regu- 
 lated by theological principles. 
 Islam, which belonged alto- 
 gether to the middle ages, 
 recognised only a kingdom of 
 
 MODERN STATE. 
 
 1. The modern State is 
 founded by human means on 
 human nature. The State is 
 an organisation of common 
 life formed and administered 
 by men, and for human ends. 
 
 2. The fundamental prin- 
 ciples of the State are deter- 
 mined by the human sciences 
 of philosophy and history. 
 Modern political science starts 
 from the consideration of man 
 
Chap. VI.] MEDIEVAL AND MODERN IDEAS. 
 
 61 
 
 God, which was entrusted by 
 God to the Sultan. Mediaeval 
 Christianity avowed the dual- 
 ism of Church and State, but 
 believed that both swords, the 
 spiritual and the temporal, 
 were entrusted by God, the 
 one to the Pope, and the other 
 to the Emperor. Protestant 
 theology rejected the idea of 
 the spiritual sword, and recog- 
 nised only the one sword of 
 the State, but held firmly to 
 the religious idea that sovereign 
 power comes from God. 
 
 3. The ideal of the mediaeval 
 State was not indeed like that 
 of the old oriental peoples, a 
 direct theocracy, but an in- 
 direct theocracy. The ruler 
 was the vice-gerent of God. 
 
 4. The mediaeval State de- 
 pended upon community of 
 belief, and demanded unity of 
 creed. Unbelievers and here- 
 tics had no political rights, 
 they were persecuted and ex- 
 terminated ; at the best they 
 were merely tolerated. 
 
 in explaining the State. Some 
 consider the State to be a 
 society of individuals who have 
 united together for the defence 
 of their safety and freedom; 
 others as an embodiment of 
 the nation in its unity. The 
 modern idea of the State is not 
 religious, but not therefore ir-> 
 religious, i. e. it does not make 
 the State depend upon religious 
 belief, but it does not deny 
 that God has made human 
 nature, and that His provi- 
 dence has a part in the govern- 
 ment of the world. Modern 
 political science does not pro- 
 fess to comprehend the ways 
 of God, but endeavours to 
 understand the State as a 
 human institution. 
 
 3. All theocracy is repellent Theocracy, 
 to the political consciousness 
 
 of modern nations. The mod- 
 ern State is a human con- 
 stitutional arrangement. The 
 authority of the State is con- 
 ditioned by public law, and its 
 politics aim at the welfare of 
 the nation (the commonweal), 
 understood by human reason, 
 and carried out by human 
 means. 
 
 4. The modern State does Religion. 
 not consider religion a condi- 
 tion of legal status (Recht}. 
 Public and private law are 
 independent of creed. The 
 modern State protects freedom 
 
 of belief, and unites peacefully 
 different churches and religious 
 
62 
 
 THE CONCEPTION OF THE STATE. 
 
 [Book I. 
 
 The church. 5 Mediaeval Christendom 
 considered the Church as 
 spiritual, and therefore higher ; 
 the State as bodily, and there- 
 fore lower. Thus the rule, or 
 at least the guardianship, of 
 the priesthood was above that 
 of kings. The clergy stood 
 high above the laity, and en- 
 joyed immunities and privi- 
 leges. 
 
 Education. 6. In the middle ages the 
 Church guided the education 
 of the young, and exercised 
 authority over science. 
 
 Public and J. Public and private law 
 Private Law. wefe not distinguished, terri- 
 torial sovereignty was held to 
 resemble property in land, and 
 the royal power a family right. 
 Particu- 8. The middle ages produced 
 
 Centraiisa- tne feudal system. The power 
 tion. of the State was split up, and 
 
 there was a gradual descent 
 from God to the king, from 
 him to the princes, then to the 
 knights and the towns. The 
 organisation of law was par- 
 ticularistic. 
 
 9. Representation was ac- 
 
 societies. It abstains from all 
 persecution of dissenters or 
 unbelievers. 
 
 5. The modern State regards 
 itself as a person, consisting at 
 once of spirit (the national 
 spirit) and body (the constitu- 
 tion). It feels itself inde- 
 pendent, even as against the 
 Church, which is likewise a 
 collective person, consisting of 
 spirit and body, and maintains 
 its supremacy even over the 
 Church. It recognises no 
 superior status in the clergy, 
 abolishes their privileges and 
 immunities, and extends the 
 authority of law over all classes 
 equally. 
 
 6. The modern State leaves 
 only religious education to the 
 Church, the school is a State 
 school, science is free from 
 ecclesiastical authority, and its 
 freedom is protected by the 
 State. 
 
 7. Public and private law are 
 distinguished, and public rights 
 imply public duties. 
 
 8. The modern State is an 
 organisation of the nation 
 ( VolK) and preserves a central 
 unity in its authority. States 
 are formed on a national 
 (national] basis, and tend to 
 become great in size. Law is 
 national and human, and 
 applies to all equally. 
 
 9. The modern State re- 
 
Chap. VI.] MEDIAEVAL AND MODERN IDEAS. 
 
 cording to estates. The aris- 
 tocratic estates of the clergy 
 and the nobility dominated. 
 Law was different in each 
 estate. 
 
 10. Great and small lords had 
 the freedom of their dynasties 
 and orders so extensively pro- 
 tected, that the authority of 
 the State was weakened. On 
 the other hand the peasantry 
 were kept in an unfree con- 
 dition. 
 
 11. The mediaeval State was 
 merely a legal State (Rechts- 
 stat] ; but the administration 
 of justice was indifferently 
 guarded, and people were often 
 left to maintain their own 
 rights. Government and ad- 
 ministration were weak and 
 little developed. 
 
 12. The mediaeval State had 
 little consciousness of its own 
 spirit. It was determined by 
 instincts and tendencies. It 
 gives one the impression of 
 natural growth ; custom was 
 the chief source of its law. 
 
 quires a uniform representa- 
 tion of the people. The great 
 classes of the people have the 
 chief power : the basis is de- 
 mocratic. Citizenship embraces 
 all classes equally. The law is 
 the same for the whole country 
 and people. 
 
 10. The modern State de- Liberties 
 velops the common freedom of 
 citizenship .in all classes, and 
 compels every one to submit to 
 its authority. 
 
 11. The modern State, be- Sphere of 
 cause constitutional, is likewise State - actlon - 
 a legal State ; but at the same 
 
 time it concerns itself with 
 economics and culture, and 
 above all with politics. Govern- 
 ment is strong, and adminis- 
 tration is carefully developed 
 with a view to the welfare of 
 the nation, and of society. 
 
 12. The modern State is con- Unconscious 
 scious of itself, it acts accord- consdou~s 
 ing to principles and from le sislation. 
 reason rather than from 
 instinct. Legislation is the 
 principal source of its law. 
 
CHAPTER VII. 
 
 THE DEVELOPMENT OF DIFFERENT THEORIES 
 OF THE STATE. 
 
 POLITICAL science has had a very important share in 
 altering the actual character of the State and the ideal of 
 what it should be 1 . Modern political theory preceded 
 modern political practice, and has generally accompanied 
 and pointed out the way for change. More rarely, theory 
 has followed facts. 
 
 The following are the main phases in the scientific develop- 
 ment : 
 
 i. At the The conception of the State at the time of the Renais- 
 Renaissance. sancCj especially as we find it in the works of Machiavelli, 
 Bodin, and partly also of Hugo Grotius, is the direct outcome 
 of the ancient conception, but begins to deviate from it. 
 Machiavelli. The State is to Machiavelli the highest kind of existence. 
 He reverences it as the noblest production of the human 
 spirit. He loves it passionately, and sacrifices to it without 
 hesitation everything, even religion and virtue. But his 
 State is no longer a legal or constitutional State, such as 
 was that of the ancient Romans. Public law is to him only 
 a means to further the welfare of the State, and to secure 
 the growth of its power. His ideal is exclusively filled and 
 determined by politics. The State is for him neither a moral 
 
 1 For more details see Blnntschli's Geschichte des allgemeinen Stats- 
 rechts und der Politik. Miinchen, 1854 : Dritte Auflage, 1881. 
 
DIFFERENT THEORIES. 65 
 
 nor a legal (Rechtswesen\ but only a political being. Thus, 
 the only standard of all state-acts is utility. What the 
 power and authority of the State demand, that must the 
 statesman do, undisturbed by moral and legal considerations. 
 What is hurtful to the welfare of the State he must avoid. 
 
 Machiavelli's great service was to make political science 
 independent of theology, and to have discovered the distinc- 
 tion between public law (Sfatsrcckt) and politics (PolitiK). 
 But he has adorned an immoral and unjust policy, has put 
 his prudent advice at the disposal of tyranny, and has thus 
 helped to corrupt the political practice of the last three 
 centuries. 
 
 . Bodin sees in the State * a right government, with sove- Bodin. 
 reign power, of several households and their common posses- 
 sions V He bases the State especially on the family, 
 common possessions, and sovereignty, and he blames the 
 political ideas of the ancients for having looked too much _ 
 to happiness and success. By his doctrine of the sovereignty 
 of the ruler he gave a scientific support to the absolutism 
 of the French monarchy. 
 
 Hugo Grotius still inclines to the definitions of Cicero, but Grotius. 
 the transition to modern political ideas may be quite clearly 
 observed. He bases the State, like the ancients, upon 
 human nature, but he is thinking less than they of mankind 
 or of a whole people. He looks, above all, to the individual 
 man. His saying ' hominis proprium sociale ' is a bad trans- 
 lation of the Aristotelian : 6 av6p<*>iros <*ov TroAmKo*/. But 
 it shows in a characteristic way that the modern mind does 
 not begin with the State, but with the individual. The 
 sharp separation of the religious community of the Church 
 from the worldly and political community of the State, and 
 the strong accentuation of personal freedom are two other 
 signs of the modern spirit of the Dutch writer. He declares 
 the State to be ' the complete union of free men, who join 
 themselves together for the purpose of enjoying law, and for 
 
 2 Bodin, De la Republique, i.-i. 
 F 
 
66 THE CONCEPTION OF THE STATE. [Book I. 
 
 the sake of public welfare V The personality of the State 
 was not unknown to him, but it does not dominate his 
 political theory, and in making the consent of men the chief 
 source of public law he suggests a line of thought which was 
 carried out in the later theory of contract. 
 
 2 . Theories The idea of contract formed the basis of the modern 
 nature, of theory of the Law of Nature and the speculative political 
 as?ocfat\on nd philosophy which was founded on it in complete indepen- 
 dence of ancient theories of the State. The differences of 
 philosophical schools and of political parties produced a 
 great difference between opinions, hardly any one writer 
 completely agreeing with another. But even into the present 
 century, in the many accounts of the Law of Nature, and of 
 the general conception of the State, there prevailed the 
 fundamental idea that the State was essentially an associa- 
 tion of individuals, and therefore an arbitrary work of 
 individual freedom. The absolutist, Hobbes 4 , who makes 
 the authority of the monarch an all-devouring Leviathan, 
 is in this at one with the radical Rousseau 5 , whose 
 ' sovereignty of the people ' makes the continuance of the 
 whole order of the State an open question. The ingenious 
 Samuel Puffendorf 6 regards the State as a moral person, 
 but its will is, for him too, only composed of the individual 
 wills of all, and he explains the State by the theory of social 
 
 3 Hugo Grotius, De jure belli, etc,, i. i. 14: 'Est civitas coetus 
 perfectus liberorum hominum, juris fruendi et communis utilitatis causa 
 sociatus.' i. 3. 7 ; Prolegom. 16. Cp. Leo, Weltgeschichte, iv. p. 149. 
 
 * Hobbes, De Cive, c. 5. 9. Molesworth's Edit. Vol. II. p. 214: 
 ' Civitas ergo est persona una (?), cujus voluntas ex pacti s plurium homi- 
 num pro voluntate babenda est ipsorum hominum ; ut singulorum viribus 
 et facultatibus uti possit ad pacem et defensionem communem.' 
 
 5 Rousseau, Contrat social, I. Ch. 6 : 'Trouver une forme d'associa- 
 tion qui defende et protege de toute la force commune la personne et les 
 biens de chaque associe, et par laquelle chacun, s'unissant a tous, n'obeisse 
 pourtant qu'a lui-meme et reste aussi libre qu'auparavant : tel est le prob- 
 leme fondamental dont le Contrat social donne la solution.* 
 
 6 Dejure naturali et gent., vii. 2, 13 : ' Unde civitatis haec commo- 
 dissima videtur definitio, quod sit persona moralis composita, cujus 
 voluntas ex plurium pactis implicita et unita pro voluntate omnium 
 habetur, ut singulorum viribus et facultatibus ad pacem et securitatem 
 communem uti possit.' 
 
Chap. VII.] DIFFERENT THEORIES. 67 
 
 contract. John Locke zealously defends this theory against 
 the attacks of theological bigots, and finds in it a guarantee 
 of English civic liberty. Even Kant 7 does not get beyond 
 it, although he shows a tendency to do so, and Fichte him- 
 self in his earlier writings still adheres to the same view. 
 
 The State, according to the whole philosophy of natural 
 rights, is essentially based upon contract and upon associa- 
 tion. If the ancient philosophers did not sufficiently regard 
 the rights of individuals, the modern have committed the 
 opposite error of regarding the individual so much as to 
 ignore the significance of the State as a whole. 
 
 It was only in the modern period that the theory of 3- System of 
 
 i i 111 authority. 
 
 natural law could obtain general acceptance, and lead to 
 attempts to realise it. The absolutist character of the two 
 centuries before 1740 implied a theory of the State, which 
 based it upon the power of a superior. The source of this 
 conception received no further examination. Sometimes 
 people were content with the traditional belief of the Church, 
 that the government had received the sword from God : 
 sometimes they inclined to the patrimonial tradition that 
 the prince was the supreme owner of the country. Mean- 
 while these older doctrines had to undergo a transforma- 
 tion, partly through the accentuation of the ' public law' 
 (offentlich-rechtlicJi) character of sovereignty, partly through 
 the necessary regard to the public weal. 
 
 The State was thus regarded as being essentially the 
 sphere of the power of a superior, and the government was 
 actually identified with the State (Tetat c*est moi^ as Louis 
 XIV said). This was the fundamental idea of the absolutist 
 theory of the State which, prepared by Bodin and Hobbes, 
 was developed in a theological way, especially by Filmer 
 and Bossuet, and was taught with a hundred variations. 
 In this one-sided view of authority, the rights and liberty of 
 
 7 Werke, vii. 197 (Ed. Rosenkranz) : ' A union of many for some end 
 is to be found in all social contracts, but a union which is in itself an 
 end is only to be found in a society, so far as it constitutes a collective 
 being (gemeinsames Weseri)! 
 
 F 2 
 
68 THE CONCEPTION OF THE STATE. [Book I. 
 
 the governed were of course altogether left out of sight. 
 Just as the Roman Catholic Church places the essence of 
 its being in the clergy alone, with the Pope at their head, 
 while the laity are regarded as a flock of sheep, who have 
 to be guided and sheared by their spiritual shepherd ; so, 
 according to this theory of the State, only the prince and 
 the government officials had any value, and the subjects 
 were looked on as a mere passive mass, to be managed and 
 governed from above, but with no claim to manage them- 
 selves, or to share the government, or to control the conduct 
 of their rulers. 
 
 4 . The State It was with the immediate intention of narrowing the 
 state.' egal sphere assigned to government, alike by the theory of 
 natural law and by the theory of authority, that Kant and 
 Wilhelm von Humboldt declared the State to be a 'legal 
 State ' (Rechtssiat) in the sense that its sole duty was the 
 maintenance of the legal security of each individual. Fichte 
 indeed broke through these narrow limits in describing the 
 State, as at the same time concerned with economics, and 
 in this respect he even exaggerated its power, and towards 
 the end of his life, inspired by the national enthusiasm for 
 i the liberation of Germany, he ascribed to the State still 
 higher spiritual functions. But most German philosophers 
 and jurists of the next generation still adhered to the theory 
 in the narrow Kantian sense. 
 
 The idea obtained acceptance with many who sought a 
 defence against the mania of the time for over-government, 
 and against the arbitrariness of the police and the military. 
 Legal state But those who opposed the legal State to the police State ' 
 state! ( ce (Polizeist&f), and who declared it to be the work of modern 
 times, to replace the latter by the former, were without a 
 clear consciousness of all that the State implied. The 
 State must not be made a mere legal State, any more than 
 it can be a mere ' police State. 7 In the former case the 
 State would at last become a mere institution for administer- 
 ing justice, in which the legislative power would establish 
 the legal rules, and the judicial power would protect them 
 
Chap. VII.] DIFFERENT THEORIES. 69 
 
 and apply them to particular cases, and the government 
 would have almost no other activity left it than that of a 
 servant of the law courts, a policeman a . Economic interests, 
 culture, and the development of the national power would 
 be neglected, and there could be no greatness in the policy 
 of the country. On the other hand, a one-sided develop- 
 ment of the ' police State ' would in the end sacrifice all 
 individual rights and freedom to an exclusive regard for 
 that which appears useful to the whole, and would subject 
 free men to an intolerable amount of protection. 
 
 If then by 'legal State 7 is understood (i) that the State in what 
 is only an institution for protecting the rights of individuals, state is and 
 all public law is clearly turned into a mere means for private < s i"gai a state.' 
 law, and the State sinks to the position of a mere servant of 
 private persons. 
 
 Further, if by ' legal State' is understood (2) that the 
 State has to organise the rights of the community, and at 
 the same time to care for the recognition of individual 
 rights, this is a quite correct but an insufficient view, since 
 just the most important activity of the statesman, care for 
 the material well-being and the spiritual elevation of the 
 people, is overlooked. 
 
 Or (3) if it is understood that the State has practically 
 to further the public welfare, but can formally only exercise 
 compulsion in so far as this is required by some definite 
 legal rights, this is true enough, but at the same time it is 
 clear that only one side of political activity is thereby deter- 
 mined, and that no account is taken of public care, e. g. for 
 the needs of food-supply, trade, and civilisation generally, 
 
 <* [Cpr Book V. ch. iii. below. It will be obvious that Bluntschli's 
 ' legal State ' implies what has in England been called * Administrative 
 Nihilism' (by Professor Huxley, criticising Mr. Herbert Spencer), or 
 ' Anarchy plus the policeman ' the very opposite therefore of what 
 Bluntschli calls * Police State/ which implies what has been nicknamed 
 ' grandmotherly legislation.' It should be observed that some more 
 recent German writers have used the term Rechtsstat simply in the sense 
 of a constitutional government, a government in which the administra- 
 tion does not transgress the law whatever that may be. See Holzendoi ff, 
 Principien der Politik (2nd edit.), pp. 213, 214.] 
 
70 THE CONCEPTION OF THE STATE. [Book I. 
 
 all of which move freely within those legal limits, and need 
 no formal compulsion. 
 
 If by legal State is understood (4) the denial of the reli- 
 gious basis of the State, and the affirmation of its human 
 basis and limits; or (5) the resistance to all absolute 
 authority, to the patrimonial State too often allied with 
 arbitrary police interference and the assertion that the 
 citizens must have a share in public affairs, the charac- 
 teristics of the modern State are indeed indicated, but the 
 expression is unfortunate. It is better to call it a ' consti- 
 , tutional State.' 
 
 The state The State has two aspects : rest and movement, con- 
 regard to tinuance and progress, body and spirit. There are two 
 fa^aV^di political sciences corresponding to this internal distinction, 
 as to Law. p u blic Law and Politics ; and so too there are two great 
 principles which, like two stars, illuminate and fructify the 
 life of the State, conditioning both its form and content : 
 justice (justitia) and the public weal (salus publica). 
 Statesmen have especially the latter before them, jurists 
 the former. The idea of justice determines public law, 
 the idea of welfare guides politics. 
 
 The care of government relates rather to the public 
 welfare, although within the limits of law. The Romans, 
 the political people par excellence^ assigned to their highest 
 magistrates the care for the public weal as their supreme 
 duty 8 . The activity of the law courts is limited to the 
 maintenance of the law. But if the State is to exist and 
 prosper, it must constantly pay regard to public welfare as 
 well as to law. Now it is just the needs of the common- 
 weal which are more highly regarded by the modern than 
 by the mediaeval State, and therefore the former is less of a 
 mere legal State than the latter. 
 
 5 . The The historical school has the merit of having restored the 
 
 school consciousness of the organic character of the State, of which 
 Seory of indeed a few great statesmen had never lost a vivid compre- 
 
 the State. 
 
 8 Cic. de Legibus, iii. c. 3, of the Consuls : ' Ollis salus populi suprema 
 lex esto/ 
 
Chap. VII.] DIFFERENT THEORIES. 71 
 
 hension. Frederick the Great of Prussia expressed it clearly 
 in his Anti-Machiavel : ( As men are born, live for a time, 
 and then die from disease or from age, so states come into 
 being, flourish for some centuries, and then perish.' But 
 science had so completely neglected this view that the 
 restoration of it by the historical school had the effect. of 
 a new discovery, and science for the future took a new and 
 more fruitful direction. Meanwhile the historical school 
 was inclined to take up the conception of the State too 
 much as merely national, and to overlook or even to dispute 
 its human significance. Thus, Savigny declared the State 
 to be 'the bodily form of the spiritual community of the 
 nation/ or ' the organic manifestation of the nation V But 
 the brilliant Englishman, Edmund Burke, in contending 
 against the theories of the revolution, brought the historical 
 State into the light of the divine order of the world, in 
 a famous passage of his Reflections on the Revolution in 
 France : ' Society is indeed a contract. Subordinate con- 
 tracts for objects of mere occasional interest may be dis- 
 solved at pleasure ; but the State ought not to be considered 
 as nothing better than a partnership agreement in a trade of 
 pepper and coffee, calico or tobacco, or some other such 
 low concern, to be taken up for a little temporary interest, 
 and to be dissolved by the fancy of the parties. It is to be 
 looked on with other reverence ; because it is not a partner- 
 ship in things subservient only to the gross animal existence 
 of a temporary and perishable nature. It is a partnership 
 in all science, a partnership in all art, a partnership in every 
 virtue and in all perfection. As the ends of such a partner- 
 ship cannot be obtained in many generations, it becomes 
 a partnership not only between those who are living, but 
 between those who are living, those who are dead, and 
 those who are to be born. Each contract of each parti- 
 cular State i$ but a clause in the great primaeval contract of 
 eternal society, linking the lower with the higher natures, 
 
 9 Savigny, System des rom. Rechts, i. p. 22. 
 
72 THE CONCEPTION OF THE STATE. [Book I. 
 
 connecting the visible and invisible world, according to a 
 fixed compact sanctioned by the inviolable oath which 
 holds all physical and all moral natures, each in their 
 appointed place 10 .' 
 
 Such a conception of the State is far more lofty than 
 was possible according to the mediaeval doctrine that 
 the State was related to the Church, as the body to the 
 soul. 
 
 The historical school, however, only took up the State as 
 it had come to be. Looking only at the past, it was so 
 powerfully attracted by the scenes of ancient life, that many 
 of its disciples lost understanding for the present, and in- 
 clination to help in improving public conditions. The 
 school of natural law might frequently be reproached with 
 making the State the sport of arbitrary individual will. 
 / Similarly the historical school may be blamed for having 
 its conception of the State fast bound to traditional au- 
 thority and hereditary prejudices u . 
 
 <;ennan nt Although the works of the historical school are almost 
 ^hiios^h exclusively limited to the legal and political history of 
 
 10 Edmund Burke, Reflections on the Revolution in France (Clarendon 
 Press Select Works, edited by Payne, vol. ii. pp. 113, 114). Cp. also 
 Leo (IVeltgeschichte, vi. p. 759), who works out Burke's idea. 
 
 We are reminded of the noble words of Shakespeare (Troilus and 
 Cressida, Act iii. Scene 3) : 
 
 ' There is a mystery (with whom relation 
 Durst never meddle) in the soul of state ; 
 Which hath an operation more divine 
 Than breath or pen can give expressure to.' 
 Cp. also King Henry V, Act i. Scene 2 : 
 
 ' Exeter. For government, though high and low and lower, 
 Put into parts, doth keep in one concent, 
 Congreeing in a full and natural close, 
 Like music. 
 
 Canterbury. True : therefore doth heaven divide 
 The state of man in divers functions, 
 Setting endeavour in continual motion ; 
 To which is fixed, as an aim or butt, 
 Obedience : for so work the honey-bees, 
 Creatures that by a rule in nature teach 
 The act of order to a peopled kingdom/ 
 
 11 The historical tendency becomes a reaction, a return if possible to 
 the middle ages, in the writings of De Maistre and Ludwig nailer. 
 
Chap. VII.] DIFFERENT THEORIES. 73 
 
 particular states, yet even speculative philosophy gained 
 by the new inquiries. 
 
 Even Hegel in his theory of Law (Rechtslehre] paid more Hegei. 
 regard to the historical formation of states than the earlier 
 theorists of natural law. He supposed indeed that he found 
 in the history of the world a dialectical process of reason. 
 The ' existing ' appeared to him ' rational.' His theory 
 glorified especially the Prussian state, as it then existed, 
 still absolute although governed in a spirit of public duty. 
 He defended the power of the monarchy, and did not care 
 for the advance of constitutional freedom. But he em- 
 phasised the moral significance of the State, and in opposi- 
 tion to the wretched idea that it was only a necessary evil, 
 he praised it, as the highest and noblest realisation of the, 
 idea of Right. 
 
 Hegel's State is however only a logical abstraction, not 
 a living organism, a mere logical notion, not a person 12 . 
 Hegel, by founding the State and Law merely upon will, 
 overlooks the fact that in the State not merely is the collec- 
 tive human will operative, but all the powers of human 
 spirit and feeling together. 
 
 Fr. J. Stahl, who, after Hegel, was the most important Stahi. 
 representative of the philosophical theory of the State in 
 Berlin, argued against the school of natural law and the 
 Hegelian theory with zeal and ability. He undertook to 
 unite the historical tendency with the imaginative specu- 
 lations of Schelling. 
 
 Stahl has in many ways advanced political science by 
 his dialectical and critical ability in finding new points of 
 view, and by the acuteness with which he lights up many 
 dark, places ; but in other respects his want of thorough 
 historical education, and his somewhat servile sophistry, 
 which made modern formulas subservient to the romantic 
 
 12 Hegel, Rechtsphilosophie, 257: 'The State is the realisation of 
 the moral idea. It is the moral spirit as substantial will manifested, 
 and clear to itself, thinking and knowing itself, and accomplishing what 
 it knows, and in so far as it knows it.' Cp. his Philosophy of History, 
 Trans, by Sibree, pp. 40-42. 
 
74 THE CONCEPTION OF THE STATE. [Book I. 
 
 fancies of great and small despots, have done much harm. 
 Stahl considers the State as 'a moral and intellectual 
 domain,' or as ' the union of the multitude to an ordered 
 common existence, the setting up of a moral authority and 
 power exalted and majestic, to which the subjects must 
 submit.' His idea of the State is more living than Hegel's. 
 He recognises too that the rule of the State ' is limited to 
 common interests,' and in this way he avoids the exaggera- 
 tion of the ancient State, but a trace of the theocracy of the 
 Old Testament runs like a red line through his whole theory 
 of the State, destroying its value for the modern European 
 world. The divine or superhuman majesty of the power of 
 the State can make no peace with human and civil liberty. 
 7- u "i on of The old strife between the philosophical and historical 
 
 the philo- 
 sophical and school in Germany has altogether ceased. Peace was made 
 
 historical 
 
 methods. as early as 1840. Since then it is recognised on all sides 
 that the experiences and phenomena of history must be 
 illumined with the light of ideas, and that speculation is 
 childish if it does not consider the real conditions of the 
 nation's life. In spite of this union of the two methods, 
 which supplement and correct one another, some authors 
 have more of the philosophical, and others more of the his- 
 torical tendency. 
 
 Criticism of Another characteristic of modern political science is the 
 
 the State , ... .... , . 
 
 from differ- sharper criticism which is exercised not only in examining 
 Snwew!** facts, but in making abstractions from them, and in forming 
 conceptions. This criticism considers the State from the 
 most different points of view. A few of the most notable 
 writers may be named. The works of Robert von Mohl are 
 written mainly from the literary point of view, but they 
 show a sober and intelligent application of the standard of 
 practicability. Alexis de Tocqueville has always in view 
 the movement of political life, whether he is describing the 
 American democracy, or the connexion of the French Revo- 
 lution with the old regime, or the condition of the English 
 aristocracy. The Baron Eotvos is influenced by a distrust 
 of modern ideas. John Stuart Mill criticises public affairs 
 
Chap. VII.] DIFFERENT THEORIES. 75 
 
 from the radical standpoint of abstract logic, moderated 
 however by his English temperament. Thomas Buckle 
 applies the methods of natural science to the theory of 
 the State, and attempts to explain the life of the State by a 
 consideration of the forces of nature. 
 
 With other writers criticism has a decidedly historical Historical 
 
 . ..... _, , . , criticism. 
 
 character, e. g. Gneist, the chief authority on English con- 
 stitutional history ; Edouard Laboulaye, who writes admir- 
 ingly of the American constitution ; and Heinrich von 
 Treitschke, who first brought out the significance of the 
 Prussian monarchy. Lorenz von Stein follows the same 
 method, but occupies himself chiefly with details of adminis- 
 tration. 
 
 In the more recent school of Gerber, criticism has taken The juristic 
 especially a juristic character. The writings of many of his 
 pupils show the danger of this method, which tends to re- 
 press progress by formal abstractions. 
 
 The psychological consideration of the State, on the other The p sy - 
 hand, attempts to explain the life of the State more pro- 
 foundly from the forms and faculties of the human spirit. 
 This method involves an opposite danger, viz. that the 
 movement of Politics may not sufficiently regard the fixed 
 and sure realm of Law, but disturb and transform it. 
 
 The comparative method which considers the most im- The Com- 
 portant States alongside of one another, is in harmony with pa 
 recent tendencies. Most of the writers who have been 
 named have used it with success. It is indispensable for 
 the general theory of the State. 
 
 Finally, in an age like ours, in which national States are National 
 formed, the theory of the State accentuates more decidedly thel3tate. 
 than before the national character of the State. Welcker in 
 Freiburg, Franz Lieber in New York, Fr. Laurent in Ghent, 
 Bluntschli in Zurich and Munich, had followed this ten- 
 dency in theory, even before the attempts of Italy and 
 Germany to realise their national unity. The newly- 
 awakened political science of the Italians in its youthful 
 ardour worked out the national basis of the State with 
 
76 THE CONCEPTION OF THE STATE. [Book I. 
 
 special prominence, and at first not without one-sided 
 passion. Its most distinguished representatives are Man- 
 cini and Padeletti in Rome, and Pierantoni in Naples. 
 The Italians, like the Germans, unite the historical and the 
 philosophical methods in their works. 
 
 The organic Note. There is still little understanding for the organic or, to use 
 
 logical a better expression, the psychological and human nature of the State. 
 
 nature of As there are persons, sometimes educated persons, who have no musical 
 
 the State. 1^1- t_i j is. i_ r - i 
 
 ear, or are completely insensible to the beauty of a painting or a draw- 
 ing, so there are many learned men who are complete strangers to 
 organic or psychological thinking. One must not blame them, for 
 nobody can go beyond his natural dispositions, but they would do well 
 to abstain from any judgment about things which they do not under- 
 stand. Otherwise they only exhibit their presumption as well as their 
 deficiency. 
 
 Schmitt- One of the first to lead the way in the organic method was Fr. 
 
 Schmitthenner, who declared the State to be ' an ethical organism for 
 the purpose of giving a public expression to external life, law, well- 
 being and culture.' 
 
 Vollgraff. A remarkable attempt was made by Vollgraff to base the theory of 
 
 the State on the psychology of peoples. (^ A first attempt at a scientific 
 explanation of general ethnology by anthropology, and of the philosophy 
 of politics and law by the ethnology or national character of peoples? 
 3 parts, 1851-53.) The work professes to be a first attempt, and as 
 such deserves respect, but is not well adapted to bring the psychological 
 method into repute. Neither the account of the powers of the human 
 mind nor the estimate of the different temperaments is satisfactory, and 
 the considerable amount of collected historical material and the numer- 
 ous observations and notes of travel are so uncritical, and so much 
 mixed up with mere fancy pictures, as not to give the impression of 
 accuracy. 
 
 Ahrens. Ahrens, a follower of the philosopher Krause, has undertaken to write 
 
 an organic theory of the State (H. Ahrens, Die organische Statslehre, 
 Bd. I, Vienna, 1850) ; but by the organism of the State, he does not so 
 much understand a living and personal collective being, as an organic 
 arrangement for community in law. 
 
 VVaitz. Waitz (Politik, 1862, I. 5) says: 'The State is not something arbitra- 
 
 rily made, it does not arise by a contract between men, nor by the 
 power of one or more individuals. The State grows like an organism, 
 but not according to the laws, nor for the ends of mere natural life : it 
 has its foundation in the higher moral tendencies of man, and is a 
 sphere for the realisation of moral ideas, it is not a natural but a moral 
 organism. The State is the organisation of the people.' The State is 
 
Chap. VII.] DIFFERENT THEORIES. 77 
 
 not however the realisation of the moral life in general. The moral dis- 
 positions and ideas of man determine also private life, the church, the 
 family, and society. Only if we understand psychologically the collec- 
 tive human nature of peoples, and of mankind, do we get a clear and 
 satisfactory basis for the conception of the State. In my Psycho- Bluntschli. 
 logical Studies on State and Church, Zurich, 1844, I made the first 
 attempt to explain the State from the point of view of the psychology 
 of Fr. Rohmer. 
 
 I made the mistake of presupposing some understanding for this 
 science which I had made known in my Theory of Parties, but I found 
 out that I was in error, and that all psychological thinking about the 
 State was strange and unknown to the education of the day. My Studies 
 were put aside as ' the incomprehensible nonsense of an otherwise 
 intelligent man.' The fruits of these studies, as they have been matured 
 in the present work, are received with general acceptance. Meanwhile 
 the time has come nearer in which the path on which those studies 
 entered will no longer appear adventurous, and the organic and psycho- 
 logical study of the State will be readily pursued ; then people will be 
 better able to judge, whether these studies have any value or not. Mean- 
 time I find compensation for much misunderstanding and misapprecia- 
 tion in knowing that the two most brilliant of German statesmen, 
 Frederick the Great and Prince Bismarck, have proved by word and 
 deed their understanding for the psychological life of nations and States. 
 
BOOK II. 
 
 THE FUNDAMENTAL CONDITIONS OF 
 
 THE STATE IN THE NATURE OF 
 
 MEN AND OF NATIONS. 
 
CHAPTER I. 
 
 MANKIND. THE RACES OF MEN, AND FAMILIES 
 OF NATIONS. 
 
 MANKIND has not yet found a collective organisation in Mankind : 
 a world-empire. History in times past only knows of single afflference^! 1 
 empires and states limited to parts of mankind. The 
 general theory of public law (Statsrecht) must therefore begin 
 by observing those parts, and by defining the relation of 
 nations to humanity and the State. 
 
 A belief in the unity of the family of men is essential to 
 the higher religious sense. Christianity has called all men 
 to be the children of God. The civilised States assume the 
 unity of mankind and recognise a common human nature 
 even in lower races and tribes. But, at the same time, the 
 diversity of races is of the highest importance for the State 
 and for public law : for in the State men appear in an order, 
 and order cannot be imagined without difference.' 
 
 Science hitherto has failed to discover the mysterious 
 origin of the main races (Hauptrassen) of mankind. Are 
 races due to separate acts of creation ? or have the different 
 races parted gradually from one original parent race ? and if 
 so, what natural forces were at work in the change ? We do 
 not yet know. But at the very outset of the history of 
 human development, as we know it, we find the chief races 
 differing in mental capacity as well as in build and colour, 
 and that diversity has remained essentially the same. 
 
 It is true that no race has remained quite pure, and large 
 G 
 
82 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 portions of primitive races have been torn away from their 
 kinsfolk, and some of them transformed into new nations. 
 
 Four main But throughout we can see the distinction between white? 
 black, yellow, and perhaps red races at work in the history 
 of development, especially if we look beyond mere colour, 
 which is often deceptive. 
 
 There are, indeed, many thinkers who, in theory, deny the 
 mental inequality of these races, but scarcely one who does 
 not constantly recognise it in practical life. The whole 
 history of the world bears witness to the different endow- 
 ment of races, and even to the unequal capacity of the 
 nations which have grown out of them. 
 
 (0 The It is probable that the dark Ethiopian race, the ' nations 
 
 Race! 1 "* of the night/ as Cams calls them, once covered not only 
 Africa, their special quarter of the world, but also the 
 southern countries of Asia, and even occupied the southern 
 promontories of the continent of Europe. There can be no 
 doubt of the great age of this, perhaps the earliest of all 
 races. But at no time or place has it, of itself, attained even 
 a moderate degree of legal and political development. It 
 has no real history. In every encounter with white races or 
 men, it has at once given in to them. With a luxuriant fancy 
 and excitable passions it unites a poor understanding and a 
 weak will. Childish by nature, it is meant to be educated 
 and ruled by higher nations. 
 
 Even in antiquity the black race in India and Egypt were 
 ruled by the white Aryans and Semites. To the present 
 day the old Negro monarchies of Africa are not proper 
 States, but arbitrary and capricious despotisms. These 
 tribes made a distinct advance when they came under the 
 influence of Mohammedan religion and culture, especially 
 in North Africa and the kingdoms of the middle Soudan. 
 The attempts of the negroes of Hayti and Liberia to imitate 
 the governments of the French Empire and the United 
 States are burlesques of the life of political nations. 
 
 <2) The Red On the other hand, the red races of the American Indians 
 are less childish. But their political capacity is very small. 
 
Chap. I.] THE RACES OF MEN. 83 
 
 No doubt before the colonisation of America by Europeans 
 there were larger States there, with a considerable and 
 respectable civilisation. But the theocratic monarchies of 
 Peru and Mexico were probably not the work of indigenous 
 races, but were founded by immigrants from Eastern and 
 Southern Asia. The name of ' White Children of the Sun ' 
 given to the Incas in Peru, and the honour paid to white 
 men as c sons of the Gods,' point unmistakably to an Aryan 
 origin. Where the Indians were left to themselves, they 
 again relapsed into the state of wild hunters, and fell into 
 small groups. Their tribal republics with changing chiefs, 
 impetuous orators and assemblies, rest on no firm foundation 
 of law and institutions. They are not States, but societies 
 of hunters. Individuals, perhaps, enjoy a self-willed and 
 fro ward freedom, but the bond uniting the whole is crude 
 and inflexible. They can offer no opposition to the advance 
 of white civilisation, and are crushed out and destroyed 
 by it. 
 
 The so-called ' yellow ' race has more significance for poll- (3) The 
 tical development. Their home has always been in Asia, 
 and they part into two main tribes, the browner type of the 
 Malays, and the lighter type of the Finns and Mongols. 
 The latter especially has produced great princes, comman- 
 ders, and statesmen. Some, indeed, of these tribes have 
 remained to the present day in the nomad state, as herds- 
 men, hunters, and robbers, chiefly in middle Asia; but 
 other nations of this race have founded great empires. They 
 have retained their roughness in the West, and grown more 
 humane in the East. The race, as a whole, comes nearer 
 to the Caucasian than either the Negroes or the Indians do, 
 and they have from early times, especially in the upper 
 classes, intermarried with whites. The civilised nations 
 (Culturvolker) of China and Japan have reached a higher 
 development than the Huns and Turks. They have pro- \ 
 duced a subtle political philosophy, and the ideas of humanity 
 as opposed to barbarism, and personal merit as opposed to 
 nobility of birth, were recognised by them earlier than by 
 
 G 2 
 
84 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 the Aryans of Europe. They have^ione much for agricul- 
 ture, trades, schools, and police. But their ideas of law 
 were always mixed up with moral precepts, and limited by 
 considerations of family life and discipline?) Their govern- 
 ment is a benevolent despotism. They have little sense of 
 honour, and no idea of national freedom. 
 
 ( 4 ) The Highest in the scale stands the white race of Caucasian or 
 
 Iranian nations, the l nations of the daylight,' as Carus calls 
 them in opposition to the children of the night and of the 
 twilight, the l children of the sun and of heaven,' as the 
 ancients called them. They are pre-eminently the nations 
 which determine the history of the world. All the higher re- 
 ligions which unite man with God were firstjrevealed among 
 them ; almost all philosophy has issued from the works of 
 their mind. In contact with other races they have always 
 ended by conquering them and making them their subjects. 
 They give the impulse to all higher political development, 
 with its To their intellect and to the energy of their will, we owe, 
 frmiUesf under God, all the highest achievements of the human spirit. 
 Semitic But these ' nations of the day ' part into two great families, 
 (b) the Aryan. t ^ e Semitic and the Aryan nations. The function of the 
 Semites in the world is, above all, a religious one. Judaism, 
 Christianity, Islam, were all first given to the world among 
 Semitic nations, and in the East. But politically they are 
 less important. On the other hand, the Aryan family of 
 nations, whose language is the richest in forms and in thought, 
 holds the first place in the history of States and the develop- 
 ment of rights : they have found their true home in Europe, 
 and it is here that their manly genius for politics has un- 
 folded and matured. 
 
 On this rests the claim of these Aryan nations of Europe 
 to become, by their ideas and institutions, the political 
 leaders of the other nations of the earth, and so to per- 
 fect the organisation of mankind. 
 
 These differ- This diversity of races, then, is natural : it is due to nature's 
 Race are creative energy, and is not merely the product of human 
 thTs-Tof' 1 history. On the other hand, the nations into which these 
 
Chap. I.] THE RACES OF MEN. 85 
 
 races divide, or which have arisen from the fusion of different Nationaiity 
 races, are clearly the product of human history. Nations toricai.' 
 are ' historical ' members of humanity and its races. We do, 
 indeed, know of primitive nations, nations, that is, which 
 meet us in early times, of which we have scanty knowledge, 
 or whose origin is lost in antiquity. But there are a very 
 large number of nations whose origin falls within the domain 
 of our historical knowledge, and we have sufficient ground 
 for believing that the ( primitive nations ' arose in the same 
 way. History, by processes of separation and fusion, as well 
 as by change and development, has in course of time 
 severed nations and produced new ones. Hence the 
 peculiarity of nations appears less in their physical appear- 
 ance than in their spirit and character, their language and 
 their law. 
 
 Notes. i. Prichard in his Natural History of Man has treated of 
 the differences and affinities of the chief races in physical structure and 
 speech : while A. de Gobineau in his Essai sur Vinegalite des races 
 humaines, Paris, 1852-1855, has tried to bring out political differences. 
 Interesting and stimulating as these works are, there is still much to be 
 done before sure scientific results are attained. The latest and most 
 complete work is Th. Waitz, Anthropologie der Naturvb'lker (Theil vi. 
 bearbeitet von Gerland), 1859-1872 ; cf. also Peschel, Volkerkunde, 5th 
 ed., 1 88 1, pp. 337 ff. 
 
 2. Science has too long neglected the important bearing of race on 
 law and politics. Gobineau, who seeks to supply this want, often goes 
 to the opposite extreme of explaining everything by race. He also at- 
 tends too exclusively to race founded on birth and descent (Geburtsrasse), 
 ignoring the fact that a race, as we see both in families and nations, 
 may be produced by education (anerzogene Rasse). Such a 'secondary' 
 race, though more dependent on human freedom, has a powerful influence 
 on the development of rights. The Romish clergy are a striking instance 
 of this. 
 
 The influence of individuals is distinct from that of race, and demands 
 equal attention : individuals have determined the course of history 
 almost more than races. The treatment of these differences by Fr. 
 Rohmer in his Lehre von den politischen Parteien (dargestellt durch 
 Theodor Rohmer, Zurich, 1844) deserves more attention than it has 
 received. 
 
CHAPTER II. 
 
 THE CONCEPTIONS ' PEOPLE" AND ' NATION? 
 
 VULGAR usage confuses the expressions ' people ' (Nation] 
 and * nation' (Volk); science must carefully distinguish 
 them. But even scientific language is often confused by 
 the fact that the same words are used in different senses by 
 different civilised nations. 
 
 impUes P a In En g u ' sh the word ' people,' like the French ' peuple] 
 
 civilisation, a implies the notion of a civilisation, which the Germans (like 
 
 Nation is a 
 
 political idea, the old Romans in the word ' natio ') express by Nation a . 
 The political idea is expressed in English by * Nation,' and 
 in German by Volk. Etymology is in favour of German 
 usage, for the word natio (from nasci) points to birth and 
 race, Volk and populus rather to the public life of a State 
 
 Thus the Germans in the middle ages were at once 
 a people (Nation) and a nation (Volk), while in the 
 last few centuries they ceased to be a nation, and were 
 rather a people divided into a number of different states, 
 countries, and one may almost say nations. To-day the 
 German nation ( Volk) has come to life again, although in- 
 dividual parts of the German people form parts of non- 
 German nations and states. Although in our time the 
 sense of nationality is stronger than ever before, yet even 
 now the ideas of ' people ' and ' nation ' nowhere fully 
 coincide. 
 
 a [The English word ' people ' has however very often the political 
 sense of Volk, e.g. Volksvertretung = ' Representation of the people.'] 
 
THE CONCEPTIONS ' PEOPLE* AND l NATION! 87 
 
 Peoples and Nations are the product of history. A People Origin of a 
 comes into being by a slow psychological process, in which Peop e ' 
 a mass of men gradually develope a type of life and society 
 which differentiates them from others, and becomes the fixed 
 inheritance of their race. 
 
 A mere arbitrary combination or collection of men has 
 never given rise to a People. Even the voluntary agree- 
 ment and social contract of a number of persons cannot 
 create one. To form a People, the experiences and fortunes 
 of several generations must co-operate, and its permanence 
 is never secured until a succession of families handing 
 down its accumulated culture from generation to generation 
 has made its characteristics hereditary. 
 
 The rise of a Nation implies merely a political process, Origin of a 
 the creation of a State, and may therefore be brought about 
 quickly by a new constitution, but not with real safety un- 
 less built upon a basis of nationality. 
 
 In the formation of a People many forces and factors are 
 at work, tending to unite the masses composing it by a 
 common spirit, common interests, and common customs, 
 and to separate them from other masses which have become 
 strange to them. 
 
 Religious belief acted with such power, especially in me- The influ- 
 diaeval Europe, but also in ancient Asia on the whole iTeiiglon?* 
 thought and life of men, that community of religion was\ 
 made the ground of nationality, and unbelievers were ex-\ 
 eluded as foreigners. 
 
 Probably the Aryans of India and Persia first parted from 
 one another for religious reasons, and certainly the Brah- 
 manists and Buddhists, in spite of their common habitation, 
 language and descent, fought with one another as foreign 
 peoples, merely on the ground of their faith. And thus the 
 Jewish people maintained their characteristics, not only in 
 their own home, but in the Babylonian Captivity, under 
 the Roman Empire in Alexandria and Rome, and even 
 after the destruction of the Jewish state had dispersed 
 them among strange states and peoples. But now that 
 
88 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 religious freedom is valued more highly than unity of belief, 
 this influence of religion upon the formation and separation 
 of peoples becomes weaker. Nationality is now a stronger 
 power to unite and to separate than religion. Germans 
 have become conscious of their unity as a nation apart from 
 the question whether they are Catholics or Protestants, 
 Jews or Pantheists, and they maintain their distinction from 
 foreign peoples, although many of these are of the same 
 religion with them. 
 
 (/>) Language. A stronger influence on the separation of Peoples than 
 that of religion is difference of language. Common lan- 
 guage is the special mark of a People. The populations 
 of different countries gradually give to their language a 
 new form of their own, until a time comes when those who 
 once used the same speech cease to understand one 
 another, because their languages have taken different 
 ways. Henceforward those who still speak and understand 
 the same language recognise one another as members of 
 the same people (' Nationale'\ while the others, whose 
 language they no longer understand, are regarded as 
 strangers. 
 
 Language is the expression of the common spirit and the 
 instrument of intellectual intercourse. It is carried forward 
 and handed down as a heritage in the family. The national 
 language therefore keeps the sense of nationality awake and 
 living by daily exercise. Even strange races, entering on 
 the heritage of a new language, are gradually transformed 
 in spirit by it until their nationality is changed. Thus the 
 German tribes of the Ostrogoths and Lombards in Italy 
 became Italian ; the Celts, the Franks and Burgundians in 
 France became French ; the Slavs and Wends in Prussia 
 became German. 
 
 If the feeling of nationality in our day has become more 
 powerful and effective than ever before, it is due in the main 
 to the influence of language, to literature, and above all the 
 periodical press. The ' national ' movement has received 
 its chief impulse from national literature, which is ,the means 
 
Chap. II.] THE CONCEPTIONS 'PEOPLE' AND l NATION? 89 
 
 to community of thought and feeling, and to the common 
 extension of intellectual possessions. 
 
 Still, language does not always decide nationality, and 
 therefore the notions of a ' people ' and hereditary com- 
 munity of speech are not exactly coincident. The Bretons 
 and the Basques regard themselves as part of the French 
 people, although they speak French as a foreign language. 
 Here political union in one nation ( Volk\ common fortunes, (c) Habita- 
 interests and culture have awakened and formed the feeling toms, poiiti- 
 of French nationality. On the other hand, English and ca 
 North Americans, although they continue to speak a com- 
 mon language, regard one another as two nationalities, 
 distinct, although closely related. Here it is not language, 
 but the difference of natural circumstances and pursuits, 
 and of historical, social and political conditions which have 
 divided one people into two. 
 
 These instances show that, apart from (a) religion and 
 (^) language, (c) community (i) of country and habitation, 
 (2) of way of life, occupation and customs, and (3) of 
 political union have their influence in the formation of new 
 peoples. 
 
 Finally, the mixture of parts of different nationalities may (d) Fusion of 
 give rise to a new type and a new character, and hence to a 
 new nationality. European and American history abound 
 in examples of this. 
 
 The essence of a People lies in its civilisation ( Cultur) : A People is 
 its inner cohesion and its separation from foreign peoples bed by its 
 spring mainly from development in civilisation, and express splSTand 
 themselves chiefly in influencing its conditions. It can ^iSaSon 
 only be understood from a psychological point of view : its t] l e product 
 
 i r J ofanuncon- 
 
 essence is to be seen in the common spirit and common stious pro- 
 character which inspires it. It may be called an organism growth, 
 in so far as its character has received a visible expression 
 in the physique of the race and in language and manners. 
 
 But it is not, as the Nation is, an organism in the higher 
 sense of a personality. The sense of association and the 
 disposition to unity are there, but there is no unity of legal 
 
90 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 will and of act, there is no legal personality unless it has 
 become a State and a Nation. 
 
 Although the human mind and human effort have a very 
 considerable influence in the formation of peoples, yet for 
 the most part the process is an unconscious one. 
 
 The very fact that the one humanity parts into many 
 peoples, enables it by means of their competition and their 
 manifold energies to unfold all those hidden powers of its. 
 nature which are capable of common development, and to 
 fulfil its destiny more abundantly. The growth and de- 
 velopment of Peoples is a powerful factor in the history 
 of the world, and certainly an essential element in its 
 divine plan. 
 
 Definition of The conception of a * people ' (Nation) may be thus 
 defined. It is a union of masses of men of different 
 occupations and social strata in a hereditary society of 
 common spirit, feeling and race, bound together, especially 
 by language and customs, in a common civilisation which 
 gives them a sense of unity and distinction from all 
 foreigners, quite apart from the bond of the State. 
 
 The limits of a People are capable of movement and 
 change. It may grow and spread continuously, by ex- 
 tending its language and manners, its civilisation, among 
 foreign masses, and so assimilating them. It may decrease, 
 collapse, and disappear if a foreign civilisation comes 
 victoriously against it, and absorbs and transforms its 
 members. In this way a great people with a higher civilisa- 
 tion gradually destroys the ruder civilisations of small 
 tribes and replaces them by its own. 
 
 ^N^don" f ^ a Cation ( Volk) we generally understand a society of 
 
 all the members of a State as united and organised in the 
 
 A Nation is State. The Nation comes into being with the creation of 
 
 guished from the State. It is the consciousness, more or less developed, 
 
 ?he sense of of political connection and unity which lifts the Nation 
 
 SSity? al above the People. A Nation which leaves its own country 
 
 may be imagined as continuing to be a Nation, but only 
 
 provisionally so, until it succeeds in forming a new State in 
 
Chap. II.] THE CONCEPTIONS ( 'PEOPLE' AND ' NATION! 91 
 
 a new country. Again, the Nation may precede the State, 
 as the Jewish nation under Moses preceded the Jewish 
 State : but here, again, it is only because the impulse to 
 State-life is strongly developed in it, and its unity of organi- 
 sation paves the way for the foundation of a State. 
 
 So far the idea of a nation always bears a necessary NO state, no 
 relation to the State, and we may say, ' no State, no Nation.' 
 This genesis of the State we shall consider specially in 
 Book IV. But we do not usually give the name of Nation 
 to a merely passive governed body of people without political 
 rights. And therefore we cannot quite say, * no Nation, no 
 State/ Despotism knows nothing of Nations ; only of 
 subjects. 
 
 If a whole Nation or the main part of it belongs to 
 one people, it is naturally pervaded by the common spirit, 
 character, language and customs of that people. If, on 
 the other hand, it is composed of parts of different peoples, 
 it has less community of feelings and institutions than a 
 People. 
 
 On the other hand, the chief point which distinguishes a A Nation is a 
 Nation from a People is that in it community of rights is personality 
 developed in a more marked degree and is raised to the 
 point of participation in the conduct of the State, and its 
 capacity of expressing a common will and maintaining it 
 by acts has acquired the proper organs in the constitution 
 of the State : in a word, it is a collective personality, legal 
 and political. We are justified, then, in speaking of a with a spirit 
 national spirit ( Votksgeist) and a national will ( Volkswille), of its W own ; 
 which is something more than the mere sum of the spirit 
 and will of the individuals composing the Nation. That 
 spirit and will, both by its organs and content, is not 
 individual and isolated and self-contradictory : it has all 
 the unity of a common spirit and a public will. 
 
 Nations, moreover, are organic beings, and as such are subject to the 
 subject to the natural laws of organic life. In the history organkfiife. 
 of their development the same stages may be distinguished 
 as in the life of individuals. The natural powers and con- 
 
92 FUNDAMENTAL CONDITIONS OF THE STATE. 
 
 ditions of a Nation, its ideas and needs, are not the same 
 in its old age as in its childhood. For Nations, as for 
 individuals, the middle period of their life is, as a rule, the 
 time of highest development for their spirit and power. Only 
 these periods which are distinguished by decades in indi- 
 vidual lives are to be measured in the life of nations by 
 centuries. But nations no less than men appear to be 
 mortal. 
 
 Notes. i. Savigny did good service by insisting on the organic 
 character of the nation and the influence of a nation's age on the develop- 
 ment of law in Germany. 
 
 2. The family tie by itself does not produce a people or a nation, and 
 Schleiermacher's remark, ' If a number of families are united together 
 and excluded from others by connubium, national unity is the result,' is 
 doubly contradicted by history. Both patricians and plebeians at Rome 
 were united by connubium, but at first they had no connubium with one 
 another, yet together they formed the Roman nation. 
 
 The Teutonic nations consisted of a union of estates, each of which 
 was united by the tie of connubium. And in modern times we find inter- 
 marriage between different peoples, without giving rise to a new people. 
 
 3. Mancini (Delia Nazionalita come fondamento del Diritto delle 
 Genti ; Turin, 1873, p. 37) defines a 'nationality' as <una societa 
 naturale di uomini da unita di territorio, di origine di costume e di lin- 
 gua conformati a comunanza di vita e di coscienza sociale.' But while 
 he rightly regards nationality as the natural condition for the formation 
 of a State, he does not properly distinguish nation and people regard- 
 ing a people as a legal personality, which it cannot be till it is organised 
 as a State. 
 
CHAPTER III. 
 
 THE RIGHTS OF NATIONALITIES. 
 
 THE fact that we have begun to demand recognition for Rights 
 the rights of nationalities (nationak Rechte] implies an ad- Peipie a ma: 
 vance in civilisation. Nationalities demand respect and as 
 protection as members of humanity and as the product of 
 historical evolution. The first and most natural right which 
 lies at the basis of all others is the right to exist. But what 
 form of human life could have a better natural right to exist- 
 ence than the common spirit of a people ? It is at once the 
 substratum of individual life and an essential condition of 
 the development of humanity. But it will take time before 
 this merely moral imperative is embodied in the correspond- 
 ing legal formula. The main significance of the principle of 
 nationality lies so far in the region of policy, not in that of 
 public law. 
 
 But the following may be mentioned as principles which 
 may rightly be asserted by members of the same nationality. 
 
 Language is the most peculiar possession of a people, is (i) TO its 
 
 11-1 i 11 i /- own Lan- 
 
 the strongest bond which unites its members, * and the chief guage. 
 means by which it reveals its character. For this reason 
 the State cannot deny a nationality (Nation) its language l , 
 nor prohibit its literature. It is, on the contrary, the duty 
 
 1 Austrian Fundamental law: On the general rights of citizens : 
 'Dec. 21, 1867, Art. 19: 'All tribes in the nation (Volksstamme) have 
 equal (?) rights, and each has an inviolable right to maintain its 
 nationality and language.' 
 
94 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk.II. 
 
 of the State to give free play to a language, and to promote 
 its use, so far as the general interests of civilisation are not 
 injured thereby. The suppression of the native languages of 
 the provincials by the Romans was a fearful abuse of the 
 power of government, and the prohibition of the Wendisch 
 language in the territory of the Teutonic Order, under 
 penalty of death, was a barbarous violation of rights. 
 
 But it does not follow from this principle that one language 
 may not be preferred for State purposes, to the exclusion of 
 all others. Where the life of the State is concerned, the 
 interest of the nation, as a whole, may require unity of 
 language. This justifies the exclusion of Welsh and Gaelic 
 from the English Parliament, of Basque and Breton from the 
 French Assembly, and Polish, Danish, and French from the 
 German Reichstag. But Switzerland has more respect for 
 the different nationalities of which it is composed, unites 
 German with French as its official language, and, on occa- 
 sion, even recognises Italian. 
 
 The State, too, is justified in providing that the developed 
 language shall be taught in the schools, so that the children 
 of a still unformed people may share in the heritage of a 
 noble literature. On the other hand, a civilised people feel 
 it a bitter wrong if their language is crushed out of School 
 and Church, in favour of a foreign one. 
 
 ( 2 ) TO its Further, a people has a right to observe its own customs 
 t^ns. so far as these do not conflict with the higher moral law of 
 
 men, or offend against the rights of the State. The English 
 are justified as rulers in not allowing Indian widows to 
 commit Suttee at their husband's funeral. But the State 
 has no right to prohibit innocent national games. 
 
 ( 3 ) TO its In the sphere of Legal Institutions proper a People as 
 within limits such has less claim to recognition and protection from the 
 b?^Sd State, because the unity and harmony of the State, and the 
 of the State, civilisation embodied in it, naturally have a higher claim. 
 
 It is essential to the developed State to include the whole 
 population in its laws, and transform or abolish the rights of 
 individual peoples. We cannot find fault with the Romans 
 
Chap. III.] THE RIGHTS OF NATIONALITIES. 95 
 
 for trying to introduce Roman law throughout their empire. 
 But reckless interference is culpable. The English Govern- 
 ment made one of the most serious mistakes in this direction 
 when, in 1773, it wished to force the forms of English law 
 and judicial procedure in Bengal on the Indians who were 
 unprepared for it. The same time witnessed in German 
 States, on the one hand, an over-anxiety to keep a wilder- 
 ness of traditional statutory rights for small fragments of the 
 nation, on the other hand, a bold and revolutionary policy 
 in the introduction of a foreign common law for the whole 
 people. 
 
 In the development of law the Nation ( Volk] thus has a 
 stronger claim than the People (Nation) : differences of 
 nationality must give way before the unity and equality of 
 law and of justice. 
 
 Certainly the Romans found it very much easier to 
 Romanise the subject peoples in law, than to Latinise them 
 in language, and we find no fault with the French for apply- 
 ing their Code Napoleon to the Germans of Elsass and to the 
 Celts of Brittany. The English have every right to apply 
 uniform law to Welsh and Irish. Still, we cannot forget 
 that it was the attempt of the Romans to impose the Roman 
 administration of justice on the yet uncivilised Germans 
 which kindled the great struggle for German freedom, and 
 that for centuries it was an admitted principle of German 
 legal theory that every people must be allowed its own law, 
 and every man must be guarded by his own native or 
 national rights. 
 
 The old Roman maxim, logically carried out, would have 
 destroyed all national freedom with national law ; the old 
 German method rigidly applied would have made all higher 
 development of government and law impossible. Happily 
 for the freedom of nationalities and the advance* of civilisa- 
 tion, Romans and Germans met as enemies, and neither 
 principle obtained complete ascendancy. 
 
 If the moral or intellectual life of a people is attacked by (4) TO its 
 
 < i ^ i i Moral and 
 
 the power of the State, its members are driven to the most intellectual 
 
 Life. 
 
96 FUNDAMENTAL CONDITIONS OF THE STATE. 
 
 determined resistance. Men can have no juster cause for 
 resistance to tyranny than defence of nationality 2 . Legality 
 may suffer in the struggle, but law is not injured. 
 
 2 Niebuhr, Preussens Recht gegen den sachsischen Hof: ' Common 
 nationality has higher claims than the political relations which unite or 
 separate the different nations of one race. Grammar, language, manners, 
 tradition and literature constitute a fraternal bond which parts them 
 from foreign tribes and makes union with the foreigner against their 
 own tribe a crime.' 
 
CHAPTER IV. 
 
 NATIONALITY AS A PRINCIPLE IN THE FORMATION 
 OF STATES. 
 
 AT all times in the history of the world nationality has had Nationality 
 a powerful influence on States and on politics. It was the poTJrfui. 
 sense of national kinship and national freedom which in- 
 spired the Greeks in their struggle with Persia, and the 
 Germans in their conflict with the Romans. Differences of 
 nationality were at the root of the division of the Roman 
 world between the Latin and Greek emperors. The split in 
 the Frankish monarchy, and the separation of France and 
 Germany, was largely due to the difference between the 
 Roman and German languages. Even in the middle ages 
 differences of nationality at times became prominent. But But not 
 it was not till the present age that the principle of nationality recognised 
 was asserted as a definite political principle. During the cfpTe 1 !" 15 " 
 middle ages the State was based on dynastic or class in- poh 
 terests (standi$cK)> and was rather territorial than national. 
 Later centuries saw the growth of the great European peoples 
 (Nationen\ but the State did not as yet gain a basis of 
 nationality nor a national expression : it developed a magis- 
 terial character (obrigkeitliche Stat), finding a centre in the 
 king and his officials. 
 
 Even the theory of natural rights grounded its claims, not or in poiitl- 
 
 . . . . cal theory. 
 
 on a common nationality, but on human nature and its 
 needs, and on the free will of individual men. Rousseau 
 
 H 
 
98 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 saw the foundation of the State in society, not in a people 
 (Nation). The ' nation ' to which he ascribes the supreme 
 power in the State (souverainete) is not the united people 
 (Nation) but the ' collective body,' or the ' majority of 
 citizens ' who have arbitrarily combined to form the State, 
 whether they form only a small fragment of one people or are 
 composed of a union of several nationalities. The French 
 constitutions of 1791 (Tit. III. Art. i) and 1793 (Arts. 25- 
 28) and of 1795 (Art. 17) adopted the same principles: the 
 words * peuple ' and ' nation ' were used interchangeably, but 
 both in the same sense of the collective body of citizens 
 (universaliti des citoyens). The government of the State was 
 simply transferred from the centre to the circumference, 
 from the king to the demos. 
 
 Napoleon When Napoleon, at the beginning of this century, at- 
 natiwisof tempted to revive the empire of Charles the Great, and, 
 resting on the French people as a support, to erect a 
 universal monarchy over Europe, he found a stumbling- 
 block in the other peoples, who regarded the French rule 
 with disgust and hatred. In spite of his genius, national 
 resistance proved too strong for the Emperor who could not 
 appreciate nationality. Even then the sense of nationality 
 was only imperfectly developed. Though the sentiment was 
 at work among the unconscious masses, the spirit of nation- 
 ality was not yet aroused. Even the stubborn and enduring 
 hatred of the English for the French was not so much based 
 on a desire of freeing nationalities (Nationen) from French 
 oppression, as on the hatred of the English aristocracy for the 
 French Revolution, on fear of French preponderance in 
 Europe, and on commercial interests. 
 
 The English, in spite of the heightened political con- 
 sciousness which springs from their manly pride and sense 
 of law, distrust nationality as a political principle. They 
 know that their island kingdom includes different nationali- 
 ties, and that the national feeling of the Celtic Irish has 
 more than once threatened the unity of the State. Their 
 Indian Empire, too, might be endangered by too strong an 
 
Chap. IV.] NATIONALITY AS A PRINCIPLE. 99 
 
 insistence on nationality. The Spaniards, in their struggle 
 with the French, felt their own unity as a nation, and hated 
 the French as foreigners : but they regarded it, not so much 
 as a struggle for nationality, as a war for their legitimate 
 prince and the Catholic religion against the fiends of the 
 Revolution. The Germans, owing to the differences of 
 religion and the disintegration of the empire into inde- 
 pendent dynastic kingdoms, had lost all sense of nationality 
 in politics, and only a few educated people listened to the 
 inspiring words of Fichte and songs of Arndt, when they 
 tried to revive it. The Russians went to battle and to death 
 to defend their Czar and his holy empire against the godless 
 West : they had no thought for their claims as a nation. 
 The French Revolution vaguely proclaimed the principle of 
 the independence of nationalities, but it was trodden under 
 foot at the Restoration. The Congress of Vienna, with utter 
 disregard of national rights, distributed fragments of great 
 peoples among the restored dynasties. As Poland had been 
 already divided among Russia, Austria, and Prussia, so now 
 Italy and Germany were cut up into a number of sovereign 
 states, and Belgium and Holland pieced together into one 
 kingdom, in spite of conflicting nationalities. 
 
 The fact that neither the statesmen of the Revolution nor Nationality 
 those of the Restoration recognised nationality as a political Forties! 6 
 principle, makes its influence on the political history of 
 to-day more marked and striking. Science, especially in 
 Germany and Italy, had already pointed to the idea of 
 nationality, and hinted at its consequences in politics. But 
 only since about 1840 has the natural right of Peoples to 
 express themselves in the State been appealed to as a prac- 
 tical principle. The impulses to nationality were roused 
 more strongly than ever before, even among the masses, and 
 demanded satisfaction in politics. Peoples desired to give 
 their union a political form and to become Nations. The United 
 dynastic system which European States had inherited from Germany. 
 the middle ages was now threatened by national demands 
 and passions. Austria especially was shaken by the conse- 
 
 H 2 
 
100 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 quent striving for independence among its various nationali- 
 ties. The foundation of a united Italy and of the German 
 Empire was inspired by the idea of nationality, which 
 gathered the scattered members of one people and organised 
 them in one State. The power of this national impulse is 
 unquestionable, though its limits are not so certain. 
 
 Nationality clearly has a closer and stronger connection 
 with the State than with the Church, for it is easier for the 
 Church to be universal. The State is an organised nation, 
 and nations receive their character and spirit mainly from 
 the peoples which live in the State. Hence there is a 
 natural connection and constant interaction between People 
 and Nation. 
 
 The extreme A People is not a political society ; but if it is really con- 
 
 state'for scious of its community of spirit and civilisation, it is natural 
 
 each People.' ^^ ^ g^ouid as ^ to envelope this into a full personality with 
 
 a common will which can express itself in act ; in fact, to 
 
 become a State. 
 
 Modified by This is the basis of nationality as a practical principle in 
 [FnStsof politics ; it is not content with the State protecting national 
 states* and l an g ua g e > custom, and culture, but demands that the State 
 itself should become national. Absolutely stated, it comes 
 to this : ' Every People has a call and a right to form a 
 State. As mankind is divided into a number of Peoples, the 
 world must be divided into the same number of States. One 
 State for every People : nationality the basis of every State.' 
 Is this true ? Let us first compare People and State in 
 regard to limits and extent, and see what differences appear, 
 i. One If the limits of the State are narrower than those of the 
 
 eludes 6 m people, we find two opposing tendencies : 
 States! If the citizens have a strong and lively sense of their 
 
 political unity, the State tries to form a new and distinct 
 Tendency to people out of its inhabitants. Thus, in antiquity, the Athe- 
 nians and Spartans became distinct nationalities by virtue 
 of their political education and isolation ; the same was 
 the case with the Venetians and the Genoese in the middle 
 ages, and later still with the Dutch, and partially with the 
 
Chap. IV.] NATIONALITY AS A PRINCIPLE. IOI 
 
 Swiss. But the grandest example of the formation of a new 
 people by the power of the political spirit, aided no doubt 
 by geographical differences, was the separation of the North 
 American States from England. 
 
 If, on the other hand, national impulses feel themselves (2) Cpm- 
 cramped in a narrow State, they strive to go beyond its 
 limits, and unite with those of the same nationality in other 
 States to form a larger and a national State. Such was the 
 origin in early days of the French State, and in this century 
 of united Italy and united Germany. 
 
 If the limits of the State are wider than those of the n. One 
 people, that is, if it includes two or more peoples, or por- dudes" 
 tions of peoples p^opfes 
 
 If the different peoples are settled in masses, side by side s^b^skuL 
 with one another in one country ; the following tendencies 
 then appear : 
 
 (1) The State, resting on the superior civilisation of one (i) Absorp- 
 people, tends gradually to assimilate the other elements, 
 
 and so to transform the whole nation into one people. Thus, 
 in the old Roman Empire, the West was Latinised and the 
 East Hellenised. So at the present day the Belgian State, 
 resting on the Walloons and its French capital Brussels, 
 seeks to Gallicise the higher classes of the Flemish popu- 
 lation ; so Russia endeavours to make the Poles Russian by 
 force. 
 
 This only succeeds where the dominant people is de- 
 cidedly superior to the rest in education, mind, and power. 
 The resistance of the Germans and of the Persians ship- 
 wrecked the Latinising and Hellenising policy of Rome and 
 Constantinople. 
 
 (2) The different peoples tend towards political separa- ( ? ) Separa- 
 tion. The movement for Repeal in Ireland, the separation 
 
 of the Lombards and Venetians from Austria, the constitu- 
 tional struggles in Austria generally, the renewed double 
 government of Austria and Hungary, as well as the conflict 
 between Magyars and Slavs, Germans and Czechs, all show 
 the persistent force of this tendency. 
 
102 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk.II. 
 (s) Union of On the other hand, the State may hold the different 
 
 differences f . 
 
 by ( rt ) im- peoples together without transforming them in favour of one 
 government, nationality. But in that case it must be impartial, and give 
 up any claim to be specifically national. It will allow each 
 people free course in its inner life and civilisation, and 
 regard them all as possessing equal rights. Its policy will 
 be governed by general and not by special and national 
 considerations. This is how Switzerland has solved the 
 difficult problem of retaining different nationalities side by 
 side, without danger to the unity of the State. Thus in the 
 central mountain region between Germany, France, and 
 Italy, portions of the three great peoples have formed small 
 republican communities, and united in a federation of peace 
 and neutrality. No doubt individual cantons have a national 
 character, either because all their inhabitants belong to one 
 people, as in the German cantons of Northern and Eastern 
 Switzerland, or in the French cantons of Western Switzer- 
 land, or in Italian Ticino, or because one nationality 
 decidedly prevails, e. g. the German in Bern and Grau- 
 biinden, the French in Fribourg and Valais. 
 
 (/;) Me- A very different way of holding different peoples in poll- 
 
 force, tical union, without transforming them, was long followed 
 
 with apparent success by Austrian policy, after the failure of 
 Joseph IPs attempt to Germanise Austria. Each individual 
 state was to be compelled by the forces of the rest l . This 
 mechanical method will only hold the parts in an artificial 
 union, which will last just as long as the compelling force is 
 feared. If its iron hold relaxes, or cannot be brought to 
 bear, the injured nationalities fly violently asunder. Austria 
 has learnt this since 1848. 
 
 1 De Parieu, Polit., p. 304, quotes the words of the Emperor 
 Francis II to the French ambassador at Vienna : ' Mes peuples sont 
 etrangers les tins aux autres et c'est tant mieux. Us ne prennent pas 
 les memes maladies en meme temps. En France quand la fievre vient, 
 elle vous prend tons le meme jour. Je mets des Hongrois en Italic et 
 des Italiens en Hongroie. Chacun garde son voisin : ils ne se com- 
 prennent pas et se detest ent. De leurs antipathies nait Tordre et de 
 leur haine reciproque la paix generale.' 
 
Chap. IV.] NATIONALITY AS A PRINCIPLE. 103 
 
 If the different nationalities are intermixed with one (B) Asshmia- 
 another, there is no danger to the unity of the State, but n< 
 the weaker nationality will probably be suppressed and 
 destroyed by the stronger ; the higher nationality becomes 
 dominant and assimilates by degrees the isolated elements 
 of the rest. Thus it was that the Germans were finally 
 Romanised in what were once Roman provinces, although 
 they were themselves the ruling race. Thus Irish, German, 
 and French in the United States, after two generations, are 
 assimilated by the Anglo-Saxon population. 
 
 From this general view it appears that the principles of The claims 
 Nationality and of the State interact, but that People and aiity*um-" 
 Nation do not necessarily coincide. We cannot therefore m 
 allow more than a relative claim to the principle of Nation- 
 ality, and on closer consideration we arrive at the following 
 results. 
 
 Not every people is capable of creating and maintaining (i) Poiiti- 
 a State, and only a people of political capacity can claim to ca 
 become an independent nation. The incapable need the 
 guidance of other and more gifted nations ; the weak must 
 combine with others or submit to the protection of stronger 
 powers. Thus, in the whole of Western Europe, the Celtic 
 peoples have served as passive material in the formation of 
 Romance and Teutonic states ; the diverse nationalities in 
 South-Eastern Europe can only maintain a political exist- 
 ence by resting on one another : the justification of the 
 English rule in India rests on the need of the population 
 for a higher guidance. 
 
 Strictly speaking, only those peoples in which the manly 
 qualities, understanding and courage, predominate are fully 
 capable of creating and maintaining a national State. Peoples 
 of more feminine characteristics are, in the end, always 
 governed by other and superior forces. 
 
 As the essence of a people consists in a common civilisa- (2) Diversity 
 tion, not in political unity, a people may be conscious of souTcTo? 
 the former and yet be politically divided. One part of it strength r 
 may be inclined to monarchy, another to a republic, and 
 
104 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 each may be resolved to realise the ideal it prefers. Such 
 a people may not feel satisfied until it has expressed its 
 character in various forms of constitution. But this diver- 
 sity is sometimes a source of political weakness : it was 
 because the Greeks were broken up into a number of small 
 city states, that they fell a prey, first, to Macedon, and then 
 to Rome. Owing to similar divisions, Italy and Germany 
 have suffered from foreign domination, and have been 
 hampered in their political growth. 
 
 On the other hand, the development of two or more 
 States from one people sometimes enriches the resources of 
 the people, and is a sign of great vitality : as in the case of 
 the sister States of England with its aristocratic monarchy, 
 and North America with its democratic republic. So, too, 
 the existence of a German Switzerland and a German 
 Austria, outside the German Empire, is a proof of the 
 resources of the German people. 
 
 ( 3 ) Political A People which is conscious of itself, and of a political 
 
 vocation, feels a natural need to embody itself in a State. 
 If it has the power to satisfy this impulse, it has a natural 
 right to found a State. 
 
 In the face of the supreme right of a people to its 
 existence and development, all rights of its individual mem- 
 bers or of its princes fall into insignificance. The destiny 
 of mankind cannot be fulfilled if the peoples of which it is 
 composed are not in a position to fulfil their function in the 
 world. Peoples must, to use Prince Bismarck's words, be 
 able to breathe and move their limbs, if they are to live. 
 This is the basis of the sacred right of peoples to take poli- 
 tical shape and to develope organs for the movement and 
 expression of their common life ; the most sacred of all 
 rights, save that of humanity itself, and the foundation and 
 bond of all others. 
 
 ( 4 ) The But a ' national ' a State (ein nationaler Stat\ need not 
 
 national 
 
 [' national* is here used in the sense of based on nationality' or 
 based on one people/ i. e. as an adjective corresponding to Nation : 
 but sometimes it is used as an adjective to Volk.] 
 
Chap. IV.] NATIONALITY AS A PRINCIPLE. 105 
 
 include an entire people : only it must embrace a part 
 which is large and strong enough to assert its character and 
 spirit effectively in the State. It is stretching the principle 
 of nationality too far to demand that the limits of the 
 national State should be as wide and as shifting as those of 
 the language of a People : and is incompatible with the 
 permanence of the State-personality (Statsptrscm) and with 
 the general security of rights. France, Italy, and the Ger- 
 man Empire are ' national ' States, although there are parts 
 of the French, Italian and German peoples which do not 
 belong to them. 
 
 A people (Nation) which has become or is just becoming 
 a nation ( Volk)^ may be justified in drawing to itself such 
 scattered members as it needs for its existence, but has 
 no right, if it can do without them, to tear them away 
 forcibly from a union with another State in which they find 
 satisfaction. 
 
 But Nationality is not the highest limit of political de- (5) The 
 
 M J , ideal State. 
 
 velopment. Ihe development of humanity demands as an 
 essential condition, not merely the free manifestation and 
 competition of peoples, but also the combination of these 
 peoples in a higher unity. Law (das Rechf) rests more 
 upon human nature than upon the peculiarities of Peoples. 
 The developed law of civilised nations is determined more 
 by the requirements of human intercourse than by national 
 custom. The essential institutions of the State are the 
 same in different nations. The highest ideal is of a State 
 which should be based on humanity (die hochste Statsidee ist 
 menschlicJi). 
 
 And so a national State ( Volksstat] may embrace various 
 nationalities, and even a State which is distinctively based 
 on nationality may gain in breadth and variety by the inclu- 
 sion of foreign elements, which serve to establish and keep 
 open communication with the civilisation of other peoples. 
 Such an admixture may serve as an alloy to give strength 
 and currency to the nobler metal. 
 
 On the other hand, it is of great advantage to the unity (6) Unity. 
 
106 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk.II. 
 
 of the State if the nation is based, in the main, on a dis- 
 tinct nationality (Hauptnation\ to which the other elements 
 of the population bear an insignificant proportion, like the 
 Germans in Russia, the Slavonic races in Prussia, the Jews 
 in Germany, and the French in North America. It is much 
 harder to establish and maintain the unity of a nation if it 
 is composed of several peoples vieing with one another in 
 power and importance. England had to overcome this 
 difficulty by the union, first of the Saxons with the Normans, 
 then of the English with the Scotch, and finally of the two 
 last with the Irish ; and it is a difficulty which Austria has 
 not yet overcome. 
 
 ( 7 ) Equality. If a State consists of different nationalities, which together 
 
 form one nation, political rights cannot be apportioned by 
 nationality : political community and equality of rights must 
 be shared by all alike 2 . 
 
 (8) The How far a people is able and worthy to form a State, 
 
 verdict of ... - ,. . - . , , , 
 
 history. cannot in the imperfect condition of international law be 
 decided by any human judgment, but only by the judgment 
 of God as revealed in the history of the world. As a rule 
 it is only by great struggles, by its own sufferings and its 
 own acts, that a nation can justify its claim. 
 
 The state If the State is to fulfil its part as the embodiment of the 
 
 as the em- . .......... ,... 
 
 ixxHment of nation, it is plain that its laws and institutions must have 
 regard to the capacities and needs of the nation, in a word, 
 it must be popular (volkstkumlicK). A constitution which 
 disregards the peculiar character of the nation, and which 
 does not correspond with its spirit and thought, is an un- 
 natural and incapable body. If it is forced upon a people 
 by a foreign power, or if, as we have seen before now, in 
 times of great political fever, it has been chosen by the 
 disordered and misguided nation, it collapses again as soon 
 as ever that power slackens or the nation recovers its reason. 
 In either case, however, the damage to the political organism 
 is so serious that it may result in the fall of the nation, and 
 at least cripples its vigour for a long time. 
 
 2 Eotvos, Die Nationalitatsf rage, Vienna, 1865. 
 
Chap. IV.] NATIONALITY AS A PRINCIPLE. 107 
 
 Every great people which is fit to become a nation and a 
 State, has its own political point of view and its own special 
 function as a State, and this cannot be fulfilled unless the 
 nation gives to the State the impress of its own character. 
 This is what is meant by the natural right of a nation to a 
 national constitution (volksthiimliche Verfassung}. Thus the 
 diversity of constitutions corresponds to the diversity of 
 gifts with which nations and peoples are endowed by God. 
 
 But it may well be that the peculiar character of a nation must gro 
 is not mirrored, once for all, in the State. A nation outlives growth. 
 the changing phases of its development, and although it 
 remains essentially the same, yet its needs and its views 
 alter with the periods of its life. A national and popular 
 State adapts its organism to the continual development of 
 the nation, but without completely losing its identity. The 
 Roman State through all its varied changes reveals the 
 character of the Roman people. The monarchy, the re- 
 public, the empire correspond to the different stages in the 
 life of the people, but in all we see the distinctive impress 
 of Rome. The English monarchy of the Tudors differed 
 from that of the house of Hanover, because the nation 
 developed between the sixteenth and eighteenth centuries. 
 This is what is meant by the natural right of a nation to 
 adapt its constitution to the time. 
 
 To sum up : a State is natural if its form, at any time, 
 corresponds to the peculiar character and period of develop- 
 ment of the nation embodied in it. 
 
 Notes. i. Cato in Cic. de Rep. ii. 21 : 'Nee temporis unius nee 
 hominis est constitutio reipublicae.' 
 
 2. Frederick the Great, Anti-Machiavel 12: 'Tout est varie dans 
 I'linivers : les temperaments des homines sont differents, et la nature 
 etablit la meme variete, si j'ose m'exprimer ainsi, dans le temperament 
 des Etats. J'entends en general par le temperament d'un Etat sa 
 situation, son etendue, le nombre et le genie de ses peuples, son com- 
 merce, ses coutnmes, ses lois, son fort, son faible, ses richesses et ses 
 ressources.' 
 
 3. De Maistre, Considerations sur la France, ch. 6 : ' Mais une con- 
 stitution qui est faite pour toutes les nations, n'est faite pour aucune ; 
 
108 FUNDAMENTAL CONDITIONS OF THE STATE. 
 
 c'est une pure abstraction, une ceuvre scholastique faite pour exercer 
 1'esprit d'apres une hypothese ideale, et qu'il faut adresser a Fhomme, 
 clans les espaces imaginaires ou il habite.' 
 
 4. Napoleon to the Swiss (1803) : ' Une forme de gouvernement qui 
 n'est pas le resultat d'une longue suite d'evenements, de malheurs, 
 d'efforts et d'entreprises de la part d'un peuple, ne prendra jamais 
 racine.' 
 
 5. Sismondi, Etudes sur la Constitution des peuples libres: 'La Con- 
 stitution comprend toutes les habitudes d'une nation, ses affections, ses 
 souvenirs, les besoins de son imagination, tout aussi bien que ses lois. 
 . . . Aussi rien n'indique un esprit plus superficiel et plus faux en meme 
 temps que 1'entreprise de transplanter la Constitution d'un pays dans 
 un autre, ou celle de donner une constitution nouvelle a un peuple, non 
 d'apres son propre genie ou sa propre histoire, mais d'apres quelques 
 regies generales qu'on a decorees du nom de principes. Le dernier 
 demi-siecle, qui a vu naitre tant de ces Constitutions d'emprunt, peut 
 aussi rendre temoignage qu'il n'y en a pas une seule qui a repondu ou 
 aux vues de 1'auteur, ou aux esperances de ceux qui 1'accepterent.' 
 (Introduction, p. 38.) 
 
 6. L. Ranke (Zeitschr. i. 91) : ' Our theory is that every nation has a 
 policy of its own. But what is the meaning of this principle of national 
 independence {Nationalunabhangigkeif) which penetrates all spirits? 
 Is it merely that no foreign judge must sit in our cities, and no foreign 
 troops march through our land? Is it not rather this, that we must 
 develope our own mental powers, independently of others, to the full 
 extent of which they are capable ? ' 
 
 [There is an interesting chapter on ' Nationalities ' in Laveleye, Le 
 Gouvernement dans la democratie^ Livre II. ch. Hi.] 
 
CHAPTER V. 
 
 SOCIETY. 
 
 FRENCH political theorists, especially since Rousseau, 
 have been inclined to regard the State as a Society, and to 
 identify the conceptions of ' Nation ' (nation) and ' People ' 
 {peuple) with that of Society. Hence the science of the 
 State has been confused, and political practice has also 
 suffered. German political theory distinguishes more sharply 
 between the different conceptions, and so saves many mis- 
 takes. It gives the State a firmer basis and a more secure 
 operation, and protects society against the tyranny of the 
 State. 
 
 The Nation ( Volk] is a necessarily connected whole, while Relation of 
 Society is a casual association of a number of individuals, (i^T&atioq 
 The Nation as embodied in the State is an organism, with and 
 head and members; Society is an unorganised mass of 
 individuals. The Nation has a legal personality (ist eine 
 Rechtspersori), Society has no collective personality, but 
 only consists of a mass of private persons. The Nation is 
 endowed with unity of will, and the power to make its will 
 actual in the State. Society has no collective will, and no 
 political power of its own. Society can neither legislate 
 nor govern, nor administer justice. It has only a public 
 opinion, and exercises an indirect influence on the organs 
 of the State, according to the views, interests, and demands 
 of many or all of its members. The Nation is a political 
 idea : Society is only the shifting association of private 
 persons within the domain of the State. 
 
1 10 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 No doubt a Nation and a Society, consisting of the same 
 men, interact in many and intimate ways. The State lays 
 down the law for Society : it protects it and furthers its 
 interests in many ways. On the other hand, Society sup- 
 ports the State with its economic and intellectual resources. 
 If the Society suffers, the State suffers with it : while a 
 healthy, beneficent, and cultivated Society strengthens the 
 State, and is the condition of its welfare. 
 
 But there is not always entire harmony between the State 
 and Society. Sometimes Society, with an eye to its own 
 special interests, or guided by chopping winds of public 
 opinion, makes demands on the State, which it is obliged 
 to reject as unjust or injudicious. Sometimes the State 
 claims of Society services and sacrifices which it is loth to 
 undertake. The permanent security of the State clashes at 
 times with the interests and desires of the moment. From 
 time to time Society suffers from disorders, which can best 
 be relieved by the State, and defects appear in the constitu- 
 tion or administration of the State, the removal of which 
 stirs Society to its depths. One of the main problems of 
 public law and of politics is to reconcile this opposition, 
 justly and judiciously. 
 
 ( 2 ) to The conceptions of People (Nation) and Society also are 
 
 related, but not identical. Compared with a hereditary 
 People, Society appears a shifting conglomeration of in- 
 dividuals. A People has created in its language an organic 
 expression of its common spirit, and Society makes use of 
 the national language, so far as it finds it convenient, but 
 has no language peculiar to itself as a Society. A People 
 may branch off into different States : we limit our con- 
 ception of a Society to the inhabitants of one State : or if 
 we speak e. g. of European Society, we include the inhabit- 
 ants of all civilised European States, notwithstanding that 
 they belong to different peoples. Within the State, too, 
 the idea of Society is independent of differences of nation- 
 ality, including all who are living in the State. A People 
 seems to have a natural organisation of its own, at least on 
 
Chap. V.] SOCIE TV. 1 1 I 
 
 the physical side : a Society is only a sum of individual 
 men. 
 
 Gneist has done a service to political science by accentu- Gneist's 
 ating the difference between ' State ' and ' Society,' and industry.' 
 calling attention to the friction between them. But his 
 designation of modern society as a Society of Industry 
 (Erwerbsgesellschaft} seems too narrow. Certainly the ac- 
 quisition of wealth is one of the strongest and most wide- 
 reaching interests of Society, but still not the only one, nor 
 the most important. Society has regard to the enjoyment 
 of wealth as well as to its acquisition : further, it attaches a 
 high value to family life, apart from all considerations of 
 wealth. It values sociability, and has a lively interest in 
 culture, literature and art. To lay stress on the acquisition 
 of wealth, in defining Society, is to make it too material 
 and selfish, and to ignore its efforts after ideals and a 
 common good. The numerous institutions for the poor 
 and sick, for science and art, voluntarily founded and 
 richly endowed by Society, without any compulsion from 
 the State, are sufficient confirmation of the truth of this 
 position. 
 
CHAPTER VI. 
 
 TRIBES. 
 
 Tribes ex- As the races of mankind part into different peoples 
 
 inner dif. (Nationen\ so peoples divide into tribes (Stdmme). The 
 
 a^eople. careful observer can trace the kinship of peoples in their 
 
 language, customs, and laws ; but they themselves, though 
 
 they belong to the same race, have become foreigners to 
 
 one another, and can no longer understand one another's 
 
 language. 
 
 On the other hand, the different tribes of one people 
 feel themselves bound in a common life by common lan- 
 guage and custom. No doubt even among tribes tribal 
 distinctions and peculiarities come to disturb the sense of 
 common nationality. But the national language, to which 
 the ears of all the tribes are open, maintains the sense of 
 national kinship and unity. In dialects we see both ele- 
 ments, national unity and tribal peculiarity. Dialects bear 
 the same relation to a language as particular tribal laws to 
 common national law. Tribes, like peoples, are the product 
 of history, which tends to develope and bring to light 
 internal differences. But they are only fractions of a 
 people : they have no independent national type of their 
 own, but are only expressions, variously coloured or ac- 
 centuated, of the common national spirit. 
 
 Their in- They thus perpetuate their separate existence, and keep 
 
 forgood or alive the inner differences which influence the character of 
 
 the people. While they give a richness and variety to 
 
TRIBES. 113 
 
 national life, they have often proved a hindrance to the 
 unity of a State. Though Rome grew strong by the internal 
 conflicts of parties, resting originally on tribal differences, 
 it was the violence of tribal antagonisms which prevented 
 the Greeks from forming a durable collective State. 
 
 The antagonism of tribes has also had a strong influence Tribal an- 
 in modern Europe, especially among the Germans, whose tagonlsm - 
 ancient constitution was nothing but an organisation of 
 tribes. The mediaeval tendency to individualism found in 
 it a strong support, as the modern tendency to unity found 
 a strong hindrance. This appears in the history of Italy 
 and Germany. In both countries, it is true, the old tribes 
 were broken up at an early date, in Italy mainly by the 
 independent development of the towns, in Germany chiefly 
 by the policy of the kings and the separation of territorial 
 lordships. But tribal feeling and individualism still con- 
 tinued to be a power in the cities, and although, when once 
 the older tribal duchies came to an end, the different tribes 
 combined to form large territories, tribal jealousy and enmity 
 still played a considerable part in the downfall of the 
 German Empire, and even now the opponents of German 
 unity make use of tribal prejudices to embarrass, if they 
 cannot prevent, the national development. 
 
 History teaches us that a tribe may furnish the starting- The tribe 
 point for the formation of a new nation. It is more likely ofanew 6 1 
 to become a nation and form a new State, however small, n 
 than to form a new people. This last stage of development 
 is only reached when a fusion takes place, and with it an 
 alteration of language, as happened with the Teutonic tribe 
 of the Lombards in Italy, or if the tribe developes its dialect 
 into a new language of its own, as the Dutch have done. 
 
CHAPTER VII. 
 
 CASTES. 
 
 Divisions WITHIN the geographical limits of people, nation or 
 nation and tribe, appear further differences which correspond to no 
 geographical limits we may call them different platforms, 
 so to speak, in the structure of society, or different ten- 
 dencies of the collective life, or different grades of political 
 importance and development. Such are Castes, Privileged 
 Classes or Estates (Stdnde), and Classes. 
 
 The system of Castes has been most fully worked out in 
 India, but has not been without influence in Egypt and 
 Persia. It belongs preeminently to the Aryans of Asia, 
 and has never been acclimatised in Europe. But in 
 America it found a new application in the difference be- 
 tween the white and coloured races. The system of Estates 
 (Stande) appears among many nations, both ancient and 
 modern, but was carried to its fullest development in the 
 Europe of the middle ages among the Teutonic' nations. 
 The system of Classes presupposes a rationally organised 
 State, such as those of China, Athens and Rome, and many 
 modern States. Castes are regarded as the work of nature, 
 or the unalterable creation of God ; Estates appear as the 
 product of national history, and differences of occupation ; 
 Classes are an institution of the State. In Castes we see 
 the authority of religious faith : in Estates, the power of 
 social life, of economical and educational conditions ; in 
 Classes, the organising capacity of statesmen. 
 
CASTES. 115 
 
 Castes are of necessity hereditary and unchangeable, like 
 courses of masonry firmly built one over the other. Estates 
 grow like plants, and have an organic development, like 
 peoples and States. In them free choice of profession 
 comes in to modify or crush hereditary rights. In earlier 
 times Estates are still hereditary and akin to Castes, but as 
 civilisation advances, freedom of occupation comes in, and 
 they approach to Classes. Classes, like works of art, alter 
 with the different aims of the State. 
 
 The Indian Caste-system, which may be regarded as The Indian 
 typical, is represented in the Laws of Manu as a creation of G 
 Brahma. The belief, which Plato wished to implant in his 
 State by the myth of the metals a , is fully established among 
 the Hindoos. 
 
 The highest Caste, that of the Brahmans, in which the (0 The 
 
 ill i i Brahmans. 
 
 Aryan blood remained purest, though not quite untainted by 
 other elements, came from the mouth of God. They are 
 therefore, as it were, the living word of God, the purest and 
 fullest expression of the Divine. Science, religion and law 
 are their special care. The meanest Brahman, as such, ranks 
 higher than the king. Their nature is preeminently divine, 
 and though they are not forbidden to occupy secular offices, 
 and mix in secular business, their purity is heightened by 
 abstinence from material pleasures l . The man who strikes 
 a Brahman with a blade of grass, incurs the condemnation 
 of hell. 
 
 The second Caste, the Kshatriyas, from among whom (2) The 
 comes the king, is created of the arm of God. They are the 
 incarnation of force and physical strength, and are a Caste 
 of born warriors and nobles. Though trade is not forbidden 
 them, their proper calling is to bear arms. 
 
 The third Caste, the Visas or Visayas, proceeds from the (3) The 
 thighs of God. The higher civil professions belong to 
 
 [Rep. iii. 415.] 
 
 1 Laws of Manu, ii. 162 (edited by A. Loiseleur Deslongschamps, 
 Paris, 1833) : ' A Brahman shall shun worldly honour like poison, and 
 thirst for the scorn of men as fcr nectar.' [c. ii. 162 in Sir W. Jones' 
 Transl. edit, by Grady, Lond. 1869, p. 33.] 
 
 I 2 
 
1 1 6 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 them : they are called to agriculture, cattle-raising, and 
 commerce. 
 
 ( 4 ) The The fourth and lowest Caste, the Sudras, springs from the 
 
 feet of God. They are the servile population : devoted to 
 the material wants of life, and unworthy to read the sacred 
 books. 
 
 intercourse The higher kind of marriage presupposes equality of 
 Castes. birth : but a man of higher Caste may marry a wife of lower 
 Caste, though a wife may not marry beneath her. But 
 numerous mesalliances have in course of time produced many 
 inconveniences, and have given rise to new hereditary pseudo- 
 castes (Miss kas ten) of rejected outcasts. 
 
 It is very rarely possible for an individual to pass from one 
 Caste to another : rigid exclusiveness is the general rule. 
 The system of Caste prevails even after death, dominating 
 the future life as well as the present. It is only very rarely, 
 and at the cost of many thousand years of effort, that even a 
 Kshatriya can rise to the divine height of a Brahman. On 
 the other hand, a false step at once thrusts him downward, 
 almost beyond hope of recovery. 
 
 The origin We know that the Hindoos are mistaken in their belief, 
 and that the Castes are in great measure the product of 
 human history. In the Vedas is preserved the memory of a 
 time when there were privileged classes (Stdndc), but as yet 
 no Castes. 
 
 in differ- The opposition between the three higher Castes, called 
 
 iiace collectively Aryans, and the Sudras, can be traced back to 
 original difference of race : the white Aryans conquered the 
 land of the dark-skinned Sudras, and settled there as their 
 lords, just as the white Europeans settled among the primi- 
 tive red population in America. The old name for Caste, 
 * Varna,' meaning ' colour, 7 points to this original opposition 
 between white and dark races. As we go higher in the 
 Castes, we find the white race purer, as we go lower we find 
 more mixture with the original dark race 2 . The two highest 
 
 a For the history and nature of the Indian Castes, see Lassen, Indische 
 Alterthumskunde, Book II. n ; Gobineau, DC rinegalitt des races 
 
Chap. VII.] CASTES. 117 
 
 Castes stand out above the third, as in most Aryan peoples 
 we find an aristocracy above the demos. 
 
 Finally, the elevation of the Brahmans over the Caste of or of 
 knights and nobles, and even over the kings, was the last in 
 time ; and can only be explained, in my opinion, by the rise 
 of the new pantheistic religion of Brahma, which won a 
 spiritual victory over the old polytheistic worship of nature- 
 gods, by the heightened sense of the divine among the 
 Brahman priests, sages and saints, and by the energy and 
 devotion with which they remained loyal to their divine 
 calling amid every danger, and willingly resigned earthly 
 sovereignty to the kings 3 . 
 
 The system of Castes thus arose gradually out of historical 
 events and struggles. But afterwards it received a religious 
 sanction, and was permanently stereotyped. It was fostered 
 with such care in the whole education of the young, by the 
 prescribed religious duties, by all the institutions of private 
 and public life, that men ceased to consider any deviation 
 from it as possible, and the system was handed on unchanged 
 from generation to generation. 
 
 The Caste-system is not an institution of the State, nor a A stereo- 
 part of the constitution. It is rather a framework into which donatin 
 the State is fitted, and to which it is subordinated. It is a the State ' 
 universal and perpetual arrangement of the world, domina- 
 ting all relations. For this reason higher development of 
 the State is impossible so long as the State is bound to 
 serve the system of Caste. It cannot develope freely ac- 
 cording to its own principle of life. How can a political 
 ideal become actual in face of rigid unalterable masses, held 
 in separation and bondage by a higher law ? What meaning 
 can the authority of the State have, and how can it exercise 
 its coercive power when its subjects believe that obedience 
 
 humaineS) ii. p. 135 ; M. Duncketj History of Antiquity ', Book V. 
 ch. iv, Eng. ed. [See art. ' India ' by W. W. Hunter, in Encyclopedia 
 J3ritannica.~] 
 
 3 I have treated this view in greater detail in my Die Altasiatischen 
 Gottes- und Weltideen, p. 29 f. 
 
1 1 8 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 to the government involves misery and suffering for thou- 
 sands of years ? 
 Order and No doubt the hereditary principle (das Erbrecht} is of 
 
 permanence. . -10 T 
 
 great importance in the State. It maintains the connection 
 between past and future, it secures the permanence, so to 
 say, of the bodily structure of the State, which survives the 
 life of individuals. But where it dominates public law ab- 
 solutely and exclusively, it fetters and cripples the best forces. 
 The State becomes at last a mummy, in which the embalmer's 
 art vainly tries to conceal the features of death ft . 
 
 The system of Castes tends to harden and stereotype the 
 differences between the strata of society. The upper aristo- 
 cratic Castes, richly endowed with hereditary privileges, may 
 feel satisfied with it, but it only presses the more hardly on 
 the middle and lower strata. It brands their humiliation 
 with the mark of contempt, and leaves the individual no 
 hope of escaping from the bonds in which he is held fast. 
 It heightens the authority of the upper and destroys the free- 
 dom of the lower classes. 
 
 But no pro- It is true that comparative perfection in individual pro- 
 frTe S dom. fessions, and even remarkable intellectual activity in the 
 highest circles, is compatible with it. But by making family 
 succession and tradition of race the highest law, it denies 
 utterly the individual freedom which strives to go beyond 
 these limits. It has produced saintly hermits, great philo- 
 sophers, distinguished poets, brave warriors, excellent fathers 
 and sons, clever craftsmen, but it has never produced great 
 statesmen, and nowhere tolerated free nations. 
 
 All its institutions are directed to the maintenance of 
 order, none of them aim at progress in life. Its ideal is 
 rest : movement is dangerous. Life is an unchanging repe- 
 tition, a wheel revolving for ever in the same way and round 
 the same axle. Where life has so little value, we can under- 
 stand how it was that the Buddhist doctrine of absorption 
 into nothingness appeared as a real relief from the eternal 
 
 & [For the use and abuse of ' the cake of custom/ see Walter Bagehot's 
 Physics and Politics, p. 2 7, and ch. iii. and iv.] 
 
Chap.VIL] CASTES. lip 
 
 monotony, and found numerous followers. Indian civilisa- 
 tion is the blossom and fruit of the Caste-system. But 
 deeply rooted as this was, it could not permanently save 
 that civilisation from internal decay, or defend Indian inde- 
 pendence against hostile conquest. 
 
 The India of to-day inherits the relics of the Caste-system Modem 
 as a burden from the past : it no longer bases upon it its 
 conception of the order of the world : under the influence 
 of the English spirit it is building upon another foundation. 
 
CHAPTER VIII. 
 
 PRIVILEGED CLASSES OR ESTATES". 
 
 
 
 Estates or THROUGHOUT the European nations we find Privileged 
 
 Pprlad in ide ' Classes or Estates (Statute) instead of Castes. Both give 
 
 Europe. an or g an j c orc i er to the various members of the nation. But 
 
 Estates differ from Castes in this, that they are influenced 
 
 by the movement of history, they develope. In Europe 
 
 especially, Castes have become Estates, and have passed 
 
 through many and varied changes. 
 
 Their The earliest form of Estates recalls the Caste-system. 
 
 0%!^ They were at first hereditary, and the attributes assigned to 
 them and the myths describing their divine creation point 
 to an original affinity to the Indian Caste-system. The 
 Edda tells how the god Rigr, on his wanderings, begot first 
 the Thral, the ancestor of the servile population ; then, in a 
 better home, the free Karl, the ancestor of free peasants ; 
 and finally, the noble Jarl, whom he taught to throw the 
 dart and poise the lance, and to whom he entrusted the 
 sacred secret of the Runes. These Estates too differed in 
 build and complexion, the Nobles having brilliant white 
 complexion, bright hair and shining cheeks, the servants 
 (Knechteri) ugly face and bony limbs. 
 (i) Priests. The Druids of Gaul may be compared with the Brahmans x . 
 
 a [It seems simplest, for brevity, to translate Stand here and in 
 ch. xvii. by * Estate ' in its old sense of a social class, as distinct from 
 ' Class' in the political sense which Bluntschli gives to it. The French 
 translation has ordre. Elsewhere * Estates ' is generally used only of 
 the Estates as assembled in Diet or Parliament.] 
 
 1 Caesar, de B. G. vi. 13: * Illi rebus divinis intersunt, sacrificia 
 publica ac privata procurant, religiones interpretantur. Ad hos magnus 
 
PRIVILEGED CLASSES OR ESTA TES. 1 2 1 
 
 They also have the care of religion, science and laws in 
 their charge, although they, and still more the pre-Christian 
 priests of the Germans (whose name Godi is derived from 
 Gott, as Brahman from Brahma), are more closely con- 
 nected with the national nobility. The mediaeval position 
 of the Clergy, as a special order of Christian priests, bears a 
 closer resemblance to the Caste of Brahmans. 
 
 The old Nobility (Adet) whom we find everywhere in (^ Nobility. 
 Europe in the earliest records, was everywhere a hereditary 
 class, and as a rule, absorbed the chief functions of the two 
 highest castes. Language generally bears witness to its 
 hereditary character : the Athenian Einrarpidai and Roman 
 Patridi are so called from their descent from noble fathers, 
 while the German Adalinge derive their name from the 
 family (Ada!) from which they drew their blood 2 . 
 
 The Lucumones of Etruria and the knights of the Gauls 
 were a hereditary nobility. Legend loved to derive the 
 highest families, and especially those of princes, by imme- 
 diate descent from gods or heroes, and to honour them as 
 the seed of the gods. 
 
 To this primitive nobility, as a rule, belongs the priest- 
 hood, and the science of things divine, as well as the know- 
 ledge and practice of law. They are appointed before others 
 to the highest official positions, and they take a high rank in 
 the military system. On the other hand, civil professions 
 are for the most part closed to them. Usually they have 
 dependents (horige Leute] under their protection and in 
 their service ; and are distinguished even in the sphere of 
 private law by their lordship of the soil (Gutsherrschaff). 
 They are fond of living on hills, and in the cities, too, choose 
 the high ground 6 . 
 
 These characteristic traits are found with slight variations 
 in the early history of the European nations. The further 
 
 adolescentium numerus disciplinae causa concurrit, magnoque ii sunt 
 apud eos honore. Nam fere de omnibus controversiis publicis privatis- 
 que constituunt.' 
 
 2 See Schmitthenner, Statsrecht, pp. 31 and 103. 
 
 & [Cf. Arist., Pol. vii. n. 5, 13305 19.] 
 
122 FUNDAMENTAL CONDITIONS OF THE STA 7E. [Bk. II. 
 
 we trace back this institution, half political, half religious, 
 the closer do we find the likeness to be. 
 
 (3) Freemen. The Freemen (die Gemeinfreien\ among Greeks and 
 
 Romans and Germans, form the strength of the demos and 
 of the nation. They are in the full enjoyment of national 
 rights : and are the mainstay of the State. The nobility 
 indeed rise above them, but not like the Indian noble as 
 an essentially different creature, but as a distinguished class 
 rising out from their midst, but still united with them, and 
 having their root in the same ground of national rights. 
 
 The Freemen in early times are as a rule owners and 
 tillers of the soil. As such appear the Teo^opoi in the early 
 Athenian constitution, the ordinary Spartiatae, the Roman 
 Plebeians, the Freemen of all German tribes, among whom 
 free birth and free land enjoy special rights. They also 
 take part in trade, though less readily. They may perhaps 
 so far be compared in their way of life with the Visas, but 
 they are raised above these, in public respect, by their 
 capacity to bear arms they form the main body of the 
 infantry and they further exercise political rights in the 
 community, which vary with its constitution. 
 
 Though subject to authority (die Obrigkeit\ as freemen 
 they are not dependent on any special lord. They have 
 not perhaps originally the right of patronage (Schutzherr- 
 schaft\ but they can have their l own men ' (JEigene). Their 
 Estate is originally a hereditary one : as a rule the free man 
 is born free (ingenuus), 
 
 (4) DC- Lastly, we shall find many traces of an Estate which 
 
 appears from the first to be breaking up, and which there- 
 fore is somewhat doubtful, an Estate of Dependents (horige 
 Leute), occupied like the Indian Sudras with the lower needs 
 of life. Sometimes it consists of conquered inhabitants, 
 always of the same race as the conquerors, sometimes of 
 the poor brought into permanent servitude by oppression 
 and debt. To this class belong the 6fjTfs and TreAdrm of the 
 Greeks, the 'Clients' in Rome, Gaul, and Britain, the 
 Liten of the Germans. 
 
Chap. VIII.) PRIVILEGED CLASSES OR ESTATES. 123 
 
 They have a lord to guard and protect them (Mund- und 
 Schutzherr), Trpoorar^s or pair onus. They are part of the 
 nation, and are not on the same level as slaves (die Eigene\ 
 but their freedom, their rights, and the value attached to 
 them, are less than those of the freeman proper. Handi- 
 crafts are chiefly carried on by them : and freed servants 
 generally pass into this class. 
 
 The history of these estates is most closely interwoven Estates the 
 with the history of each several State : changes and revolu- mediaeval 
 tions of constitutions are very often only the result and the p a Tidcs. 
 expression of internal and unnoticed changes in the relations 
 and ideas of Estates. The whole structure of law, in the 
 middle ages, takes its character and colour from the idea of 
 Estates. Every Estate had its own special laws and forms 
 of justice, as it had its own costume. The Clergy lived by 
 canon law, Princes by the law of nobles (Herrenrecht\ 
 Knights had their feudal law (Lehensrechf), Retainers 
 (Dienstleute) their special law (Dienstrecht\ Citizens the 
 law of their city, and Peasants their manorial customs and 
 law (Hofrecht}. The political structure of the nation was 
 conditioned by these differences, and its unity broken up. At first here- 
 
 But during the middle ages these privileged classes bSome e 
 (Stdnde) tended to become less hereditary, and more pro1 
 professional (Berufsstdnde). In later centuries there are 
 four main Estates (i) Clergy, (2) Nobles, (3) Citizens or 
 third Estate, (4) Peasants. The two first, aristocratic 
 Estates, won a commanding political position. The third 
 saved civil freedom. The fourth was powerless, and 
 
 Subject. and finally 
 
 At the end of the middle ages we find these four Estates 
 have decayed, and in great part dissolved. But isolated 
 remains last on like ruined masonry into the modern world. 
 To understand the modern State aright we must know the 
 meaning of these Estates in the middle ages. It is only by 
 contrast with them that the modern State comes to under- 
 'stand itself. 
 
CHAPTER IX. 
 
 I. THE CLERGY. 
 
 The clergy THE Clergy held the first place among the mediaeval 
 order. Estates. According to the strict doctrine of the Church 
 
 they were not a national estate at all : they were an ordo 
 ecclesiasticus , not an ordo civilis. The State was regarded 
 merely as an organisation of laymen, above whom the 
 priesthood were raised by their consecration. The Christian 
 priests did not, like the Brahmans, rest their claims on 
 divine descent for they did not perpetuate their order by 
 marriage but rather on divine institution. They are filled 
 by the Holy Spirit, and consecrated by the vows of the 
 Church. The basest and most corrupt Clerk, in virtue of 
 his order, stands high above the most eminent and virtuous 
 laymen, as gold above iron, or the spirit above the body. 
 They stand The ideals of the Clergy were near akin to those of the 
 stlte,lid e Brahmans. Only the Christian clergy did not give up the 
 hove ll ' secular rule as the Brahmans did, and were less inclined than 
 they to conform to the ordinance of the State. According 
 to the logical doctrine of the mediaeval Church the laws of 
 the State were not binding on the clergy : it was for them to 
 examine and judge, and then decide how far they would 
 voluntarily obey them. As soon as the privileges of the 
 clergy or the interests of the Church seemed in danger, the 
 clergy refused all obedience, resting on the word of Scrip- 
 ture, ' We ought to obey God rather than man V and on 
 
 [Acts v. 29.] 
 
THE CLERGY. 125 
 
 their spiritual superiority. On the other hand, they 
 demanded of the secular authority that it should obey the 
 laws of the Church without contradiction, and lend its 
 power to carry them out. 
 
 They even withdrew themselves from secular jurisdiction 
 in civil as well as in criminal cases. Their pretensions could 
 not tolerate the supremacy of secular judges, of ' the sheep 
 above the shepherds/ They were not bound to service in 
 war, because weapons of iron did not suit their religious 
 vocation. But they also avoided the obligation to pay taxes, 
 appealing on every occasion to their immunities, in order to 
 shake off every burden the State laid on them. As clergy 
 of Rome they despised the limitations of nationality. They 
 were not citizens of 'any one nation, or of any definite 
 country ; they only recognised the universal bond of 
 Christendom centred in Rpme, the capital of the world, the 
 seat of the Popes. The canon law was the law of their life, 
 and they refused to be accountable except to the mild juris- 
 diction of the Church. 
 
 However, even in the time of their greatest power the 
 clergy never completely severed themselves from the State, 
 partly owing to the circumstances of their history, partly 
 from considerations of their own interests. 
 
 The Christian Church, with its clergy, had arisen and 
 become great within the old Roman Empire with its world- 
 wide and far-reaching domination ; and the political powers 
 of Rome did not resign their authority. They demanded 
 of all inhabitants of the Holy Roman Empire obedience to 
 the laws, to the imperial government, and the imperial 
 courts. The clergy could at most secure isolated privileges 
 from the emperors : their subjection was unquestionable. 
 
 The Frankish monarchy still held fast to the subordination Growth of 
 
 * i_. i ,. i i i i -11 their political 
 
 of bishops and priests to the king, and to the imperial laws power, 
 and courts, although now the power of the State had dimin- 
 ished, and the Church had become more independent. 
 Under the German princes the immunities of the Church 
 were extended by slow degrees, at first more by grace and 
 
126 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 favour of the king than by any recognition of the ecclesias- 
 tical law, which now began to assert its own authority with 
 arrogance. Even when the rights of the Church had 
 gradually won their way against contradiction and resistance, 
 their authority was not everywhere the same. 
 
 Italy. Interest also united the clergy most closely with the laity 
 
 and the State. During the middle ages the head of the 
 Church, the Pope of Rome, acquired a political sovereignty 
 over the so-called Patrimonium Petri. Partly by royal 
 grant, partly by the gifts of princes, there arose a Church- 
 State governed by clergy. The highest spiritual authority 
 thus came to be associated in Rome and the Roman terri- 
 tory with secular sovereignty. Not merely were the Popes 
 called upon, as supreme bishops, to represent the interests 
 of the Church, if need were, before the Emperor and the 
 various States, but being among the first of Italian princes 
 they were deeply involved in the interests of Italian policy. 
 This was indeed ' the ruin of Italy.' (Machiavelli, Discorsi, 
 \. 12.) They were strong enough to keep divisions alive in 
 Italy, but not to unite Italy under their sovereignty, nor to 
 defend it from the inroad of hostile armies, though they 
 were always ready to call in foreign powers to their help if 
 their policy required it. 
 
 They raised Rome again to the position of the first city 
 in Christendom, and adorned it with churches and works of 
 art; but the gifted Romans, under their Church govern- 
 ment and discipline, fell behind the citizens of the Italian 
 republics in civil virtues and achievements, and the Church- 
 State became the warning instead of the pattern of higher 
 political development. The modern world has learnt that 
 ecclesiastical rule is not fitted for the sound government of 
 the State, and the secularisation of the States of the Church 
 has proved a great political gain to the Romans. 
 
 Germany. Next to Italy, Germany did most to raise the political 
 power of ecclesiastical princes. Even under the Frankish 
 monarchy the bishops held a prominent place in the national 
 assemblies, sometimes associated with the great laymen, 
 
Chap. IX.] THE CLERGY. 127 
 
 especially the counts of districts (Gaugrafen\ as an 
 assembly of Majores or Seniores, sometimes in separate 
 ecclesiastical assemblies. But their contact with secular (0 The 
 
 imperial 
 
 power and dignity comes out most clearly in the constitution constitution 
 of the German Empire. There we find three out of the 
 seven electors are ecclesiastical princes, the Archbishops of 
 Mainz, Koln and Trier ; and the Archbishop of Mainz, as 
 Arch-Chancellor of Germany, votes first. They held the 
 first place in the Electoral College, and at the same time as 
 territorial princes they early acquired an almost sovereign 
 independence. 
 
 Besides these there was a large number of Archbishops, 
 Bishops, and Abbots, who had acquired rights of territorial 
 sovereignty over definite districts, and who sat and voted at 
 the imperial diets, either giving a vote each (eine Virilstimme] 
 as proper princes of the Empire e. g. the Archbishops of 
 Bremen, Magdeburg and Salzburg, and the Bishops of 
 Augsburg, Wurzburg and Basel ; or taking part in a col- 
 lective vote (Curiatstimme\ and sitting together on the 
 so-called * Prelates-benches ' (Prdlatenbdnke) which corre- 
 sponded to the benches of the Counts. In the heraldic 
 order (Heerschildsordnung) of the law-books, the ecclesias- 
 tical princes ranked next to the king. The secular princes, 
 though equal with them in the constitution of the Empire, 
 were placed third, because they might conceivably become 
 vassals of the ecclesiastical princes, while the converse would 
 be unseemly. 
 
 In the great contest of Investitures between the Popes 
 and the Saxon emperors, it was proposed that the princes of 
 the Church should give up their secular sovereignty and 
 devote their life to the Church, but in vain. Such a sugges- 
 tion, even when it came from the Pope, was indignantly 
 rejected by the ecclesiastical princes of Germany. The 
 consequence was that in Germany too ecclesiastical offices 
 became involved with political offices and political interests. 
 
 The same thing happened in the provinces of the Empire. 
 
 The local prelates bishops, abbots, priors, masters of 
 
1 28 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 ( 2 ) Provincial religious orders formed a separate estate, with a right to sit 
 
 constitu- . ... , / -r 7 \ i 
 
 tions. in the provincial assembly (Landtag), either as a separate 
 
 Curia (Prdlatencurie) or along with the nobles, and exercised 
 a more or less extensive jurisdiction on their domains. 
 Their rights in the provincial estates (landstandische Rechte] 
 were generally based on their position as territorial lords. 
 Hence, although they might secure their own immunity 
 from taxes and military service, they could not urge the 
 same claims for their servants (Ministerialeri) and peasant 
 dependents (Hintersassen) who were always laymen. The 
 country needed their taxes, and the prince of the country as 
 feudal lord required them to furnish mounted troopers. 
 
 One advantage which the ecclesiastical aristocracy had 
 over the secular was that it was not hereditary, but rested 
 on personal education and election. The son of an artisan 
 might become pope, the son of a peasant an archbishop \ 
 
 The Re- But as time went on this predominance of the clergy and 
 
 formation. . . r ..... 
 
 the aristocratic powers of the ecclesiastical princes and pre- 
 lates was shaken and destroyed. The German Reformation 
 of the sixteenth century struck a fearful blow at the secu- 
 larised Church. With the spread of Protestantism eccle- 
 siastical princedoms became temporal, sees were abolished, 
 monasteries broken up, and religious orders dissolved. 
 Before the Reformation there sat in the German Reichstag 
 the three ecclesiastical princes, three other archbishops, and 
 thirty-nine bishops. After the peace of Westphalia the 
 number was reduced to three electoral princes, one arch- 
 bishop (Salzburg), and twenty bishops. Only Swabia and 
 the Rhine-provinces now retained their bench of prelates. 
 The whole of the North and a good part of the South had 
 rid itself of ecclesiastical sovereignty. 
 
 Even in the countries which had remained Catholic the 
 change was only postponed. There was no part of Germany 
 
 1 Pope Gregory VII, himself the son of a carpenter, stated this 
 clearly : ' Rome has become great among heathens and Christians quod 
 non tarn generis aut patriae nobilitatem quam animi et carports virtutes 
 perpendendas adjudicaveritC Cf. Laurent, tud. sur VHist. vii. p. 335. 
 
Chap. IX.] THE CLERGY. 129 
 
 where ecclesiastical sovereignty survived the revolutionary 
 movement at the beginning of this century. Even the 
 electoral princes of the left bank of the Rhine were carried 
 away by the storm, and their domains incorporated with 
 France. The domains of the other ecclesiastical princes 
 were granted by way of compensation to secular dynasties. 
 
 With the end of the Empire the ecclesiastical lords lost 
 their position as an imperial estate, and maintained an inse- 
 cure position in certain provincial diets (Lands tande). Once 
 again, after many centuries, the episcopate became a purely 
 ecclesiastical office, without political power. Their jurisdic- 
 tion fell with their territorial sovereignty. 
 
 The Catholic clergy having thus lost their temporal 
 position and power could no longer realise the mediaeval 
 ideal. Modern political feeling could not tolerate any 
 subordination of laymen to clergy : it demanded universal 
 obedience to the laws and the constituted authorities of 
 the State. The time for clerical immunities and privileges 
 was gone by ; all were subject to one law, one jurisdiction. 
 
 The history of the clergy in England and France was England and 
 somewhat similar. They had never acquired the same 
 territorial sovereignty as in Germany, and in both countries 
 the secular side of the State was more strongly asserted 
 than in Germany. But the clergy were an estate : in 
 England they sat with the lords temporal in the Upper 
 House b ; in France they formed a separate estate, the 
 first in the kingdom. But the Reformation in England 
 and the Revolution in France profoundly affected their 
 position. The mediaeval immunities disappeared before 
 the principle of common and equal obligation to the law 
 (Rechtspflickt). 
 
 When Louis XVI summoned the States-General in 1789, 
 the clergy voluntarily abandoned their separate position and 
 
 6 [The clergy, as a body, declined the position of a parliamentary 
 estate, which was offered to them by Edward I. The Lords spiritual 
 still sit with the temporal peers : but it is probable that in the middle 
 ages they owed their seat rather to their secular position as tenants-in- 
 chief than to their clerical dignity.] 
 
 K 
 
130 FUNDAMENTAL CONDITIONS OF THE STATE. 
 
 anticipated the nobles in entering the National Assembly, 
 which represented not the estates of the middle ages, but a 
 body of free citizens. 
 
 Thus the mediaeval estate of the clergy was everywhere 
 broken up. The great distinction between clergy and laity 
 had lost its practical effect, and was no longer recognised 
 by the State in its system of rights. The great mass of the 
 clergy were merged in the middle classes, the high dignitaries 
 of the Church in the aristocracy. 
 
CHAPTER X. 
 
 II. THE NOBILITY. 
 A. The French Nobility. 
 
 THE Patricians of ancient Rome formed a hereditary The. old 
 nobility of birth ( Geschlechtsadef) : but internal party birth at 
 struggles early transformed it into a political aristocracy, came a 
 based not on descent, but on the free choice of the people Nobility of 
 to public offices. This political aristocracy of the senatorial %& 
 families lasted through the Republic into the Empire. The 
 old patrician families, which in the time of Augustus had 
 dwindled down to fifty, and very seldom received an 
 addition (the families of the Emperors were in law always 
 patrician "), still perhaps in fact, though no longer in law, 
 formed the nucleus of this aristocracy ; the ancient glory of 
 their name, traditional experience in State affairs, often too 
 their large property and personal connections, won them the 
 respect to which they owed their place in the Senate. But 
 besides these, the aristocracy was constantly renewed and 
 quickened by the addition of eminent men, distinguished 
 as generals, statesmen, orators, or lawyers, who under the 
 Republic entered the Senate by election to public offices, 
 under the Empire by the summons of the Emperor. Thus 
 political merit and public distinction had become the basis 
 of the later Roman nobility, which even at the time of its 
 decadence retained a remnant of its bygone freedom and 
 greatness. 
 
 [Mommsen, Rom. Statsrecht, ii. p. 765.] 
 K 2 
 
132 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 Maecenas' Maecenas' famous discourse l on the Principate is an ex- 
 cellent expression of the idea which Roman statesmen had 
 of the aristocracy in imperial times. The Emperor's 
 friend advises him to purge the Senate of the incapable 
 members thrust upon it by the confusions of the civil wars, 
 and to fill up the vacancies by careful nominations. He 
 recommends him to reject no one on the score of poverty, 
 but rather to supply poor and capable men with the needful 
 means. In the choice of senators he should look not 
 merely to Italy, but also to the allies, and even to the pro- 
 vincials, and so assemble round him the first men from 
 among all the peoples of the empire, men marked by 
 family, character or wealth, as leaders of the people, and 
 should give them a share in public affairs and in the 
 government of the world. To increase the number of 
 eminent men that assembled in the Senate at Rome, would 
 be to secure a better provision for the needs of the State 
 and the loyalty of the provinces. The Equites, distinguished 
 by their wealth, should form a lower aristocracy of wealth, 
 composed of eminent men of the second rank. Further, 
 that the sons of senators may be fit to succeed to the duties 
 of their fathers, they must be worthily educated in the 
 sciences and in arms. 
 
 The French The history of the French Nobility is a very chequered 
 
 Nobility. .... .. / n i 7 t 
 
 one. We can distinguish the following periods, each with 
 its special characteristics. 
 The Mero- i. The foundation of the French Nobility belongs to the 
 
 vm: 
 
 Period, Merovingian period (481-752). Strangely enough the 
 traces of an old Frankish nobility of birth are very uncertain. 
 But this period developed a nobility of personal fealty 
 (ein personlicher Treuadel\ based mainly on the relation of 
 the king to his people. Perhaps even here special regard 
 was paid to the old families of nobles. But besides these, 
 other free Franks and Germans were received by the king 
 among his Antrustiones, and even Romans as guests of the 
 
 1 Dio Cass. Hi. 14-40. 
 
Chap. X.] THE FRENCH NOBILITY. 133 
 
 king (convivae regis) received a similar rank. Sometimes 
 persons of low birth, slaves and dependents, are found 
 rising to the highest offices of the empire, and thus becoming 
 nobles. 
 
 This Nobility then had grown out of very mixed ma- 
 terials. It was, at least for the most part (as Schaffner has 
 shown in detail 2 ), not a hereditary nobility, but a nobility 
 of personal service, bound by an oath of fealty. The 
 privilege of a higher Wergeld was a sign and a consequence 
 of the higher value attached to its members. Beyond this 
 its privileges in private law were few. But politically it was 
 distinguished partly by the association of the position of an 
 Antrustio with high offices of State, court posts, and eccle- 
 siastical dignities, partly by participation in the King's 
 Council and a prominent place at the national assemblies. 
 
 In the institution, as in the members who composed it, 
 we find the same mixture of Romance and Teutonic ele- 
 ments. But the Teutonic element tended to gain the 
 mastery. To this belong, (i) the personal tie of fealty to 
 the king (trustis dominicd), which was propagated by family 
 custom and family interest, and was extended beyond to 
 the vassals of other lords (Seniores) ; (2) the grant of royal 
 benefices to the great nobles, mainly in the form of lands. 
 
 These two relations form the chief source of the later 
 Feudal System. 
 
 2. The change in the royal dynasty was in great measure The Caro- 
 the work of a revolution in the nobility. The Carolingian Pefiod, 
 Mayors of the Palace, as representatives of the king, put 752 ~ 987 ' 
 themselves at the head of the powerful military nobility. 
 They helped to confirm the nobles in their domains : and 
 then with their aid they drove out the degenerate kings. 
 
 This movement, as Guizot has pointed out 3 , found its 
 main and constant support in northern France, in Austra- 
 sia, where the Germans were dominant, and which was 
 hence called Francia Teutonica, as opposed to the Roman 
 
 2 Geschichte der Rechtsverfassung Frankreichs , i. p. 2 1 7 ff. 
 
 3 Essais sur Vhistoire de France, p. 52 ff. 
 
1 34 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 France of the South. The result was that the French 
 Nobility received a distinct Teutonic stamp. 
 
 The Nobility of office and service became more and more 
 a feudal nobility (Lehensadel] of Barons, Seniores, and 
 Vassals, each of whom learnt to feel his independence 
 within his own sphere. Thus the transition was made from 
 the hierarchy of royal officials to the independent sove- 
 reignty of Seigneurs : and the nobility became hereditary 
 with their fiefs. 
 
 The period 3. The new Feudal Nobility reached its highest develop- 
 987-1226^ s ' ment and power in the third period, that of the Capets (987 
 to St. Louis, 1226). Charles the Great had understood how 
 to preserve the unity of the State and strengthen the royal 
 power. But under his successors the universal monarchy of 
 the Franks parted into several independent States, and in 
 the Frankish monarchy itself offices and fiefs became more 
 independent. Charles the Bald was obliged 4 to recognise 
 the hereditary principle for Countships and Fiefs of the 
 empire in favour of the sons of vassals, and even of inferior 
 vassals. Soon after the same right was admitted for col- 
 lateral relatives. Only in the Church the idea of a personal 
 nobility of office was maintained, while in the State it was 
 transformed into a hereditary feudal nobility. Thus the 
 rule of hereditary Seigneurs spread in various degrees and 
 forms over the whole of France. 
 
 The higher Some of them had supreme authority (obrigkeitliche 
 o i ity. Qewalf) in all essential respects, and only recognised a very 
 limited feudal authority over them on the part of the king 
 (pberlehensherrliche Gewalt\ 
 
 To this haute noblesse (der hohe Adel) belong Dukes, 
 Counts, Viscounts, and Barons. Most of them were crown 
 vassals, some of them were also vassals of dukes and counts, 
 
 4 Convent. Carisiac. of 877, in Man. Germ. Hist. Legg. p. 539. Cf. 
 Waitz, Verfassungsgeschichte, iv. 227: ' Inheritance of fiefs was not 
 generally recognised in France till much later. The kings resisted the 
 principle till the second half of the eleventh century.' Cf. Luchaire, 
 Hist, des Institutions Monarchiques de la France sous les premiers 
 CapJtiens, ii. 1 9 ff. 
 
Chap.X.] THE FRENCH NOBILITY. 135 
 
 only very few were allodial lords. They possessed haute 
 justice (die hohe Gerichtsbarkeif), and stood at the head of 
 the military constitution, which had now lost its earlier 
 national character and become a feudal and knightly ser- 
 vice. On the other hand, the military services they owed 
 to the king were exactly fixed and defined. The king could 
 not issue laws or levy taxes without their consent. In the 
 same way they issued ordinances and imposed taxes in their 
 domains with the consent of their vassals. Whoever lived 
 on their domain (Herrschaff) had to swear loyalty (fides) to 
 them, and the vassal had to swear fealty and homage (foy 
 et hommage] : he was their subject ( Unterthan). 
 
 Political sovereignty was thus split up among a loose 
 association of hereditary sovereignties based upon private 
 rights. 
 
 The higher nobility was no longer a pre-eminent class of 
 the people, nor did its essence lie in the fealty and services 
 which it owed to the king. Its chief characteristic is that 
 its members have become feudal princes and seigneurs. In 
 fact it has attained sovereignty (die Souverdnitdt) 5 . 
 
 The lower nobility underwent similar changes. It had The lower 
 
 r Nobility. 
 
 sprung from two sources, first the profession of knight, and 
 second the offices of the court. At first it was their pro- 
 fession which made the position of the knights or retainers 
 (Dienstleute, Ministeriales\ who were bound in special 
 loyalty to a lord : the knights were generally free, but the 
 retainers were often of servile birth. 
 
 But the professional nobility in time became hereditary 
 and feudal. The knights acquired feudal estates, which 
 became hereditary in their family, the officials (Dienstleute) 
 received court fiefs. As wealthy men (riches oms) they ' 
 stood apart from the yeomen (roturiers\ and as vassals they 
 were brought near to their lords (seigneurs). As the lord 
 sat at the king's table (conviva regis\ so the knight sat 
 
 5 Such is the old expression, Beaumanoir xxxiv. 41 : ' (Jascuns barons 
 est sonvrains en sa baronnie. Voirs est que li rois est sourrains par 
 desor tous? 
 
136 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 at the table 6 of his lord. Their services in war and at court 
 were attached to their estates, as the sovereign rights of the 
 Seigneurs to their domains. They too had a limited ter- 
 ritorial sovereignty (Grundherrlichkeit\ and generally had 
 an inferior and intermediate jurisdiction (basse justice] over 
 the subjects of their feudal lords. Their class became 
 more and more exclusive, and came to imply knightly birth 
 and knightly education. 
 
 The new nobility, on the ground of their birth, were called 
 gentils hommes. Certainly birth alone did not make a 
 knight 7 , but one who was not born of a knightly father the 
 condition of the mother did not matter could not, as a 
 rule, become a knight. The king alone could raise a man 
 to the nobility 8 . At the same time the association of this 
 nobility with the possession of a fief was at first so close that 
 the yeoman (roturier) who bought a fief and lived on it 
 became a franc homme in virtue of his estate, and if his 
 grandson succeeded him in it, he became a gentil homme 9 - 
 But .the ' free knighthood ' (freies Ritterthum) without fief, 
 which grew up by the side of the other, held its position in 
 virtue of birth, education, and profession. 
 
 This lower nobility, too, had many degrees, from the 
 Vavasseurs or Bas Sires up to the Viguiers (vicarii), who 
 were specially numerous in the South, and often had an 
 intermediate jurisdiction ; the Chdtelains^ some of whom 
 came near to the Barons, and the Vicomtes, some of whom 
 belonged to the Barons, while others had an inferior posi- 
 tion in the feudal service of a Count. But throughout this 
 confusing diversity of degrees and privileges the feudal 
 principle is always fundamental. 
 
 4. The fourth period witnessed an entire transformation 
 
 6 Loysel, Inst. Coutum. i. I. 14 : * Nul ne doit seoir a la table du 
 Baron s'il n'est Chevalier/ 
 
 7 Cp. the French legal saying, * Nul ne nait Chevalier.' Loysel, Inst. 
 Coutum. i. i. 
 
 8 Loysel, ib. i. i. 12 : 'Nul ne peut anoblir que le Roy.' 13: 'Le 
 moyen d'etre anobli sans Lettres, est d'etre fait Chevalier/ 
 
 9 Schaffner, ii. p. 160. 
 
Chap.X.] THE FRENCH NOBILITY. 137 
 
 of the nobility. First came a struggle for sovereignty be- From St. 
 tween the Monarchy and Nobility. The kings were the Revolution! 
 representatives of the awakening spirit of national unity and I226 ~ I789> 
 the quickened consciousness of the State. In this struggle 
 they were supported by the jurists, who maintained and 
 finally brought into use the principles of Roman law. They 
 found a powerful organ for their doctrines in the royal 
 court of justice, the Parliament (Parlemeni). The nation, 
 and chiefly the people of the towns, though seldom inter- 
 fering, supported them indirectly. 
 
 A new system of royal officials, independent of the feudal 
 tie, was gradually introduced. Paid troops of the king 
 served the royal power without limit or reserve. The great 
 fiefs of Dukes and Counts were one after another absorbed 
 by the crown, sometimes by succession or contract, often by 
 armed force, and the alienated sovereign rights were once 
 more concentrated in the crown. 
 
 Thus the independent sovereignty of the nobility was 
 broken. The victory of the King over the Seigneurs was 
 completed by Louis XI (1461-1483). 
 
 The Nobles only saved remnants of their earlier territorial 
 sovereignty (Landeshoheif) : they became Governors ( Gouver- 
 neurs) in certain provinces, but lost the position of territorial 
 nobles. They had become merely a privileged class of 
 subjects, whose distinctions and privileges more and more 
 appeared to conflict with new ideas and beliefs. The later 
 struggles of the King and the Nobility were of quite a 
 different kind 10 . They were struggles of political and 
 religious parties, sometimes of mere court parties, headed 
 usually by nobles. 
 
 10 De Tocqueville, F Ancien Regime, has shown how the abolition of 
 the political rights of the nobility, taken together with the continuance 
 of their economical privileges, stirred up the national hatred against 
 them. As long as they had judicial duties, and were especially occupied 
 with public business, their freedom from taxation and their receipts irom 
 burdens on land and persons were intelligible. But after the royal 
 officials had taken over the whole administrative and judicial business 
 of the State, these economical privileges appeared unjust. 
 
138 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 If the nobles wished to attain influence and power, they 
 could only do so in the service of the king. They could not 
 play any considerable part in the States-General, for it never 
 took a fixed and regular form. 
 
 The feudal The old feudal nobility was thus transformed into a mere 
 becomes nobility of the court, based rather on outward rank and 
 noSikv. honours than on political rights. Henri IV had commanded 
 the nobles to live on their estates. Louis XIV brought 
 them to the court to dazzle them into complete subjection 11 . 
 In the first rank stood the Peers of France (Pairs de France), 
 at first twelve in number, six ecclesiastical lords, six secular 
 vassals of the crown ; but they were afterwards increased by 
 the addition of the royal princes and many other secular 
 nobles. The Peerage was hereditary : it had the privilege 
 of free access to the king and to the Parliament of Paris, 
 before which alone it could be brought to trial. At the 
 coronation the Peers carried the insignia of royalty. 
 
 Next to the Peers came the Dukes, Marquises, Counts, 
 Barons, Viscounts, Chatelains, whose rank appeared in their 
 titles and arms. 
 
 Last came the lower nobility of Squires and simple Gentle- 
 men (Gentilshommes). 
 
 The old nobility had depended mainly on birth, though 
 partly determined by the possession of seignorial rights 
 (Grundherrschaff). But now a new nobility appeared by its 
 side, taking its origin chiefly from royal grant. It consisted 
 mainly of those who were nominated to the higher civil and 
 military offices, and above all of the lawyers in the sovereign 
 courts, the noblesse de robe. These posts were no longer 
 hereditary, or attached to the soil, and hence this nobility 
 constantly received new accessions. Connected with it was 
 the nobility of the Doctors of law (milites litter ati, legates), 
 which, unlike all the rest, depended not on the royal favour, 
 but on scientific eminence, 
 ^lessede A lower element in the nobility consisted of the many 
 
 11 De Parieu, Polit. icoff. 
 
Chap. X.] THE FRENCH NOBILITY. 139 
 
 who were raised to it by letters patent, often for the sake of 
 the fee, sometimes as a reward for services, not always the 
 most honourable 12 . 
 
 5. The brief and violent catastrophe of the French Revo- The Re- 
 lution destroyed the whole system of nobility. It began v 
 with the fusion of the hitherto separate Estates in a general 
 National Assembly. It went on to abolish the nobility as a 
 distinction opposed to the democratic principle of equality 13 . 
 Finally, it tried to exterminate the nobles with the help of 
 
 the levelling guillotine. 
 
 6. When the passions of the Revolution had glutted them- 
 selves with the blood of eminent men, and its theory of 
 equality had dulled its sharp edge on the iron of facts, 
 attempts were made, even in France, to restore the nobility 
 in a new form on the levelled ruins of the past, but without 
 lasting success. The most interesting was the attempt of Napoleon i. 
 Napoleon, who saw in aristocracy at once an essential 
 support and a limitation to monarchy. In the order of the 
 Legion of Honour he created a sort of modern knighthood, 
 
 which was open to every one who did eminent service to 
 the State, but was essentially a personal and honorary dis- 
 tinction. He also thought of founding a higher hereditary 
 Aristocracy, in which the surviving families of the old 
 historic nobility should be united with the descendants of 
 the new French marshals, ministers, and other high officials. 
 One can see that Napoleon's idea was to combine the insti- 
 tutions of the early Roman Empire with the traditions of 
 French history. Meanwhile he had hardly taken the first 
 
 12 See Schaffner, vol. ii. 
 
 13 Law of 25 June, 1790. Art. I : 'La noblesse hereditaire est pour 
 toujours abolie ; en consequence les titres de prince, de due, de comte, 
 etc. ne seront pris par qui que ce soit, ni donnes a personne.' 
 
 Const, of Sept., 1791 : <La Constitution garantit comme droits naturels 
 et civils (i) que tous les citoyens sont admissibles aux places et emplois, 
 sans autre distinction que celle des vertus et des talens ; (2) que toutes 
 les contributions seront reparties entre tous les citoyens egalement, en 
 propoition de leurs facultes.' 
 
 Const, of 1795, Art. 3 : 'L'egalite n'admet aucune distinction de nais- 
 sance, aucune heredite de pouvoirs.' 
 
140 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 step for the renewal of the nobility when his own fall 
 came 14 . 
 
 kw"*! Louis XVIII (1814) in his Peerage (Pairie) came nearer 
 
 to the English pattern. But he failed to establish a 
 political peerage. The constituents of the old Peerage had 
 been too completely destroyed by the Revolution : the 
 spirit of the people was so entirely given up to the principle 
 of equal rights and free circulation of property, that any 
 renewal of the nobility seemed like an attack on popular 
 rights : many of the old nobility had borne arms against 
 their country, and their new claims rested on the conquest 
 of France by the foreign armies 15 . The old hatred was as 
 strong as ever, and the aristocracy had not done any new 
 services which would have reconciled the people to a 
 
 1830 and political rehabilitation. The July Revolution of 1830 again 
 abolished the hereditary peerage and the system 
 
 14 Napoleon, Mem. de Sainte Helene, Las Casas, v. p. 4 : * Je le repete 
 de nouveau, j'ai fait trop ou trop peu : j'aurais du m'attacher Temigra- 
 tion a sa rentree ; 1'aristocratie m'eut facilement adore ; aussi bien il 
 m'en fallait une ; c'est le vrai, le seul soutien d'une monarchic, son 
 moderate ur, son levier, son point resistant ; 1'Etat sans elle est un vais- 
 seau sans gouvernail (?), un vrai ballon dans les airs. Or, le bon de 
 1'aristocratie, sa magie, est dans son anciennete, dans le temps ; et 
 c'etaient les seules choses que je ne pusse pas creer. ... La democratic 
 raisonnable se borne a menager a tons 1'egalite pour pretendre et pour 
 obtenir. La vraie marche cut ete d'employer les debris de 1'aristocratie 
 avec les formes et 1'intention de la democratic. II fallait surtout re- 
 cueillir les noms anciens, ceux de notre histoire. . . . J'avais dans mon 
 portefeuille un projet qui m'eut rallie beaucoup de tout ce monde-la, et 
 qui, apres tout, n'eut ete que juste. C'est que tout descendant d'ancien 
 marechal ou ministre, etc., etc., cut ete apte, dans tous les temps, a se faire 
 declarer due, en presentant la dotation requise. Tout fils de general, de 
 gouverneur de province, etc., etc., eftt pu en tout temps se faire reconnaitre 
 comte, et ainsi de suite. Ce qui eut avance les uns, maintenu les espe- 
 rances des autres, excite 1'emulation de tous, et n'eut blesse 1'orgueil de 
 personne/ Cf. also v. p. 161, and Thiers, Hist, du Comulat et de 
 r Empire, viii. p. 116. Benjamin Constant, De I' esprit de conqutte, 
 part ii. ch. 2 : ' L'heredite s'introduit dans des siecles de simplicite et 
 de conquete, mais on ne I'institue pas au milieu de siecles de civilisation. 
 Elle peut alors se conserver mais non s'etablir.' Cf. De Parieu, Polity 108. 
 
 15 Hence, during the Hundred Days, an imperial decree was issued, 
 13 March, 1815: 'La noblesse est abolie. Les titres feodaux sont 
 supprimes/ 
 
 b [For the institution of Majorats, see Thiers, Hist, du Consulat et de 
 Empire, viii. p. 137.] 
 
Chap. X.] THE FRENCH NOBILITY. 141 
 
 and the personal peerage for life, which followed it, was 
 swept away by the storms of February, 1848. The Re- 
 public again pronounced against all titles and privileges of 
 nobility 16 . 
 
 The French nobility has never again been reorganised. Napoleon 
 The dignity of Senator, which Napoleon III adopted in his 
 constitution, was a step towards it, but this attempt ended 
 with the fall of the second empire. Since then the French 
 nobility has only been so far restored that the old titles have 
 been sanctioned 17 and secured against abuse. 
 
 There are still aristocratic elements and tendencies among 
 the people, but they have no chance of making way against 
 the democratic spirit of the masses. The remains of the 
 French nobility are now nothing more than a titular nobility, 
 without special rights, and are kept up rather by family 
 vanity than by public institutions 18 . 
 
 16 Fr. Const, of 1848, art. 10 : ' Sont abolis a toujours tout litre nobi- 
 liaire, toute distinction de naissance, de classe ou de caste/ 
 
 17 Decree of 24 Jan., 1852 ; Law of 28 May, 1858, and Decree of 
 8 Jan., 1859 : instituting a special authority to control titles of nobility. 
 
 18 De Parieu, Polit., p. 112 ff. 
 
races. 
 
 CHAPTER XI. 
 
 B. The English Nobility. a . 
 
 ENGLAND is almost the only modern European State 
 where the nobility has held its place as a great national 
 institution. This result is due to various causes. 
 iof i. The English nobility of the middle ages, like the 
 French, comprised elements of two nationalities, English 
 and Norman ; but the connection between them was much 
 closer than in the French nobility. 
 
 No doubt in the early centuries after the Conquest (1066) 
 the Normans maintained a predominance over the Saxons, 
 but their relations were much more intimate than those 
 between the Romans and Franks in France. 
 
 The Saxon Eorls had been long distinguished from the 
 free Ceorls as a national nobility : their education, their life, 
 and their ideas were the same as those of the Norman 
 nobles ; and they maintained their old rights even against 
 their new kings. The Conquest only served to strengthen 
 their free spirit ; and the increased zeal and vigour with 
 which they maintained their rights gave to the nobility, as a 
 whole, that spirit of political freedom which has made Eng- 
 land great. 
 
 Power of 2. On the other hand, one great effect of the Conquest 
 
 was that the royal power, on which the unity and security 
 of the State mainly rested, held its own against the nobles, 
 
 a [See the Articles on Nobility and Peerage, by Professor Freeman, in 
 the Encyclopedia Britannica.] 
 
THE ENGLISH NOBILITY. 143 
 
 and the sovereignty was not split up, as in France, among a 
 number of great vassals. 
 
 The feudal system found its way into England, but it 
 took a different form. The old idea that it was first intro- 
 duced into England by the Normans has been exploded by 
 more recent research. The old Saxon Thegns were to a 
 large extent holders of fiefs, and were thereby bound to the 
 kings by a tie of special loyalty and military service. But 
 it remains true that the Norman rule gave a much more 
 marked feudal character to the State as a whole. At the 
 time of the Conquest feudalism was more developed in 
 Normandy than in England, and the conquerors brought 
 their ideas with them. 
 
 William the Conqueror himself established the principle William i 
 that not only the tenants in chief, but also the sub-tenants 
 and larger freeholders (die grosseren Freisassen\ must swear 
 the oath of feudal allegiance immediately to the king, so 
 that in the sphere of military duty all subjects held imme- 
 diately of the king (reichsunmittelbar] \ In the course of a 
 century all landed estates were drawn into the feudal bond, 
 and thus the phrase ran, * The king is universal lord and 
 original proprietor of all estates in his kingdom, and no one 
 can occupy a part of them except by grant, direct or in- 
 direct, from the king.' Thus all landed property was made 
 uniformly subservient to the State 10 . The feudal sove- 
 reignty thus exercised by William was much more powerful 
 than that of the French king of his day, whose sovereignty 
 over the duke of Normandy, who as such was a French 
 vassal, was but a slight one, more formal than real. 
 
 Thus the Norman and Saxon nobles, though they held 
 and exercised rights of jurisdiction and police over their 
 
 1 Legg. Wilh. i. 2 : ' Statuimus etiam ut omnis liber homo foedere 
 et sacramento affirmet quod intra et extra Angliam Wilhelmo regi 
 fideles esse volunt, terras et honorem illius omni fidelitate cum eo 
 servare et ante eum contra inimicos defendere.' [Stubbs, Select Charters, 
 80.] 
 
 la Cf. Gneist, Englische Verfassungsgeschichte, p. 94 ff. Stubbs, 
 Const. Hist, of England, i. 258 ff. 
 
144 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 dependents, after the mediaeval manner, still remained in a 
 condition of real subjection to the king, and the unity of 
 the State was not sacrificed to the barons. 
 
 3. But if the rights of the English nobility in this respect 
 were narrow, their political rights, on the other hand, were 
 all the more important. It is these which are the ground 
 of their greatness and permanent significance. 
 
 Power of These political rights found their sphere in the great 
 
 in e parUa- es Councils, which early bore the modest name of Parliaments. 
 In the Parliament the old Anglo-Saxon Witanagemot was 
 revived in a new and nobler form, which gradually helped 
 to unite the two races by the tie of common interests and 
 fortunes. The earlier assemblies of the great vassals may 
 have had no object beyond that of adding to the glory and 
 dignity of the crown at the festivals of Easter, Whitsuntide, 
 and Christmas. But gradually they gained a great political 
 significance, and the most serious affairs of State came to 
 be discussed and decided there, though at first without 
 fixed rules or exact definition of their sphere. In the thir- 
 
 Magna teenth century they took a more regular form. The Magna 
 Charta of 1215, wrung from King John Lackland by the 
 victorious nobles who had taken up arms in defence of 
 their rights, enacted that l Archbishops, Bishops, Abbots, 
 Counts, and great Barons should be summoned to Parlia- 
 ment (commune concilium regni) individually, by royal letters 
 (sigillatim per litteras nostras), and the other immediate 
 vassals of the king by a general summons through the king's 
 officers (in generali per vicecomites et ballivos nostros}] and 
 that new taxes might not be levied without their consent. 
 
 The Upper The fl rs t class, who as hereditary councillors of the -king 
 
 and Lower 
 
 House. and holders of the highest offices of the court and kingdom 
 had the chief management of public affairs, became in 
 course of time the Upper House : the second class became 
 a part of the Lower House. Both had at first a personal 
 right to sit in the Council (Reichsstandschaft) : but in the 
 case of the second class it became a right to representation 
 (Representationsrecht\ shared with the knights, the inferior 
 
Chap. XL] THE ENGLISH NOBILITY. 145 
 
 vassals of the great vassals of the crown, and with the in- 
 habitants of the cities and towns. The lords henceforth 
 formed the higher aristocracy (der hohe Adel) : while the 
 rich bourgeoisie took their place by the side of the lower 
 aristocracy of the Gentry. 
 
 The Nobility found its natural position in the State when 
 the constitution of Parliament became complete at the end 
 of the thirteenth and beginning of the fourteenth century 2 . 
 In the reign of Henry III it seemed as if the Barons, under 
 the leadership of the Earl of Leicester, would endanger the 
 existence of the monarchy, and take the government into 
 their own hands. But this was only a temporary encroach- 
 ment, and soon afterwards the principle was once more 
 established that the aristocracy were entitled to a definite 
 influence on public affairs, and in particular to a share in 
 legislation, but not to the exercise of the sovereign rights 
 of government. 
 
 Their political power was further limited by the -enlarge- The en- 
 ment of Parliament, through the addition of representatives Parliament. 
 of the towns and cities, and by the fact that the English 
 knights were elected to Parliament by free tenants (libere 
 tenentes\ not, as on the continent, nominated by their own 
 order. 
 
 The nobility proper consisted entirely of the Lords : it 
 never became a dynastic and territorial nobility as in France 
 and Germany, but remained an estate of the realm (reichs- 
 stdndischer Add\ exercising rights subject to the king and 
 the law in the military and judicial system, as well as over 
 their sub-tenants. 
 
 The Knights, that is to say, free men in possession of Knights, 
 knights' fees, whether held of the king or of nobles, assumed 
 an influential position. They held the first place in the 
 militia, and, as justices of the peace, were entrusted with a 
 power of police and administration of justice. The repre- 
 sentatives of the county in parliament were chosen from 
 
 2 See Part II, Book ii, chap. 3. 
 L 
 
146 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 them. The association of their younger sons with the upper 
 citizen class, and their parliamentary connection with the 
 Gentlemen, representatives of the towns, the ' honoratiores] gave rise to 
 the essentially modern conception of the Gentry, all who by 
 birth or office, education or property, are distinguished as 
 honoratiores from the masses. Unlike the gentilshommes in 
 France, they are not a rigidly exclusive order, but an elastic 
 aristocracy, daily receiving new accessions and occasionally 
 rejecting unworthy members 3 . 
 
 Public 4. There is a further characteristic of the English nobility 
 
 English" no^ which deserves special notice, as it marks an honourable 
 distinction between them and the nobility of France, and in 
 the main of Germany also. 
 
 Even when the barons were the only political power in 
 the State, they had in view something more than them- 
 selves and their own rights. They early felt their vocation 
 as a national corporation to defend the rights and guard the 
 freedom, of the nation in the general interests of the public. 
 Magna Charta contains many and important clauses to this 
 effect. The political freedom of England is to a great 
 extent their work. When this had been once firmly estab- 
 lished, the higher aristocracy became a solid embankment 
 against the streams of democracy : they exchanged the role 
 of defenders of the national freedom for the less popular 
 but equally useful task of defending the throne and estab- 
 lished institutions (Statsordnung). Standing between the 
 king and the mass of the people, not powerful enough to 
 rule for themselves, and too independent to obey every 
 impulse from below or every humour from above, they 
 maintained the freedom and rights of both from encroach- 
 ment and abuse. 
 
 3 Blackstone, Comm, i. 12, quotes with approval a passage from Sir 
 Thomas Smith. [' As for gentlemen they be made good cheap in this 
 kingdom, for whosoever studieth the laws of the realm, who studieth in 
 the Universities, who professeth the liberal sciences, and, to be short, 
 who can live idly and without manual labour, and will bear the port, 
 charge, and countenance of a gentleman, he shall be called master, and 
 shall be taken for a gentleman.'] Cf. Gneist, Englische Verfassungs- 
 geschichie, p. 621 ff. De Tocqueville, CEuvres, viii. p. 328. 
 
Chap, XL] THE ENGLISH NOBILITY. 147 
 
 The English nobility * have always taken an active and 
 leading part in public duties. Their very education is per- 
 meated with the spirit of political freedom and personal 
 independence. Party politics, their work as justices of the 
 peace, their share in elections, in the county administration, 
 and in juries, their voluntary societies and contributions for 
 public purposes all these forms of activity keep them in 
 touch with the life of the people and train them in the duties 
 of self-government and patriotic service 4 . 
 
 5. The hereditary principle in the case of the English The Peerage 
 lords became a rule of public law, though not in so absolute one heir, 
 and exclusive a form as on the continent. At first the right 
 of inheritance as well as the privilege of peerage was 
 closely connected with occupation of the soil or with office. 
 Peerage had a strictly territorial character. But later this 
 connection was severed, and peerage was transmitted by 
 inheritance as a personal dignity. 
 
 But this early association of the peerage with a definite 
 estate, castle or ofrlce gave rise to the important principle 
 that only one of the sons or relatives of the deceased lord 
 could take his place in parliament. By the principle of 
 primogeniture only one son became a lord, the others re- 
 ceived a lower rank, and were excluded from the upper 
 nobility. Not only are younger sons of a lord in law merely 
 'esquires,' but even the eldest son in his father's life-time is 
 only called * Lord ' by courtesy. Thus, on the one hand, 
 the dignity and wealth of the great families remained con- 
 centrated in one head, while on the other hand the easy 
 transition from one class to another served to minimise the 
 distinctions of birth 5 . 
 
 & [Bluntschli here seems to be thinking chiefly of the county gentry, 
 whom he regards as a lower nobility.] 
 
 4 See Gneist, op. cit., and De Tocqueville, CEuvres, viii. 
 
 5 Macaulay, Hist, of England, i. p. 37 : 'It had none of the invidious 
 character of a caste. It was constantly receiving members from the 
 people and constantly sending down members to mingle with the people. 
 . . . The yeoman was not inclined to murmur at dignities to which his 
 own children might rise. The grandee was not inclined to insult a 
 class into which his own children must descend.' 
 
 L 2 
 
148 FUNDAMENTAL CONDITIONS OF THE STATE. 
 
 Marriage. 6. Further, a Peer was not bound to marry into a noble 
 family. The wife of a Lord is a Lady, although she may 
 come from the citizen class. This principle has not lessened 
 the dignity of the nobility, while it has done far more to 
 secure it from attack than the caste-like principle of equality 
 of birth, to which the German nobility cling so closely. 
 
 New Crea- 7. Finally, the Peerage was from time to time enlarged 
 and enlivened by the creation of new peers. The privilege 
 of creating them was reserved for the king as ' the source of 
 all political honours V He alone could add new mem- 
 bers to the nobility and confer the rights of a peer upon 
 them, with the title of Duke, Marquis, Earl, Viscount, or 
 Baron. But in the nature of things this political dignity 
 was only conferred on men who had distinguished them- 
 selves by their public services as generals or statesmen, and 
 who possessed or now received enough property to satisfy 
 the claims of their position. This constant supply of new 
 and really aristocratic forces saved the English aristocracy 
 from the danger of stagnation and incapacity. The ablest 
 and most gifted men in the nation could thus look forward 
 to raising themselves and their families by their public ser- 
 vice to the sunny heights of political life. Thus, from 1700 
 to 1800, 34 dukes, 29 marquises, 109 earls, 85 viscounts, 
 248 barons were created. During the same time more than 
 500 baronetcies were conferred. At the present day rich 
 citizens who buy large estates in the country count among 
 the country gentry, though without a title of nobility 7 . 
 
 If we now look as a whole at these characteristics of the 
 English aristocracy, we need not wonder why it alone has 
 preserved its existence undisputed, and continues to occupy 
 a useful and brilliant place in the constitution, while in 
 every continental country the aristocracy have either en- 
 tirely disappeared, or maintain only a struggling and pre- 
 carious existence. 
 
 6 Blackstone, Comm., i. 12. 
 
 7 Gneist, op. cit., p. 620. De Tocqueville, viii. 319. 
 
CHAPTER XII. 
 
 C. The German Nobility, (i) Princes. 
 
 IF we look at the history of the German nobility we find 
 everywhere a number of distinguished families, raised above 
 all other free men by military fame, by wealth or popular 
 leadership, and in fact occupying a princely position. This 
 ancient nobility of race (Stammesadel\ often confined to a 
 few families, was the foundation of the dynastic or princely 
 nobility of the middle ages (Hoher Adel, Herrenadel^ 
 Standesherreri). 
 
 The lower nobility of knighthood was a growth of the 
 middle ages. 
 
 The position of the Princes, the highest secular class, 
 was closely connected with the constitution of the Empire. 
 The families whose heads had risen to the highest rank of 
 independence and sovereignty w r ere counted hochfrei, send- 
 barfrei, semper/ret. From the end of the twelfth century, 
 only those secular lords counted as princes of the Empire 
 who held at least a Countship in fief from the king, and 
 were not vassals of any other temporal lord. But only the 
 heads of these princely families were regarded as properly 
 lords (Herreri). The status was dormant in the case of the 
 other members of the family : they were only companions 
 ( Genossen) of the princes and lords. 
 
 This high status in the Empire depended on : 
 
 (a) The office of Prince (Furstenamt\ that is originally on Princes, 
 the ducal military power, which was conferred along with a eccksLs 
 banner. caU 
 
150 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 By the side of the secular princes (Dukes, Margraves, 
 and Counts-palatine), and sometimes taking precedence of 
 them, stand the ecclesiastical princes of the Empire, carrying 
 their sceptre. The former office had become hereditary, 
 and was, as a rule, only bestowed on descendants of the 
 higher nobility. The latter was not exclusively confined to 
 princely houses : frequently clergy of knightly birth, or even 
 learned citizens, were elected to it, and in rare cases even 
 peasants' sons were raised to the episcopal throne. 
 
 Counts (fr) The office of Count (Grafenamt]^ which also became a 
 
 hereditary and territorial rule. After the fall of the powerful 
 tribal dukes (Stammesherzoge\ and the partition of their 
 territories among different princes, these dynasties of counts 
 increased in dignity. Formally their position depended on 
 the grant of the royal ban (Konigsbanri) by the king; in 
 fact, it was a hereditary territorial lordship. 
 
 Barons. (^) Besides these there were a number of great allodial 
 
 lordships, whose lords, by the grant of immunities and of 
 seignorial rights, had obtained a sovereignty and juris- 
 diction like that of the counts these were the Barons 
 (freie Herren). 
 
 The families of the old tribal nobility, which had no 
 position in the Empire, could not long remain members 
 of the imperial nobility, and were merged in the other 
 classes, mainly in that of the knights. 
 
 Their poll- This nobility of the Empire (Reichsadcl\ is mainly dis- 
 
 tical rights. . . , , , 
 
 tinguished by two political rights : 
 
 (1) Territorial sovereignty (Landeshoheit}. 
 
 (2) A seat in the imperial estates (Reichsstandschaft\ 
 
 It was thus a ruling class in the fullest sense of the word, 
 being sole ruler on its own domains, joint ruler in the 
 Empire. This tendency to sovereignty was characteristic 
 and powerful, and had a disastrous effect on the Empire. 
 It led the most eminent families to sacrifice the majesty of 
 the Empire to the claims of the Papacy, to weaken and 
 cripple the German monarchy, completely break up the 
 national unity, and make German territory subject to 
 
Chap. XII. ] THE GERMAN NOBILITY. I. PRINCES. 1 5 1 
 
 foreigners. This crime against their country and the world 
 is not compensated by the brilliance of their courts and 
 palaces, nor by the ennobling works of art which flourished 
 under their protection. 
 
 Their territorial lordship acquired in time the semblance 
 of sovereignty, without real strength or security for the 
 future. Only some of the great territorial princes were able 
 to maintain some measure of separate political existence; 
 most of them were too weak in resources and ability. 
 Their power as an imperial estate was rarely exercised for Their selfish 
 the furtherance of German interests, the development of spirit. l 
 public rights, or the support of popular freedom : it was 
 generally used to evade national duties, and extend the 
 special powers of the members of the Empire. 
 
 The tendency to family exclusiveness was specially strong. 
 This appears in the rigid requirement of equality of birth, 
 in the prohibition of mesalliance (Missheirath)^ and in the 
 extension of equal privileges to all children. The only 
 form of marriage which was quite unexceptionable was 
 where both parties were descended from hochfrei families. 
 Even the marriage of a hochfrei man with a mittelfrei 
 wife was regarded in many families as a mesalliance, 
 compromising the equal birth of the children and the 
 princely rights of the sons. The king could indeed re- 
 move the defect by raising the wife to a higher rank ; or 
 a family, in virtue of its autonomy, might adopt higher 
 principles, or give its consent to a particular case of unequal 
 marriage. 
 
 No German dynasty could keep quite pure, according to 
 the strictest principles of equal birth. But in many cases 
 morganatic marriages were concluded, with the express 
 condition that the children should not inherit their father's 
 rank : the same result followed in cases of undoubted 
 mesalliance, especially where the wife came from the lower 
 citizen or peasant, or even the serf class ; when, according 
 to the later electoral capitulations, even kings could not 
 wipe out the stain. 
 
152 FUNDAMENTAL CONDITIONS OF THE STATE [Bk. II. 
 
 MuitipH- At the time of the ' Mirrors ' the title of prince, count, 
 
 title an d baron was only given to those who actually exercised 
 the functions of prince or count, or occupied a barony l . 
 But in time all sons of princes and counts bore and trans- 
 mitted the title of their father. This multiplication of un- 
 real titles, apparently with a view to the honour of families, 
 only served to lower their dignity among the people, and to 
 weaken them before the great territorial princes. In the 
 same way the rigid maintenance of the principle of equality 
 in marriage dried up the sources which should have renewed 
 the nobility, and cut it off from the attachment of the people. 
 
 Decline. Ever since the Thirty Years' War the dynastic nobility 
 
 steadily declined, until its final collapse in this century. 
 The decisive points in its history were these : 
 
 1797 to 1803. (a) The secularisation of the ecclesiastical principalities, 
 for which the way was prepared by the treaties of peace 
 between the French Republic and the German Empire at 
 Campo Formio 1797, and Luneville 1801, and confirmed 
 and concluded by the extraordinary decree of a diet of 
 deputation (Reichsdeputationshauptschluss), Feb. 25, 1803. 
 
 The German estates of the ecclesiastical princes were 
 used to compensate the secular princes for their losses on 
 the left bank of the Rhine, and to furnish German territory 
 for Italian princes who were driven out of Italy. Of the 
 three ecclesiastical Electors, only the electoral prince of 
 Mainz retained his position, and he was afterwards trans- 
 ferred as Prince Primate to Regensburg, and then to 
 Aschaffenburg. The Grand Duke of Tuscany received the 
 Archbishopric of Salzburg and the priorate of Berchtes- 
 gaden. The Bavarian Palatinate acquired the bishoprics 
 of Wiirzburg, Bamberg, Freising, Augsburg, Passau, &c. 
 Prussia those of Hildesheim and Paderborn ; Baden parts 
 of those of Constanz, Strasburg, Speyer, Basel, &c. 
 
 a [Early in the thirteenth century Eike of Repgow made a collection 
 of the laws in use in Saxony, calling it the 'Mirror of the Saxons' 
 (Sachsenspiegel). The Schwabenspiegel appeared later in the century.] 
 
 1 Sachsenspiegel, iii. 58. 2. lb., i. 3. 2. Schwabenspiegel ^ 5. 
 
Chap. XII.] THE GERMAN NOBTLITY. I. PRINCES. 153 
 
 The secularisation was no doubt a breach of the historical 
 rights of the Empire : but it was justified by the change in 
 public opinion, which would no longer tolerate a political 
 sovereignty of the clergy, and by the public needs of the 
 population, which wanted secular government. 
 
 (b) The ' mediatisation ' of a large number of secular 1806. 
 princes and lords, by the Confederation of the Rhine, 
 July 12, 1806. 
 
 Like the Act of secularisation it was mainly due to 
 Napoleon I, and the ideas of the French Revolution : but 
 at the same time it marked an advance in the political 
 development of Germany, which had been hindered by the 
 petty lords. The seventy-two ' mediatised ' princes and 
 lords lost their sovereignty, and became subjects of the 
 great princes ; but they still retained an inferior jurisdiction, 
 and many privileges. Of their domains, thirteen fell to 
 Bavaria, twenty-six to Wtirtemberg, nine to Baden, seven to 
 Hesse, seven to Nassau, twelve to the Grand Duchy of 
 Berg. 
 
 Later on, some of those who had survived were ' media- 
 tised,' i. e. they became subjects of other German princes, 
 e. g. the princes of Salm, Isenberg, and the Duke of Arem- 
 berg : some survived to the days of the Restoration, when 
 they fell as dependents of Napoleon. 
 
 The dissolution of the German Empire, August 6, 1806, 
 put an end to their rights as an Imperial estate (Reichs- 
 standschaft). 
 
 (c) The German Confederation of June 8, 1815, revived 1815. 
 the memory of the imperial privileges of these families by 
 recognising them as equal in birth with those German 
 princely houses which had become sovereign, and guarantee- 
 ing them certain honours and privileges, among others the 
 right to sit in the first chamber of their country. The 
 Matricula of the Confederation numbered at first forty-nine 
 princes, forty-nine counts, and one baron : some of these 
 families have since become extinct, others have lost their 
 property. 
 
154 FUNDAMENTAL CONDITIONS OF THE STATE, 
 
 The modern development of constitutional law in the 
 different States was unfavourable to the patrimonial rights 
 of these lords. They could not long maintain their special 
 powers of jurisdiction and police in the face of laws which 
 enforced legal equality and a centralised administration. 
 After the Revolution of 1848 it became impossible; and 
 the lords themselves resigned their separate lordship (Sonder- 
 herrschaft}. 
 
 1815 to 1866. The number of thirty-four sovereign German princedoms, 
 recognised by the Federal Act of 1815, has since been 
 diminished by death, by resignation, and by deprivation. 
 The princes of Hohenzollern-Hechingen and Hohenzollern- 
 Sigmaringen voluntarily resigned their sovereign rights in 
 favour of the King of Prussia, Dec. 7, 1849. The royal 
 house of Hanover, the electoral house of Hesse, and the 
 ducal house of Nassau, lost their sovereignty to Prussia by 
 the war of 1866, and the establishment of the North-German 
 Confederation. The present number of Princes in the 
 German Empire, with territorial sovereignty, is twenty-two. 
 
 The new But although the imperial nobility, in the old sense, has 
 
 come to an end in Germany, there is still a higher aristo- 
 cracy of distinguished families, composed partly of the old 
 imperial families (reichsstandische Geschlechter\ partly of 
 new families, which have been raised above the gentry by 
 the public services of eminent men, such as Prince Bismarck 
 and Count Moltke, or by princely favour. It is worth 
 noticing that this high aristocracy, though its tone is rather 
 conservative than liberal, has been distinguished by broad- 
 minded views, and, so far from adopting a narrow and 
 petty individualism, has shown complete sympathy with the 
 national development and greatness of the German Empire. 
 
CHAPTER XIII. 
 
 C. The German Nobility. (2) Knights. 
 
 MIDWAY between the old dynastic nobility and the 
 simple freemen came those who had been raised out of 
 the class of freemen into the class of the mittelfrei, as the 
 4 Swabian Mirror ' calls them. In the South of Germany The Lower 
 they may be traced back to the time of the Frankish 
 monarchy, but it was not till the fourteenth century that 
 they were called noble and came to form a lower nobility 
 (niederer Adel} above the simple freemen. The chief 
 elements in this class were : 
 
 (a) The freemen who were eligible to the office of 
 assessor (die schoffenbar Freien a \ originally owners of larger 
 estates (three hides and upwards *), and chosen for assessors 
 as the richer and more important of the freemen. In time 
 the office, like all others, became hereditary, and they suc- 
 ceeded for a longer time than the mass of free peasants in 
 keeping their estates free from burdens and subject to the 
 jurisdiction of the counts instead of that of the bailiffs. 
 Later on they were merged in the class of knights or of 
 territorial lords. 
 
 (b) Vassals of the nobility ; and after the rise of knight- 
 hood, knights with knight's fees 2 . 
 
 [For the meaning of Schbffen see Hallam, Middle Ages, Ch. ii. 
 Pt. 2 ; Savigny, Geschichte des romischen Rechts im Mittelalter, i. ch. 
 4 ; and infr. Bk. vii. ch. 7.] 
 
 1 Sachsensp. iii. 81. I ; i. 2. 
 
 2 Sachsensp. i. 3. 2 ; Schwabensp. 5. 
 
156 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk II. 
 
 (c) Later on, many knights without fees, most of them 
 descendants of vassals, who had received a knight's educa- 
 tion ; but also, as time went on, soldiers raised to knight- 
 hood by the emperor or his representatives. 
 
 (d) Numerous retainers (Ministerialen, Edelknechte) often 
 sprung from the servile or half-free class, and even in the 
 thirteenth century sharply distinguished from men of 
 knightly birth. These rose by their offices and service at 
 the court, their large property and grand style of living : at 
 first they had no feudal rights, but they gradually rose to 
 the level of the knights, and were absorbed in their order. 
 
 (e) The noble families (die Geschlechter, Patrizier} in 
 many cities of the Empire, more rarely in provincial cities 
 (Landstadteri), originally descended from the assessor class 
 or from knights, and distinguished by their share in city 
 government. 
 
 becomes In the lower nobility, as well as the higher, the principle 
 
 tary ' of inheritance tended to supersede considerations of landed 
 
 estate, of knightly life, or of court service, and hence arose 
 
 a large number of nobles, who owned no other title to 
 
 andexciu- nobility but an old family-tree. At the same time their 
 attitude towards the freeman and peasant class became 
 more exclusive at the very moment when the distinction 
 between them was ceasing to have a real meaning. Thus 
 the passion for grand titles was abundantly gratified. A 
 large number of barons and even counts and princes issued 
 from this order, getting their titles either by regular grant or 
 by usurpation, but without any reality to correspond to 
 them. 
 
 In Germany a nobility was never developed out of the 
 civil and military offices to the same extent as in France. 
 The learned nobility of the Doctores Juris were the only 
 exception to the hereditary principle. On the other hand, 
 Germany showed the greatest readiness in adopting the 
 French form of nobility by letters patent. 
 
 Their privi. The knights of the Empire, on their scattered domains, 
 obtained a considerable degree of independence, but the 
 
Chap. XIII.] THE GERMAN NOBILITY. II. KNIGHTS. 157 
 
 lower nobility, as a whole, had no territorial sovereignty and 
 no place in the Imperial Estates. On the other hand, they 
 had a share in feudal law, and had certain special privileges 
 in religious foundations and benefices. Some of them 
 exercised the jurisdiction of bailiffs and territorial lords, 
 which they inherited in connection with definite domains. 
 
 Finally, they had the right to sit in the estates of their 
 country (Landstandschaft\ and formed the nobility of its 
 court. 
 
 The power of this order rose to its highest after the Decline, 
 thirteenth century, and survived till the middle of the sixteenth 
 sixteenth, when it began to decline before the irresistible ce 
 revolution in economical, military, social and official rela- 
 tions. The Thirty Years' War helped to complete its 
 destruction. 
 
 In the Germany of to-day the lower nobility, as a political 
 institution, has become more completely disorganised than 
 the imperial institution of the higher nobility. Many causes 
 combined to undermine it : the feudal tie became weak, 
 and States lost their feudal character and constitution, 
 armies were revolutionised, the official class ceased to be 
 hereditary, citizen families rose to high places, the old 
 German Empire fell to pieces, and representative institu- 
 tions were developed. More recently, too, changes from 
 above and from below have abolished these privileges, 
 sometimes singly, sometimes in the mass. 
 
 In Germany, as well as in France, the third estate would 
 not tolerate the privileges of the nobility, and disputed its 
 very existence. The unlimited extension of nobility to all 
 descendants brought the claims of the nobility into glaring 
 contrast with the facts on which they were founded, and the 
 inconsistency was heightened, and the confusion increased, 
 *by comparison with the upper citizen class. If the inferior 
 princes of the Empire could not resist the land-hunger of 
 the princes of the Confederation of the Rhine, still less 1815. 
 could the knights of the Empire. Their estates were in- 
 corporated in the territories of princes. The Confederation 
 
1 58 FUNDAMENTAL CONDITIONS OF THE STA TE. {Bk. II. 
 
 of 1815 tried to preserve a privileged position for their 
 families, and to secure them autonomy, a seat in the pro- 
 vincial estates, rights of jurisdiction and patronage, forest 
 privileges, and a privileged position in the courts. But this 
 tinkering was ineffectual. To the modern conception of 
 public law, patrimonial jurisdiction was as intolerable as 
 freedom from taxation. 
 
 Speaking generally, the so-called lower nobility in Ger- 
 many has no longer any special rights in law. As a political 
 and imperial institution it has ceased to exist. What rem- 
 nants of its old glory, besides its name and arms, it retains 
 and exercises on occasion, have only an antiquarian interest. 
 The German But still the territorial nobles, and in less degree the nobles 
 
 nobility as . i 
 
 it is. of the court, though without landed property, occupy an 
 
 important place in society, and indirectly exercise a con- 
 siderable influence on policy and on official appointments. 
 The appointments to the higher military posts, and to 
 offices at court and in the diplomatic service, are mainly, 
 though not necessarily, made from this class. 
 
 The merely titular nobility have gradually become merged 
 by marriage and occupation with the upper citizen class, 
 both in social and political life. The German nobility of 
 Knights have not a patriotic and national history like the 
 English aristocracy. A large part of the territorial nobility 
 offered a long and stubborn resistance to modern ideas and 
 reforms. Many of these nobles, in their romantic enthusiasm 
 for mediaeval conditions, were readier to serve territorial 
 absolutism than the freedom of the people. Hence the 
 German nobility are not so popular as the English; like 
 the French legitimist nobility, they are often regarded with 
 distrust and hatred by the masses. Still they have produced 
 many enlightened men and distinguished patriots. They 
 have given the army its best leaders, and in the great crisis 
 of the national development, the leaders in the struggle for , 
 
 its Reform, reform have come from among the nobility. The question 
 of a reform of the German nobility, as an institution, has 
 been much discussed in recent times ; but the best oppor- 
 
Chap. XIII] THE GERMAN NOBILITY. \\.KNIGHTS. 159 
 
 tunity for it, the period from 1852 to 1860, was passed 
 over. The attempts at reform only showed how little in- 
 fluence the friends of reform had with the members of their 
 order, and how opposed the mass of them were to any 
 thorough and effective change. 
 
 With the foundation of the German Empire the possi- 
 bility arises of a reconstituted and national aristocracy, in 
 which the lifeless and unfruitful constituents of the old 
 nobility should be ruthlessly set aside, and the sounder 
 elements retained, to be blended with other and more 
 modern aristocratic tendencies. An aristocracy, powerful, 
 independent and educated, is a necessity of life to a great 
 people like the Germans, and such a counterpoise of quality 
 as against quantity is especially necessary when the weight 
 of the democratic masses is so heavy in the balance. In a 
 purified aristocracy which should thus form a middle estate 
 (aristokratischer MittelstancT) the hereditary principle would 
 not have the sole nor unlimited sway. Personal nobility 
 (Individualadel] demands recognition as well as nobility of 
 race (Rasseadef) : a noble race separated from its founda- 
 tions in Society may in time lose its nobility. 
 
 Notes. i. Riehl, in his book on die bilrgerliche Gesellschaft (1854), 
 has given a lively picture of the social significance of the German 
 aristocracy. The social position which it still occupies has a value of 
 its own, but without political organisation it cannot be permanent or 
 effective. Classes (Stande) which are merely social groups, are only 
 the foundation of classes in the organic and political sense. 
 
 2. In the Deutsches Statswbrterbuch (i. p. 30 ff., and p. 58 ff.) I have 
 based my proposals for reform on the distinction between passive 
 (ruhender Adel} and active nobility ( jvirklicher Adel}. The former is 
 conferred by birth, and is only potential : the latter starts with personal 
 preeminence, in which the potential nobility becomes actual. I have 
 since made the pathetic discovery that my idea was anticipated two 
 generations ago by Justus Moser (Patriot. Phantasien, iv. 248), only to 
 be disregarded. See my Geschichte der Statswissenschaft, p. 423. 
 
CHAPTER XIV. 
 III. THE CITIZENS. 
 
 THE Citizen class (der Biirgerstand) in Europe, though 
 later in its rise than the lower nobility, became a national 
 estate with its own political rights as early as the middle 
 ages. Its roots are to be found in the old hereditary class 
 of Freemen (die Gemeinfreien\ who originally formed the 
 tribe proper in the various German tribes and nations. But 
 it was only in the precincts of the towns, and under the 
 protection of the law and constitution of the towns, that it 
 could attain to a free growth. 
 
 Tendency to The middle ages, generally, were not favourable to popu- 
 the country, lar freedom. The hierarchical, dynastic, aristocratic classes 
 were in the ascendant, and in the greater part of Europe 
 the free proprietors of the soil were subject to the grasping 
 dominion of the feudal nobility and the bailiffs ( Vogtei- 
 herren). 
 
 The strong legislation of Charles the Great checked the 
 worst oppressions, but could not prevent the advance of 
 the evil. Under the Frankish monarchy a very large part 
 of the peasant population, which belonged by free birth to 
 the genuine German tribes, by settling on royal or eccle- 
 siastical estates, or on the lands of the territorial nobles, 
 and cultivating land which was not their own property, or 
 by making over their property from pious motives or neces- 
 sity as gifts to churches and monasteries, and receiving 
 them back as tenants, fell into a condition of manorial 
 servitude (Hofhorigkeit\ which made them little better 
 
THE CITIZENS. 161 
 
 than slaves, and deprived them of many of their political 
 privileges. 
 
 In time even the small estates, which had remained the 
 property of their free cultivators, were unable to escape the 
 jurisdiction of the bailiffs, and the burdens which the ruling 
 aristocracy laid on them. The change in the organisation 
 of the army, from the old basis of knightly and feudal ser- 
 vice to that of mercenary troops, deprived the free peasants 
 of their military efficiency and dignity. They were loaded, 
 often arbitrarily, with taxes of every form and for every sort 
 of pretext : and in the courts too, and still more in the 
 political corporations of the country, they lost the place 
 which the old German constitution had secured them. 
 
 Even the free proprietors of the soil, as people of the 
 bailiwick ( Vogteileute), gradually dropped to the level of 
 servile peasants, and both were classed together under the 
 common name of the peasantry (Bauernschaft}. 
 
 Thus the political rights of the peasants were for the 
 most part much curtailed, and the old hereditary class 
 (Erbstand) was transformed into a professional class (Berufs- 
 stand). Only some of the free peasants, generally the 
 larger owners of land, rose into the new class of Knights. 
 There were exceptions. Individual communities of free 
 men were able, under favourable conditions, to preserve 
 their free ownership as well as their higher political privi- 
 leges from the dangers which threatened them. One of the 
 most notable examples of this is the village-community of 
 Schwyz, which gave the impulse as well as the name to 
 Swiss freedom. 
 
 In the country then the old freedom was suppressed, but Freedom in 
 meanwhile the towns became the home of a new civic free- t] 
 dom. The history of the towns had a decisive influence 
 on the development of the modern idea of freedom and 
 citizenship. Both ideas were civic (stddtiscJi) before they 
 became national (Statsbegriffe). Centuries were needed to 
 develop fully the idea of citizenship in a town, and centuries 
 more before it was enlarged to citizenship in a State. 
 
 M 
 
1 62 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 At first the privileged classes, with their variety and 
 separation, the outcome of mingled Romance and Teutonic 
 elements, were reflected in the life of the towns. The 
 variety was greatest where a large population was enclosed 
 in a narrow space. 
 
 Population Often within the circle of the same walls were found : 
 Towns. i. Ecclesiastical princes with their courtly state and special 
 
 rights of sovereignty, bishops and abbots. 
 
 2. The lower ecclesiastics of all sorts and degrees. 
 
 3. Secular nobles of high rank, e. g. royal counts or high 
 barons, the Capitanei of Italy, who resided in the country 
 and only made short stays in the towns unless they pos- 
 sessed castles there. 
 
 4. Knightly families, often owning fiefs in the country. 
 
 5. Retainers (Ministerialen) of the ecclesiastical and 
 secular lords. 
 
 6. Mittelfreie. 
 
 (a] In the Romance towns of Italy and France, frequently 
 the descendants of the Roman decuriones^ who possessed 
 landed property in the town. 
 
 Or (ft) German freemen who had settled on their own 
 land in the town, and were distinguished by property and 
 political position. 
 
 7. Simple freemen (Gemeinfreie) still owning land in the 
 town. 
 
 8. Men free in person (personlich Freie), but living on 
 the estates of lords in the town, and therefore subject to 
 manorial law, e. g. to an abbacy. 
 
 9. A mass of serfs of different lords, in the most various 
 conditions, (a) some living independently as artisans ; 
 
 (b) others in dependence on a household as messengers 
 and servants, &c. 
 
 Growth of The union of all these elements of the mediaeval system 
 ciass. ltlz within one town, necessarily tended in time to break down 
 the separation between them and to produce a new com- 
 bination. Community of life, of interests, and of fortune, 
 as well as party struggles, brought them into closer con- 
 
Chap. XIV.] THE CITIZENS. 163 
 
 tact, or gave rise to new differences not determined by 
 birth. 
 
 The civic constitution brought into being new corpora- 
 tions and councils, in which the various classes were merged 
 in a new unity. This process varied with the conditions 
 of different times and places, but was essentially the same. 
 The most important stages in this development were the 
 following : 
 
 i. First in this citizenship of the towns came the distin- Rise of 
 guished families of Knights, Retainers, and Mittelfreie, who, Lombardy, 
 as Consules in the Council, strove for independence and 
 limited the lordship of the old lords of the town (Stadt- 
 herreri). This nucleus was enlarged by gemeinfrei elements, 
 and new oppositions arose between the old aristocratic 
 families and the young and pushing societies of free citizens. 
 Thus Milan, about the middle of the eleventh century, saw 
 the rise of the Motta, a political society of doctors of law, 
 physicians, bankers, merchants, and even men of knightly 
 family, who did not live the life of knights : later, under 
 the name popolo grasso (populares ), they opposed the noble 
 Capitanei and Valvassores^ and in the twelfth century took 
 their place beside them in the Great Council {Concilium 
 Generate^ \ forming the common council of the town. 
 
 The rise of a civic authority in the Consuls was the first 
 decisive step towards the fusion of the higher classes in the 
 city : next came, as a rule, the formation of Great Councils 
 and the name of Communes (Gemeinden) : last came the 
 Guilds (Zunfte). And thus by degrees the older and nar- 
 rower societies were included in a wider circle of citizenship. 
 
 This development was first seen in Lombardy, where the 
 Teutonic tendency to corporate life and independence was 
 blended with memories of ancient Rome. From there the 
 movement passed to the towns of Southern France, during 
 the twelfth and thirteenth centuries. There it found its 
 
 1 Savigny, Geschichte des rom. Rechts im Mittelalter, iii. ch. xix ; 
 Leo, Geschichte von It alien y i. p. 399 ; Hegel, Stadtev:rf. in It alien, 
 vol. ii. p. 213 ff. 
 
 M 2 
 
1 64 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 main support in the remains of the old free municipal 
 citizenship (which had fallen lower in France than in Lom- 
 bardy), represented by elected Prudhommes. 
 
 Communes 2. A more decidedly democratic character and corporate 
 nce ' form is found in the sworn confederations of citizens in the 
 communes, which in the North of France about this time 
 engaged in bloody struggles with the lords of the towns. 
 
 Guild- Here we find new elements of citizenship, especially in 
 
 the Guild-society (Gildonia, Conjuratio^ Fraternitas) 2 . En- 
 trance into this, accompanied by an oath of obedience to 
 the statutes, was the only road to citizenship in a commune. 
 Thus civic freedom and civic rights were disconnected from 
 mere birth or ownership of land, and stress was laid instead 
 
 The personal on corporate union. The feudal principle and the old 
 
 sede^the" Teutonic principle of privilege gave way to a new and per- 
 
 feuda1 ' sonal principle. 
 
 Further, the constitution of the commune was favourable 
 to the extension of freedom and citizen rights to the lower 
 strata of the town population. The mass of artisans, who 
 had freed themselves from serfdom, found entrance into 
 the society, and the principle was established that the serf 
 who had lived in the town a year and a day unclaimed and 
 unpursued by his lord became a free man. Town-law 
 
 Enfranchise- throughout Europe 3 bears witness to the important prin- 
 
 ment of serfs. . , . , . .... . 
 
 ciple that ' the air of the town makes a man free. It is 
 true that the exaggerations and excesses of democracy in 
 the towns often led to reactions. The kings who had 
 helped to free the towns from the lordship of their sei- 
 gneurs, now took occasion through their officers to take the 
 government into their own hands and make it severe. In 
 the same way the Lombard towns, for the most part, lost 
 their self-government at the beginning of the fourteenth cen- 
 tury, and fell into the power of individual princes. There, 
 
 2 Cf. Thierry, Lettre XIV, sur Fhistoire de France, and Schaffner, 
 Reehtsgeschichte, ii. p. 554 ff. 
 
 3 For Germany see Gaupp and Gengler, Deiitsche Stadtrechte des 
 Mittelalters. 
 
Chap. XIV.] THE CITIZENS. 165 
 
 in the thirteenth century, the new citizen body of the Popolo, 
 composed largely of the lower elements of the town popu- 
 lation, under its democratic captains (Capitani], had begun 
 the struggle for dominion with the city nobles, and had 
 frequently overpowered and expelled them. 
 
 Besides the towns with a consular and a communal con- 
 stitution, there were many towns in France which had 
 remained more dependent on their lords, and were ruled by 
 provosts (pre'vots), often very arbitrarily. However, even in 
 these towns the burdens of servitude were removed or much 
 lightened, and the idea was developed of the Bourgeoisie as 
 a free class, into which a man could enter by settlement in 
 the town, or perhaps by royal grant of citizen rights 4 . 
 
 3. In Germany, too, the different meanings of the word citizenship 
 
 / TT- \ T ,1 ^ j i in Germany. 
 
 citizen (Burger) indicate the various stages in the develop- 
 ment of the idea. 
 
 In the thirteenth century it was still the practice, as it 
 was earlier in Italy and France, to distinguish Knights and 
 Citizens (milites et burgenses\ and to understand by the Free house- 
 latter those freemen who belonged to the town society, 
 and were eligible for its council, but who did not live as 
 knights. This citizen body had its foundation in the free 
 householders of the town, who usually shared with the 
 families of knightly birth the offices of assessor and coun- 
 cillor in the town. 
 
 These two bodies, the knights (including the Minis terialen) 
 and the citizens combined, were regarded as the citizens 
 with full rights, or as the 'families' (GesMechter\ and 
 opposed to the artisans and other inhabitants of the town. 
 
 After the middle of the thirteenth century, the time of Merchants, 
 the great town-federations (Stddtebunde) for the protection 
 of trade, it appears that the merchants in many German 
 towns were acknowledged as citizens and obtained the right 
 of representation in its Council, on the ground of personal 
 freedom, apart from ownership of land. 
 
 * Schaffner, op. cit. t p. 590. 
 
1 66 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 Thus the idea of citizenship was to some extent divorced 
 from connection with the soil, and more significance than 
 before was given to profession and personal association. 
 This tendency received new strength when it became usual, 
 Artisans. in the early fourteenth century, for the artisans in their 
 companies to be incorporated as a new constituent in the 
 citizen body. The word citizen (Burger) had thus gained 
 a wider meaning. Henceforth it was regularly applied to 
 all who shared in the life of the town and its corporations. 
 Servitude, so far as concerned town citizenship, was abo- 
 lished, distinctions of birth were essentially modified and 
 softened, feudal law made way for the town law (Stadtrecht\ 
 which was common and personal, and all citizens as such 
 were brought into immediate relation with the town to 
 which they belonged. 
 
 Citizenship This citizenship of personal freedom (das personlich-freie 
 
 freedom 1 Stadtburgertkum), which enjoyed now larger and now smaller 
 
 powers of self-government, was limited to the sphere of town 
 
 interests. The details of the different constitutions varied 
 
 with the history and circumstances of the town. 
 
 Provincial Some towns were subject to the territorial sovereignty of 
 Towns! pei a princes, and were hence called provincial towns (Landstddte). 
 Others acquired royal rights for their councillors, and be- 
 came territorial lords (Landeskerren] to the surrounding 
 villages and to the lordships which they acquired. In view 
 of their immediate relation to the emperor and the Empire 
 they were called imperial towns (Reichsstadte). 
 
 In the sixteenth century the German towns were still 
 
 wealthy, flourishing, cultivated. The buildings of the 
 
 period still maintain the reputation which they had in 
 
 Decline of Machiavelli's a days. But the Thirty Years' War destroyed 
 
 the Towns. , .. r , iir-ii-"^ 
 
 the power and prosperity of the towns, and they fell into a 
 miserably low condition, from which it took them more 
 
 a [Machiavelli, Ritratti delle cose delV Alamagna : 'Delia potenza 
 dell' Alamagna alcun non debbe dubitare, perche abbonda di uomini, 
 di ricchezze, e di armi. . . . Ma vengiamo alle comunitadi Tranche 
 ed Imperial!, che sono il nervo di quella provincia, dove sono danari e 
 1'ordine.'] 
 
Chap. XIV.] THE CITIZENS. 167 
 
 than a century of suffering and struggle to recover. Pro- 
 vincial towns lost their position in the provincial estates, 
 while imperial towns scarcely maintained a shadow of inde- 
 pendence. The towns anxiously cut themselves off from 
 the country : they were impoverished and oppressed, and 
 became the victims of a narrow and petty provincialism. 
 
 4. The following are the characteristic features of the Character- 
 mediaeval citizen class : SJdi^va 1 ! e 
 
 (a) It does not, like the Clergy and the Nobility, form ckS" 
 a privileged order, but a national class (einen ordentlichen 
 Regel- und Volksstand}. It is distinguished from the peasants 
 
 by its relation to the town, by its culture, its freedom, and 
 its law. 
 
 (b) In spite of differences of origin and of occupation the 
 citizen body is felt to be a united and homogeneous class. 
 It is the guardian of civic freedom, and of the equality of 
 all before the law. It lives by the same town laws, and has 
 the independent ordering of its constitution. The citizens 
 are sons of the town, and share in its common life. The 
 political and social life of the town are closely connected. 
 
 (c) But further, the citizen class obtained a political posi- The Third 
 tion and significance which went beyond the precincts of a 
 single town, and embraced the citizens of many towns in 
 
 one corporate class. This new development found expres- 
 sion in the organisation of the mediaeval Estates, provincial 
 and imperial. From the middle of the thirteenth century, 
 the citizens of the English towns, at first separately from 
 the Knights, afterwards along with them, obtained the right 
 of representation in the national Parliament. In France, 
 the representatives of the bourgeoisie formed the ' third 
 estate ' (tiers etat\ summoned at first separately from time 
 to time, but from the beginning of the fourteenth century as 
 part of the Estates General (Etats generaux). 
 
 In Germany, the * benches of the towns ' in the Imperial 
 Diets (Reichstage) after the elevation of Rudolf of Haps- 
 burg in some measure represented the citizen class ; and 
 in the Provincial Diets (Landtage) the towns received a 
 
1 68 FUNDAMENTAL CONDITIONS OF THE STATE. 
 
 seat and vote, as a third estate, by the side of the nobility 
 
 and clergy. 
 
 iti/enship 5. Finally, the new ideas which had taken form in the 
 i the state. c fa zen c | ass o f fa e towns were extended to the wider field 
 
 of the whole nation ; the citizenship of the town gave birth 
 
 to the modern citizenship of the State. 
 
CHAPTER XV. 
 
 IV. THE PEASANTS. 
 
 IF the old class of freemen lost ground in the middle Rise of the 
 ages, the servile class gained : the depression of the freeman 
 and the rise of the serf tended to a mingling of the two 
 classes. A small part of the servile class as Ministerialen 
 rose above the freemen and became part of the inferior 
 nobility. Their service at court brought them into close 
 connection with princes, and gave them the education and 
 manners of a court : and this, with their rich estates, in 
 time gave them a place by the side of the knightly nobility. 
 
 Another and larger part settled in the towns, where they 
 enriched themselves by trade, and acquired personal and 
 civic freedom. The Italian towns deserve the credit ofEnfran- 
 having been the first to free their serfs. The town of c 
 Bologna, always a champion of freedom, on the proposal of 
 the Podesta Accursius de Sorrecina, generously resolved to 
 purchase the freedom of all serfs in its domain, and to de- 
 clare serfdom at an end ] . 
 
 The development of civic life also elevated the Artisan 
 (Handwerker) class, who had hitherto held a low place, 
 especially in Teutonic Europe, and had chiefly consisted of 
 serfs. From Italy, where free citizenship blossomed early, 
 the Scholae spread to France, where, under Teutonic influ- 
 ence, they took the corporate form of Minis teria (mestiers) 
 
 1 Laurent, Histoire du droit des gens, vii. p. 529. Florence followed 
 this noble example in 1288 ; Sugenheim, Geschichte der Aufhebung der 
 Leibeigenschaft, 1861, p. 202 ff. 
 
1 70 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 Guilds in and Guilds, and were finally transplanted to Germany. 
 
 Germany? Their effect was to strengthen the rights of their members 
 and to raise the dignity of their masters. The systematic 
 education and gradual development of the artisan class, 
 their progress in technical skill and in wealth, their new 
 privilege of carrying arms under the banner of their cor- 
 poration or their guild, their permanent connection with the 
 interests and prosperity of the town, all tended to awaken 
 in the artisans a sense of their importance and their claims. 
 Many were serfs, but now obtained freedom by purchase or 
 by revolt. They could no longer be deprived of the rights 
 of citizens of their town. 
 
 Serfdom In the country the road to freedom was more difficult. 
 
 country. In many places it was a principle that ' the air makes a serf 
 (die Luft macht horig). It was an exception for peasant 
 serfs to become completely free, but by slow degrees they 
 generally acquired a personal freedom which, though heavily 
 burdened and politically insignificant, was secured by the 
 protection of the law, and tended constantly to extend. 
 They united with the free peasants to form one professional 
 class with equal rights. 
 
 Enfran- The detailed relations of serfdom to freedom, and the 
 
 chisement. . . - . 
 
 transitions from one to the other, were very various. The 
 elevation of the serfs, like the abolition of slavery, was 
 largely due to the influence of the Church. Where churches 
 or conventual establishments were lords of the manor, they 
 generally led the way by giving definite rights and exemp- 
 tions to their serfs, and thus the dependents of religious 
 houses (die Gotteshausleute) were the first to approach the 
 condition of free peasants. The example was followed by 
 the kings. The Carolings bestowed freedom on the Fisca- 
 lini, and Louis X 2 , enfranchising the serfs on the royal 
 
 2 Ordonn. i. 583 : * Comme selonc le droit de nature chacun doit 
 naistre franc et par aucuns usages moult de personnes de nostre com- 
 mune peuple soient encheiies en lieu de servitudes : Nous considerants 
 que Nostre Royaume est dit et nomme le Royaume de Francs, et voul- 
 lant que la chose en verite soit accordant au nom ordenons, que 
 
Chap. XV.] THE PEASANTS. 171 
 
 domains in 1315, declared that he was fulfilling his duty as 
 king of France. 
 
 The same spirit which made the sovereign rights of the The peasant; 
 great barons hereditary fiefs attached to the soil, and which prwate 
 gave to vassals as against their lords secure and permanent ni 
 rights in their benefices, tended also to confirm the rights of 
 the peasant serfs of the manor (hofhorige Bauern] to their 
 holdings, and gave rise to inheritance subject to manorial 
 law (hofrechtliche Erbe] and to a peculiar system of patri- 
 monial jurisdiction, in which the peasants took part under 
 the leadership of their Maires or Meyer (villici majores). 
 
 The position of the French Serfs and Vilains was, as the France. 
 name implies, less favoured than that of the German Hofleute 
 and Grundholden ; but the freedom of the latter was later in 
 its development, and in France the higher classes of privi- 
 leged peasants, the Coutumiers and Roturiers, and the Ostes 
 (Hospites), came near to the position of freemen. 
 
 In England, on the other hand, the serf population, after England, 
 the Black Death (1348-9), acquired personal freedom, but 
 without land : and thus arose a class of free labourers instead 
 of free peasants 3 . 
 
 This modified freedom of the peasants was generally 
 limited to the sphere of private law, and of the communal 
 and judicial constitution. In combination with the free 
 peasants who had become subject to the hereditary lordship 
 of bailiffs, and whose holdings had to bear various perpetual 
 
 feneraument par tout nostre Royaume de tant comme il peut appartenir 
 nous telles servitudes soient ramenees a franchises a bonnes et 
 convenables conditions de tant comme il peut toucher nous.' Cf. 
 Schaffner, Franz. Rechtsgesch. i. 523. Still earlier the Count of Valois, 
 brother to King Philip the Fair, had enfranchised the serfs on his 
 domain on the ground of the natural freedom of man ; Laurent, op. cit. , 
 vii. 528; Sugenheim, Geschichte der Aufhebung der Leibeigenschaft, p. 
 1 30 foil. 
 
 3 Seebohm, On International Reform, p. 26 foil. The abolition of 
 serfdom began in England in the course of the thirteenth century. Many 
 of the liberated serfs acquired the position of copyholders. Sugenheim, 
 op. cit., p. 289 ; Gneist, p. 444 f. [See also Seebohm, The Black Death, 
 in Fortnightly Review, vol. ii. 1865, and J. E. Thorold Rogers, Six 
 Centuries of Work and Wages, vol. i. ch. 8.] 
 
172 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 burdens, to the profit of their lord, they formed the so-called 
 Peasant Class (Bauernstand}. 
 
 The peasants did not become a political estate in the full 
 sense, except in a few countries : in Scandinavia, where they 
 had fortunately retained their old common freedom (Gemein- 
 freiheit) and the old constitution ; in the Tyrol, where they 
 were summoned by the princes to the provincial diets (Land- 
 tage}', in Switzerland, where they formed free peasant re- 
 publics. 
 
 In most countries they were treated as a subject class, with 
 no claim to political, least of all to representative rights, and 
 as marked out by nature to bear public burdens. They were 
 essentially an ' economical' class (ein wirthschaftlicher Stand), 
 not like the citizens of the towns an ' educational ' class 
 (ein Culturstand\ 
 
 The German The great Peasant War of the sixteenth century was a 
 war. ant strong but vain effort of the German peasants to break the 
 heavy yoke of their lords. When we now read the Twelve 
 Articles summing up the demands of the peasants, and re- 
 member the violent indignation which they aroused in the 
 educated classes and in the ruling aristocracy of that day, we 
 may notice with some satisfaction that in our century the 
 peasant class have everywhere obtained, without a struggle, 
 as rights of men and citizens, more than they then dared to 
 ask. 
 
 But it was only gradually that men accustomed themselves 
 to the idea that peasants were not merely a subject race, only 
 fit to be enlisted and taxed at will. The English constitu- 
 tion once more showed its regard for popular freedom when 
 it granted to the Yeomen (probi et legates homines}, who drew 
 a moderate income from their holdings, the right to take part 
 in county elections for the House of Commons. 
 
 Hhf! cal But ^ was not ^ * ate ty that tne blessing of full personal 
 
 freedom and political rights was generally extended to all 
 classes. The philosophy of the eighteenth century, by win- 
 ning recognition for the idea of the natural rights of men, 
 gave the intellectual impulse to this great advance. In Ger- 
 
Chap. XV.] THE PEASANTS. 173 
 
 many, King Frederick I of Prussia led the way by abolishing 
 serfdom on the royal domains in 1702 : the emancipation of 
 other serfs was encouraged and extended by the laws of 
 Frederick II, and the example was followed by the Emperor 
 Joseph II, in 1782, for Germany and Austria, and by Charles 
 Frederick of Baden, in 1783. Meantime most German 
 States held back, until the enthusiastic declaration of the 
 4th of August, 1789, and the proclamation of the 'rights of 
 man ' by the French National Assembly produced its effect 
 on civilised Europe. The emancipation of serfs and de- 
 pendent classes was recognised as a universal duty and an 
 irresistible demand of the new age, and was carried out in 
 Western Europe in the first half of this century, and since 
 then in Eastern Europe. At the same time, or even after- 
 wards, political citizen rights (Statsburgerrtchf)wt. extended 
 to the peasants as well as to the citizens of the towns. 
 
CHAPTER XVI. 
 
 V. SLAVERY AND ITS ABOLITION. 
 
 THE Slave enters the family or nation, to which he is 
 subject, as a foreigner. Widely as slavery was spread in 
 antiquity, I know of no nation which would have regarded 
 it as a national class (ein nationaler Stand}. In this we 
 have at once a proof that slavery is not a necessity of human 
 nature. 
 
 Aristotle on Aristotle (Pol. \. 4-6) has exercised much subtlety to prove 
 that some men are masters by nature, others slaves by nature. 
 But his argument, so far as it is true, only establishes the 
 necessity of a class occupied in service, not of a slave-class 
 without rights. Doubtless the man of higher talents, if he is 
 to fulfil his function, does require what Aristotle calls ' living 
 instruments ' (?/K^VX<I 6'pyai/a), and doubtless there are men 
 specially adapted by nature for bodily activity, who need the 
 commanding guidance of a master if they are to fulfil their 
 vocation. But this only proves that there is a mutual need 
 which unites master and servant, master and journeyman, 
 farmer and labourer, manufacturer and mechanic : it does 
 not prove that the relation of the employed to the employer 
 is to be compared to that of the domestic animals to their 
 owners, nor that workmen must surrender individual freedom 
 and human personality, and become mere things, mere in- 
 struments of an appointed master, that is to say, become 
 slaves. Man is by nature a person : he cannot become a 
 thing, that is, a slave. The Roman jurists, in their theory of 
 
SLAVERY AND ITS ABOLITION. 175 
 
 Law, have applied the notion of property to slaves with a Roman Law. 
 
 severity which was remarkable even in antiquity, representing 
 
 them throughout as beings without rights, as mere things : 
 
 but even they felt that slavery was against nature, and had 
 
 only been introduced by the common usage of nations *. 
 
 They therefore explained manumission as the restoration of 
 
 a natural right 2 . 
 
 But in spite of this knowledge, Roman jurisprudence, for 
 more than a thousand years, applied the principle of property 
 to slaves with rigid consistency. The imperial ordinances 
 against excessive or groundless severity of masters against 
 slaves 3 , acted like the present laws against cruelty to animals, 
 in preventing the worst cruelties, but did not affect the prin- 
 ciple : and the slave, as before, not only had no property, but 
 had not even the right of marriage or kinship. 
 
 The German law recognised with equal clearness, to use German 
 the strong words of the author of the Sachsenspiegel*, that 
 all slavery had arisen from compulsion, capture, and unjust 
 force, and that what was now given out as right was only 
 custom, ancient but unjust. 
 
 The Teutonic nations always recognised certain rights in 
 their serfs 5 . Their rights of property and of family were in- 
 
 1 Florentinus, in Digest I, Tit. 5, de Statu homimim : ' Servitus est 
 constitutio juris gentium, qua quis dominio alieno contra naturam 
 subjicitur.' 
 
 2 Ulpianus, in Dig. I, Tit. i, de Just, et Jure: (' Manumissio) a jure 
 gentium originem sumsit, utpote quum jure naturali omnes liberi nasce- 
 rentur, nee esset nota manumissio, quum servitus esset incognita ; sed 
 posteaquam jure gentium servitus invasit, secutum est beneficium manu- 
 missionis.' 
 
 3 [Justinian, Inst., i. 8]. 'Sed hoc tempore nullis hominibus, qui 
 sub imperio nostro sunt, licet supra modum et sine causa legibus cognita 
 in servos suos saevire.' Gaius, i. 53. 
 
 4 Sachsenspiegelj iii. Art. 42. 3 : ' An minen sinnen ne kan ik is 
 nicht upgenemen ne der warheit, dat iemen des anderen sole sin, ok ne 
 hebbe wie's nen orkiinde.' 6 : ' Na rechter warheit so hevet egenscap 
 begin von gedvange unde von vengnisse unde von unrechter wait, die 
 man von aldere in unrechte wonheit getogen hevet unde nu vore recht 
 hebben wil.' 
 
 5 Occasionally, in German law, we find serfs put on the level of 
 domestic animals, but this is certainly not of the essence of the older 
 relation. Cf. Tacitus, \Germ. t 25: ' Ceteris servis non in nostrum 
 
176 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 complete and insufficiently guarded, being in fact dependent 
 on the good-will of their lord : but the germ of their later 
 enfranchisement was stronger than in Roman law. The 
 personality of the German slave was never completely lost, 
 and so it was possible to improve his condition. 
 
 Slavery Slavery in Western Europe disappeared to a great extent 
 
 Serfdom" in the middle ages, by passing into the milder form of serf- 
 dom (Horigkeit}. Its last remains were only banished with 
 the final abolition of serfdom, at the end of the eighteenth 
 and beginning of the nineteenth century 6 . 
 
 Christianity. The earlier and gradual process, as well as the more 
 thorough enfranchisement of recent times, may be regarded 
 as due in part to Christianity, which, without violently 
 attacking the positive laws of slavery, destroyed its intel- 
 lectual basis. Property in man was incompatible with the 
 belief that all men are the children of God, and brethren of 
 
 The Teu- one another. But the change is due still more to the Teu- 
 tonic sense of law and freedom, and to the progressive spirit 
 of humanity. 
 
 Russia. The history of slavery in Russia is peculiar. In early 
 
 times there existed a sort of personal bondage (Knechtschaft\ 
 but in the sixteenth century the mass of the peasants were free. 
 The wide estates required a large number of labourers, and 
 the territorial lords found it to their .interest to attach the 
 peasants to their estates by various favours, and so put an 
 end to the free movement and constant change of dwelling 
 which their old nomadic impulse still prompted. But the 
 peasants did not become serfs until the financial and military 
 needs of the State bound them still faster to the soil, and put 
 them at the mercy of their lords. Nowhere did the freedom of 
 peasants, in the seventeenth century, suffer so severely as in 
 Russia. Serfs (Knechte) and peasants were involved in a 
 common servitude, which put their persons and property 
 
 morem, descriptis per familiam ministeriis utuntur. Suam quisque 
 sedem, suos penates regit. Frumenti modum dominus aut pecoris aut 
 vestis lit colono injungit : et servus hactenus paret.'] 
 6 See above, Ch. xv. 
 
Chap. XVI.] SLAVERY AND ITS ABOLITION. 177 
 
 almost entirely at the disposal of their lord. But in Russia, 
 too, the new age brought alleviation, and in our days en- 
 franchisement. The work of emancipation carried out by 
 the Czar Alexander II, by the law of February 19, 1861, in 
 spite of the resistance of many nobles, was the beginning of 
 a new period of personal freedom in Russia 7 . 
 
 Thus Europe was gradually purified of the primeval curse American 
 of slavery. But it found a new soil, and in some respects a 
 more vicious development, in the new world. The American 
 civil war of 1861 to 1865 was the fearful retribution for this 
 outrage upon the spirit of humanity. 
 
 Negro slavery was less objectionable in this respect 
 that the slave was not like the slave of Greece and Rome, 
 of the same white race as his master, but of a black and 
 naturally inferior race. But, on the other hand, this differ- 
 ence encouraged the passion and arrogance of the white 
 master, who was not inclined or obliged to recognise a 
 common human nature in the negro : and hence, cruelty 
 and abuse was more frequent and violent than in antiquity. 
 There is force in the bitter and scathing irony with which Monies- 
 Montesquieu (Esprit des Lois ^ xv. 5) touches the overbearing q 
 contempt of the white master for the negro slave : ' On ne 
 peut se mettre dans 1'esprit que Dieu, qui est un tre tres- 
 sage, ait mis une ame, surtout une ame bonne, dans un 
 corps tout noir : ... II est impossible que nous supposions 
 que ces gens-la soient des hommes ; parce que, si nous les 
 supposions des hommes, on commencerait a croire que nous 
 ne sommes pas nous-memes chre'tiens.' 
 
 American slavery then was far harsher than European. 
 Any care and attention which the slaves received from their 
 masters was of the same kind as that which the peasant 
 gives to his cattle. The denial of their dignity as men, the 
 disregard of marriage and the family, the absence of religious 
 
 7 Cf. the Article ' Leibeigenschaft ' (Russische) by Tschitscherin in 
 the Deutsches Statsworterbuch ; T. Engelmann, Die Leibeigenschaft in 
 Russland, 1884, 
 
 N 
 
1 78 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 or moral education, unchecked traffic, often carried on with 
 the most revolting cruelty, all combined to thrust them 
 down, morally and legally, to the condition of domestic 
 animals. It was a grievous offence against all order, divine 
 and human. 
 
 Jefferson. It was a misfortune for America that Jefferson did not 
 
 carry his proposal to add to the Declaration of Independ- 
 ence of July 4, 1776, in which freedom is declared to be an 
 inalienable right of man, a protest against the admission 
 and encouragement of negro slavery by the royal govern- 
 ment. The original idea of a gradual removal of slavery 
 was too feebly supported to overcome the effort of the 
 slaveholders to protect and extend their property. 
 
 The free States could hardly maintain their balance 
 in the federal government against the slave-holding 
 States. In the course of a century the slave population 
 had increased from several hundred thousand to several 
 millions. The rapid development in the cultivation of 
 cotton and sugar-cane had a disastrous influence in this 
 direction. 
 
 Meanwhile the idea of the abolition of slavery passed 
 from Europe to America. England here set the example, 
 and on a large scale. Interested motives may have had a 
 share in this, as in all human movements, but the cause was 
 
 wiiberforce. a just and sacred one ; and William Wilberforce, the man 
 who first devoted his life to it and maintained it with energy 
 and success, in and out of Parliament, was inspired by the 
 greatness of his cause. In spite of all mistakes in detail, 
 the abolition of slavery in the English colonies, the com- 
 pensation to the so-called owners, and the international 
 treaties made for the suppression of the slave-trade, were 
 acts of high service to mankind. 
 
 civiTwTr The victor y of the Union over the slave-holding Con- 
 federate States of the South at once determined the abolition 
 of negro slavery in North America. The Union no longer 
 tolerates slavery within the limits of its authority (Constitu- 
 tional Amendment of Dec. 18, 1865). Indirectly this decides 
 
Chap. XVI.] SLAVERY AND ITS ABOLITION. 179 
 
 the question for the whole continent, for South America 
 cannot long refuse to recognise the same principle. In 
 fact, slavery has already been abolished in Brazil by a law 
 of September 28, 1871. 
 
 So far only the personal freedom and private rights of the Rights of 
 coloured races have been recognised. The difficult problem l 
 of the political rights and position of the negro has yet to 
 be solved. At present North America seems disposed to 
 give the negro full political rights, but it is doubtful how 
 long this will last. Political rights presuppose political 
 capacity. 
 
 Is representative democracy, which hitherto has only 
 succeeded among politically developed peoples, the natural 
 form of government for masses of negroes ? Are they 
 capable of worthily maintaining and bravely defending a 
 democratic constitution, which demands a rare self-control 
 and manly energy ? Those who best know human nature 
 and political history will hardly dare to say yes. 
 
 However, the following general principles may be recog- The state 
 nised as following from the principle of the State, as founded a " 
 on humanity (das humane Statsprinrip) : 
 
 (1) It is the right and the duty of a State to sweep away 
 any remains of personal slavery which exist in its territory. 
 In so doing it is removing injustice. 
 
 (2) The State cannot tolerate any new introduction of 
 slavery, even if a man wishes to make himself a slave. 
 
 (3) The State rightly refuses legal protection to a foreigner 
 if he wishes to pursue his property in his slave within its 
 territory 8 . 
 
 8 For England, cp. Blackstone, Comment. , i. 14. The English law 
 of August 28, 1838 [3 and 4 Gul. iv. 73], regulates emancipation in 
 English colonies, and declares every slave free who comes to Great 
 Britain or Ireland with his master's consent. In France, we find as 
 early as the sixteenth century the clause : ' Toutes personnes sont 
 /ranches en ce Roiaume : et si tost qu'un Esclave a attaint les Marches 
 d'icelui se faisant baptizer, est affranchi.' Loysel, Inst. Coutum. i. 6, 24. 
 
 French law of Sept. 28, 1791. Constitution of 1848 : ' L'esclavage ne 
 peut exister sur aucune terre franyaise.' Article added to the Treaty of 
 Paris, 1814 : < Sa Majeste tres-chretienne et sa Majeste Britannique 
 
 N 2 
 
l8o FUNDAMENTAL CONDITIONS OF THE STATE. 
 
 (4) Slaves who tread on a free soil are ipso facto free, and 
 can claim the protection of the courts for this freedom. 
 
 s'engagent pour faire prononcer par toutes les puissances de la chretiente 
 1'abolition de la traite des noirs.' 
 
 [On the views held on slavery among the Greeks and Romans, see 
 Oncken, Staatslehre des Aristoteles, ii. p. 29 ff. ; Lecky, History of 
 European Morals, ch. iv. vol. ii. p. 62 ff. (third edition)]. 
 
CHAPTER XVII. 
 
 PRINCIPLE OF MODERN CLASSES. 
 
 THE privileged classes (Stande) of the middle ages are Privileged 
 everywhere broken up. The clergy have lost the position pasfaway. 
 which their claim to divine dignity once gave them, and 
 have generally ceased to be a separate political order. 
 Their prelates are merged in the aristocracy, the rest form 
 part of the upper citizen class. A glance at recent history 
 will show how completely the mediaeval Nobility (Adel\ 
 higher and lower, is disorganised, and how little adapted to 
 hold an independent position as a privileged order. The 
 Citizen class has lost its old character of a compact order : 
 the educated classes occupy a very different place in modern 
 representative States. Even the Peasant class, with its quiet 
 and strong attachment to traditional ideas and customs, is 
 drawn into the movement of the age and affected by its 
 progress. Industry, too, has established itself in the 
 country, and has disturbed the simple peasant life. Hitherto 
 all attempts to reform the mediaeval classes and rest the 
 State upon them have utterly failed. The national instinct 
 distrusts them, the nations feel that they have outgrown the 
 mediaeval organisation, and do not wish to see it restored, 
 even in a revised form. 
 
 Still it is plain that the differences which undeniably 
 exist between masses of the people have a real political 
 significance, and that a mere fusion of all estates is un- 
 satisfactory. If we wish to give these differences a place in 
 
1 82 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 a constitution we must substitute Classes for Estates. In- 
 deed, what we still call Estates a (Stdnde) are often not 
 really estates, but Classes (Classen). 
 
 The difference between them is this. Classes start with 
 the State and end in it : while Estates have their basis out- 
 side the State. Classes presuppose the unity of the nation, 
 Estates ignore it. Classes are a political institution based 
 on national unity and public law (eine nationale und stats- 
 rechtliche Institution)^ Estates are groups formed on the 
 basis of individual and private rights (eine particuldre und 
 privatrechtliche Gruppirung), and their object is not ex- 
 clusively or primarily political. The Clergy put the Church 
 before the State : the Nobility think first of themselves and 
 their own social interests, the Citizen lives for his business, 
 the Peasant for his husbandry. Thus in the Estates we 
 see the bond of common education and common way of 
 life : the division between the groups is a professional one, 
 while the State is only indirectly considered. 
 
 Estates are a natural growth : Classes are a phenomenon 
 of civilised society, the national product of the organising 
 power of political wisdom. Hence we only find Classes in 
 civilised nations with a developed political sense : among 
 the Greeks, especially at Athens, after the Solonian consti- 
 tution ; in Rome, after the Servian constitution, to which 
 we owe the name ' Class ' ; and among the States of modern 
 Europe. 
 
 There is no reason why existing estates (Stdnde) should 
 not be considered in the formation of classes, but it is 
 neither necessary nor desirable that classes and estates 
 should coincide. If they do, the estates will determine the 
 ordering of the State, as they did partially in the middle 
 ages, and the inevitable result is that the estates become 
 close, and the State is divided. The interests and pre- 
 judices of particular estates, backed by political power, will 
 easily overbear the general interests of the nation and its 
 
 a [ See above, Ch. viii.] 
 
Chap. XVII.] PRINCIPLE OF MODERN CLASSES. 183 
 
 best thought. On the other hand, where there is a cross 
 division, so that each class is composed of members of 
 different estates, national life becomes more social, and 
 politics gain a more varied stimulus and a higher tone. 
 
 Classes have very often been formed on the basis of Property 
 property. In these constitutions, by census (Censusver- 
 fassung\ property becomes the determining political force, 
 and citizens are valued by the amount of their income. 
 This arrangement seldom corresponds to facts, and its 
 principle belongs rather to economics and private law than 
 to public law and politics. A mere mathematical principle 
 of this kind is not to be compared with an organic division 
 which looks first to the differences in political fitness and 
 capacity, so far as it is possible to see and measure them. 
 But to do this is no easy task. Speaking generally, four 
 main Classes may be distinguished in the modern 
 State : 
 
 (1) The Governing Class: princes and officials, with Modem 
 public authority, which gives them a superior position to all 
 other Classes, at the head of the State. 
 
 (2) The Aristocratic Class, which does not govern as 
 such, but occupies an independent and distinguished position 
 between the Governing Class and the nation at large. 
 
 (3) The so-called ; Third Estate/ i. e. the class of educated 
 and free citizens in town and country : the Middle Class 
 proper, 
 
 (4) The People (die grossen Volksclassen\ or the Fourth 
 Estate, including the lower class of citizens in the towns, as 
 well as the peasants : the great mass of the ' working 
 classes.' 
 
 The Governing Class form the apex of the State, the 
 People are its base : the energy and solid strength of a 
 nation depend mainly on healthy relations between these 
 two classes. The two intermediate classes complete, while 
 they limit the action of the first class : modifying it with the 
 influences of aristocracy and representative democracy. 
 Their higher education and more favoured social conditions 
 
184 FUNDAMENTAL CONDITIONS OF THE STATE. 
 
 give them the capacity, as their lofty feeling for law and 
 freedom prompt them, to watch over the conditions of the 
 general national welfare. They are the natural guardians, 
 leaders, and representatives of the lowest and largest 
 class. 
 
CHAPTER XVIII. 
 
 SURVEY OF MODERN CLASSES. 
 THE Governing Class of to-day is historically connected ^ The 
 
 Governing 
 
 through its princes with the earlier Nobility, though it Class. 
 has now risen above them to a sovereign position in the 
 State. 
 
 The subordinate members of the class, officials and 
 functionaries, and in republics the highest officials of all, 
 spring chiefly from the two middle classes, and are socially 
 connected with them : or if their parents belong to the 
 great lower class, their superior education and profession 
 put them socially on a level with the aristocracy or upper 
 middle class, and they retain this position when they resign 
 or lose their office. The authority of their office raises 
 them above their neighbours. The lowest posts and offices 
 reach down into the lowest class of all, that of the un- 
 educated masses. 
 
 The Aristocracy no longer form a close estate with special 2. The 
 rights. Socially and legally they are connected with the 
 other classes by the common rights of citizenship and 
 essential equality, both in public and private law. Distin- 
 guished men from the lower classes from time to time raise 
 themselves and their families to the social level of the 
 aristocracy, and are gradually recognised as belonging to it. 
 Still oftener, members of the aristocracy or their descendants 
 lose the conditions which make their position possible, and 
 are obliged to drop from the sunny heights of aristocratic 
 
1 86 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. n. 
 
 life to the lower levels of society. It is impossible to 
 acquire the appearance or attributes of aristocracy without 
 property, or liberal profession, or higher education. Hence 
 the class is essentially a shifting one, exposed to constant 
 changes by the ebb and flow of its members. This con- 
 tinual movement keeps it in the closest connection with the 
 upper and educated citizen class ; and facilitates inter- 
 marriage with the classes below it. 
 
 The transformation of the mediaeval nobility into the 
 modern aristocracy was first and slowly accomplished in 
 England amid an aristocratic people. On the continent 
 the debris of the feudal nobility occasionally obstruct the 
 path of public life : but as yet the new aristocracy only 
 occupies a doubtful and disputed position. The influence 
 of aristocracy is visible in society, in the manners of courts, 
 and in nominations to higher offices, but has as yet no 
 recognised place in the legal and political consciousness of 
 European peoples. 
 
 The German Empire ought to supply this want by a 
 timely reform, which should follow on the lines suggested 
 by the progress of history. Aristocracy can no longer be 
 an exclusive or a sovereign order. Its place is that of a 
 mediator softening the violence of authority, controlling 
 the passions of the masses, and giving a higher tone to 
 public life. 
 3 . The The educated citizen class (gebildttts Biirgtrtkum} or the 
 
 Citizen m, , T- 
 
 Class. Third Estate. 
 
 The history of the French Revolution throws a clear 
 light on the character of this class. The term ' third estate ' 
 (tiers etat] in France was borrowed from the organisation of 
 the feudal State, where it denoted the Citizens summoned 
 to the States General, and there occupying a modest and 
 humble position below the aristocratic estates of clergy and 
 nobility. 
 
 The 'third The Abbe Sieyes, whose famous pamphlet on the third 
 
 France since estate brought light and fire to the revolution, asked and 
 
 answered two questions : first, What is the third estate ? 
 
Chap. XVIII] SURVEY OF MODERN CLASSES. 187 
 
 Everything ; second, What has the third estate been hither- 
 to ? Nothing. Both answers are extravagant, but the first, 
 by exaggerating the claims of the third estate, makes the 
 very conception of it impossible. If it is really everything, 
 there can be no first or second or fourth estate. It ceases 
 then to be an estate or separate class, and is identical with 
 the whole nation. 
 
 In the first French Revolution the third estate did actually 
 demand that the two first estates, the clergy and nobility, 
 should unite with them in a single National Assembly l . 
 When this was accomplished, the third estate absorbed the 
 rest, and as the one and equal nation (das eine und gleiche 
 stdndelose Folk] destroyed the entire organisation of the 
 State. But in spite of their theories of equality, the natural 
 differences among the people made themselves felt. The 
 clergy and nobles were merged in the third estate, but as 
 ' parsons ' and ' aristocrats ' they became persecuted orders 
 and fell a bloody sacrifice to the Revolution. But the 
 Government was still a chaos fermenting with new divisions : 
 the fourth estate sprang into power and produced the leaders 
 of the Convention, whose red rule made the power of the 
 Gironde and the third estate grow pale. Thus the Revolu- 
 tion, which sought to prove the truth of Sieyes' words, only 
 showed how false and inadequate they were 2 . The third 
 estate had identified itself with the people, and posed as 
 its representative. It had to learn that there were great 
 masses outside it who were not content to be merged in 
 one general body under its guidance. 
 
 The same opposition between the educated bourgeois class 
 and the lower classes of the people came out most clearly 
 
 1 The elections to the States General of 1789 had already given a 
 practical extension to the conception of the third estate. In the middle 
 ages it was limited to the citizens of the towns : in 1789 the peasants 
 elected as well. De Tocqueville, (Euvres, viii. p. 139. 
 
 2 Robespierre personifies the jealous hatred of all ' higher ' classes 
 united with an idolatry of the people. His declaration of rights con- 
 tains the sentence : * Toute institution qui ne suppose le peuple bon et le 
 magistral corruptible est vicieuse.' Cf. L. Stein, Geschichte der socialen 
 Bewegungin Frankreich, i. p. 145. 
 
1 88 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 in the French Revolution of 1848 and the Napoleonic 
 Restoration of 1850, and again took a grim form in the 
 Commune of 1871. Napoleon III, resting on the support 
 of the fourth estate, had forcibly overthrown the third 
 estate which had a large majority in the National Assembly. 
 Then, after his defeat at Sedan, he was dethroned by a 
 general rising of the masses; but the fourth estate soon 
 snatched the power from the bourgeois class in Paris, and 
 established the Commune. 
 
 in Germany. The same opposition was seen in Germany at the time of 
 the Peasants' War. But happily for Germany the antagonism 
 has, in recent times, been less sharp and hostile there than 
 in Paris : though it is not without influence both in the town 
 and country population ; in the latter, more in questions of 
 religion and the relation of the uneducated masses to the 
 authorities of the Church, in the former in economical and 
 social questions. 
 
 The citizen This citizen class, though historically connected with the 
 Estate" 01 n third estate of the middle ages, cannot properly bear this 
 name ; it is no longer a rigid exclusive estate with special 
 rights. Like the aristocracy it is a fluid body, whose 
 members continually come and go. But the more educated 
 citizens, the i educated classes ' (die Gebildeten\ are still 
 essentially distinct, both from the aristocracy and from the 
 people, and the distinction affects the constitution, and still 
 more the policy and administration of the State. They 
 differ from the aristocracy in this, that they make no special 
 claim to a position of authority, and therefore demand no 
 peculiar privileges, either of title or rank, or of representa- 
 tion in an Upper House or a first chamber. Their education 
 is of a civil character, their social and political status rests 
 on the basis of common nationality and common rights, so 
 that they naturally share in popular representation. They 
 are raised above the more numerous classes of the people 
 by superiority in scientific or artistic training, by social 
 refinement and the practice of liberal professions ; they 
 work with the brain rather than the hands, and devote 
 
Chap. XVIII.] SURVEY OF MODERN CLASSES. 189 
 
 themselves less to the material needs of life than to its 
 higher intellectual efforts. 
 
 They form a popular class ( Volksstand], but rise above but a popular 
 
 . . . middle class. 
 
 the mass of the people : like the aristocracy, they are an 
 intermediate estate (Mittelstand}, but they are nearer to the 
 class below them, and they receive constant accessions from 
 it. In England * gentlemen ' come under this head, but 
 are a narrower and more select class than that of the upper 
 citizen class (das Jiohere Burgerthum) in Germany, France 
 and Italy. Under this head come the following classes of 
 the population : 
 
 1. Government officials (Statsbeamte\ excepting the it? com- 
 highest, who belong to the first, or governing class, and the pc 
 lower grades, of mere clerks and servants. 
 
 2. The Clergy, and the Teaching Class generally. 
 
 3. Lawyers, physicians and chemists, students, and men 
 of letters. 
 
 4. Artists, engineers, and members of the higher technical 
 professions. 
 
 5. Merchants and manufacturers. 
 
 6. The highest class of handicraftsmen. 
 
 7. Capitalists (Rentiers). 
 
 8. Great landowners, not belonging to the aristocracy. 
 
 Higher education, though not necessarily that of an Uni- 
 versity or Polytechnic, is an essential attribute of this class, 
 and it generally implies an amount of means sufficient to 
 allow leisure for public affairs. Election to government 
 offices, as a rule, presupposes an University education : and 
 the superior fitness of this class to take part in the work of 
 representative bodies generally gives them, in the absence 
 of special laws against it, a preponderance in national 
 assemblies and legislative chambers. 
 
 This class, as a rule, is the most influential in the life of its political 
 the State : it takes the lead in public affairs, and determines pc 
 public opinion. Though its membership is determined by 
 education, property, and profession, without regard to birth, 
 it may fitly be compared with the old class of Freemen 
 
1 90 FUNDAMENTAL CONDITIONS OF THE STA TE. Bk. II. 
 
 ( Vollfreie] or the mediaeval class of the Mittelfreie. Like 
 them it forms the main body of those who possess political 
 rights, and holds a prominent place in public offices. 
 
 4 . The lowest The great popular classes (die grossen Volksclassen), the 
 ' fourth estate,' and the proletariate. In this class we include 
 the great mass of the people who do not belong to the 
 
 The three upper classes, ' the people,' as we sometimes call them. 
 
 It includes men of the most varied occupations and con- 
 ditions of life, but all connected by the tie of common 
 country and nationality, and above all, common rights as 
 
 its com. citizens (Statsburgerrechf). It comprises the following 
 groups, occupying various places in the economy of the 
 State : 
 
 (a) The mass of peasants .who work by themselves or 
 with their servants, ploughing, mowing, gathering crops, 
 tending vines or cattle. They form the largest and most 
 vigorous element in this class, and are a great source of 
 national strength, from which the other classes draw new 
 life and vigour. 
 
 (b) Herdsmen, fishermen, seamen, and miners, and 
 generally all labourers whose work brings them into 
 immediate contact with nature. 
 
 (c) The lower citizen class (der niedere Biirgerstand\ 
 both in town and country, including first the small master- 
 artisans with their men, and small tradesmen, but also the 
 lower industrial classes, whether they work in their own 
 homes, at hand-looms for instance, or in factories. 
 
 (d) The lower employes of the State, or of professional 
 men ; privates in the army, clerks, &c. 
 
 (e) The ' proletariate,' consisting of the lowest class of 
 servants and day-labourers. 
 
 All these groups have this much in common, that they 
 are engaged in bodily labour and in the supply of material 
 wants. It is of course impossible to draw a hard and fast 
 line between brain-work and hand-work, for, as a rule, each 
 is impotent without the other. But the distinction is a 
 sound and intelligible one. Brain-work requires a higher 
 
Chap. XVIII.] SURVEY OF MODERN CLASSES. 191 
 
 intellectual training, and a higher standard of life. 
 Mechanical work is possible with a minimum of education, 
 and a simple and rudimentary way of life. Hence they 
 naturally fall into different classes. 
 
 A further characteristic of the fourth class is that, while 
 they form the necessary substratum of all States, and of 
 national life generally, they have no capacity for govern- 
 ment. Hence they need leaders and representatives. As 
 a rule they express the passive and subordinate element in 
 the social body, but when their passions are roused to 
 revolt, nothing can resist the force with which they over- 
 turn the existing order and make their will law. They are 
 strong enough to change a government or to extort a con- 
 stitution : they can overturn a throne and entrust the power 
 to new men or new dynasties, but they have no capacity for 
 government; for them to govern is for the pyramid to 
 stand on its apex. 
 
 This class has never yet had such an importance in its present 
 political life as in the European States of the present day. m 
 For the first time the serving classes (die dienenden Classen\ 
 in the narrow sense of the word, have become free men : 
 even the lowest class feel that they have a share in the 
 well-being of the State, and a claim to political rights. The 
 statesman of to-day is forced, by circumstances, to pay 
 special attention to the condition of this fourth estate. It 
 is not enough now to hear and consider the public opinion 
 of the educated classes : the masses, with their instincts 
 and passions, have gained in influence. The modern 
 State speaking primarily of the European, that is, of the 
 Aryan nations has, in this sense, become more widely 
 human. 
 
 But the fourth class is so wide that it includes large 
 groups of different occupation and grades of life. It unites 
 in it the strongest and weakest elements in the political 
 body. It is essential to the safety and the maintenance of 
 the State, but it is constantly threatening its very existence. 
 Its soundest part is to be found in the peasant-class, but 
 
1Q2 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 even they need to be quickened by some religious or 
 intellectual movement if public order is to be saved from 
 destruction. Next to them come the lower citizen class 
 
 its want of (Kleinburger). Both still retain the communal organisation. 
 
 organisation. -g ut ^jg j s no t enough for the needs of the crowded masses 
 of citizens in the towns, and other social bonds have been 
 broken. The old organisation, which united master crafts- 
 men with one another and their journeymen, has perished. 
 The old system has decayed, and has left whole classes, 
 especially the workmen in factories, unorganised. The 
 voluntary associations and trades-unions of workmen are 
 the first germ of a new organisation. Society suffers from 
 this disorganisation : community of interests, of education 
 and of spirit among the different classes of labour, if not 
 annihilated, is certainly disturbed, and the general ferment 
 tends to an aimless war of every man against his neighbour. 
 Measures of police are useless : they may check or suppress 
 the evil in particular cases, but they often aggravate it by 
 applying an irritating treatment where remedial measures 
 are needed. It is not surprising that atheism and com- 
 munism have found a fruitful soil in the lower strata of the 
 fourth estate, and that in most large towns, and even in 
 some parts of the country, the rank weeds threaten to choke 
 the nobler growths of the past. 
 
 The Prole- The Proletariate form the lowest grade of the fourth class. 
 It must not be identified with it, or organised as a class or 
 order. The business of the statesman is rather to merge it, 
 as far as possible, in the other classes, and so prevent its 
 growth as a separate body. It consists mainly of the waste 
 (Abfdlle) of other classes, of those fractions of the population 
 who, by their isolation and their poverty, have no place in 
 the established order of society. 
 
 It is false and politically dangerous to divide the inhabi- 
 tants of a State by a fixed line into ' those who have ' and 
 6 those who have not/ and to sum up the latter as the pro- 
 letariate, and set them in opposition to the former. If this 
 inorganic view, which has been too much encouraged, were 
 
Chap. XVIII.] SURVEY OF MODERN CLASSES. 193 
 
 to spread and become dominant, it would involve the 
 destruction of civilised society by a new wave of barbarism. 
 Happily, the majority of those who have not are still in 
 organic connection with the other classes, and find satis- 
 faction in this. Children without property are not part of 
 the proletariate, because they find support and education 
 in the family, and share the position of their parents. 
 Even orphans find family life in the organisation of the 
 parish. 
 
 Again, the mass of farm servants, male and female, who 
 have no property cannot be included in the proletariate, 
 because they do not stand alone in the world, but find a 
 home in the farm or family of the peasant, and share in the 
 life of his class. When handicrafts were better organised, 
 the journeyman was a member of his master's family, and 
 even now that this tie is dissolved, the sense of belonging 
 to the artisan class lifts him above the proletariate. Even 
 domestic servants (Dienstbotcn) live in a position of some 
 comfort, and have some share in the life of their masters. 
 The occupation of a soldier supplies him with pay and 
 honour. 
 
 The most dangerous feature is the disorganised condition 
 of the common labourer : it is in this class that the mass of 
 the proletariate has grown to such large and threatening 
 proportions. The true art of the statesman will lie, on the 
 one hand, in trying to prevent members of the organised 
 classes of labour from falling into the unorganised prole- 
 tariate ; and on the other, in assisting as many as possible 
 to rise from the proletariate into the organised class, where 
 they can obtain a comparatively secure subsistence. The 
 proletariate thus narrowed would need not an independent 
 organisation, for which it is unfit, but a body of guardians 
 (Patronat\ which should defend its interests and act and 
 speak on its behalf. 
 
 The fourth class has not the capacity to fill the offices of Political 
 the State, but its better members are capable of holding 
 
 municipal offices, and cannot be excluded from them. It Class * 
 
194 FUNDAMENTAL CONDITIONS OF THE STATE. 
 
 ought to have a share in the representation of the nation, and 
 the State will do well to see that the third class, with their 
 superior education and greater leisure, do not, as they do, 
 completely deprive them of this. But as the members of 
 this class often have neither leisure nor ability to represent 
 their interests in person, they must be able to elect repre- 
 sentatives from beyond their own class. Finally, the im- 
 portance of this class entitles it to a vote : but where the 
 social importance and capacity of the individuals composing 
 it is so various, it is unjust to give equal power to all. 
 
 The real interests of the proletariate proper demand 
 Patrons (Patrone, Schutzherren, Mundherreri) rather than 
 representatives, which it cannot find in its own ranks. The 
 higher the position and influence of the ' patron,' the 
 more effective would be the defence of the rights of the 
 proletariate. 
 
CHAPTER XIX. 
 
 THE RELATION OF THE STATE TO THE FAMILY. 
 
 I. THE TRIBAL STATE PATRIARCHAL GOVERNMENT 
 MARRIAGE. 
 
 ANCIENTS and moderns alike have found in the family 
 the pattern of the State 1 . The State, they say, is an 
 extension of the family, the head of the State being the , 
 father, the people his children. 
 
 This comparison is only true in a limited sense ; it only Differences 
 applies to the patriarchal State, not to the higher forms of stated e 
 the State, which are based on nationality or humanity. 
 It is necessary then to point out the radical differences 
 which distinguish the State from the family. 
 
 i. The family is based upon marriage. Its members are 
 united by the marriage tie or by blood. But these concep- 
 tions which are essential to the family are by no means 
 essential to the State. The members of a State, as such, 
 are not connected by marriage or blood. They have not 
 always the right of intermarriage, still less do they share a 
 common descent. The fundamental rights of the family are 
 then independent of the State 2 . 
 
 1 Cicero, de Officiis, i. 17: ' Prima societas in ipso conjugio est, 
 proxima in liberis, deinde una domus, communia omnia. Id autem est 
 principium urbis, et quasi seminarium reipublicae.' Even Rousseau, in 
 his Contrat Social, though inconsistently with his main view, says : ' La 
 famille est la premiere image de la societe politique.' [Arist, Eth. 
 Nic., viii. 10. 4 ; Pol. i. 2.] 
 
 2 Pomponius, in Dig. 1., Tit. 17, de Reg Jur. : 'Jura sanguinis nullo 
 jure civili dirimi possunt.' 
 
 O 2 
 
196 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 2. The State is based on the organisation of the nation 
 and its relation to the soil. But these ideas find no place 
 in the family. The State consists rather of individuals, or 
 orders, or classes, than of families, and only exceptionally 
 approaches its members through the family, only interfering 
 in family life when there is a special demand for it, and in 
 the case of guardianship. Lastly, the family has no con- 
 nection with the soil. 
 
 3. The two organisations differ in character. The head 
 of the family is the father, whose authority is the care of a 
 grown man for the defence of his own flesh and blood ; it 
 is essentially a guardianship ( Vormundschaff). In the 
 nation the different classes have interests apart from those 
 of the prince their head ; their families are not connected 
 with his, nor are their individual members his children 
 or his wards. The government of the State is political. 
 
 Hence the family is not a pattern of the State, but only 
 of one particular form of it, the patriarchal 3 . Family law 
 therefore belongs to private, not to public law. 
 
 But even in the Aryan nations the beginnings of the State 
 are connected with the bond of the family and the tribe. 
 It was here that the first leaders, judges and magistrates 
 found the necessary support for their authority : and it was 
 only gradually that a political order arose which outgrew 
 these limits. 
 Tribal con. The tribal-constitution ( Geschlechterverfassung) served as 
 
 StitUtion. i'ii r 1 r-i 1 
 
 a bridge between the family and the State, and fell away as 
 soon as the State was assured. Among most ancient 
 peoples, in the Mosaic constitution as well as in those of 
 Greece and Rome, we find tribes with a political meaning, 
 which afterwards disappear. The filial respect of the 
 Arabian tribes for their chiefs finds its parallel in the Scotch 
 clans. The old German names of villages point to the 
 
 3 Gobineau, Sur Vinegalite des races humaines, ii. p. 270, notices that 
 the patriarchal view, which regards the authority of the father as typical 
 of the sovereign power, has been admitted by the Aryans only in a cau- 
 tious and modified way, whereas it has continued to satisfy the Chinese, 
 in whom the yellow race predominate. 
 
Chap. XIX] THE STATE AND THE FAMILY. 197 
 
 settlement of tribal communities 4 , and the old Slavonic 
 community is also based on the family. 
 
 The tribe differs from the family in being extended to 
 include several groups of blood-relations (Sippschaften\ but 
 its organisation follows that of the family. The chiefs 
 of the tribe are generally marked out by their high position 
 in the family, but the need for unity limits the headship 
 of the tribe to a single head of a family, and it may happen 
 that choice or election takes the place of hereditary right. 
 
 The only State strictly modelled on the family is the The Patri- 
 patriarchal State (die Patriarchie). The Chinese Empire of 
 1 the mean,' or of perfection, has held fast for centuries to 
 the fiction that the head of the State is father of his people. 
 Gobineau, who has shown grounds for believing that the 
 State was first founded by Aryans, ascribes the patriarchal 
 idea to their suggestion. But the vast mass of the popula- 
 tion of this great empire, which has been gradually united 
 in one family, is of a Malay stock, a yellow race, modified 
 by darker elements. This population, which is naturally 
 inclined to an easy material existence, willingly acquiesces 
 in the paternal absolutism of its rulers, and honours the 
 traditional order of the State as a divine civilisation. It is 
 not stirred by the sturdy sense of freedom which is inborn 
 in the Aryan nations, and it has no aspirations. The 
 authority of the Emperor is in theory absolute, but is in 
 fact limited in many ways by the quiet spirit of all classes 
 of the people, by the scholastic learning of the mandarins, and, 
 above all, by the force of hereditary family usage. ' Le Fils 
 du del peut tout, mats a condition de ne vouloir que ce qui est 
 connu et traditionner (Gobineau). But a vigorous political 
 development is impossible where the State and its members 
 are kept in a perpetual childhood. 
 
 The influence of family life on the well-being of the State The influ- 
 is a very different question. Its influence, though mainly Family orT 
 indirect, is wide-reaching, and can hardly be estimated too * 
 
 4 Gierke, Genossenschaftsrecht, 1868, i. p. 29. 
 
198 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 highly. Hence the State is not only bound to defend family 
 law as a part of private law, but has a special interest in 
 advancing and maintaining the welfare of family life. As 
 the family is not a political institution, the power of the 
 State is small, and mainly indirect : but there are some 
 relations in which it can and ought to limit individual 
 caprice. 
 
 Marriage, All the more advanced nations attach cardinal importance 
 form S es to Monogamy. Polyandry confuses descent : polygamy 
 Monogamy, produces discord. The full unity of marriage, the complete 
 reconcilement of the sexes, can only be realised in mono- 
 gamy. Nature and the moral ideal alike demand it. When 
 the Gallic bishops were zealous against the bigamy of the 
 Merovingians, and did not yield till the latter resigned this 
 ancient privilege of Teutonic kings, they were defending not 
 merely a Christian, but also a political principle. Mono- 
 gamy raises the wife to a full society with her husband, and 
 so gives her an ennobling influence on him. Polygamy 
 degrades the wife, and her degradation reacts on the 
 husband and debases him. Monogamy is one of the 
 advantages of European and Christian peoples : polygamy 
 is the hereditary curse of the East. 
 The law of The legal relations of husband and wife are a matter of 
 
 husband 
 
 and wife. great importance. 
 
 Here Roman law fell short of the Roman ideal of mar- 
 riage. While the Romans regarded marriage as a complete 
 and intimate union for life 5 , their older law treated the wife 
 as a daughter, no less absolutely in the power of her 
 husband \conventio in manuni\ than the son in that of his 
 father, and the slave in that of his master : while the later 
 law resolved the union into a mere connection of two inde- 
 pendent persons. This ' free ' form of marriage [sine con- 
 ventionein manum] became more frequent as Roman morals 
 
 5 Modestinus, in Dig. xxiii., Tit. 2, de Ritu nuptiarum : ' Nuptiae 
 sunt conjunctio maris et feminae, et consortium omnis vitae, divmi et 
 human! juris communication 
 
 Justinian, Inst. i. 9, i : 'Nuptiae sive matrimonium est viri et 
 mulieris conjunctio, individuam consuetudinem vitae continent' 
 
Chap. XIX.] THE STATE AND THE FAMILY. 199 
 
 grew more corrupt, and helped forward the decay of the 
 Republic. 
 
 German law, on the other hand, both in its older form, 
 where man and wife retain their own property, while the 
 unity and community of marriage finds legal expression in 
 the guardianship of the husband, and in the later form 
 of community of property, is in harmony with the idea so 
 nobly expressed in the Jewish Scriptures : * And they shall 
 be one flesh 6 : ' and ' The husband is the head of the 
 wife V 
 
 Even the outward forms of marriage are not indifferent. Marriage 
 
 . . ... . ceremony. 
 
 A form which emphasises the intimacy and sanctity of the 
 relation is to be preferred to one which treats it as the 
 arbitrary result of a mere agreement. The old Roman 
 principle that * consensus fadt nuptias' is dangerous because 
 it leads to the idea that marriage is a merely conventional 
 relation : and hence it is only natural that the customs of 
 many peoples demand a religious ceremony, and the usage 
 of the Christian Church lays stress on this. But, further, 
 the legal security of the family, which is of the utmost im- 
 portance, is incompatible with a secret marriage, and is only 
 satisfied by a public form with documentary evidence. The 
 1 civil form' satisfies these conditions. Had not the ecclesi- 
 astical form been abused by the clergy to interfere with the 
 
 6 Gen. i. 2-24, quoted by Paul, Ep. to Ephes. v. 31 : * Therefore shall 
 a man leave his father and his mother, and shall cleave unto his wife : 
 and they shall be one flesh.' Tacitus, Germ. 19 (of German wives) : 
 * Sic unum accipiunt maritum, quo modo unum corpus, unamque vitam, 
 ne ulla cogitatio ultra, ne longior cupiditas, ne tanquam maritum, sed 
 tanquam matrimonium ament.' Schwabenspiegel ( Wack. 6) : l Wan 
 die (ein man unde sin wip) rent unde redelichen zer e chomen sint, da 
 ist nicht zweiunge an, si sint wan ein lip.' 
 
 7 Gen. \. 3-16 : * Unto the woman he said . , . thy desire shall be to 
 thy husband, and he shall rule over thee.' Paul, Ep. to Eph. v. 22 : 
 ' Wives, submit yourselves unto your husbands.' Sachsenspiegel, i. 45. 
 I : ' Al ne si en man sine wive nicht evenburdich, he is doch ire 
 vormiinde, unde se is sin genotinne, unde trit in sin recht, swenne se in 
 sin bedde gat/ Code Civil, Art. 213 : 'Le mari doit protection a sa 
 femme, la femme obeissance a son mari/ Austrian Code, 91 : * Der 
 Mann ist das Haupt der Familie.' Code of Zurich, 127 : * Der Ehe- 
 mann ist das Haupt der Ehe.' 
 
200 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 freedom of marriage recognised by the State, and to make 
 legislation dependent on the views of the Church, modern 
 States might have rested satisfied with it. But these abuses, 
 and the existing diversity of religious opinion, have made a 
 purely civil form necessary. A twofold form is now in use. 
 
 (1) The civil marriage before the officers of the State, 
 which is necessary to make a marriage valid. 
 
 (2) The subsequent ecclesiastical ceremony, conducted 
 by a clergyman, which gives a religious sanction to the 
 marriage. This is voluntary. 
 
 Encourage- The emperor Augustus made an attempt to encourage 
 manage. marriage and population by law. Such measures could 
 only be necessary in an unhealthy and abnormal condition 
 of the people. The life of large towns is apt to be unfavour- 
 able to marriage, and in Rome the liberty of bequest acted 
 as an additional check, since a rich man who was unmarried 
 could be sure of being cared for in his old age by the servile 
 complaisance of greedy relatives and friends. Augustus 
 might well say : ' It is not houses, or colonnades, or market- 
 places which make a city, but its men. ... If you persist, 
 Rome will become the prey of Greeks or barbarians V 
 
 But in the country, too, we find legal restrictions with a 
 view to maintaining peasants' holdings, and to prevent the 
 partition of estates. Thus in many places only two children 
 inherit (Zweikindersystem\ in others all but the eldest son 
 (der Erbsohn) are regarded as farm-servants, or sent abroad. 
 The means which the State can use to encourage marriage 
 and population are limited, and in any case, as Augustus 
 found, are unpalatable. Marriage cannot be directly 
 enforced, because the freedom and will of the parties is 
 essential to it. Even in the case of the head of the State, 
 where public interest may make a marriage very desirable, 
 the will of the State has to give way rather than encroach 
 upon individual rights or violate human freedom. Queen 
 Victoria successfully maintained the freedom of the monarch 
 
 a [Dio Cass. Ixi. 2-9.] 
 
Chap. XIX.] THE STATE AND THE FAMILY. 20 1 
 
 in this respect against urgent political considerations. The 
 State can only act indirectly, by attaching privileges to mar- 
 riage, and disadvantages to celibacy, without treating the 
 latter as a crime \ and this was the method adopted by 
 Roman legislation. 
 
 In modern States, on the other hand, it is more common Restraints 
 
 . marriage. 
 
 to find restraints put upon marriage in the interest of public 
 welfare *. Such laws are prompted by an unsound condition 
 of society, especially by the evil of classes without property 
 or occupation. The community may then demand, in its 
 own interest, that those who wish to marry and found new 
 families should prove that they can support a family without 
 burdening the public. But to go beyond this, and make 
 marriage conditional on the arbitrary consent of the State, 
 is an unjustifiable infringement of individual rights. 
 Further, legal restrictions on marriage rather promote than 
 hinder the birth of illegitimate children, and so increase the 
 number of the ill-fed and ill-cared-for population. The 
 foundation of a family and the help of the wife exert a 
 moralising influence on the husband, and may even be 
 economically advantageous : and therefore, as a rule, freedom 
 of marriage is to be recommended. If the laws have in 
 view the good of all, they must make it possible for the 
 poor man to choose a mate in his poverty and a legitimate 
 mother for his children. 
 
 The State cannot properly interfere with the private re- 
 lations of man and wife 8 . But it can and ought to punish 
 breaches of conjugal fidelity, on the complaint of the injured 
 party : and so defend the purity of marriage. 
 
 Community of wives, as proposed by Plato for the 
 guardians of his ideal State, degrades marriage and destroys 
 the family. The prostitution of the wife, practised in some 
 cases at Sparta, is a relic of barbarism. But the 'emancipa- 
 tion of the flesh, 7 advocated by the radical-socialist school, 
 
 & [For laws and customs restraining marriage, see Mill, Political 
 Economy, Book ii. chap, xi.] 
 
 8 The Laws of Manu (iii. 46) lay down rules on the subject. 
 
202 FUNDAMENTAL CONDITIONS OF TPIE STA TE. [Bk. n. 
 
 as a progress in the freedom of the individual, is a degrada- 
 tion of the moral freedom of man to the sensual freedom of 
 dogs. 
 Marriage Lastly, the State's provision for permanence of marriage 
 
 ami divorce. J ' r 
 
 and limitation of divorce must be mentioned. 
 
 Even in pre-Christian times dissolution of the tie was not 
 always left to the will of the individual man and wife. 
 Many legal systems allowed the husband to dismiss his wife, 
 though he was generally required to show sufficient reason, 
 and, as we see in the old Teutonic laws, incurred serious 
 disabilities if he could not. The wife, on the other hand, 
 could not dissolve the marriage. These regulations, con- 
 firmed by custom, express the public regard for marriage as a 
 union for life. It was a distinct breach in this conception 
 when Rome, adopting the Athenian view, made free mar- 
 riage dissoluble at the notice of either party (nuntium mittere 
 ujcorij s. marito . This was in great measure a result of the 
 decay of morals at Rome, and again reacted on it. 
 
 Christianity introduced a new and more complete law on 
 this question. The words of Christ himself against divorce 
 were so emphatic that 9 , though they did not definitely 
 create a new law or alter the old, they indirectly moulded 
 the legal conceptions of Christian States. The Catholic 
 Church developed a rigorous system of marriage law, and 
 in spite of Christ's express recognition of adultery as 
 a ground for divorce, in time came to forbid complete 
 divorce altogether, and only to allow outward divorce 
 (separatio a toro et mensd), and that on few and grave 
 grounds. The mediaeval Christian States so far adopted 
 this view that they allowed questions of divorce to be 
 treated entirely before ecclesiastical tribunals. In more 
 recent times the State has rightly resumed the treatment of 
 these questions, and the Protestant Church has admitted 
 divorce on ground of adultery or equivalent reasons. 
 Finally, in deference partly to modern ideas of natural 
 
 9 Matt. v. 32, xix. 8 ; Mark x. u, 12 ; Luke xvi. 18. 
 
Chap. XIX.] THE STATE AND THE FAMILY. 203 
 
 rights, partly in the interest of individual freedom, modern 
 legislation has extended the grounds of divorce, and made 
 it easier. 
 
 But two principles have been generally retained : 
 
 (1) That marriage may not be dissolved merely by the 
 will of one party, or the agreement of both, but only with 
 the intervention and sanction of a court of law. 
 
 (2) That this sanction must not be given without suffi- 
 cient reason. 
 
 The Church, speaking to the moral and spiritual nature 
 of man, is the proper advocate of the principle of indissolu- 
 bility which the ideal of marriage demands. The State, as 
 concerned with external compulsion, is bound to consider 
 the imperfections of actual conditions, and to permit the 
 outward dissolution of marriages which have no inward unity 
 or cohesion. But, so far as national customs and individual 
 development allow, it ought still to retain the principle of 
 indissoluble marriage as an ideal, and to subject divorce to 
 a rigorous control. 
 
CHAPTER XX. 
 
 THE RELATION OF THE STATE TO THE FAMILY. 
 II. THE POSITION OF WOMEN. 
 
 Political HITHERTO all nations have regarded women as belonging 
 
 women? to the same people and nation as their husband or father, 
 but as only indirectly connected with the State, not as full 
 members of the State with full rights (vollberechtigte Stats- 
 glieder und Statsgenossen). But the modern period has 
 given birth to a different view. As early as the French 
 Revolution of 1789, a women's petition to the king de- 
 manded that political rights should be granted to women. 
 The petition, though supported by Condorcet, was rejected 
 with scorn by the National Assembly. In our own time 
 the same demand has been advocated in different countries, 
 and especially by John Stuart Mill both in his writings * and 
 in Parliament. In France, Edouard Laboulaye 2 has 
 spoken on the same side. In some States of America 
 attempts have been made to give women a share in political 
 rights and duties a . 
 
 Mill. The main reasons alleged by Mill for the direct participa- 
 
 tion of women in the State are : 
 
 (a) Women have the same right as men to be well go- 
 verned, and good government is the object of representation. 
 But children have a natural right to be well governed, 
 that is, to be protected by the State ; but no one argues that 
 
 1 Representative Government, oh. 8 [and The Subjection of Women]. 
 
 2 Histoire de VAmeriqw, vol. iii. 
 
 [In England female ratepayers have a vote for Town Councils and 
 School-Boards.] 
 
THE POSITION OF WOMEN. 205 
 
 they must therefore have a vote. The right to be well 
 governed does not involve the right to take part in or to 
 control the government : the former is a purely passive 
 right, the latter presupposes personal capacity. 
 
 (^) There is a glaring contradiction between private and 
 public rights which ought to be removed. In private law 
 women were at first limited in their acts, and regarded as 
 wards of their husbands, but when it was recognised that 
 women could manage their own property, this tutelage was 
 abolished, and the sexes put on an equality. On the other 
 hand, in public law, the difference is maintained. We 
 require women to pay taxes with men, and refuse them the 
 right of giving their assent to them or of controlling their 
 expenditure. It is unjust to deny here the capacity which 
 we have admitted elsewhere, and to prevent the extension 
 of an equality, which has proved beneficial in private life, to 
 the field of public affairs. 
 
 (c) There is a further inconsistency in our present laws. The anomaly 
 Many nations which deny all political rights to women, of queens< 
 occasionally bestow the supreme power of government upon 
 a queen. 
 
 This does not apply to Greece and Rome. Heliogabalus 
 introduced his mother into the senate, but so shocked 
 Roman ideas, that after their death a decree of the senate 
 was passed devoting to the gods below any one who should 
 introduce a woman into the senate *. Most Teutonic 
 nations confined the monarchy to males. Tacitus (Agricola 
 1 6) mentions, as a peculiarity of the Britons, that they admit 
 female rule \neque enim sexum in imperils discernunt\ c . The 
 Lombards too often allowed succession to the monarchy 
 through the female line. In more modern States women 
 have frequently sat on the throne, and the last few centuries 
 
 & [Lampridius in Hist. August, chap. 4. 18. But women were not 
 kaglly excluded from the Principate. Cf. Mommsen, Rom. Staatsrecht, 
 ii. p. 764.] 
 
 G [Bluntschli quotes Aristot. Pol. iii. 6. 16 (Schneider] , for the state- 
 ment that many foreign nations are ruled by women. The reference is 
 wrong : he appears to be misunderstanding ii. 9. 7.] 
 
206 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 have seen female rulers in England, Austria, Russia, 
 Spain, Portugal, and elsewhere, under various forms of 
 government. 
 
 Why this strange exception ? It might seem more natural 
 for a woman to hold a subordinate office in the State than 
 to be its queen. It can only be explained on the ground 
 that the position of the head of the State has been treated 
 as family property, and a woman has been allowed the same 
 right of succession to the throne as to the estates of her 
 father. The land of the estate was treated as a .-domain 
 (Allod or Lehensgut\ subject to the same principles of 
 inheritance. This right had its origin in antiquity, and was 
 afterwards extended : and many modern States which have 
 outgrown the idea of the feudal state, and in other matters 
 draw a sharp distinction between private and public law, 
 still retain this relic of the old system, which attaches more 
 weight to the family tie of blood than to the nature of the 
 State and the vocation of woman 3 . 
 
 (d) As most women live in a family, they would as a fact 
 generally go with the head of the family : the wife would 
 vote with her husband, the daughters with their father. 
 Thus the political importance of the heads of households, 
 who form the backbone of the State, would be strengthened 
 as against the less organised constituents of the State. 
 
 (e) The influence of women on politics is inevitable, but 
 at present it is mainly indirect and irresponsible. If it 
 once found a recognised channel, it would act with greater 
 moderation and sense of responsibility. 
 
 Perhaps the last argument is the strongest : but still 
 stronger arguments may be urged on the other side. 
 Arguments (a) The consensus of usage in all civilised nations is a 
 
 against . . ' 
 
 women's presumptive argument against a change, which runs counter 
 to the permanent conditions and feelings of mankind. 
 
 3 Cf. Laboulaye, Recherche sur la condition civile et politique des 
 femmeS) Paris, 1843. It is worth noticing that, as a rule, female rulers 
 have prospered, partly because they have been more ready than male 
 rulers to accept the guidance of great statesmen. 
 
Chap. XX.] THE POSITION OF WOMEN. 207 
 
 (b) The nature of woman. Her proper sphere is the life 
 of the family, for which she would be unfitted by mixing 
 largely in public duties and political struggles. Womanly 
 virtues would suffer, woman's love as mother and wife, 
 her housewifely skill, her fine sensibility and sweetness of 
 character, and there would be no gain in political capacity 
 to make good the loss. 
 
 (c) The manly character of the State. The State, as the 
 nation, consciously determining and governing itself, cannot 
 afford to weaken its manly character by the admixture of 
 feminine weakness and susceptibility. 
 
 (d) The great danger, that political struggles would 
 become more passionate and less amenable to the guidance 
 of reason. The State would suffer if its passive elements 
 were thus increased, and the active diminished. 
 
 Hence, while we may tolerate such exceptions as female 
 succession to the throne, which in favourable circumstances 
 and in a civilised country may do no harm, it would be 
 disastrous to bestow political rights on women generally. 
 
 But if women are thus excluded from a direct share in indirect 
 public affairs, their indirect influence on the public welfare O f women, 
 is not to be despised. Even here it easily degenerates if it 
 is guided by political aims : it only remains pure and whole- 
 some when it is determined by moral or religious motives. 
 Women who have been famous in politics have generally 
 done harm to the State and their friends. Their cleverness 
 and acuteness become dangerous intrigue : and when once 
 the passions of political hatred, revenge, and greed have 
 been kindled in a woman's breast, they spread like wildfire. 
 This is true not only of the mistresses of princes, but of 
 many wives and mothers notorious in history. The 
 history of Rome, the French Revolution, the courts of the 
 French kings, all tell the same tale. 
 
 On the other hand, statesmen have often owed much to 
 that quieter influence of women which no history records : 
 they have found in their homes the peace which compensated 
 them for the turmoil of public life, and strengthened them 
 
208 FUNDAMENTAL CONDITIONS OF THE STATE. 
 
 afresh for their duty. Woman's gentleness has softened 
 their savage humours, her prudence and her sense of 
 conduct have kept them clear of extravagance and crime, 
 and her courage has saved them in time of need. For 
 woman's power is never so great or helpful as in time of 
 suffering and danger. More patient than man, she can 
 help him to bear suffering without being humiliated by it : 
 her devotion rouses him to sacrifice himself for his country, 
 and her admiration of his courage incites him to deserve it. 
 It is a fine feature in the public law of the Teutonic 
 nations, that the wife is regarded as sharing the political 
 dignity of her husband. Thus woman receives her true 
 place in the organisation of the State, and is amply com- 
 **JP pensated for her exclusion from political rights. 
 
 Note. Riehl in his social-political study on < die Frauen' (Deutsche 
 Vierteljahrsschrift, 1852), and in his book die Familie, among other 
 subtle observations, has rightly called attention to the difference in the 
 relation of the sexes in different classes. The manners and life of a 
 peasant woman are much more like those of the peasant, than those of 
 the woman of the upper middle class are like those of her husband ; but 
 on the other hand, the former is subject to a severer domestic discipline. 
 But I object to Riehl's attributing a distinctive party character to woman 
 and calling her a conservative. Women are only indirectly interested 
 in political parties, but they are interested in all. If we adopt Fr. 
 Rohmer's division of parties into * masculine' and 'feminine,' it is 
 plain that liberal and conservative will come under the former, radical 
 and absolutist under the latter. 
 
CHAPTER XXI. 
 
 RELATION OF THE STATE TO INDIVIDUALS. 
 I. NATIVES AND ALIENS. 
 
 INDIVIDUALS are not only connected with the State as 
 members of families, estates and classes, but stand in 
 immediate relation to it. Modern political theory and 
 modern constitutions have tended to emphasise this direct 
 relation. Hence we have to consider 
 
 (1) The difference between Natives, or Members of the 
 State or Nation, and Foreigners. 
 
 (2) The difference between Citizens and other members 
 of the nation. We need not consider the different grades 
 within the citizen body till we discuss the constitution in 
 detail. 
 
 The first difference depends mainly on race, and is 
 primarily a personal one : considerations of domicile are 
 secondary. A man's first connection is with the nation, 
 his relation to the land is less essential. 
 
 The ancient view that a stranger has no rights, and must 
 be treated as a creature without rights, unless he is put 
 under special protection, though held by the Greeks and 
 Romans 1 , was a barbarous blot on ancient civilisation. 
 The Teutonic principle was more humane, 'Every man 
 
 1 This view, as we find it at Rome, does not mean that the foreigner 
 is on the same level as the slave, but that his rights are unprotected in 
 the Roman State. Cf. Ihering, Geist des romischen Rechts> i. p. 219 ff. 
 Hostis originally means * guest/ 'stranger/ and ' enemy/ 
 
2 1 o FUNDAMENTAL CONDITIONS OF THE STA T. [Bk. II. 
 
 after the law of his own nation ' {Jeder nach seinem ange- 
 borenen Volksrecht}. Modern law recognises that the 
 foreigner has rights, and protects him accordingly, 
 what makes i. But there are various answers to the question, who is 
 to be regarded as a native, and how a man becomes a 
 member of a nation. Descent and domicile are the deter- 
 mining factors, but they may be combined in different 
 ways. 
 
 Nationality may be determined by 
 
 a. Birth- a. Place of birth (Geburtsort\ This is in the main the 
 
 later mediaeval view, and is still the principle of English 
 law, which distinguishes ' natural-born ' subjects from c aliens.' 
 Birth on an English ship or in an English embassy is equi- 
 valent to birth in England. But the principle has been so 
 far modified that the children of Englishmen, born abroad, 
 become English citizens : and naturalisation has become 
 much easier 2 . The law of the United States goes on the 
 same principles 3 . 
 
 b. Domicile. b. Domicile. 
 
 This form of the territorial principle is more in keeping 
 with modern ideas, because it lays stress not on the casual 
 place of birth, but on the permanent domicile of the parents, 
 and subsequently of the man himself. But here differences 
 arise, according as settlement is made easy or difficult. 
 This was the principle partially followed by Austria in 
 earlier times and by individual German states 4 . But 
 there, too, it was modified by the forms of a personal 
 grant of native rights. 
 
 2 Blackstone, Comm. i. 10; Stat. 7 and 8 Vic. cap. 66. By the law 
 of 1870, St. 33 Vic. cap. 14, naturalisation has been made still easier. 
 
 3 Birth in the territory of the United States constitutes citizenship. 
 But the children of citizens born abroad acquire it by descent. Settle- 
 ment in the United States is the essential condition of naturalisation, 
 which is very frequent. Cf. Story, Commentaries on the Constitution of 
 U. S. A., book iii., ch. 16, and Riittimann, Nordam. Bundesstatsrecht, 
 i. 89. 
 
 * Austrian Fundamental Law, 29 : * Foreigners acquire Austrian 
 citizenship by entering the public service, by adopting a business which 
 involves regular settlement in the country, by a continuous residence 
 
Chap. XXL] NA TIVES AND ALIENS. 2 1 1 
 
 (c) Midway between these comes the Swiss principle of c - .Member- 
 membership in the commune, which forms the basis of commune, 
 membership of the Canton (Cantonsburgerrecht], and of 
 
 the Swiss confederation (Schweizerbiirgerrecht}. The rights 
 in the commune depend not on place of birth or domicile, 
 but on descent from parents who are citizens of the com- 
 mune, even though they live outside it 5 . It is not unlike 
 the old Roman municipal law, which was also based on 
 origo from a particular munidpium a . 
 
 (d) Modern States, generally, recognise nationality as a <t. Personal 
 personal relation, not mainly dependent on place of birth the Sate, 
 or domicile, but on descent from members of the nation 
 
 and personal reception into its membership. Place of birth 
 and domicile come in to complete the notion. 
 
 This, in the main, is the principle for France 6 , Prussia 7 , 
 and the German Empire 8 . This system best corresponds 
 
 for ten years in the country.' But by the Fundamental law of 2 1 Dec. 
 1867, Art. 3, foreigners cannot enter the public service till they have 
 become members of the State. The other conditions were abolished by 
 a Court-decree of I May, 1833, and an Imperial Ordinance of 27 April, 
 1860. See Ulbrich, Lehrbuch des Oesterr. Statsrechts, p. 81. 
 
 5 Bluntschli, Schweiz. Bundesrecht, i. p. 529, and in detail Bluntschli, 
 Stats, und Rechtsgesch. von Zurich, ii. p. 14 ff. ; Cherbuliez, De la 
 Democratic en Smsse, i. p. 177 f . ; Blumer, Bundesstatsrecht, \. 
 249 f. 
 
 a [Cf. Marquardt, Romische Statsverwaltung, i. p. 135.] 
 
 6 Code Civil, Art. 10 : ' Tout enfant ne d'un Fran9ais en pays etranger 
 est Fran9ais.' Consular constitution of 1799, Art. 3: ' Un etranger 
 devient citoyen fran^ais lorsqu'apres avoir atteint 1'age de 21 ans 
 accomplis et avoir declare 1'intention de se fixer en France, il y a 
 reside pendant dix annees consecutives.' [The term was reduced to 
 three years by the law of July, 1867 ; cf. also 1. 22-29 J an - anc ^ 7~ ia 
 Feb. 1851. French trans. ~] 
 
 7 Law of 31 Dec., 1842. Prussian nationality depends mainly on 
 descent : the legitimate children of Prussians are Prussian citizens, even 
 though born abroad. In naturalisation the chief condition is domicile ; 
 v. Ronne, Statsr. i. 87. 
 
 8 Citizenship in the German Empire (Reich sangehorigkeit] pre- 
 supposes citizenship in one of the provinces of the Empire (Lan- 
 desangehorigkeif), and this generally depends on descent or naturali- 
 sation. 
 
 German Law of i June, 1870, i : * In the case of birth in a foreign 
 country, the legitimate child of a (North) German father and the 
 illegitimate child of a (North) German mother both count as German,' 
 
 P 2 
 
2 1 2 FUNDAMENTAL CONDITIONS OF THE STA T. [Bk. II. 
 
 to modern political ideas, which regard the personal relation 
 to the nation as the essential germ of the conception of the 
 State. 
 
 But the different systems tend to approach and supple- 
 ment one another. Descent, birthplace, domicile and 
 naturalisation, marriage and legitimation, thus all combine, 
 directly or indirectly, to constitute the qualification for 
 citizenship. 
 
 To sum up : Membership of a State is generally acquired 
 by- 
 
 (1) Birth : in the case of legitimate children the father 
 must be a member of the State, in the case of illegitimate 
 children, the mother. This is the most general ground of 
 State-membership. Foundlings belong to the country in 
 which they are found. 
 
 (2) Marriage : the foreign wife becomes a member of the 
 family and nation of her husband. 
 
 (3) Naturalisation ; by which a foreigner, at his desire, is 
 received as a member of a State. But its conditions vary 
 very much in different countries, some encouraging, some 
 discouraging immigration. In many countries mere settle- 
 ment in a permanent domicile, with or without notification, 
 is enough : elsewhere a special act of the administration or 
 even of the legislative is necessary. Sometimes appoint- 
 ment to State offices carries citizenship with it, sometimes 
 it does not. Many States require that the foreigner should 
 be expressly released from, or at least should expressly 
 resign his connection with the old State, others dispense 
 with this condition. 
 
 whatter- 2 . A person ceases to belong to a State by 
 
 membership (i) Death. Most men remain their life long members 
 
 in a State? r . _ . . . . . , 
 
 of the State into which they were born. 
 
 (2) Marriage. The wife who acquires the nationality of 
 an alien loses -her former nationality. 
 
 (3) Discharge (Entlassung) from membership in nations. 
 As this membership is now generally regarded as a personal 
 right (ein personliches Recht}, it is not lost by mere settle- 
 
Chap. XXL] NATIVES AND ALIENS. 213 
 
 ment or even by permanent residence in a foreign country. 
 The tie is naturally severed by a twofold act, an act of 
 resignation of rights on the part of the individual, and an 
 act of discharge on the part of the State : this expresses the 
 mutual character of the tie. Most modern States, however, 
 think it unworthy for a State to hinder a man who wishes 
 to resign his nationality, and have recognised the principle 
 of freedom of renunciation (freie Verzichtleistung). In 
 many cases, as for instance in emigration, where there is 
 no idea of returning, the act of the individual is construed 
 as implying renunciation 9 . 
 
 The English law, though it was among the first to accept English 
 the right of free migration, continued to retain the feudal 
 theory that the Subject cannot put off his allegiance without 
 the consent of the prince, so that an English subject does 
 not cease to be such by mere emigration 10 . 
 
 French law treats naturalisation in a foreign country, or French Law. 
 entrance on the service of a foreign government n , without 
 consent of the French, as equivalent to emigration : this is 
 going beyond the principle of resignation ( Verzichtleistung}, 
 for a man may often connect himself with a foreign State 
 without any desire to resign his connection with his own. 
 
 9 Code Civil, Art. 17 : 'La qualite de Frar^ais se perdra par tout 
 etablissement fait en pays etranger, sans esprit de retour. Les etablisse- 
 ments de commerce ne pourront jamais etre considered comme ayant etc 
 faits sans esprit de retour.' 
 
 Atistrian fundamental law of 21 Dec., 1867, Art. 4: 'Freedom of 
 emigration is only limited by the duty of military service ' ; and so 
 Prussian Constitution of 1850, Art. n. The Prussian law, ii, 17, 
 127 ff., was still stricter. By the law of the German Empire, i June, 
 1870, membership in country and empire are lost by a ten years' resi- 
 dence abroad. But the term .is only counted from the termination of 
 passports, etc., and may be interrupted by registration at a consulate, 
 21. 
 
 10 Magna Charta, 1215 : 'Liceat uni cuique exire de regno nostro et 
 redire salvo et secure per terrain et per aquam salvaf.de nostra, nisi 
 tempore guerrae per quod breve tempus, propter communem utilitatem 
 regni.' Blackstone, Comm., i. 10. By the law of 1870, St. 33 Vic. 
 cap. 14, a British subject ceases to be such by naturalisation in a 
 foreign State. 
 
 11 Code Civil, Art. 17. 
 
214 FUNDAMENTAL CONDITIONS OF THE STATE. [Bk. II. 
 
 However, in case of return to France, it is easy for him to 
 recover his rights 12 . 
 
 Native It is quite possible for one person to have the rights of a 
 
 \ wo staL-s. native (Heimatsrechte] in two States at once ls , and modern 
 conditions indeed encourage this. In the rare case of a 
 conflict of duties it may be hard to reconcile them. It is 
 not always a safe principle that the earlier right should take 
 precedence, especially where it is dormant, while the later 
 right is actual. In such cases the first duty, e. g. of military 
 service, is to the country in which a man is living 14 . 
 
 It naturally follows that the State which confers naturali- 
 sation on a foreigner, or appoints him to an office, may 
 either demand a renunciation of his old rights, or allow him 
 to retain them 15 . 
 
 Conflict of 3- As the conditions of acquisition and loss of national 
 rights differ in different countries, a conflict may arise either 
 where two States both claim a man as their subject and 
 demand his service, or where both refuse to receive him. 
 
 To avoid conflicts of this kind a treaty was made on 
 Feb. 22nd, 1868, between the North-German Confederation 
 and the United States of America, at the instance of 
 
 12 Code Civil, Art. 18: 'Le Frar^ais qui aura perdu sa qualite de 
 Fran9ais pourra toujours la recouvrer en rentrant en France avec 
 1'autorisation du President de la Republique et en declarant qu'il veut 
 s'y fixer, et qu'il renonce a toute distinction contraire a la loi fran9aise. J 
 
 13 A man may even take part in the representation of two States at 
 once. Many German princes (Stand esherreri] are members of the 
 upper chamber in two or three States, in all of which they have estates, 
 and have given their oath of allegiance. It is quite possible to conceive 
 that a man should have two different domiciles, one in town and the 
 other in the country, or one as a man of business, the other as a private 
 person. To dispute this as Bar does (Das Internationale Privat- und 
 Strafrechf) is not to see that facts are wider and more varied than 
 theory. To allow a man to become a member of a new State without 
 breaking his connection with the old is no limitation to the right of free 
 migration. 
 
 14 Blackstone, foe. cit. My own experience has taught me that in 
 these cases one's actual home has the first claim. 
 
 15 Bavarian Edict, 6. On the other hand, Swiss Federal Con- 
 stitution of 1848, Art. 43: 'No canton may bestow citizen rights on 
 foreigners, unless they have first resigned their previous rights.' See 
 now the Swiss federal law of July 3, 1876, on naturalisation and loss 
 of citizen rights. 
 
Chap. XXL] NATIVES AND ALIENS. 215 
 
 Bancroft, the American Envoy. The treaty lays down that 
 a naturalisation of five years' duration, in either State, shall 
 be recognised by both as terminating the previous relation. 
 The same principle was adopted between England and the 
 United States in 1868, and has now been generally ap- 
 proved. 
 
 4. The consequences of membership in a State belong The position 
 
 . i i- i T 11 of a Native. 
 
 partly to private, partly to public law. In private law the a Private 
 distinction between citizen and alien used to be far ri s hts - 
 more important than now. The spheres of private and 
 public law are now much more sharply distinguished, and 
 hence nationality, which is essentially a political idea, has 
 no place in private law. As a rule natives and aliens are 
 alike regarded as both possessing full rights in private 
 law 16 . 
 
 The ancient principle that aliens can acquire no landed 
 property is now only exceptional 17 . Restrictions on the 
 exercise of certain handicrafts and of retail trade by aliens 
 are more common 18 . 
 
 On the other hand, the Jus albinagii (Fremdlingsrecht} 
 which made the prince of a country heir to the property of 
 aliens, and the tax levied on inheritances which went abroad 
 (Gabella hereditaria\ have almost everywhere been swept 
 away, and so far freedom of migration (Freizugigkeif] has 
 been generally recognised 19 . 
 
 16 Prussian Law, Introd., 34 : ' Subjects of foreign States who 
 reside or conduct business in the country must be tried by the above 
 laws.' 
 
 Austrian Code, 33 : * Foreigners enjoy equal civil rights and 
 liabilities with natives, except where membership in the State is ex- 
 pressly required as a condition.' Code Civil, Art. 13. 
 
 17 For England cf. Blackstone, i. 10. Since 1870 aliens can acquire 
 real property, Stat. 33 Vic. cap. 14. In some democratic Swiss cantons 
 the prohibition is still in force. 
 
 18 The prohibition was natural as long as the guilds existed : but it 
 long outlived them. The French constitution of 1848, Art. 13 : 
 ' garantit aux citoyens la liberte du travail et de 1'industrie/ Prac- 
 tically, however, foreigners enjoy liberty of trading. 
 
 19 The Swiss Federal Const., Art. 63, guarantees freedom of settle- 
 ment to foreign States on condition of reciprocity. Act of the German 
 
216 FUNDAMENTAL CONDITIONS OF THE STATE. 
 
 /-. Public But in the sphere of public law the distinction between 
 
 citizen and alien remains in full force. The following 
 rights, except in case of special grant, are confined to 
 natives : 
 
 (a) The right of permanent residence in the country 20 . 
 A native cannot be handed over to a foreign State, or 
 banished, without grave political reasons. 
 
 (b) The right to the protection of his State, even if he is 
 staying abroad. 
 
 (c) The exercise of the franchise and of the rights of a 
 full citizen. 
 
 (d) The right to hold a public office 21 . 
 
 (e) Sometimes such general political rights as those of 
 association, petition, or free publication 22 . This does not 
 mean that foreigners are absolutely excluded from these 
 rights, but that they only enjoy them on sufferance. 
 
 Confederation, 1815, Art. 18. Resolution of the German Confederation, 
 1817. The German Imperial law of I Nov., 1867 (originally enacted 
 by the North German Confederation), first introduced complete freedom 
 of migration between German States : it is now generally extended to 
 foreigners. 
 
 20 Swiss Fed. Const. 0/1874, Art. 70: 'The Confederation has the 
 right to remove from its territory any foreigners who are dangerous 
 to its safety.' 
 
 21 Bavarian Edict, of 1818, 7 : 'No foreigner can hold the higher 
 crown offices, posts in the civil service, the higher posts in the army, 
 ecclesiastical omces or benefices, nor exercise the rights of a Bavarian 
 citizen/ 
 
 French Constitution of 1848, Art. TO : ' Tous les citoyens sont egale- 
 ment admissibles a tous les emplois publics.' Cf. Austrian Fund. 
 Law, 31 Dec. 1867, Art. 3; Prussian Const. 0/1850, Art. 4. 
 
 22 French Const, of 1848, Art. 8 : ' Les citoyens ont le droit de 
 s'associer, de s'assembler paisiblement et sans armes, de petitionner, de 
 manifester leurs pensees par la voie de la presse ou autrement.' 
 
 Prussian Const. 0/1850, Arts. 27, 29, 30, 32, grants these rights to 
 * all Prussians.' 
 
CHAPTER XXII. 
 
 RELATION OF THE STATE TO INDIVIDUALS. 
 II. CITIZENS. 
 
 THE body of full citizens rise above the general mass of Full citizen 
 the members of a country or nation. Full citizenship im- 
 plies membership in the nation, but, more than that, it 
 implies complete political rights: it is thus the fullest ex- 
 pression of the relation of the individual to the State. 
 
 Its conditions have varied from time to time: in ancient 
 Greece and Rome it depended on citizenship in the govern- 
 ing city, in the middle ages on freedom ( Volksfreiheit\ and 
 later on the rights of a privileged class, and on landed 
 property. In modern States it has often become almost 
 coextensive with membership in the nation ( Volksgenossen- 
 schaff). 
 
 The following limitations are now generally recognised : its limits. 
 
 1. Women are excluded (see above, Ch. XX). 
 
 2. Minors are excluded, on the ground that the exercise 
 of political rights demands mature judgment. 
 
 Some modern States fix the majority for political pur- 
 poses at a different age from that of private law. There is 
 some reason for fixing it later, for it is easier to judge 
 clearly on ordinary matters than on politics. In France, 
 England, North America and Italy political and civil 
 majority are both fixed at twenty-one 1 , and in some Ger- 
 
 1 French Const, of 1848, Art. 15. French law of July 7, 1874. 
 Art. i. Italian electoral law 0/Jan. 22, 1882. Blackstone, Comm. 
 i. 17. 
 
2 1 8 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. II. 
 
 man States also, e.g. Bavaria 2 ; but in Prussia, the German 
 Empire 8 , Spain 4 and Portugal 5 , the qualification for a vote 
 is twenty-five years, in Austria 6 twenty-four. In Switzerland 
 some cantons fix the political majority earlier than the civil, 
 generally at the completion of the twentieth year 7 . 
 
 3. Various persons are excluded whose civil status has 
 been impaired or lost e. g. criminals, declared spendthrifts, 
 bankrupts, or persons in receipt of poor-relief. 
 
 Many States require further qualifications : 
 
 4. A certain degree of outward independence, variously 
 defined in different States. In earlier German law the 
 qualification was occupation of land or separate household 
 ('a hearth of one's own ') : in recent German law indepen- 
 dent occupation and active membership in a commune. 
 The former view has prevailed in England 8 and some States 
 of North America, the latter has found a place in modern 
 German constitutions 9 . It excludes all hired servants, often 
 too the workers in factories, at least the lower class of them, 
 and most journeymen craftsmen. 
 
 Other modern States have moved in the direction of uni- 
 versal suffrage, and relaxed or abolished this qualification. 
 Such are the Swiss constitutions since 1830, the constitu- 
 
 2 Bavarian Law, i. 7. 36. Edict on native rights, 8. 
 
 3 Prussian Const, of 1850, Art. 70 : Electoral Law of the German 
 Empire of 1869, i : 'All (North) Germans of twenty-five years of 
 age are qualified to vote.' 
 
 4 Electoral law of Dec. 28, 1878. 
 
 5 Constitutional Law of]\Aj 5, 1852, Art. 5. 
 
 6 Austrian Imperial Electoral Law, 9. 
 
 7 The Swiss Federal Const, of 1874, 74; * Every Swiss over 20 
 years of age is entitled to 'the franchise.' The Zurich Const. 0/1869 
 fixes political majority at 20, while its civil law fixes majority at 24. 
 
 8 In the Reform Act of 1867, the borough franchise is based on 
 occupation and payment of rates. [30 and 31 Vic. cap. 102. The 
 Franchise Act of 1885 assimilates the county franchise to the borough 
 franchise, and adds a ' service franchise.] 
 
 9 The Bavarian Constitution of 1848, Edict on Native Rights, 8, 
 requires for citizen rights not only * Indigenat ' but ' settlement in the 
 kingdom, either by possession of taxed estates, stock, etc., by the exer- 
 cise of a dutiable trade, or by tenure of a public office.' The Austrian 
 Imperial Electoral Law of April 2, 1873, 9, regards membership in a 
 commune as independence. 
 
Chap. XXII.] CITIZENS. 2 1 9 
 
 tions of the French Republics of 1848 and 1870; of the 
 French Empire, the North-German Confederation of 1867, 
 the German Empire of 1871, and the Greek constitution of 
 1864. The United States are following the same demo- 
 cratic tendency of the age. 
 
 5. In some States citizen rights are conditional on the Property 
 possession of a certain amount of property. It is quite 
 
 right to make property an important factor in the distri- 
 bution of voting power, but it is a violation of the idea of 
 the State to exclude a man from the rights of a citizen on 
 the ground of insufficient property, provided that he is 
 morally and mentally capable of taking part in public 
 duties, and is in an independent position. If property is 
 interpreted to mean income or earnings, and the limit is 
 put at a modest subsistence, there is no objection to it, but 
 it is then equivalent to the preceding qualification. The 
 result is the same in constitutions such as those of the 
 United States, the Bavarian of 1848, and to some extent 
 those of Austria and Prussia, where the franchise depends 
 on payment of direct taxes. 
 
 6. In Christian States, till lately, a profession of Chris- Religion, 
 tianity was required. Jews, Mohammedans and others, 
 though tolerated, were excluded from political rights. Dur- 
 ing the middle ages religion and law, Church and State, 
 
 were closely associated. Exclusion from the religious 
 society meant exclusion from the political. Toleration was 
 the utmost that unbelievers could hope for. Even within 
 the Christian pale difference of faith carried with it political 
 consequences. In some countries only Catholics, in others 
 only Protestants, acquired full rights. The peace of West- 
 phalia put Catholics and Protestants, in Germany, on an 
 equality in civil rights, but not in political 10 . 
 
 10 Instrtim. Pac. Osn. v. 35 : ' Sive autem Catholic! sive Augus- 
 tanae confessionis fuerint subditi, nullibi ob religionem despicatui 
 habeantur, nee a mercatorum, opificum aut tribuum communione, 
 haereditatibus, legatis, hospitalibus, leprosoriis, eleemosynis aliisve 
 juribus aut commerciis, multo minus publicis coemeteriis, honoreve 
 sepulturae arceantur sed in his et similibus pari cum concivibus jure 
 habeantur, aequali justitia protectioneque tuti.' 
 
220 FUNDAMENTAL CONDITIONS OF THE STA TE. [Bk. 1 1 . 
 
 The German Confederation of 1815 established political 
 equality for the recognised religious parties in Germany, 
 Catholics, Lutherans, and Calvinists (Reformirten\ but left 
 the position of other sects uncertain n . 
 
 In modern States there is a decided tendency to make 
 the exercise of political rights entirely independent of reli- 
 gious creed. This is by no means entirely due to religious 
 indifference. When the American Congress of 1789 forbade 
 the passing of any law establishing a dominant religion, it 
 did not mean that it was indifferent to the power of Chris- 
 tianity, nor did it intend to hinder the State in its duty of 
 supporting Christian institutions 12 . 
 Religious The modern principle really has its root in the idea that 
 
 Freedom ... ,,. r . ., r . ,, 
 
 religious belief is entirely a matter of conscience, and be- 
 yond the sphere of compulsion, and that therefore no 
 political disadvantages ought to be attached to deviation 
 from the Christian faith. The Americans made a sharp 
 distinction between Church and State, and were inclined to 
 leave both free : and in this spirit they never refused poli- 
 tical rights on religious grounds to those who were otherwise 
 capable. But, on the other hand, the adoption of these 
 principles in the French Revolution, as the frequent reli- 
 gious persecutions of the time show, was certainly not due 
 to regard for freedom of conscience, but rather to the nega- 
 tive spirit of the age, which began in frivolity and ended in 
 savage hatred of Christianity 13 . 
 
 In Germany the modern principle found definite expres- 
 sion in 1848, and is now recognised. The Austrian 
 
 11 Act of the German Confederation, Art. 16 : ' No difference in civil * 
 or political rights in the countries of the German Confederation is to 
 follow from difference of Christian creed.' Cf. Klober, Acten des Wiener 
 Congr. ii. p. 439. 
 
 18 Cf. Story, Comment, on the Constitution of U. S. A., book iii. 
 ch. 44. 
 
 13 The new principle appears in the first article of the declaration of 
 the rights of man in 1789 : * Les hommes naissent et demeurent libres et 
 egaux en droits. Les distinctions sociales ne peuvent etre fondees que 
 sur Tutilite commune.' None of the later constitutions has made 
 citizenship depend on creed. 
 
Chap. XXII.] CITIZENS. 2 2 1 
 
 fundamental laws of 1849 ( i) and of Dec. 21, 1867, 
 on the general rights of citizens, as well as the Prussian 
 constitution of 1850, agree with the draft of the imperial 
 constitution framed at Frankfort and Berlin in making * the 
 enjoyment of civil and political rights independent of reli- 
 gious creed/ They prudently add that religious creed is no 
 ground of excuse from public duties. 
 
 A law of the North-German Confederation (now of the 
 German Empire), dated July 3, 1869, enacts: 'All existing 
 limitations of civil and political rights grounded on differ- 
 ence of creed are hereby abolished. In particular, parti- 
 cipation in communal and national representation, and 
 tenure of public offices, shall be independent of religious 
 creed.' 
 
 This has entirely altered the position of the Jews in these 
 countries. In Germany, where they were before almost 
 entirely excluded from political rights, they can no longer 
 be refused them on religious grounds. 
 
 But the principle has not yet been universally accepted, not yet fully 
 The Papacy has persistently condemned it. But it is not 
 only rejected, in whole or part, by Catholic States, where 
 the influence of the clergy is dominant : Norway 14 and 
 Sweden still refuse to accept it. In Switzerland political 
 rights were dependent on Christian confession till the con- 
 stitutional law of 1866. Even in England, though the 
 disabilities of dissenters, Catholics, and Jews have been re- 
 moved earlier in the century, the modern principle is not 
 yet completely accepted. 
 
 On the whole the modern State, true to the idea of its 
 human and national basis, tends distinctly toward uniting 
 the followers of different creeds by its common institutions, 
 and gradually abolishing the mediaeval association of public 
 rights with definite religious conditions or ecclesiastical rules, 
 
 14 In Norway non-Lutherans are now only excluded from the higher 
 offices of the State. Law of July 21, 1851, on the admission of Jews; 
 Law of June 15, 1878, with regard to alteration of Art. 92 of the con- 
 stitution; and law of June 14, 1880, 
 
BOOK III. 
 
 THE CONDITIONS OF THE STATE IN 
 EXTERNAL NATURE. THE LAND. 
 
CHAPTER I. 
 
 CLIMATE. 
 
 UNLIKE the lower animals, man can live and retain his influence 
 characteristics in all regions of the earth. He has a greater on national 
 power of resistance to atmospheric influences, and com- character - 
 pleter means for facing dangerous climates. But he is still 
 affected both in mind and body by heat and cold, day and 
 night. The conditions of his life change as he approaches 
 the equator or the poles. Though the individual alters 
 little when he travels north or south, and makes a long stay 
 in a different latitude, climate has its effect on the mass, 
 and in the course of generations produces changes in 
 physique, and still more in character. 
 
 The Romans in the East became effeminate, the Germans 
 on the African coast lost their vigour, the English easily be- 
 come lazy and sensual in India. Bodin (Bk. V), Montes- 
 quieu (Bk. XIV), Filangieri (I. 14, 15), and Buckle (History 
 of Civilisation, I. ch. 2) have considered the influence of 
 climate on public life, and have tried to determine its laws. 
 
 Long ago it was noticed that the hot tropical countries The temper- 
 (up to 23 28 r ) and the cold polar zones (beyond 66 23') at 
 are less favourable to the development of States than the 
 temperate zones which lie between them. The latter in- 
 clude more than half of the solid surface of the earth, and 
 in the northern hemisphere, where most civilised nations 
 are situated, land and water are of nearly equal extent, 
 whereas in other parts the proportion of water is far larger. 
 
 Q 
 
226 CONDITIONS OF THE STATE IN NATURE. [Bk. III. 
 
 Extremes of In cold countries it is difficult for men to live in society 
 heS*" because they cannot procure food or fuel near at hand : 
 and the scattered families have such a hard struggle with 
 nature for their very existence, that they have no time nor 
 desire to busy themselves seriously with higher interests. 
 Hot countries, on the other hand, produce indolence, only 
 relieved by violent outbursts of the passions : they develope 
 man's passive inclinations at the expense of his active forces. 
 But the State, aiming at self-control and freedom, requires 
 active and manly qualities. The inhabitants of the cold 
 zones are independent, but are wanting in the power of 
 political union, while those of the hot zones are readier to 
 bear with despotism than to defend their rights or develope 
 a free State. Bodin long ago observed (V. p. 671), 'Les 
 peuples des regions moyennes ont plus de force que ceux 
 du midi, et moins de ruses, et plus d'esprit que ceux de 
 Septentrion et moins de force. Et sont plus propres a 
 commander et gouverner les republiques et plus justes en 
 leur action. 7 [cf. Arist. Pol. vii. 7.] 
 
 Besides ' mathematical' climate, which is expressed by 
 latitude and depends on the relation of the surface of the 
 earth to the sun, modern science investigates ' physical ' 
 climate. By measuring the average temperature of different 
 places it describes isothermal lines, which do not exactly 
 coincide with the circles of latitude, but diverge to North or 
 South according as the temperature is modified by other 
 factors, such as the height of the land above the sea, the 
 neighbourhood of lakes and sea, the currents of wind and 
 water, etc. This enables them to make more numerous 
 and minute distinctions, but only confirms the previous 
 experience that the temperate zones are more favourable to 
 civilisation than the extremes. 
 Position of It is a striking fact that the capitals of nearly all important 
 
 capital cities. .. 
 
 States lie in the midmost temperate zone, where the average 
 temperature ranges between 8 and 16 C. Most European 
 States, many Asiatic States (the isothermal curve here takes 
 a great sweep to the South), and the States of North America 
 
Chap. I.] CLIMATE. 227 
 
 fall within this zone. It includes: Rome, i5-4 ; Madrid, 
 i4-2 ; Paris, io-8; London, 9-8 ; Vienna, io5 ; Con- 
 stantinople, i3-7; Berlin, 9-! ; Hamburg, 89 ; Copen- 
 hagen, 8-2 ; Ziirich, 8-8 ; the Hague, io-5 ; Dresden, 
 8-3 ; Munich, 9.! ; Boston, 9-6 ; Washington, i3-5 ; 
 Philadelphia, n-9 ; Richmond, i3-8 ; Pekin, n ^. 
 Almost the only European capitals belonging to a colder 
 zone are St. Petersburg, 3-! ; Christiania, 5-3, and Stock- 
 holm, 5-6 ; while their mean summer heat rises to 15 or 
 1 6. Montreal, with a mean temperature of 6-4, has a 
 summer heat of 2o-5. The mean temperature of more 
 southern cities, Naples, i6-4; Lisbon, i6-4; Mexico, 
 i6-6; Buenos Ayres, i6-9 ; Palermo, i7-2 ; Sidney, 
 1 8- 1 ; Nagasaki, i8-3, is only slightly above the limit of 
 the temperate zone. On the other hand, the mean heat of 
 Canton is 2i-6 ; Cairo, 224 ; Rio de Janeiro, 23. i ; Cal- 
 cutta, 25-8; Singapore, 26-$ ; but it is worth noticing that 
 China is ruled from Pekin, and that the civilisation of India 
 has come from the wilder regions of the Panjab and the 
 Upper Ganges. 
 
 The succession of the four seasons, which is peculiar to 
 the temperate zone, seems to act as a mental stimulus : by 
 giving men frequent change of scene and of occupation. 
 
 Within the temperate zone we find the same distinctions 
 on a smaller scale. Even within the same country we find 
 intelligence and sobriety, muscular strength and endurance 
 in the cooler regions ; cunning and imagination, passionate 
 and excitable temperament in the warmer. We see this at 
 once if we take Italians, French, Germans, and Russians, 
 and compare the Northern population with the Southern in 
 each country, comparing, of course, not individuals but 
 masses. Bodin goes too far in saying that the Northern 
 nations beat the Southern in war, but are beaten by them in 
 diplomacy. But the distinction between the Northern and 
 Southern population of the temperate zone is a real one, 
 and the statesman will do well to take account of it. 
 
 Politics can do very little against the evil effects of 
 Q 2 
 
228 CONDITIONS OF THE STATE IN NATURE. 
 
 Climate and climate; the forces of nature are too strong for them. The 
 tlon ' statesman must do what he can to use the advantages of 
 climate and to avoid its evils. Education and law can do 
 something. Legislation will vary with the vices which the 
 different climates encourage : but it must also consider the 
 necessities of different climates. For instance, labourers 
 in cold regions need more meat and drink than in warm 
 regions, and strong liquors which are dangerous in the 
 latter may be necessary in the former. 
 
 Hence Mohammed's prohibition of wine is suited to 
 Arabia, but absurd for Europeans. In the cooler regions 
 labour may be left to itself: in the warmer it may be 
 necessary to encourage it. But in spite of all modifications 
 produced by climate, human nature remains at bottom the 
 same in all zones, able to cope in some measure with the 
 difficulties of any climate. Men of energy and good endow- 
 ments are not much troubled by it. 
 
 Where there is any question of founding or removing a 
 capital *, considerations of climate are of great importance. 
 Otto III made a great political blunder when he wished to 
 make Rome the capital of the German empire : and it is 
 not a happy idea to govern India from Calcutta. There is 
 much to be said against the choice of Berlin as capital of 
 Prussia, but it is far better than Konigsberg. The tem- 
 porary choice of Florence as capital of the kingdom of Italy 
 was good in this respect, that its climate, being a happy 
 mean between the severity of Turin and the softness of 
 Naples, is well suited to maintain the equilibrium of the 
 national character. 
 
 a [For Aristotle's view as to the best situation of a city, written of 
 course only with reference to Hellenic countries and to very small city- 
 states, see Pol. vii. n.] 
 
CHAPTER II. 
 
 NATURAL FEATURES. 
 
 SINCE Carl Ritter, geographers have paid more attention 
 to the connection between the configuration of a country 
 and the civilisation of its inhabitants. But the Greeks had 
 noticed it long before a . The fact that the earliest great Rivers, 
 civilised States are found in river valleys in the Panjab, 
 on the Upper Ganges, the Nile, the Tigris and Euphrates, 
 and the Pei-Ho leads to the conclusion that life on a great 
 stream is specially adapted to the early development of 
 human powers and human thought. As he builds ships 
 and cuts canals, and makes the stream serve him, man 
 gains confidence and wealth; and life upon the water 
 developes the love of adventure and commerce. For the 
 same reason, islands and countries with a seaboard develope 
 early. The ancient pre-eminence of Greece and Italy, the The Sea. 
 success of Spain and Portugal in the west, the early de- 
 velopment of free states in England and Holland, were 
 largely due to their maritime position. If it costs man 
 greater labour and effort to subdue the sea to his use, its 
 influence is more powerful than that of the stream. 
 
 Mountain countries have a peculiarly strong influence on Mountains, 
 character and feeling. The varied grandeur of the moun- 
 tains, no less than the awful power of the ocean, elevates 
 and strengthens men's minds. The dwellers on the moun- 
 tains are obliged to exert their power to the utmost every 
 
 [Arist. Pol vii. 5, 6.] 
 
230 CONDITIONS OF THE STATE IN NATURE. [Bk. III. 
 
 day : this gives them a strength and a power of self-help 
 which makes men of them. Then the broken character of 
 a mountain country, with its many secluded valleys, favours 
 the rise of small communities, which grow up in sturdy 
 independence, and are firm to resist invasion. Persians, 
 as well as Israelites and Arabs, the tribes of the Caucasus 
 no less than the Greeks, Swiss and Samnites, exhibit the 
 same characteristics. But the spirit of freedom takes a 
 different colour from the sea and the mountain. In the 
 mountains it is stubborn and resolute,, by the sea it is 
 excitable and fickle. It was the peculiar fortune of Rome 
 to enjoy the influence of mountain and sea at once *. 
 inland * Inland countries, especially with broad plains, develope 
 more slowly, because there is no natural stimulus : the 
 State developed later in France than in Italy, later in 
 Germany than in England. 
 
 Worst of all is the position of plateaus far removed from 
 the sea, with no great rivers or mountains, but only broad 
 steppes or deserts. Compare Europe with Africa, the 
 interior of Asia with its coasts, Western Europe with 
 Eastern, and the difference is plain at once. In such 
 countries despotism has always found stupid and unresist- 
 ing obedience. 
 
 Man's The statesman cannot produce these natural conditions, 
 
 natu e re. ve but he has more power over them than over climate. He 
 cannot move mountains or conjure the sea to his country ; 
 but he can make rivers navigable, cut canals, build roads 
 and railways, and spread a net of telegraphs. He can 
 enliven the monotony of a country by commerce, and 
 connect inland countries with the ocean. Civilisation here 
 has before it, and will finally accomplish, the great task of 
 
 l> [Cf. Wordsworth's Sonnet, Thought of a Briton on the Subjugation 
 of Switzerland : 
 
 ' Two Voices are there ; one is of the sea, 
 One of the mountains ; each a mighty voice ; 
 In both from age to age thou didst rejoice, 
 They were thy chosen music, Liberty ! '] 
 
Chap. II.] NATURAL FEATURES. 231 
 
 uniting all parts of the habitable globe in one unbroken and 
 fruitful bond of union. 
 
 Thomas Buckle called attention to the influence of more 
 temporary and changing phenomena. Here again the 
 scenes of sea and mountain make a deeper and more 
 striking impression than those of the inland plain : but there 
 are other influences besides. In the tropics, nature often 
 appears so overpowering, that, in despair of conquering her, 
 man gives up all effort : and his fancy sees nothing but the 
 awful force of nature ; his heart is filled with fear and 
 superstition. 
 
 Violent snows, the march of glaciers, and fall of avalanches 
 in mountain regions, the heavy rains and floods, the terrific 
 storms and hurricanes in many hot countries, the rapid 
 change from luxuriant vegetation to parched desert, the 
 desolating swarms of insects and the peril of wild beasts 
 all these influences may depress and confound, instead of 
 stimulating, those who live among them. For this reason, Advantage 
 a temperate country is best adapted for the growth of man's p e * a te m 
 mind. A monotonous climate is not stimulating enough : chmate - 
 a violent one shocks him, He needs a varied and tem- 
 perate climate to excite his thoughts and call out his effort : 
 his mind, which would run riot in the tropics, then de~ 
 velopes with an orderly and rational growth. 
 
 But we must not exaggerate the importance of natural 
 phenomena. After all, less depends on them than on the 
 moral and intellectual education of man by man. Even in 
 hot countries reason may be educated and fancy curbed by 
 a feeling for the beautiful : and superstition may grow rank 
 and thought be choked under a temperate sky. Man is not 
 the creature of natural forces : he must face nature boldly 
 and independently, making use of her when she is kind, 
 and combating her when she is cruel. 
 
CHAPTER III. 
 
 THE FERTILITY OF THE SOIL. 
 
 WHERE the soil of a country is fertile it is easier to 
 support life : and population increases in proportion. It 
 might appear that a fruitful soil was the most favourable 
 condition for the welfare of society and of the State. This 
 thought gave birth to the idea of a blissful Paradise, where 
 rich and varied fruits grew ready to man's hand : and even 
 now this is the ideal of the childish and the indolent. But 
 riper years and human effort bring with them a contempt 
 for a condition which has no conception of the true end of 
 life, the development and perfecting of man's nature. 
 Barren soil. Certainly a very barren soil is unfavourable for social life : 
 for man is then obliged to procure his food from a distance, 
 by means of commerce. In such cases commercial cities 
 may rise and flourish, as did Venice, the daughter of the 
 unfruitful sea. But the peoples as a whole in barren coun- 
 tries can only live poorly and painfully ; the population is 
 sparse and has but a meagre growth. A fixed home is 
 hardly possible ; men live a nomadic life in scattered 
 families and hordes. Buckle has pointed out that the 
 Mongols and the Tartars made little progress on their own 
 barren steppes, only developing a civilisation in the richer 
 soil of China and India : and that the Arabs did not 
 become an advanced state till they left Arabia for the 
 fruitful lands of Persia and the coast of the Mediterranean. 
 The slow development of the State in cold climates is not 
 
THE FERTILITY OF 7 HE SOIL. 233 
 
 merely due to the difficulty of procuring warmth and the 
 severe struggle with nature, but also, and largely, to the 
 barrenness of cold countries. The same effects are to be 
 found in those hot countries, where the apparent fertility is 
 great, but is marred by frequent and sudden catastrophes, 
 e. g. swarms of insects, or floods. For social life is just as 
 much hindered by difficulties in gathering and preserving 
 rich crops as by absolute scarcity of produce. 
 
 A very fruitful soil, which furnishes sufficient food with- Fruitful 
 
 . . . , , .. soil tends to 
 
 out requiring labour, is better than an unproductive soil, produce 
 but it is by no means the best basis for the State, for these 
 reasons : 
 
 The main motive to human effort is the desire for sub- (i) indo- 
 sistence. If this is removed by the bounty of nature, men 
 work little, or not at all ; and generally sink into indolence 
 and sensuality. Where they do not work, men fail to 
 develope the hidden resources of their nature, and society 
 does not advance. On many tropical islands the people 
 live a happy sensual life, but remain uncivilised. Naples 
 made a great advance when she converted her idle lazzaroni 
 into industrious labourers. 
 
 Where labour is not needed, labour and labourer are ( 2 ) Degra- 
 
 dation of 
 
 despised ; the life of the mass of the people counts for labour, 
 nothing. Nowhere is human life so brutally disregarded as 
 in the negro despotisms of Africa, where the soil is fruitful 
 without tillage, and there is no industry to ennoble labour. 
 
 Great fertility of soil promotes an unequal distribution (3) in- 
 of property. We find a few rich men, living in superfluity, property. 
 hardly any middle class, and a great mass of poor and 
 servile population. As there is no check on population in 
 such countries, it increases rapidly. But an occasional 
 famine or invasion reduces the careless population to 
 misery. Those few who have had the providence to hoard 
 their fruits, compel the masses to surrender their fruit-trees 
 and their land in return for food. Military leaders, in 
 return for their protection, exact taxes and service : priests, 
 who reconcile the gods and invoke their blessing, receive 
 
234 CONDITIONS OF THE STATE IN NATURE. [Bk. III. 
 
 large estates from the faithful. Thus there gradually arises 
 a class of rich landlords and princes, of nobles and priests, 
 who own the whole country. They attain to some degree 
 of civilisation and to great material wealth. They exact 
 labour from the subject classes, but hold them cheap, 
 because there are plenty of labourers, and man, as such, 
 has no value. The masses become poor, despised, and 
 completely dependent : they live a dull and brutal life of 
 service, completely cut off from any civilising influence. 
 
 India. Buckle was the first to lay proper emphasis on these 
 
 facts, and to establish them historically. But he certainly 
 goes too far when he explains the early Indian civilisation 
 and the system of castes by this cause, and maintains that 
 higher civilisation pre-supposes superfluity. Like all English- 
 men, he lays too much stress on economical conditions. 
 The fact is, that the most eminent Brahmans and Buddhists 
 preferred poverty to wealth, the Kshatriyas loved power and 
 honoured courage more than wealth, while the Visas, who 
 did not belong to the aristocracy, set a high value on the 
 wealth that they amassed by industry, trade, and usury. 
 The Sudras were reduced to a servile condition, not because 
 they were poor, but because they were a conquered popula- 
 tion of inferior race. 
 
 Still, it is true that the luxuriant rice plantations easily 
 support a large population, so that, as the land gradually 
 became the property or the fiefs of princes and nobles, the 
 contrast of few rich and many poor was developed, and has 
 lasted up to the present day : on the one side, a small and 
 highly civilised body, enjoying great material comfort ; on 
 the other, a despised and oppressed multitude, 
 
 Egypt. The same was the case in Egypt. There the date-palm 
 
 yields a large harvest without much attention. The vast 
 buildings of the kings point to an enormous expenditure of 
 strength and human life. The Hebrew records describe 
 the miserable condition of the servile labourers. Joseph's 
 advice might be of service to the treasury of Pharaoh, but 
 it was disastrous to the people. 
 
Chap. III.] THE FERTILITY OF THE SOIL. 235 
 
 Again, in Mexico and Peru, we find a small body of rich Mexico and 
 and powerful men exploiting the masses, and again the 
 mischief is partly due to the seeming bounty of nature, 
 which produces maize, bananas, and potatoes in abundance. 
 Naked slavery below, arts and tyranny above, external 
 weakness, gigantic buildings and poor hovels, such is the 
 picture of these favoured lands. 
 
 Can statesmen remedy this evil ? They can if they are 
 seriously devoted to the work of advancing a healthy 
 national life. In spite of a fertile soil, it is possible to 
 protect the lower classes against the upper, and to educate 
 them to be free men, to promote a better division of 
 property, and raise the middle class. 
 
 The most favourable soil then is one of moderate fertility, Moderately 
 
 . . J fertile soil 
 
 which requires the expenditure of serious and persistent the best, 
 labour. There labour and the labourer are properly valued, 
 but they are not overtasked, and there is no destitution. 
 Man's powers are developed, and the conditions of life 
 perfected : families enjoy a secure existence in moderate 
 prosperity, and wealth is so distributed that the middle 
 class is numerous and well to do. One class shades off 
 gradually into another : there is no danger of the lower 
 classes being enslaved, nor of the higher becoming a 
 privileged caste. There is a great diversity of occupations, 
 but the people form a coherent whole, animated by a common 
 spirit. 
 
 Doubtless history proves that these conditions do not 
 necessarily lead to an equal division of wealth and a healthy 
 national life, and there are many other more powerful 
 factors involved. But if we compare Europe with Western 
 or Southern Asia, or North America with Central and 
 Southern America, or even South Italy with Lombardy 
 and Switzerland, the superiority of such conditions becomes 
 evident. The main business of the State in this sphere will Legislation, 
 be to defend healthy natural conditions against human in- 
 terference, and to maintain an equilibrium of forces, so as to 
 promote mutual aid and advancement. Legislation and 
 
236 CONDITIONS OF THE STATE IN NATURE. 
 
 economy may help in saving the soil from desolation or ex- 
 haustion, and may prevent the accumulation of land in a 
 few hands, especially in mortmain, and secure a natural 
 distribution of wealth. It may sometimes transform a 
 barren soil into a fertile one, and so increase the production 
 of the country by providing for the drainage of marshes or 
 the irrigation of meadows. 
 
CHAPTER IV. 
 
 THE LAND. 
 
 As the State has its personal basis in the people, it has 
 its material basis in the land. A people does not become 
 a permanent State till it has acquired a territory. 
 
 The part of the earth which the nation occupies, or which The State 
 the State governs, is called its land or territory (Statsgebtet). Territory. 
 Its extent, like the development of the nation, is determined 
 by historical events : for the legal existence of the State it is 
 unimportant. There have always been small monarchies 
 and republics, and they have maintained a certain degree of 
 equality by the side of their greater neighbours. It is, there- 
 fore, absurd to try to fix a normal limit for the territory of a 
 State. The Greek city-states looked petty in face of the 
 Roman Empire, but Athens takes her place beside Rome 
 in the history of the world. But still the extent of a State 
 has a great influence on its political character and import- 
 ance, and is closely connected with many grave political 
 questions. 
 
 Obviously these two necessary elements of the State, the 
 land and the people, react on one another. The land may 
 be too small for the people, inadequate to supply its intel- 
 lectual and material wants. The growth of population may 
 lead to the foundation of colonies to receive the surplus. 
 Or the sense of power or the requirements of its civilisation 
 may demand an extension of territory, and lead to annexa- 
 tion or conquest. In this case it is hard to reconcile the 
 
238 CONDITIONS OF THE STATE IN NATURE. [Bk. III. 
 
 natural right to growth and self-development with the his- 
 torical rights of other nations. 
 
 Again, when a State becomes too small to maintain a 
 secure existence, in the face of other growing States, it may 
 either ally itself with other States, or allow itself to be 
 absorbed by a more powerful State. 
 
 On the other hand, a sparse population may feel its terri- 
 tory too wide, or some particular part of it may desire to be 
 independent. In the first case the State will encourage im- 
 migration, in the second it will adopt a policy of separation 
 or dismemberment. 
 
 Tendency Here the present age differs entirely from the middle 
 
 state? 6 ages : then the general tendency was to small States, now it 
 
 is to large ones. Then Italy, France, Germany, Spain, and 
 
 at first the British Isles and the Slavonic countries, were all 
 
 divided among a number of petty monarchies and republics. 
 
 The unity of the Roman Empire was ideal rather than 
 
 actual. The tendency to form larger States began with 
 
 England, and is seen on the Continent after the latter part 
 
 of the fifteenth century, and has not yet reached its limit. 
 
 The mediaeval States were innumerable. Almost every 
 lordship, many towns and religious houses, and even villages, 
 maintained an independent political existence. Only a few 
 of these constitutions now remain, and there is small pro- 
 spect of their survival. Many influences co-operated to 
 substitute this infinite partition for the old unity of the 
 Roman ideal : want of roads and posts, and of means of 
 locomotion ; the tendency to special rights (die particulare 
 Rechtsbildung), the defective system of police, the feudal 
 constitution, with its limited military service and defective 
 means of war, the narrow circulation of money, the separa- 
 tion of estates, the fundamental conceptions of dynastic rule 
 and private law, the want of a national consciousness, and 
 the Teutonic tendency to independence and to corporate 
 promoted organisations. On the other hand, the formation of large 
 cwMsation. States has been promoted by the improvement and ex- 
 tension of means of communication, high-roads and rail- 
 
Chap. IV.] THE LAND. 239 
 
 ways, steamships, postal and telegraphic service, the 
 quickened impetus of trade and commerce, increased 
 military and financial resources ; in a word by the entire 
 development of modern civilisation and the awakened 
 national consciousness and more rational legislation which 
 it has brought with it. 
 
 The modern State needs a broader basis than can be Limits to 
 found in a mere municipal or judicial district. As privileged a territory, 
 class (Stand) and tribe have had to give place to people and 
 nation, so towns and manors have to merge themselves 
 in the wider unity of the country : only so can the concep- 
 tion of a Nation ( VolK) supersede the conceptions of local 
 citizenship or narrow association. A Country and a Nation 
 are both essential to the modern idea of a State : without a 
 country the State is at best insecure and ineffective ; it may 
 be retained for a while as a curiosity, but being quite cut off 
 from modern life it is exposed to the general hatred of the 
 small-state system (die Kleinstaterei). This principle fixes 
 the lower limit for the size of a State. Its higher limit is 
 determined by the principle that every part must be within 
 reach of the central authority. But this limit of course is 
 an elastic one. Since the invention of steam-locomotion 
 and the telegraph, no country is too remote for communica- 
 tion with its capital. It can no longer be denied that it is 
 possible to unite the whole globe in one political organisa- 
 tion, now that international law, with its hypothesis of the 
 union of many States in one humanity, extends over the 
 greater part of the inhabited earth. Of the total land surface 
 of the globe, estimated at nearly 54,000,000 square miles, 
 Great Britain governs nearly 9,000,000 square miles, Russia 
 about 8,300,000 square miles, China 4,500,000, the United 
 States over 3,000,000 square miles. Here are vast and 
 distant territories, which are still animated by one political 
 spirit. 
 
 But the power of a State is not to be measured by its Population 
 mere extent. The German Empire has a territory of about ortant than 
 210,000 square miles, and yet is the most powerful State in area * 
 
240 CONDITIONS OF THE STATE IN NATURE. [Bk. III. 
 
 Europe. France, with its 204,000 square miles in Europe, 
 is at least as strong as Russia, whose territory in Europe is 
 ten times the size. The European territory of Great Britain 
 only covers 121,235 square miles, but from this it governs 
 colonies and dependencies far larger than itself. Population 
 is a far more important factor in determining the power of 
 a nation than extent of territory, though the latter is not 
 without weight. 
 
 The further a territory extends, the greater becomes the 
 difficulty of movement, and hence also of government. Its 
 scattered forces can only be slowly collected, and its distant 
 provinces are not under perfect control. Improved means 
 of communication have lessened this difficulty, but not re- 
 moved it. The word of command can be flashed to the 
 farthest limit of the State, but it lacks the emphasis of im- 
 mediate authority : and it may be misunderstood, or, if the 
 subject is unwilling, evaded. Even with railways it takes 
 time to convey men, and food, and stores : and in thinly 
 populated provinces it is not always possible to establish 
 railways : often even highways are wanting. 
 
 Hence, an extension of territory does not always mean an 
 increase of power. A State may be weakened by its con- 
 quests, if the smaller territory was easier to govern, 
 strength It is easy to annoy a State of wide extent by attacking it 
 
 ness of large at different points, but it is hard to gain any permanent 
 success against it. The enemy can traverse wide tracts 
 unopposed, but they will find it difficult to maintain them- 
 selves. Their only chance is to attack and defeat the con- 
 centrated power of the State. This assertion is confirmed 
 by the recent wars in Russia and North America. But 
 while great size in a State may make it helpless and cumbrous, 
 it has its advantages. A large State has command of vast 
 resources, which are not exhausted in a moment : hence, in 
 a dangerous crisis it can afford to wait and watch the turn of 
 influence of events : it can seldom be conquered at a blow. The size 
 Constitution, of a State also has an influence on the form of its constitu- 
 tion. Direct democracy is only possible in a small country ^ 
 
Chap. IV.] THE LAND. 241 
 
 where men can meet frequently in the assembly. Constitu- 
 tional monarchy requires a larger area for its representative 
 system. The vast extent of the Roman Empire was a main 
 reason of the decay of the Republic and the concentration 
 of authority in an absolute Emperor. In Russia too the 
 absolute power of the Czar is partly due to the vast mass 
 of its territory, and even England does not propose to give 
 India parliamentary institutions. 
 
 Accordingly the constitutional policy (die Verfassungs- 
 politik) of a State must consider the character and extent of 
 its territory, and adapt itself to it. 
 
 The territorial limits of a State are not eternal or unalter- 
 able. They depend on the growth or decay of national 
 forces. But still they are more fixed and permanent than 
 the limits of its population, and are only altered from time 
 to time by great events. 
 
 The boundaries of a State may either divide it from Boundaries. 
 a foreign State, or from a part of the earth which belongs to 
 no State. In the first case the boundary is regarded as 
 a fixed line, and is marked by stones, trenches, walls, &e. 
 In the latter case there is no need to draw a strict line : the 
 boundaries may be advanced or withdrawn without compli- 
 cations with other States. To the first class belong : 
 
 (a) Rivers and streams, although these are not so abso- 
 lutely fixed as land boundaries. The strict frontier between 
 the two governments is fixed either at the middle of the 
 river, or in the bed of the river proper (Thalweg)^ i.e. the 
 channel which it takes at its lowest ; but as the mid-channel 
 is that chiefly used for navigation and commerce, it is con- 
 sidered as common to both States for these purposes. But 
 both these boundaries may be altered by the alluvial or 
 denuding action of the water on the banks, or the alteration 
 of the course of the stream. 
 
 (b) Mountains : these generally separate distinct tribes and 
 ways of life : communication is rare, and only by single passes. 
 
 As a rule the highest ridge of the mountain, or the water- 
 shed, is regarded as the natural boundary. 
 
242 CONDITIONS OF THE STATE IN NATURE. 
 
 To the second class belong : 
 
 (a) Seas and large lakes, which are naturally subject to no 
 State, and are open to the common use of all the world. 
 
 (^) Deserts and steppes, and sometimes forests and savage 
 mountains. But these regions are appropriated as civilisa- 
 tion advances. Further definition of boundaries belongs to 
 International law. 
 
 Union of Sometimes several countries are united to form a new 
 
 territories, and larger whole, an Empire (ReicTi). This may happen in 
 various ways. 
 
 (a) The countries united retain their existence, and on a 
 footing of equality : e. g. the United States of America, the 
 German Empire. 
 
 (I}} The countries exist separately, but on an unequal 
 footing, one being regarded as imperial (Hauptland), the 
 others as dependent (Nebenldnder] : e. g. Great Britain with 
 its colonies and dependencies, France with Algiers. 
 
 (r) The previous countries become provinces of one 
 Empire : e.g. the spread of Russia. 
 
 The ideal But as the ideal basis of the perfect State is not the 
 nation, but humanity, so its ideal territory is the whole 
 earth, uniting in one harmonious whole the diverse qualities 
 of different countries, so as to complete and enrich one 
 another. But the practical principle for present politics, 
 which are still far from the goal of the ideal, is this : that a 
 varied territory is the best for a State : one where there are 
 mountains and valleys, rivers and lakes, seaboard and plains ; 
 not that such countries are more fertile, for in some parts 
 the difference of level makes cultivation impossible, but 
 because the various faculties of the inhabitants are thus 
 stimulated and developed to the utmost. On the other 
 hand, the worst is an inland territory of wide and desolate 
 steppes : that is why these regions have always been the 
 home of nomad tribes which fall short of political life. 
 
CHAPTER V. 
 
 TERRITORIAL SOVEREIGNTY. 
 
 THE sovereign rights of a State over its whole territory state 
 are often called ' State property ' (Statseigentkum). But pr 
 the name, though not inappropriate to the early States of 
 Asia, or to the feudal State, is incompatible with modern 
 political ideas. 
 
 In the old Jewish State Jehovah, in Egypt the Pharaohs 
 were regarded as sole proprietors of the soil, and private 
 persons only enjoyed a transitory use of it : in the Roman 
 Empire, again, the land of the conquered provinces was 
 regarded formally as the property of the Roman nation 
 or Emperor, and the provincials only enjoyed an inferior 
 though actual property (in bonis) in the land. In some 
 mediaeval States, e. g. in England after the Norman Con- 
 quest, the king was the supreme proprietor and feudal lord 
 of the whole land, and his subjects only occupied their 
 estates as fiefs. In all these cases the idea of State-property 
 naturally arose from the fusion of the idea of private property 
 with that of political sovereignty. But it becomes untenable 
 now that private and public law are entirely distinct. 
 
 We must distinguish then the sovereign rights of the State 
 State in its territory (Gebietshoheit, imperiuni] from the pro- 
 perty (dominium) of the State. Property is a matter of 
 private law, even when it belongs to the State : sovereignty 
 is essentially political, and can only belong to the State, or 
 the head of the State *. 
 
 1 The ancients recognised this distinction. Hugo Grotius, De jure 
 R 2 
 
244 CONDITIONS OF THE STA TE IN NA TURE. [Bk. III. 
 
 its cons* i. On its positive side this sovereignty means that the 
 
 State has complete power over all its territory, to enforce its 
 laws, execute its decrees, and exercise its jurisdiction. Its 
 power extends not only over persons but over land and 
 things ; but this power belongs to the State alone, and is 
 outside the sphere of private law. 
 
 2. On the negative side, the State has the right of ex- 
 cluding every other State or power from sovereignty in, 
 or interference with, its territory. Hence the modern 
 State does not allow any foreign power to exercise juris- 
 diction or police in its territory. Alienation of the whole 
 or part of a country is incompatible with this political 
 conception of territorial sovereignty. It is no longer 
 possible to do as the mediaeval princes did, who sold, or 
 pawned, or partitioned 2 their domains as pieces of private 
 property. 
 
 Modern public law adheres to the principle that the 
 territory of a State is inalienable and indivisible 3 . 
 
 Alienation is only possible (exceptionally) under the forms 
 of public law, in virtue either of a law or of international 
 contracts, including treaties of peace 4 . 
 
 Grotius further demands as a consequence of natural 
 right, that if part of a country is to be alienated, the 
 consent of the inhabitants of that part must be given, as 
 well as that of the whole State. This demand is a just one, 
 because their whole political existence is at stake, and the 
 legislature cannot be supposed to represent them properly 
 when it is bent on dissolving the union of the State. But 
 
 belli ac pads, ii. 3. 4, quotes Seneca, De benef. vii. 4, ' Ad reges 
 potestas omnium pertinet, ad singulos proprietor? and Dio Chrysost. 
 Orat, xxxi, 37 X ( ^ } P a T *7 S TroAeo;?, dAA' ouSei/ fJTrov TU>V KCKTyfAevow KO.O~TOS 
 Kvpios tari 70Jv kavrov. 
 
 2 Instances in antiquity only occur in cases where the prince had 
 absolute power over land and people. Cf. Hugo Grot. i. 3, 12. 
 
 3 French Const, of I79 1 * ii- IJ : ' Le royaume est un et indivi- 
 sible? For German States see Zacharia, Deutsches Stats- und Btmdesr. 
 i. 83. 
 
 * Prussian Const. ^"1850, Art. 2: 'The limits of this country can 
 only be altered by a law.' 
 
Chap.V.] TERRITORIAL SOVEREIGNTY. 245 
 
 in most cases necessity will prove too strong for natural 
 rights 5 . 
 
 Limitations on the sovereignty of the State in favour of and Hmita- 
 other States (statsrechtliche Dienstbarkeiteri) are possible, and uc 
 are analogous to the ' servitudes ' of private law. But they 
 must have their basis in public law, and their purpose must 
 be a public one. For instance, a State may allow a neighbour 
 the use of a military road across its territory, or of its postal 
 system, or may open its ports. But freedom of sovereignty 
 must be guarded against encroachment, even more jealously 
 than freedom of property in private law : for any permanent 
 limitation is a disastrous injury to the unity and harmony of 
 the State, and to the free development of its institutions in 
 the interest of public welfare 6 . 
 
 Notes. i. The change of the title of the French kings from Roi de 
 France to Roi des Fran^ais, after the Revolution, was a protest against 
 the earlier idea that France was a patrimonium regis, and so far marks 
 an advance in political thought. [The title of Roi des Fran^ais was 
 introduced into the constitution of 1791, and it was given to Louis 
 Philippe by the French Chambers in 1830. But it was not held by 
 Louis XVIII and Charles X, who, like their predecessors, were Rois de 
 France^] But when once the significance of territorial sovereignty is 
 realised, it does not matter which form is used. Stahl (Statslehre, 
 ii. p. 38) goes too far when he calls the national title barbaric. 
 Roman and German Emperors have preferred it : and it is nobler than 
 a territorial title in as much as a nation is greater than a country. 
 
 2. Rectification of frontier is not included under alienation, as it 
 merely defines the existing boundaries. But it is not mere rectification 
 when whole tracts of inhabited country are cut off and exchanged by a 
 State to round off its frontiers. 
 
 [On the conception of territorial sovereignty see Maine, Ancient Law, 
 p. 103 ff.] 
 
 5 Hugo Grot. ii. 6. 4 ff. Cf. Final Act of Vienna of 1820, Art. 6 : 
 ' Voluntary resignation of sovereign rights over the territory of a con- 
 federation, except in the interest of a member of the confederation, 
 must have the consent of all members of the confederate State.' For 
 fuller treatment of the question see Bluntschli, Modernes Volkerrecht, 
 286. 
 
 6 Schmitthenner, Statsrecht, p. 409 : ' Private property of a foreign 
 State or sovereign, in the territory of a State, does not limit the 
 authority of that State.' 
 
CHAPTER VI. 
 
 DIVISION OF THE COUNTRY. 
 
 GENERALLY, the territory of a State is so large that it has 
 to be divided for purposes of government. There are four 
 chief kinds of division : 
 
 Provinces. i. Provinces. The provinces of the Roman Empire 
 were originally independent States, which had been made 
 subject to Rome. Modern provinces also often represent 
 earlier States, which have been merged in a larger whole : 
 but sometimes they have been created by the State to which 
 they belong : and often, as in the German Empire, the 
 provinces (duchies) have given rise to new countries. 
 
 The characteristic feature of provinces is their compara- 
 tive independence. Their government is subordinate to 
 the general government, but has comparatively extensive 
 independent powers. Further, in representative constitu- 
 tions they sometimes have a legislative body for the conduct 
 of their own affairs, a provincial parliament. The modern 
 tendency to unity is unfavourable to this division. The 
 separate legislative powers of the provinces have been 
 abolished in France, Spain, and England, and in the 
 { Crown-territories ' (Kronldnder] of Austria limited to the 
 sphere of economics and education. But though thorough 
 unity of organisation is to the advantage of a State, the 
 complete abolition of provincial freedom, ignoring, as it 
 does, the special wants and characteristics of different 
 districts, may injure healthy and fruitful elements in the 
 national life. The Teutonic nations feel the want of pro- 
 
DIVISION OF THE COUNTRY. 24-7 
 
 vincial independence more keenly than the Romance 
 nations. 
 
 2. Circles (Kreise) are large political districts, but have 2. circles. 
 no claim to be considered as separate countries. In the old 
 Frankish and German imperial constitution, the duchies and 
 princedoms corresponded to provinces, the cantons (Gaue) 
 
 to circles. Under the same head come the counties of Eng- 
 land and the United States, the German Kreise, the French 
 departementS) and the Prussian Regierungsbezirke. 
 
 This division is founded not on local or tribal differences, 
 but on the necessity of an organised administration. But 
 still the historical associations of the district and its natural 
 means of communication have to be taken into account. 
 Provinces may be compared with the different buildings of 
 a castle, Circles with the storeys of a house. 
 
 They generally have some central power of administration 
 and superior jurisdiction. Further, there is now a tendency 
 for the population of a Circle to attend to its own special 
 interests, and to organise common institutions, e. g. roads, 
 magazines, hospitals, schools, poor-houses, prisons. This 
 opens up a fruitful field for self-government and representa- 
 tive institutions \ 
 
 3. Districts (Bezirke) are generally subdivisions of Circles, 3- Districts, 
 and have a subordinate administration and jurisdiction. 
 These, again, may be recognised as corporate bodies, with 
 property and institutions of their own 2 . 
 
 Such was the position of the Teutonic hundreds (Centenen, 
 Huntari\ the provincial courts (Landgerichte), and bailiwicks 
 (Oberamteieri) of Germany, the Cantons of France, and the 
 Kreise of Prussia. 
 
 Mere electoral districts do not belong to this category, as 
 they are only temporary, and form no organic part of the 
 State. Such inorganic divisions have little to recommend 
 them. 
 
 1 Cf. Vivien, tud. ordin. ii. 6. 
 
 2 Vivien, op. cit. ii. 3. The cantons in France do not form corpora- 
 tions, but only official districts for judicial and electoral purposes. 
 
248 CONDITIONS OF THE STATE IN NATURE. 
 
 4 . Com- 4. Communes (Gemetnden) in town and country. These 
 
 form the simplest division in the State, but they are of vital 
 importance. The personality of the commune (die person- 
 liche Gemeinde) is to its district what the organised nation is 
 to its country. It inspires it with its common life ; not, 
 indeed, a life of political activity, but of common social and 
 economical interests. 
 
 Large cities are equivalent to districts, great capitals to 
 circles, or even to provinces (e. g. Berlin). 
 
 principles Alterations in the political divisions of a country are a 
 question of law. In all these grades the State has to guard 
 its common interests and the harmony of its organisation. 
 But in the higher grades the influence of public interests is 
 greater, and the State has more freedom in determining the 
 divisions. The commune, on the other hand, is naturally 
 so intimately bound up with existing corporations, that their 
 wishes have to be considered. 
 
 The chief considerations which determine the State in 
 these arrangements are : 
 
 (a) The political purpose of the division. 
 
 (b] Natural influences, such as the connection of river 
 valleys. 
 
 (c). The history of the inhabitants. 
 (d) Commercial relations. 
 
 Mathematical considerations of number or area are sub- 
 ordinate to all these. 
 
CHAPTER VII. 
 
 THE RELATION OF THE STATE TO PRIVATE 
 PROPERTY. 
 
 PRIVATE property, i. e. the command of man over wealth, The history 
 is as old as man a . When primitive men plucked the fruits 
 for their food, or chose a cave for their home, or even when 
 they clothed themselves with leaves or skins, they were 
 acquiring property. 
 
 Property is not primarily a product of the State. In its 
 earliest, and incomplete, and insecure form, it is the work 
 of individual life, a sort of extension of the physical exist- 
 ence of individuals. A man gains possession of things 
 which lie around and come into his power, he turns them to 
 his own use and service, appropriates them. When to this 
 he adds a consciousness of his right to possess them, the 
 idea of property is complete. Even the nomad, who has 
 no fixed political bond, has property in his clothes, his 
 arms, his flocks, and his furniture. Even Robinson Crusoe, 
 on his desert island, extended his property. 
 
 Communism, which denies the justice of private property Communism. 
 and declares it to be robbery l , conflicts with the nature of 
 man as created by God : ' Let them have dominion over 
 the fish of the sea, and over the fowl of the air, and over 
 the cattle, and over all the earth ;' Gen. i. 26. It is also at 
 variance with the whole history of mankind, which recog- 
 
 [See Emile de Laveleye, Primitive Property.^ 
 1 Proudhon, ' La propriete c'est le vol.' 
 
250 CONDITIONS OF THE STATE IN NATURE. [Bk. III. 
 
 nises property among all nations and at all times, and is still 
 engaged in developing it. 
 
 The abolition of property, which communists propose, 
 would mean the death of individual freedom, the destruction 
 of civilisation, and of the family; in a word, a barbarism 
 worse than that of the rudest society 2 . 
 
 social (>u. The doctrine of the socialists is more temperate and 
 humane, but equally absurd, and less consistent. Frobel 
 may be taken as representative of this view. Property is a 
 ' fief held from society by the occupant : ' the right of the 
 individual is a ' consequence of a common will (Gesammt- 
 wille] recognised by a number of men who form a sovereign 
 society V This doctrine is no less false than communism 
 to the individual nature and freedom of man : recognising, 
 as it does, only derivative and transitory possession, it pro- 
 poses to replace free property by an exaggerated parody of 
 mediaeval feudalism, i. e. to return to a lower stage of civili- 
 sation : for it is only dressing up in democratic phrases the 
 same theory of servitude which in the dark ages produced 
 an abject flattery of arbitrary despotism. 
 
 The state The State has no absolute power over private property, 
 propevty. which lies indeed, as such, outside the range of public law. 
 The State does not create or preserve it, and therefore 
 cannot take it away. It simply protects it, as it protects all 
 individual rights, and has the same authority over it as over 
 its inhabitants. The main principles governing the relation 
 of the State to private property are accordingly 
 
 i. The State guarantees the security and freedom of 
 property 4 . 
 
 ' J Cf. Thiers, De la propriete, ii, who is excellent as a critic of com- 
 munistic and socialistic systems, but not successful in his philosophical 
 derivation of the idea of property. 
 
 3 Frobel, Sociale Politik, ii. pp. 392 and 400. 
 
 * This principle finds expression in many constitutions. The re-issue 
 of Magna Charta by Henry III, 1225, contains several clauses to this 
 effect. The French republican constitution of 1848, Art. ii, and the 
 Charter of 1814 (Art. 8) contains the clause ' Toutes les proprietes 
 sont inviolables.' Prussian Const, of 1850, Art. 9, 'Property is in- 
 violable.' 
 
Chap. VII.] RE LA T10N OF THE STA TE TO PR OPER TV. 251 
 
 2. The State has no arbitrary power of disposing of 
 property. 
 
 3. The State has a right to tax property for public 
 purposes. 
 
 This does not exhaust the relations of the State to private 
 property. Its rights are extended by certain limitations on 
 the freedom of private property. 
 
 1. Certain things are naturally unfitted to become private Limits of 
 
 private 
 
 property, and are reserved for general use. Such res publicae property. 
 are rivers, sea-coasts,, harbours 5 . 
 
 Under this head come the unproductive regions of snow 
 and glaciers, impassable gorges, and moors, &c. But glacier- 
 ice may become an article of commerce, and hotels have 
 been built on Alpine peaks. In such cases the ownership 
 is derived from the State. By the side of such natural gifts 
 come such works of the civilised State as are devoted to 
 public service, especially public roads and canals, public 
 spaces, &c. All these are res publicae (domaine public), and 
 so long as they remain such, cannot be owned as private 
 property even by the State, though the control of the State 
 over them is sometimes termed property. 
 
 2. There are other things, which, though naturally capable 
 of being held as private property, are reserved because they 
 have a close connection with the public welfare, or because 
 their management demands more extensive resources than 
 private owners can usually control. To this class belong 
 mines, salt-works, and other monopolies. 
 
 3. Distinct from public property in the narrow sense, are 
 things set apart for particular public uses, especially public 
 
 5 Marcianus in Dig. I. Tit. 8, de div. Rer. : ' Flumina paene omnia 
 et portus publica sunt.' Ulpianus in Dig. xliii. Tit. 12: ' Ptiblicum 
 flumen esse Cassius definit, quod perenne sit.' The conception of a 
 public river is narrower according to Code Civ. art. 538 : 'Les chemins, 
 routes et rues a la charge de 1'Etat, les fleuves et rivieres navigables ou 
 flottables, les rivages, lais et relais de la mer, les ports, les havres, les 
 rades, et generalement toutes les portions du territoire fra^ais qui ne 
 sont pas susceptibles d'une propriete privee, sont considered comme des 
 dependances du domaine public.' See also Sachsenspiegel, ii. 28. 4. 
 Prussian Law, ii. 15. 38, 41. Austrian Code, 407. 
 
252 CONDITIONS OF THE STATE IN NATURE. [Bk. III. 
 
 buildings, official residences, fortresses, arsenals, barracks, 
 S:c. Such things may fitly be spoken of as property, but 
 their employment in the public service removes them from 
 the sphere of private property and exchange. They must 
 remain under control of the State (domaine public relatif) in 
 order to be available for public purposes. 
 
 4. The fact that most real property was originally derived 
 from the State, which divided the conquered land among 
 the warriors or families of the tribe, has this consequence in 
 many States that when property in land is extinguished by 
 emigration or death of a family, the land reverts to the 
 State. Even still, English and American law hold that land 
 in new colonies belongs to the State, and must be bought 
 from it by the colonists. This treatment of land, which is 
 not yet, or has ceased to be private property, is justified by 
 the principle of territorial sovereignty, which regulates pri- 
 vate ownership, and exercises full authority in its absence 6 . 
 Vacant inheritances revert in the same way ; here, occupation 
 by the first comer would produce great confusion. 
 
 But only a false conception of the State could lead to the 
 idea that the State has a natural right to property in every- 
 thing in its territory which is without an owner, to the 
 exclusion of all aliens. 
 
 Survival Roman law took a truer view : the State had no more 
 
 of state ea right to * res nullius^ than any private person. Alien or 
 ownership. c ftj zen rnight occupy them, and became owner by this 
 occupation 7 . On the other hand, in the middle ages the 
 notion of feudal sovereignty favoured the extension of State- 
 ownership to objects of private law, and this view has 
 survived in many modern systems. 
 
 (a) Prussian law gives the State a prior right of occupa- 
 
 8 Cf. Pierantoni, Diritto Costitutionale, Napoli, 1873, i. p. 306 ff. 
 La proprieta dello Stato. 
 
 7 Justinian, Inst. ii. I, 12 : 'Quod enim ante nullius est, id naturali 
 ratione occupanti conceditur/ Cf. Gaius, ii. 66. Klober, Oeffentl. 
 Recht des deutschen Bundes, 337, has put forward the theory that 
 dSedTrora cannot be occupied by foreigners within the State. But why 
 should not a foreigner who catches a bird that flies into his room have 
 as much right to it as a native ? 
 
Chap, vil.] RELA TION OF THE STA TE TO PROPER TV. 253 
 
 tion in the case of certain unclaimed or abandoned property, 
 especially land, cattle, &c. ; and no one can occupy without 
 the State's permission. But in other things it allows a free 
 right of occupation 8 . 
 
 (b) English law makes the king owner of most unclaimed 
 property 9 : but it still recognises a free right of occupancy 
 for certain moveables 10 . 
 
 (c) French law is like the English. It states the general 
 principle, ' Les biens qui n'ont pas de maitre appartiennent 
 a I'fitat u .' 
 
 (d) Austrian law adopts the view that things without 
 owner (freistehende Sachen) may be freely appropriated 12 . 
 
 5. Limitations arising from the supreme sovereignty of 
 the State over land and people, and its obligation to protect 
 the continuous and successive existence of members of the 
 State. To this belong taxation and all police regulation of 
 private property. 
 
 6. Limitations arising from the right of expropriation Expropria- 
 (Enteignung). It is generally assumed that the right of ex- tlon> 
 propriation was not recognised by the Romans, and that, 
 therefore, freedom of property was unconditionally pro- 
 tected even where the public advantage demanded .the 
 cession of property. It is quite certain that they did not 
 
 admit any universal right of cession (Abtretungsrecht). 
 But still, their great canals, their straight military roads, 
 their aqueducts and fortresses, would be inexplicable if the 
 State had not had the power to enforce cession in individual 
 cases. Probably they did as the English to now passed a 
 special law for the particular case. An Act of Parliament is 
 necessary in England if owners are to be forced to resign 
 their properties for public undertakings 13 . 
 
 8 Prussian Law, ii. 16. i ff. 
 
 9 Blackstone, i. 8, quotes Bracton : ' Haec quae nullius in bonis stint 
 et olim fuerunt inventoris de iure natural!, iam efficiuntur principis de 
 iure gentium.' 
 
 10 Blackstone, ii. 16, 26. 
 
 11 Code Civ. Art 713. Cf. Arts. 539, 723, 768. 
 
 12 Austrian Code, 381 ff. 
 
 ^ 3 Cf. Blackstone, i. i, and many recent laws on canals and railways. 
 
254 CONDITIONS OF 7 HE STATE IN NATURE. [Bk. III. 
 
 Qn the continent the right of expropriation has been 
 generally adopted and regulated. Many modern constitu- 
 tions include the principle that the State has a right to 
 enforce cession of property for purposes of public welfare if 
 it pays full compensation 14 . 
 
 This principle is completely justified by the consideration 
 that where the private rights of individuals and the general 
 rights of the public conflict with one another, the latter 
 ought to prevail, but only so far as circumstances demand. 
 The opposing interests are reconciled by cession on the one 
 side and compensation on the other. 
 
 The question whether public interest demands expropria- 
 tion in any particular case belongs to public law, and ought, 
 therefore, to be settled not by a civil court, but by the 
 organs of the government proper, either by the legislature, 
 as in England and the United States, or by the actual 
 executive, as is usual in Germany, or by administrative 
 courts. The latter procedure is fairer, for it is the business 
 of government to settle in each case what the public good 
 demands, and it is best fitted for estimating the means 
 proposed. But the procedure must be such that no arbitrary 
 caprice be allowed to encroach on private rights 15 . 
 
 For examples see Neuester Expropriationscodex, Niirnberg, 1837, and 
 especially Griintrab, Enteignungsrecht, p. 66, foil. 
 
 14 Bavarian Law of 1756, iv. 3. 2. 
 
 Prussian Law, i. n. 4-11. Introd. 73-75. Code Civil, 
 Art. 545 : * Nul ne peut etre contraint de ceder sa propriete, si ce 
 n'est pour cause d'utilite publique, et moyennant une juste et prealable 
 indemniteV 
 
 Austrian Code, 365 : 'If the general good demands it, a member 
 of the State must give up his property in return for due compensation.' 
 
 French Constitution <?/" 1848, Art. n, and to the same effect the 
 Charter of 1814, Art. 9, and the Code. Belgian Const, of 1831, Art. 
 ii. Austrian Law of I Dec. 1867, Art. 5. 
 
 Pruss. Const. 0/1850, Art. 9: ' Property is inviolable: it cannot be 
 taken away or limited except on grounds of public welfare after pre- 
 vious payment, or at any rate arrangement of compensation according 
 to law.' 
 
 15 Bavarian Law 0/1837. Cf. Treichler, ilber die Zwangsabtretung, 
 in the Zeitschrift fur deutsches Recht, Beseler, Reyscher und Wild a, 
 Bd. xii. H. i. For more recent works see Griintrab, Enteignungsrecht, 
 1874, and for a full list of references see Meier und von Holzendorff's 
 jRechtslexikon, i. 764 ff. ; French Law 0/1841, Art. 51 : Zurich Law of 
 
Chap. VII.] RELATION OF THE STATE TO PROPERTY. 255 
 
 The right to enforce cession belongs only to the State, or, 
 in the narrow circle, to the Commune ; never to private 
 persons. But the State may empower individuals or 
 societies to demand cession for special undertakings : 
 railway companies in England and America frequently 
 receive these powers. 
 
 Many legislatures restrict the right to the case of real 
 property and specially - named objects. But the same 
 principle applies equally to personal property and to any 
 public purposes which may be suggested by new discoveries 
 or advance in civilisation. 
 
 On the other hand, the assessment of compensation is Assessment 
 
 , r i , 11-11 ofcompensa- 
 
 entirely a question of private law, and must be decided t ion. 
 either by agreement or by the civil courts. The State is of 
 course bound to give full compensation, that is to say, not 
 merely the ordinary price, but an augmented price sufficient 
 to repay the proprietor for his indirect, as well as his direct 
 interest, but not a merely fancy price. 
 
 Some laws allow the indirect advantage which the 
 proprietor gains by the change to be set against the indirect 
 damage 16 : others, again, refuse to take this into account. 
 The first system, as limited by the Zurich law, is fairer, 
 because it corresponds more nearly with the real relations of 
 value and damage. 
 
 \Note. On the whole subject, see Mill, Political Economy, Book II. 
 Chs. i, ii ; Laveleye, Le Socialisme Contemporain ; Rae, Contemporary 
 Socialism^ 
 
 7. In calculating the indirect damage to the property left in 
 the hands of the owner, any advantage which he gains ought to be 
 fairly set against it; e.g. a road is carried through a garden, the side 
 of the garden which is left loses value as a garden, but gains more as 
 building land. It would be unjust for the State to compensate the 
 first loss. 
 16 Bavarian Law, v. 1837, 6. 
 
BOOK IV. 
 
 THE RISE AND FALL OF THE STATE. 
 
CHAPTER I. 
 
 INTRODUCTION. 
 THE question about the rise of the State may be con- TWO ques- 
 
 T i /- ,. rr . /- ^ tions about 
 
 sidered from two different points of view. Our intention the rise of 
 may be either to examine the conditions and circumstances one his- te ' 
 from which actual States have arisen or to discover the She* 1 ' th ' 
 necessary cause which lies at the basis of all States the s P eculatIve 
 basis of the State in law and justice (Reehtsgrund). The 
 first question is one for history to answer, the other for 
 speculation. History distinguishes the different forms in 
 which the State arises according to the manifold events 
 which it considers. Speculation, starting with the unity of 
 the conception of the State, requires also a unity of origin. 
 
 Let us refer first to history and not enter upon philo- 
 sophical consideration until we know the experience of 
 nations. 
 
 The rise of the first states took place farther back than 
 our knowledge of history extends. There was no conscious- 
 ness of history until there were already many states upon 
 earth. Even the ancient sacred books of the Jews, which 
 inform us of the first rise of the Jewish state, presuppose 
 the Egyptian state, without telling us anything of its origin. 
 Perhaps the Indian state served as a model for the Egyptian ; 
 but the sacred writings of the Indians give us no light on 
 the subject. 
 
 History since then has seen the beginning and the end of 
 very many states, and thus tells us much more of their rise 
 and fall than mere speculation. All the ancient European 
 states have perished centuries ago, and almost all the 
 Asiatic. Most of the states which exist at present had 
 
 S 2 
 
260 THE RISE AND FALL OF THE STATE. [Book IV. 
 
 their birth within a period known to history. Many of them 
 are still quite young. The circumstances and the influences 
 which have brought them into being are not concealed 
 from our view, although, as in all spiritual and physical 
 creation, the creative power itself remains hid as if by a 
 divine mystery. 
 
 The manner of the rise of a State is however not merely 
 a phenomenon of great psychological and historical interest : 
 it exercises a continued influence on the whole life of the 
 State, and determines likewise in great measure its relation 
 to other States \ 
 
 Thus it is even more important for the study of public 
 law to consider the different origins of States, than it is for 
 private law to examine the diverse forms of acquisition of 
 property; yet the moderns have almost completely neglected 
 the former enquiry while carefully considering the latter. 
 Three We may distinguish three different groups : 
 
 formsof 1 * Tne origin^ formation of the State, when it takes its 
 
 StatS 6 f beginning among the people and in the country without 
 being derived from already existing States. 
 
 2. The secondary forms, when the State is produced from 
 within, out of the people, but yet in dependence upon 
 already existing States, which either unite themselves into 
 one, or divide themselves into several. 
 
 3. The derived formation of the State, which receives its 
 impulse and direction not from within but from without. 
 
 The formation of a new State, of which alone we are here 
 speaking, must not be confounded with mere changes in 
 constitution a distinction to which Bodin 2 rightly called 
 
 1 De Tocqueville, Democracy in America (Transl. by Reeve), Part i. 
 ch. 2 : ' All nations bear some marks of their origin : and the circum- 
 stances, which accompanied their birth and contributed to their rise, 
 affect the whole term of their being.' 
 
 2 Bodin, de Rep. iv. c. I, calls the latter ' conversiones ' : * Conversio- 
 nem civitatis appello, cum status ipsius convertitur ac omnino mutatur ; 
 id autem fit, cum imperium populare ad unum, aut paucorum potestas 
 ad omnes cives defertur, contraque.' [Contrast the view of Aristotle, 
 who makes the identity of a State depend upon identity of constitution. 
 Pol. iii. c. 3.] 
 
Chap. I.] INTRODUCTION. 261 
 
 attention. The change of the old Roman Monarchy into 
 a Republic brought no new State into existence, nor again 
 did the overthrow of the Republic and the introduction of 
 the Empire. These changes in the form of government 
 mark different periods of life in the same State, they are not 
 the beginning of different States. 
 
CHAPTER II. 
 
 HISTORICAL FORMATIONS. 
 
 I. ORIGINAL. 
 
 i. Creation THE most original of all the many ways in which a State 
 soiutefy can arise is represented in the legend of the foundation 
 ate ' of Rome. Here everything is new: the people gathers 
 itself round common leaders out of fragments of many 
 different races, and becomes a united Roman people : un- 
 cultivated and unclaimed territory is taken possession of, 
 and becomes the site of the eternal city. In this legend 
 we find the idea of a completely new creation. The 
 organisation of a multitude into a nation does not precede 
 their establishment in a territory : they are connected with 
 the city from the first. Both elements coincide, and the 
 foundation of the State is straightway consecrated by prayers 
 for the blessing of the gods, and legally established by the 
 statutes given by the new king to the people, and approved 
 by them. The creative spirit of the king and the political 
 will of the people meet together in the law of the State, as 
 in a single act *, and the State is the free work of the con- 
 scious national will. 
 
 We may well doubt whether this form of a political 
 'creative act' ever really took place. But it corresponds 
 
 1 Leo, Weltgeschichte, i. 393, says that ' contract' is the characteristic 
 element in the foundation of Rome, and in fact the ancient form of 
 Roman legislation recalls the customary form of obligatory contract, the 
 stipulatio. Nevertheless, Roman law in its essence is no contract, be- 
 tween two independent persons, but a single act of the Roman people as 
 a unit. 
 
ORIGINAL FORMATIONS. 263 
 
 most completely to the idea of the State which comes into 
 life fully formed like Athene from the head of Zeus. 
 
 Secondly, the territory and people may be already there, 2 . Political 
 but the people may not yet have attained to the conscious- tSTo^the 
 ness of political coherence. Here that which creates the of^definhe 
 State is the organisation of the people. We find a cele- territor y- 
 brated model for this also in ancient legend. The Athenians 
 are the children of Attica (avT6 x 0ovc ?), which they inhabited 
 centuries before the Athenian State was founded. Its origin 
 is traced to Cecrops, who first taught reverence for the gods 
 among the rude inhabitants, instituted the family, introduced 
 agriculture and the planting of the olive, arranged the people 
 in tribes or castes, and established government and justice. 
 According to another story, all this is ascribed to king 
 Theseus, who united the scattered communities of the 
 country in a single State and concentrated the government 
 in Athens 2 . According to either version it is the organisa- 
 tion of the people to whom the land belonged which brought 
 the State into being. 
 
 The foundation of the Republic of Iceland is a well- 
 known historical example of this formation of the State 
 by an organisation of a people in a definite country 3 . At 
 first there were only isolated settlements of numerous chiefs 
 (Goden\ seignories of independent Godorde and Dingstdt- 
 ten. But on the proposition of Ulfljot, with the assent of 
 the Godes, a common Allding was formed for the whole 
 population of the island, and for legislation and administra- 
 tion of justice a common organ was provided, to which all 
 
 2 The Athenians called this bringing together of the various cantons 
 into one state vvoitcia. Cp. the learned treatise of W. Vischer, Ueberdie 
 Bildungvon Staaten und Biinden im alien Grieckenland, Basel, 1849. [ T( * 
 gvvoiKta is the name of the festival in memory of Theseus' uniting all the 
 towns of Attica under the single government of the capital, Thuc. ii. 15. 
 The union itself is called gwoittiffis, Thuc. iii. 3. In Attica separate iro\is 
 were formed into one iro\is. This was a more advanced form of union 
 than the formation of a city, such as Megalopolis, out of villages. Cp. 
 Freeman, Federal Government, p. 28 ; Comparative Politics, p. 382.] 
 
 3 Cp. Maurer, Beitrdge zur Rechtsgesch. des germ. Norden, 1852, 
 Heft i. 
 
264 THE RISE AND FALL OF THE STATE. [Book IV. 
 
 Godorde were subject. Thus the population of the island 
 became a nation. 
 
 The foundation of the State of California, which has taken 
 place before the eyes of our contemporaries, is an example 
 of a new people voluntarily constituting itself in a territory 
 belonging to the United States of North America. The 
 thirst for gold had brought together from the whole world 
 an incoherent mass of all sorts of individuals : on the ist 
 September, 1849, they elected representatives to a con- 
 stituent assembly, and on the i3th October the projected 
 constitution of the new State was laid before the people for 
 their approval. All history hardly presents us with an ex- 
 ample which could serve better than this to prove the 
 possibility of forming a State by the free adherence of 
 individuals ; and yet, if we consider this case more closely, 
 it is clear that the decision did not depend upon a contract 
 of all individuals 4 , but upon the will of the majority, and 
 that the unity of the community was necessarily presup- 
 posed. The constitution was created not by the wills of 
 individuals, but by the common will of the whole popula- 
 tion. 
 
 The formations which are produced at the present day 
 within the United States of America have always this cha- 
 racter. First, a * Territory ' is measured off and opened up 
 to colonists. This is at first treated as a province of the 
 union, and the federal government provides for its adminis- 
 tration ; when the population has increased they receive 
 a new constitution, and the Territory is recognised by Con- 
 gress as a new State. 
 
 3 . Occu- It more often happens that a nation is first formed, and 
 
 territory tnat they afterwards take possession of the land as the 
 already second indispensable element for the existence of a State. 
 nation 5 ^his ma y ^ e ca ^ e( i occupation of territory. 
 Conquest. It very frequently takes the form of conquest of an in- 
 
 4 R. v. Mohl works out this example in more detail, and uses it as a 
 confirmation of the theory of Social Contract (Zeitschrift v. Mittermaier 
 fur ausldnd. Rechtswiss. xxvii. 5, 394). 
 
Chap. II.] ORIGINAL FORMATIONS. 265 
 
 habited country. This was the case with the old Jewish 
 State, with the Dorian Greeks, and with the Teutonic races 
 in the Roman provinces and in Slavonic countries. Here 
 the military supremacy of the people is asserted over the 
 inhabitants of the conquered territory. War is indeed a/ 
 destructive agency, but has also a direct influence in the! 
 creation of States. It furthers the political qualities of\ 
 subordination and manly authority, and a victorious people 
 are especially capable of forming a new State in a conquered 
 country. 
 
 States which have arisen in this way have at the beginning 
 of their existence to overcome great internal as well as ex- 
 ternal difficulties. Even if the contest of arms is not 
 renewed, there commonly begins a struggle of civilisations 
 between conquerors and conquered, and this continues until 
 the political unity of the mixed people is complete. In 
 order to guard his newly-organised nation against this 
 danger, Moses commanded the Jews to exterminate with 
 fire and sword the inhabitants of the Holy Land which 
 Jehovah had given them. Many victorious peoples have 
 succumbed to this danger, having been again subdued by 
 the higher civilisation of the conquered race. 
 
 Conquest, although in the form of force, has always 
 among all nations been looked upon as a source of political 
 right. The saying of Alexander the Great 5 , that the con- 
 queror gives the law and the conquered receives it, is still 
 true to-day. 
 
 Certainly the system of rights (Rechtszustand} is still in Might and 
 an immature condition where external force exercises so 
 supreme an influence on the production of new and the 
 destruction of ancient rights ; but rude as is the form of 
 conquest, it yet contains a moral significance which explains 
 its importance in the formation of law. Ancient peoples, 
 
 5 Q. Curtius Rufus, Vita Alexandri, iv. 5. Cp. Grotius, De jure belli 
 ac pacts, iii. c. 8. I, where the saying of the German king Ariovistus 
 to Caesar is quoted : ' Jus esse belli, tit qui vicissent, iis quos vicissent, 
 quemadmodum vellent, imperarent.' (Caesar, De Bella Gallico, i. 36.) 
 
266 THE RISE AND FALL OF THE STATE. [Book IV. 
 
 and especially the Teutonic, regarded war as a great inter- 
 national law-suit, and victory as the judgment of God in 
 favour of the victor 6 . Thus conquest appeared not as mere 
 physical superiority, but as a confirmation of the moral 
 power which justifies political authority. This is not out 
 of harmony with the modern view of the State which seeks 
 to comprehend it as a human institution. Not every vic- 
 tory indeed is recognised as a proof of right, nor every 
 defeat as a sign of wrong. Superiority in the weapons of 
 war cannot any longer be regarded as a ground of right. 
 But the result of the great historical development which 
 from time to time brings to rest the strife of contending 
 peoples, is regarded as a decision of nature and time in 
 the great national and political process, and since moral 
 elements are at work in it, it has the significance of a 
 world-historical judgment. ( History judges the world a .' 
 The subsequent recognition of the new situation as a neces- 
 sity, whether by a treaty of peace or by voluntary submission 
 of the inhabitants, makes good the legal defects of the 
 original occupation 7 . 
 
 Peaceful Another and more peaceful form of territorial acquisition 
 
 is the settlement of political communities in an uninhabited 
 or scarcely cultivated country, with the intention of found- 
 ing a new State there. This is the character of many 
 European colonies in other parts of the world. If the 
 colonisation is directed by the mother State, then we have 
 an example of the derivative form of origin (chap. iv. i). 
 But if the colonists, already constituting an organised 
 society, like the ' Pilgrim Fathers ' in New England, by 
 their own efforts and at their own risk form a new com- 
 
 6 Bluntschli, Studien, p. 202 : ' War is the rude form of maintaining 
 International Law which has hitherto prevailed. But there is a growing 
 consciousness that it is only the prelude to a procedure more just and 
 more worthy of humanity/ 
 
 [ Die Weltgeschichte ist das Weltgericht ; ' said first by Schiller in 
 a poem called Resignation. Cp. Hegel, Phil. d. Rechts, 340.] 
 
 7 Bluntschli, Mod. Volkerr. 701 : ' Conquest does not establish a 
 new and peaceful legal condition until after submission or a treaty of 
 peace.' 
 
Chap. II.] ORIGINAL FORMATIONS. 267 
 
 munity on soil which has hitherto belonged to no State, 
 this is the formation of an essentially original State. If the 
 barbaric natives remain in the territory of the new colony, 
 the difficulty of arranging the relations of the two popula- 
 tions is almost as great as in a conquered country. But 
 the superiority of a civilised over a barbarous people neces- 
 sarily leads to the dominion of the former. 
 
CHAPTER III. 
 
 II. SECONDARY FORMATIONS. 
 
 A. Forma- Two or more States feeling too weak in isolation, or 
 
 Composite desiring to attain a national unity, may join . together in 
 
 fea a gue b be a ^ new and larger Federal State (Bund). This is not founded 
 
 tween States, ^y fa e contract of individuals, but it is either founded or at 
 
 least prepared for by a contract between States. But a new 
 
 collective State does not come into existence until a federal 
 
 constitution has been made. 
 
 Examples of this new form of State are the old Greek 
 confederation of Bceotia, the unsuccessful attempt of Epami- 
 nondas to unite the Arcadians, the Peloponnesian alliance 
 under the leadership of Sparta, the JEtolian and Achaean 
 leagues ; the Samnite league in Italy ; and in the later 
 middle ages the leagues of the German Hanse-towns, of the 
 Swiss confederates, and of the United Provinces (Holland). 
 The State so produced is not simple . but complex, since 
 the various States which form it still remain, and are only 
 united in a new association. Since this association depends 
 at first upon State contract rather than upon State law, suc- 
 ceeding generations inherit the contradiction of several 
 States essentially independent, and yet in other respects not 
 less essentially dependent on the complex State. There 
 results from this a perpetual action and reaction, and 
 frequently a conflict between the particular and the general 
 spirit. 
 
 If the feeling of unity becomes stronger, and the common 
 organisation more developed, then the form of State contract 
 gives place to that of constitutional law. On this distinction 
 
SECOND AR Y FORMA TIONS. 269 
 
 are based the two chief forms of union between States : 
 Confederation (Statenbund) and Federation (Bundesstai) a . 
 Both are composite political bodies, and in so far different 
 from mere alliances which form no new State ; but the first 
 retains the character of a contractual combination of States, 
 the second implies the advance to the formation of a col- 
 lective State or union. 
 
 A Confederation, by joining several States in a political i.Confeder 
 
 i M i r tlon< 
 
 association, presents at least externally the appearance ot one 
 State, of an international personality, but yet is not organised 
 into one central State, distinct from the particular States : 
 the management of the collective State is left either to some 
 particular State as president (r^yc^v, Vorori], or to an 
 assembly of delegates and representatives of all the several 
 States. The former was the case with the Greek leagues 
 under the Hegemony of Sparta and Athens, the latter with 
 the Swiss Confederation up to 1848, and with the German 
 Confederation of 1815. 
 
 In a Federation, on the other hand, there are not merely . Federa- 
 completely organised particular States, but there is an in- 
 dependently organised common or central State. The 
 power of the Federation is not left to one of the particular 
 States nor entrusted to the assembly of them. It has pro- 
 duced its own Federal or National organs which belong only 
 to the collective body. The Achaean league with its common 
 assembly of the people as a legislative body, with its Federal 
 general as chief of the league, with its Federal council and 
 tribunal, was already in some measure such a Federal State. 
 This form of State first appears in modern times in the 
 United States of North America, but not until the act of 
 union of 1787. It was afterwards imitated by Switzerland 
 in* the Federal constitution of 1848. Both constitutions 
 depend no longer on a contract between States, but imply 
 the existence of a common nation and a common State, 
 whose one will makes the constitution and demands obedi- 
 ence from the minority, even of particular States. Thus the 
 
 [Cp. Freeman, Federal Government, i. c. ii. pp. 9-15 ; Comparative 
 Politics, p. 387.] 
 
lion. 
 
 270 THE RISE AND FALL OF THE STATE. [Book IV. 
 
 preliminary stage of Confederation is passed over, and the 
 higher stage of Federation or Union is reached \ 
 
 Both forms of composite State are better adapted for 
 Republics than for Monarchies. This may be clearly seen 
 if we compare the history of the North American and of 
 the Swiss constitutions with the struggles about the reform 
 of the German Confederation. 
 
 3. A Federal The constitution of the North German Confederation of 
 be^formed 1867, and that of the German Empire of 1871, do indeed, 
 North tht both in fact and in law, unite the different political powers 
 Confeder* an( ^ fo rces of Germany in common national action ; but if 
 we consider principles, this constitution is like a butterfly, 
 not yet quite emerged from the chrysalis. The form of its 
 origin points on the one side to a free contract of all the 
 particular states (princes and chambers) ; but the constitu- 
 tion, as a matter of fact, came into existence by the guiding 
 will of the Prussian government in connexion with the 
 labours of the imperial Diet (Reichstag) as the representative 
 of the German nation. Contract and law are here united in 
 a remarkable way, but the representation of the united 
 governments in the Federal Council (BundesratJi) still recalls 
 the earlier Confederate German Diet (Bundestag). The 
 original designation viBundesprasidium (Federal Presidency), 
 which was ascribed to the royal crown of Prussia, had like- 
 wise the same Confederate character. But if we consider 
 the actual powers of the President, and his constitutional 
 authority, especially as Generalissimo, there stands clearly 
 before us the chief of the German Empire. And the con- 
 stitution of the Empire has now recognised this by the 
 majestic name of German Emperor. The institution of the 
 Imperial Diet, has in conception, as well as in fact, more 
 unity than even the North American Congress or the Swiss 
 Federal Assembly. 
 
 1 Cp. on this point the ' Federalist 9 by Hamilton and Madison ; 
 Story's Commentaries on the Constitution of the United States ; 
 Bluntschli, Geschichte d. Schweiz. Bundesrecht, i. p. 352 ; Waitz, 
 Politik, 1862. 
 
Chap, in.] SECOND AR Y FORMA TIONS. 271 
 
 The constitution of the German Empire differs from Differences 
 Republican Federations, mainly in the following respects : the'cer'man 
 
 (a] Many directing organs of the whole State are neces- ^JPJJJ 
 sarily, or in fact, united with the authorities of the particular publican 
 
 ... Federations. 
 
 btates which compose it : thus the German Emperor is the 
 King of Prussia, the members of the Federal Council are 
 identical with the rulers of the particular States, the Imperial 
 Chancellor and a great part of the higher officials of the 
 Empire are Prussian ministers. In Federal States, on the 
 other hand, the two organisms are completely separated. 
 
 (b} In Federations the different States are indeed unlike 
 in power and size, but are together weak in comparison with 
 the union, and so far like one another, but in the German 
 Empire the kingdom of Prussia is much more powerful than 
 all the other States taken together, and therefore must be 
 considered as the chief and presiding authority upon which 
 the power of the Empire mainly depends, without which it 
 is nothing, and round which the remaining German States 
 are grouped. 
 
 (6 - ) The constitution of the Empire, and of most of the 
 particular States, is monarchical. 
 
 These differences are so great that it is better not to in- 
 clude the new German constitution under the already exist- 
 ing notion of a Federal State, but to give it the name 
 ' Federal Empire/ and to regard it as a new and parallel 
 form. 
 
 Allied to the form we have been discussing is the Union B. Union. 
 (in a special sense) of two or more States, either under one 
 common ruler, or as a single new State. Of this there are 
 various kinds and degrees. The union is always imperfect 
 when it is merely personal. This may be merely transitory 4- Personal 
 if the same person happens to succeed to the thrones of two 
 different States, and may afterwards cease if the succession 
 falls again to two different persons. Of this sort was the 
 union of the German Empire and Spain under Charles V, 
 of Poland and Saxony under Augustus II and III, of 
 England and Hanover under the male rulers of the 
 
272 THE RISE AND FALL OF THE STATE. [Book IV. 
 
 Brunswick line, of Schleswig-Holstein and Denmark 
 according to the treaty of 1620. This form of union is the 
 lowest of all. It does not produce a new united State, but 
 only brings two independent States into a mere external 
 relation under the authority of the same prince. 
 
 This Personal Union is permanent when the crown of two 
 States belongs to the same dynasty and devolves according 
 to the same laws of succession. We have examples in the 
 4 Pragmatic Sanction' of 1713 for the States united under 
 the Austrian sceptre, which was accepted in 1722 by the 
 Hungarian diet for the kingdom of Hungary ; in the ac- 
 quisition of the principality of Neuchatel by the King of 
 Prussia in 1707; in the union of Norway and Sweden 
 since 1814; in the agreement between the kingdom of 
 Hungary and Austria since 1867. 
 
 This permanent dynastic union may indeed found a 
 new composite State, but the unity is very imperfect, and 
 usually has no practical importance unless absolute power 
 is really concentrated in the person of the ruler. In all 
 other cases there is in reality something contradictory and 
 discordant in the situation on the one hand, two States 
 with conflicting interests and opinions ; on the other, a 
 common prince who may even, as sovereign of the one 
 State, be obliged to declare war against the other. This 
 form of personal union cannot therefore well be combined 
 with representative government. 
 
 5 . Real A higher unity is to be found in the so-called Real Union, 
 
 which is related to Federation, as Personal Union is to 
 Confederation. In this not merely is the person of the 
 ruler the same, but the supreme government even in legisla- 
 tion and administration 2 . The united States may indeed 
 have a relative independence, within certain limits they may 
 
 ^ a Pozl (Deutsches Statsworterbuch, Art. Union} makes a different dis- 
 tinction between Personal and Real Union. The former, according to 
 him, is the accidental, the latter is the constitutional (grundgesetzliche] 
 coincidence of sovereignty over two or more States in one person. The 
 connexion between Sweden and Norway would thus be a Real Union. 
 
Chap, in.] SECOND AR Y FORMA TIONS. 273 
 
 have special legislatures and executives, but the whole State 
 is one organism, and its highest interests are concentrated 
 in the same hands. Examples are the union of Norway 
 with the kingdom of Denmark by the imperial law of 1536 ; 
 the union of Castile and Aragon, if not at first (1479), vet 
 afterwards under Hapsburg princes ; above all, the Austrian 
 monarchy according to the fundamental law of 1 849 and the 
 constitution of February 1861. 
 
 The constitution of Austro-Hungary since 1867 approaches 
 the forms of Personal Union in the dualism of the two chief 
 States, but there are elements of Real Union in the in- 
 stitutions of a common ministry for foreign affairs, of the 
 imperial army and finances, as well as in the common 
 delegation of the two representative bodies of Austria and 
 Hungary. Each of these chief States themselves began as 
 personal unions, but have now become real unions. 
 
 Complete Union puts an end to the separateness of the 6. Complete 
 united States, and forms not a composite but a single State. 
 
 England and Scotland were originally bound together by 
 a mere personal union, but their Union into Great Britain 
 in 1707, and the later Union between Great Britain and 
 Ireland in 1800, make them examples of a Complete Union. 
 Their separate Parliaments came to an end, and there is one 
 Parliament for the whole realm. More recent examples are 
 to be found in the incorporation of the principalities of 
 Hohenzollern with Prussia in 1849 ; the annexation of the 
 Italian duchies and of the kingdom of Naples to Piedmont 
 in order to form the new kingdom of Italy in 1860-1861; 
 above all, the transformation into Prussian provinces of the 
 kingdom of Hanover, the principalities of electoral Hesse, 
 Nassau, Schleswig and Holstein, and of the free city of 
 Frankfurt. 
 
 Public law was formerly inclined to regard these unions 
 and changes exclusively from a dynastic point of view, as if 
 the matter in hand were only the acquisition or inheritance 
 of several pieces of ground by the same private person. 
 The forms which private law provides for alienation among 
 
 T 
 
274 THE RISE AND FALL OF THE STATE. [Book IV. 
 
 living persons as well as at death (testament, inheritance) 
 were recognised, as if a nation and a country were a bequest 
 with which an individual man could deal as he chose. 
 Modern public law rejects this view, which conflicts with 
 our conception of the State, and insists that such changes, 
 as they essentially concern the public constitution of the 
 nation, must not be arranged without the assent of the 
 people's representatives. 
 
 c. Division. The opposite of union is the division or separation of a 
 greater State into two or more new States. 
 
 7 . National National division is apt to occur especially where different 
 peoples, separated by their very territories, have been ex- 
 ternally united in one State without becoming really one. 
 If the power of concentration which has hitherto held them 
 together is diminished, the natural differences come into 
 play, and the process of separation begins, splitting up the 
 existing whole into a number of new and independent 
 States. Thus the great world-monarchy, which had been 
 for a moment welded together by the genius of Alexander, 
 went to pieces immediately after his death. The Frankish 
 monarchy of the ninth century broke up according to nation- 
 alities ; but this result was partly due to dynastic differences. 
 The fall of the Napoleonic Empire, with its creations of de- 
 pendent kingdoms, may be explained to a great extent in 
 the same way : and so too the separation of Belgium from 
 Holland in 1830. 
 
 s. Division During the middle ages a State was frequently divided 
 
 ance" " among several sons of the deceased ruler, just as an inherit- 
 ance is among several heirs. This procedure, which follows 
 the principles of private law, is quite incompatible with the 
 unity and welfare of a State, and has only been abolished 
 by the recognition of the modern principle of political 
 indivisibility. 
 
 9 ; Deciara- Another form appears when one part of the State declares 
 
 tionofln- . r . 
 
 dependence, itscli independent and becomes constituted into a separate 
 State. 
 
 As a rule the part as such is not justified in rising against 
 
Chap. III.] SECOND AR Y FORMATIONS. 275 
 
 the whole and separating itself by force. History has given 
 examples of warning in many unjustified and unfortunate 
 attempts at separation. At the same time there are declara- 
 tions of independence which have obtained full recognition, 
 and have sufficiently justified themselves. We may recall 
 the separation of the United Provinces from Spain in 1579, 
 the Declaration of Independence of the North American 
 States in 1776, the liberation of Greece from Turkish do- 
 minion in our own days. The principle needs a limitation 
 which may be put as follows : the part is, exceptionally, 
 justified in seceding, if its lasting and important interests 
 are not protected or satisfied by the whole to which it be- 
 longs, and if at the same time it is capable of taking care of 
 itself and maintaining its independent position. Only real 
 necessity and intolerable suffering give sufficient ground for 
 the secession, and only the moral force which proves itself 
 victorious, and overcomes all difficulties, gives a claim to 
 recognition. Under these two presuppositions, this recog- 
 nition will be accorded by the judgment of history 3 . 
 
 3 The American Declaration of Independence treats the principle 
 more lightly, and acknowledges the then prevailing theory of natural 
 rights : 
 
 ' We hold these truths to be self-evident ; that all men are created 
 equal ; that they are endowed by their Creator with certain unalienable 
 rights ; that among these are life, liberty, and the pursuit of happiness ; 
 that to secure these rights, governments are instituted among men, de- 
 riving their just powers from the consent of the governed ; that whenever 
 any form of government becomes destructive of these ends, it is the right 
 of the people to alter or abolish it and to institute a new government, 
 laying its foundation on such principles, and organising its powers in 
 such form, as to them shall seem most likely to effect their safety and 
 happiness. Prudence indeed will dictate that governments long estab- 
 lished should not be changed for light and transient causes ; and accord- 
 ingly all experience hath shown that mankind are more disposed to 
 suffer, while evils are sufferable, than to right themselves by abolishing 
 the forms to which they are accustomed. But when a long train of 
 abuses and usurpations, pursuing invariably the same object, evince a 
 design to reduce them under absolute despotism, it is their right, it is 
 their duty, to throw off such government and to provide new guards for 
 their future security.' 
 
 [Cp. the ideas and phraseology of this Declaration with Locke's Trea- 
 tise of Civil Government, ii. 222, 225.] 
 
 T 2 
 
CHAPTER IV. 
 III. DERIVED FORMATIONS. 
 
 i. Coionisa- THE colonisation of the Greeks, which covered the coasts 
 
 (IToreek ^ tne Mediterranean in Asia Minor, Italy, Sicily and the 
 Islands of the Archipelago with new cities and States, was 
 a conscious formation of new States. The colony proceeded 
 from the mother city like the son who goes out from the 
 family of his father to set up a household of his own. It 
 became immediately a new State independent of the mother 
 city, but bound to it by the ties of descent, manners, law, 
 religion. The young city took the holy fire from the 
 Prytaneum of the mother city, and the ancestral gods were 
 transferred to the new dwelling-place 1 . The Greeks founded 
 no great Empire, but their scattered colonies Hellenised the 
 East 2 . 
 
 (b) Roman. It was otherwise with the colonies of Rome a . They were 
 intended to secure and extend Roman dominion, and they 
 remained therefore in a relation of strict dependence on the 
 capital. They were not the foundation of new States, but 
 only an extension of the existing one State. 
 
 ( ) Modem. Different again is modern colonisation. If we consider 
 the origin of modern colonies founded by European States, 
 especially those in America, there is, as a rule, no direct 
 foundation of new States : the intention is rather to extend 
 
 1 Cp. Hermann, Griechische Staatsalterthiimer, Part iv. The Phoe- 
 nician colonisation was not at first the foundation of new States, but 
 usually came to be so. 
 
 3 Cp. Laurent, Histoire du droit des gens, ii. p. 310. 
 
 a [Cp. Marquardt, Rom. Statsverwaltung, vol. i. p. 35 foil.] 
 
DERIVED FORMATIONS. 277 
 
 the dominion and civilisation of the old country or to obtain 
 a new economic existence, or, sometimes, to escape per- 
 secution at home. In South America the dependence of 
 the colonies on the Romance States of Europe was greater 
 than in the North, where the Teutonic feeling of freedom 
 and tendency to form corporations caused or at least favoured 
 a considerable degree of colonial independence. 
 
 But if one looks to the later development and history of 
 these colonies, they have mostly attained to an independent 
 existence, and have thus separated themselves from European 
 rule and become independent States. This sort of coloni- 
 sation may be rather compared with the birth of a child, 
 who increases the family as a dependent member, but after 
 he has grown up in body and mind goes off and founds a 
 new family. 
 
 Another derived formation of the State often took place 2. Concession 
 in the middle ages in the form of a concession of sovereign rights. 
 rights to particular parts of the State. A whole series, 
 especially of German districts, principalities, dominions, 
 imperial cities, became independent States by obtaining 
 particular sovereign rights from the king, and gradually 
 increasing these until at last the king retained only an 
 appearance of supremacy without any real power. Thus 
 what had previously been parts of one State, became in the 
 course of centuries independent States. The outward form 
 of such concession was frequently that of private acquisition 
 by purchase or loan, and is thus not adapted for the modern 
 state. Even in the middle ages, however, that was not 
 essential, and thus at the present day it is practically 
 possible that a State with clear consciousness should train 
 up a part of its dominions and confer on it sovereign rights. 
 England proceeds in this manner towards Canada and 
 other of her dependencies. 
 
 Finally, there is the institution of a new State by a foreign 3- institution 
 ruler, especially by a conqueror whose fiat destroys old States rule*. "' 
 and calls forth new ones. Europe saw, in the years of the 
 Napoleonic rule, a number of States destroyed and others 
 
278 THE RISE AND FALL OF THE STATE. 
 
 set up by the will of the Emperor. But these arbitrary 
 creations of momentary power attained to no real living 
 force, and had scarcely been called into being when they 
 died off or were destroyed an eloquent proof that of all 
 forms of State formation, this is the most imperfect and the 
 least secure. 
 
CHAPTER V. 
 
 FALL OF STATES. 
 ALL the past history of the world testifies against the The common 
 
 , . ~ . ~ . . . . . ' cause of the 
 
 immortality of the State, and the earth is covered with the mortality O f 
 
 ruins of the fallen. The occasions and the forms of this be^ouncf in 
 
 fall are different, as are the causes of death in the individual. nature* 
 
 But from the fact that all States perish, we may perhaps 
 
 infer a common cause of their mortality. This cause cannot 
 
 be found in national demoralisation ; for demoralisation is 
 
 not necessary, and not always present, and on the other 
 
 hand history teaches us that even demoralised peoples may 
 
 live a long time, just as immoral men may sometimes attain 
 
 a great age. Nor again in bad government : many a State 
 
 has outlived several generations of bad rulers. Nor again, 
 
 as has recently been maintained by Gobineau, in the mixture 
 
 and degeneracy of race. Many States have become great 
 
 and powerful by this mixture of blood, and have continued 
 
 to flourish, although the national race has been essentially 
 
 altered, e. g. Rome, England, the United States of North 
 
 America. The true cause is to be found in the great law of 
 
 all organic life, that it is developed by history and consumed 
 
 by it. The life of a nation unfolds itself, and in gradually 
 
 revealing what is in it fulfils its destiny and dies, overtaken 
 
 and left behind by the unwearied advance of time with 
 
 which it cannot keep pace. 
 
 Progressive humanity finds no complete satisfaction in 
 any particular State, and swallows them all up. If there 
 
280 THE RISE AND FALL OF THE STATE. [Book IV. 
 
 ever comes into being a world-empire on the broad basis of 
 the whole human race, then may we hope that this State 
 will endure as long as mankind itself. 
 
 special The special forms of the fall of States correspond in great 
 
 faiTof states: measure to the modes of formation, and not infrequently 
 
 old States are destroyed when new are founded. The death 
 
 of one State is often immediately followed by the birth of 
 
 the other. 
 
 i. National The opposite of the organisation of the nation is its dis- 
 sationT H organisation or dissolution. A particular form of dissolution 
 is anarchy. If authority is no longer regarded, if every one 
 does that which is right in his own eyes, and no one cares 
 any more for the community, nor sacrifices anything to it, 
 then the organised nation sinks to a chaotic mass. Anarchy 
 destroys the very principle, and not merely the existing 
 form, of the State; but complete and lasting anarchy is 
 very seldom to be found in the history of the world : more 
 frequently anarchical conditions are only passing and transi- 
 tory crises which threaten the life of the State, but often 
 only prepare a new arrangement of the constitution. It is 
 just in these times of violent convulsions that the political 
 character of the Aryan race shows itself in a remarkable 
 way. Even at the very moment in which they overthrow 
 the political order with the rage of hatred, they yet submit 
 themselves to the necessary forms of political existence, and 
 whilst in confusion of ideas they are enthusiastic for anarchy, 
 they obey blindly those leaders who are wildest and strictest. 
 Behind the triumph of the disenthralled masses, intoxicated 
 with freedom, appear the cold iron features of the dictator, 
 and on the ruins of the old constitution the people creates 
 for itself a new, perhaps a worse, political habitation. Even 
 the nations of the great Aryan families are not immortal, 
 but, so long as their life lasts, they cannot dispense with 
 the political form of their existence any more than the fish 
 can do without water, or the bird without air. There is no 
 single example in history of an Aryan people permanently 
 separating itself from the bonds of the State, or even 
 
Chap. V.] FALL OF STATES. 281 
 
 sinking back into the condition of Nomads. In the six- 
 teenth century the Anabaptists completely rejected the idea 
 of the State, like the Communists of the present day. But 
 when they had the opportunity of making an attempt to 
 introduce their non-political community, they set up a cari- 
 cature of the State. 
 
 The State perishes by the migration of a people from 2. Migration. 
 the land of their fathers, such as that which the Helvetii 
 attempted in Caesar's time, or by the expulsion of a people 
 from their home, as frequently happened in the barbarian 
 migrations at the fall of the Roman Empire ; and it is 
 generally uncertain whether the migrating people are to 
 succeed in obtaining a firm rule over another country, and 
 thus founding a new State. 
 
 The conquest of a country, and the subjection of a 3. Conquest. 
 hitherto independent people by a foreign power, is more 
 often the destruction of an old than the creation of a new 
 State : the consequence is generally only the further ex- 
 tension of the victorious State. In this way Rome swallowed 
 up many States and extended her dominion over their 
 territory and population. The submission (deditio) of the 
 weaker people is indeed voluntary in appearance, but as 
 a rule it is the work of necessity and compulsion, and is 
 thus only a form of subjection. 
 
 Complete union brings with it the extinction of the par- 4- Voluntary 
 
 . ~ . . absorption. 
 
 ticular States, but, as it creates at the same time a new 
 larger State out of the same nation, it may be regarded as a 
 voluntary renunciation on the part of the particular States of 
 their previous separate existence. 
 
 The opposite of the absorption of smaller States in a s> Voluntary 
 
 ~ .,,... ,, . . separation. 
 
 larger common State is the division of an empire into Compulsory 
 several States, or the partition of one State among several pa 
 foreign States. The former may occur organically without 
 external compulsion by the different parts affirming their 
 particularism more and more and then separating ; but the 
 latter is commonly the work of foreign force. The partitions 
 of Poland (1772, 1793, 1795) are terrible examples of such 
 
282 THE RISE AND FALL OF THE STATE. 
 
 unjust force, in an age which prided itself on its enlighten- 
 ment and humanity. 
 
 6. with- As the concession of sovereign rights forms new States, 
 
 renunciation so by the withdrawal or renunciation of sovereign rights, pre- 
 r4hts? reiJ viously independent States may gradually lose their political 
 existence. The history of the German Empire offers ex- 
 amples of this mode of formation, the history of France 
 of this mode of extinction. The centralisation of France, 
 especially since Louis XI, has thus by degrees abolished 
 a number of * sovereign seigniories ' ; but Germany too, 
 since the Revolution, has shown a similar tendency in its 
 mediatisations. 
 
CHAPTER VI. 
 
 SPECULATIVE THEORIES. 
 I. 'THE STATE OF NATURE.' 
 
 PHILOSOPHICAL speculation is fond of imagining a primitive . The 
 condition in which men lived without government, and then Ag e . en 
 asking how from that condition mankind has arrived at the 
 State. The popular imagination has often decked out this 
 primitive condition with smiling pictures of innocence and 
 abundance of natural enjoyments, and dreamed of a golden 
 age of Paradise, in which there were as yet no evils and no 
 injustice, while all enjoyed themselves in the unlimited 
 freedom and happiness of their peaceful existence. In this 
 primeval condition there was supposed to be no property, 
 since the superabundance of nature gave to every one in 
 sufficiency all that his unsophisticated and uncorrupted 
 tastes could require. As yet there was no difference of 
 ranks, nor even of callings. Every one was like another. 
 Then too there was neither ruler nor subject, nor magistrate, 
 nor judge, nor army, nor taxes l . 
 
 In comparison with such an ideal the later political con- The state 
 dition of man must appear perversion and decline. Only sa ry evil/ 
 when men encountered previously unknown plagues, when 
 
 1 Shakespeare depicts this state of nature ' with brilliant irony in the 
 Tempest, Act ii. Scene i, line 140 ff. 
 
284 THE RISE AND FALL OF THE STATE. [Book iv. 
 
 passions were aroused in their breasts, and new dangers ap- 
 peared, and guilt destroyed the peace of their souls, was 
 there needed a power to terrify and to punish the wicked, 
 and to secure the enjoyments of all against disturbance. 
 Thus the State was thought of as a necessary evil, or at 
 least as an institution of compulsion and constraint to avoid 
 greater evils. 
 2. The state In opposition to this childish and cheerful idea of Para- 
 
 of Nature as . . 
 
 a state of disc, other and sometimes morose philosophers imagined 
 
 the non-political condition of man as much worse than the 
 
 political, as a condition of ceaseless hate and war of all 
 
 against all : and if even they thought the State an evil, yet 
 
 this evil was more endurable and less than the original 
 
 ' state of nature ' in which men were like wild beasts a . 
 
 This philosophical idea found a welcome confirmation in 
 
 the theological speculation which regarded the State not as 
 
 the organisation of Paradise, but of fallen humanity. 
 
 Both views Both these views overlook the political nature of man, 
 
 overlook k^ jg nore tne t ru th 2 w hich Aristotle expressed so well, 
 
 nature* 1 tnat man ^ s ' a political animal.' We may imagine a condi- 
 
 a [According to Hobbes, Leviathan, Part i. chs. xiii, xiv, the natural 
 condition of man, i. e. his condition ' out of civil states,' is ' a condition 
 of war of every one against every one.' Cp. Spinoza, Tract. Pol. c. ii. 
 14 : * Homines ex natura hostes.' c. v. 2 : ' Homines civiles non 
 nascuntur sed fiunt.' But these expressions of Hobbes and Spinoza are 
 to be understood rather as a logical statement of what would be the con- 
 dition of man apart from civil society, than as distinctly implying a 
 historical theory. They err from ignoring history rather than from as- 
 serting false history. The word ' natural ' is used merely in the negative 
 sense of ' non-civil ' or * non-political,' and thus is the very reverse of 
 Aristotle's tyvais, which, as he tells us, is to be found in the end (reAos) 
 or completest development of anything. Pol. i. 2, 8, I252b. 32. In 
 16, 1253 a. 31 he says almost the same thing as Spinoza, op. cit. c. ii. 
 
 140 
 
 2 Rousseau (Disc, sur Vinegahte des conditions parmi les homines) : 
 1 L'homme, dans 1'etat de nature, repugne a la societe.' Mirabeau an- 
 swered him excellently : ' Non settlement 1'homme semble fait pour la 
 societe, mais on petit dire qu'il n'est vraiment homme, c'est-a-dire un 
 etre reflechissant et capable de vertu, que lorsqu'elle commence a s'or- 
 ganiser. Les hommes n'ont rien voulu ni du sacrifier en se reunissant 
 en societe : ils ont voulu et du etendre leurs jouissances et V usage de la 
 liberte^ par les secours et la garantie reciproques.' (Essai sur le despo- 
 tisme.} 
 
Chap. VI.] THE STATE OF NATURE. 285 
 
 tion of man which preceded the rise of the State, but this 
 condition could never have satisfied his higher needs 3 , and 
 it was an immeasurable advance in his development when 
 the germ of political capacity unfolded itself and came to 
 light. 
 
 3 Plato (Rep. ii. 369) makes the State come into being, because the in- 
 dividual man is not self-sufficing (ai/rap/cr)?). 
 
CHAPTER VII. 
 
 II. THE STATE AS A DIVINE INSTITUTION. 
 
 IN antiquity as well as during the middle ages the belief 
 in the divine institution of the State was more extended 
 and more intense than at the present day. But even then 
 this divine foundation of the State was understood in very 
 different senses. 
 
 1. The state According to one view, the State was the immediate 
 founded by work of God, the direct revelation upon earth of the divine 
 
 government. This view lay at the basis of the Jewish theo- 
 cracy, and its logical consequence is always the theocratical 
 form of the State to which alone it is adapted. If God has 
 founded the State directly, it is natural that He should main- 
 tain and govern it directly. 
 
 2. AS in- According to another view, the State is only indirectly 
 founded by founded by God, and is only indirectly governed by God 1 . 
 
 This view was shared by the Greeks and Romans. Their 
 States were by no means theocratic but thoroughly human, 
 yet no public business of any importance was undertaken in 
 antiquity without prayer and sacrifice preceding, and the 
 care of the auspices, by which the will of the gods was dis- 
 covered, occupied a great place in the public law of the 
 Romans. They united a consciousness of human freedom 
 
 1 It is only in this sense that Niebuhr (Gesch. d. Zeit der RevoL i. 214) 
 calls the State ' an institution ordained by God, and belonging to the 
 essential nature of mankind, like marriage and the paternal relation. 
 But it is an institution which cannot become perfect in this world. The 
 State, as it actually exists, is only a shadow of the divine idea of the 
 State.' 
 
THE STATE AS A DIVINE INSTITUTION. 287 
 
 and self-determination with the belief in a divine direction 
 of human affairs ; and if even in the destiny of the indi- 
 vidual the power of the gods was felt, it appeared to them 
 still clearer that the destiny of that great moral community, 
 which we call the State, could not be separated from the 
 will and working of deity 2 . Were they mistaken ? 
 
 It is self-evident that Christianity cannot regard the State 
 as outside the divine ordering and government of the world. 
 It is significant for the Christian conception that the apostle 
 Paul, at a time when the Emperor Nero was persecuting the 
 Christians, addressed these famous words to the Romans 
 (xiii. i): 'Let every soul be in subjection to the higher 
 powers : for there is no power but of God ; and the powers 
 that be are ordained of God.' Thus it is natural enough 
 that during the whole middle ages, in all Christian States, 
 the sovereign authority was derived from God, and the 
 highest authority, that of the Emperor, immediately and 
 directly 3 . 
 
 2 Haller (Restaur. i. p. 427) cites a fine passage of Plutarch, in which 
 he says : ' A city might more easily be founded without territory, than a 
 State without belief in God.' Cp. Washington's Inaugural Speech to 
 Congress in 1789: ' It would be peculiarly improper to omit, in this first 
 official act, my fervent supplication to that Almighty Being, who rules 
 over the universe, who presides in the councils of nations, and whose 
 providential aids can supply every human defect, that His benediction 
 may consecrate to the liberties and happiness of the people of the United 
 States a government instituted by themselves for these essential purposes, 
 and may enable every instrument employed in its administration to exe- 
 cute with success the functions allotted to his charge. In tendering this 
 homage to the great Author of every public and private good, I assure 
 myself that it expresses your sentiments not less than my own, nor those 
 of my fellow-citizens at large less than either. No people can be bound 
 to acknowledge and adore the invisible hand which conducts the affairs 
 of men more than the people of the United States. Every step, by which 
 they have advanced to the character of an independent nation, seems to 
 have been distinguished by some token of providential agency.' [The 
 Speeches are given in Sparks, Life of Washington, vol. ii.l 
 
 8 This is also the meaning of the Constitutio Ludovici Bavarici of the 
 year 1338 : * Declaramus quod imperialis dignitas et potestas est imme- 
 diate a solo Deo (i. e. not indirectly, mediate, through the Pope) statim 
 ex sola electione (by the Electors Kurfursten] est Rex verus et im- 
 perator Romanorum censendus,' The Augsburg Confession (1530) 
 teaches in its i6th Art.: 'That all authority, government, law and order 
 in the world have been created and established by God Himself.' 
 
288 THE RISE AND PALL OF THE STATE. [Book IV. 
 
 Erroneous Grand as is the view which connects the rise and fall of 
 
 the^divfne States with the divine government of the world, and high as 
 
 "hTsTau. its moral significance is always to be accounted, we must not 
 
 overlook that this is essentially religious, and not political ; 
 
 and thus this idea, if made a political and legal principle, 
 
 causes and palliates errors and abuses. Thus : 
 
 Monarchical i. God has indeed made man a political being, but at the 
 
 llce ' same time has made him free to realise the implanted idea 
 
 of the State by his own exertions and according to his own 
 
 judgment, and in the forms which seem suited to him. It 
 
 is a profound error to reject particular forms of the State, 
 
 for instance the republican, because God rules the world as 
 
 a king. 
 
 The prince as 2. Authority is indeed in principle and in fact dependent 
 se tative* 6 on God, but not in the sense that God has exalted particular 
 privileged persons above the limitations of human nature, 
 set them nearer to Himself and made them demigods, nor 
 in the sense that God has named human rulers as His per- 
 sonal representatives, identical with Himself so far as their 
 authority extends 4 . Such theocratical ideas contradict the 
 human nature of those to whom the government of the State 
 is entrusted. The proud words of Louis XIV, * We princes 
 are the living images of Him who is all holy and all power- 
 ful V are a blasphemy towards God, and an insult towards 
 his subjects men as much as he. 
 Authority as 3. Many understand the authority, distinct from the per- 
 
 such divine. , . . ....... 
 
 sons who exercise it, as superhuman and politico-divine. 
 Stahl says 6 , ' The authority of the State is of God, not only 
 
 * Cp. Stahl, Statslehre, ii. 48 : ' According to the theocratic con- 
 ception of the middle ages, the chiefs of Christendom are the representa- 
 tives of God Himself. Rulers (Pope, Emperor, and Kings) have thus in 
 their own persons the fulness of His authority/ 
 
 5 (Etwres de Louis XIV, ii. p. 317, where the following passage 
 occurs: 'Celui qui a donne des rois au monde a voulu qu'ils fussent 
 honores comme ses representants, en se reservant, a lui seul, le droit de 
 juger leurs actions. Celui qui est ne sujet doit obeir sans murmurer : 
 telle est sa volonteV 
 
 6 Statslthre, ii. 43. On the other side cp. Macaulay in the passage 
 quoted infra, Bk. vi. ch. xiv : footnote 2. 
 
Chap. VIL] THE STATE AS A DIVINE INSTITUTION. 289 
 
 in the sense that all rights are of God, property, marriage, 
 paternal authority, but in the quite specific sense, that it is 
 the work of God which He regulates. The State rules, not 
 merely in virtue of the rights which God has given it, as 
 a father does over his children, but it rules in the name 
 of God, therefore it is that the State is clothed with 
 majesty/ But this is to come back to an objective theo- 
 cracy, which would practically lead to the ruler being 
 considered the personal representative of God a view 
 which Stahl himself rejects and would introduce again 
 all the assumptions and abuses bound up with it. Christ 
 himself by his saying, ' Render unto Caesar the things that 
 are Caesar's,, and unto God the things that are God's,' has 
 clearly and decidedly pointed out the human character of the 
 State, and rejected every identification of political authority 
 with specifically divine rule. Therefore political science 
 does well in considering the existence and institutions of 
 the State from the human point of view. 
 
 4. Not infrequently the immutability of the existing con- Divine right. 
 stitution, and especially of the person of the ruler or of his 
 dynasty, has been defended by the principle that the ' powers 
 that be are ordained of God.' But that the immutability of 
 the external forms and of personal relations is no necessary 
 part of the divine government of the world, is shown by the 
 whole of history ; and Paul's very advice, to obey * the 
 powers that be,' recognises indirectly the mutability of poli- 
 tical institutions. In the seventeenth century, indeed, that 
 precept might cause many pious Englishmen to have sincere 
 scruples whether it was right to resist the tyranny of James 
 II, and to deprive him of his throne ; but after William of 
 Orange was recognised as king by the nation and the parlia- 
 ment, even the most scrupulous and conscientious religious 
 Tory could honour in him 'the power ordained of God V 
 
 [The non-juring Tories were by no means in such a hurry to recog- 
 nise William III. They maintained that the de facto king was not king 
 de jure. Bluntschli seems to have taken his idea of the scrupulous 
 religious Tory from the * Vicar of Bray.'] 
 
 U 
 
290 THE RISE AND FALL OF THE STATE. [Book IV. 
 
 irresponsi- 5. It is the same with the question of responsibility. 
 That statesmen to whom much is entrusted, and that 
 princes who have power conferred on them, are responsible 
 to God for what they do or omit, follows from the previous 
 principle ; but that does not decide on the further question, 
 whether and how far they are also responsible to a human 
 judge. Irresponsibility to human judges is claimed for the 
 highest authority in the State, not because it is specially 
 divine, but simply because it is the highest. 
 
 The statesman must not, in the belief that God deter- 
 mines the destiny of nations and States, and in the con- 
 fidence that God will govern well, tempt God and shirk his 
 own responsibility. Rather, he is not freed from his own 
 responsibility, until he has conscientiously fulfilled the task 
 entrusted to him to the best of his power 7 . 
 
 History of Note. The history of the expression c by the grace of God/ which is 
 sioV^b^the added to the title of kin g s > deserves attention. At different periods it 
 grace of has had different senses. 
 
 (a} The expression was especially used in the middle ages. The old 
 Frankish kings used indifferently the forms, 'gratia Dei,' ' divina ordi- 
 nante providential ' divina favente gratia? l divina favente dementia] 
 i per Dei miser ic or diam? At that time the expression signified merely 
 the humble reverence and religious gratitude of the king towards God, 
 to whom he ascribed his personal elevation ; but it was used by elected 
 as well as hereditary princes. King Pipin, who owed his elevation to a 
 revolution, used the formula as readily as his son Charles the Great. 
 
 In the Frankish period it expressed no sovereign power. Bishops and 
 abbots, although legally chosen or appointed by kings, and temporal 
 counts, although royal officials, added this formula to their titles. 
 
 (b) In the German-Roman Empire the expression at first continued in 
 the same way. Not only elected kings, but dukes, counts who held 
 offices under the king, and bishops and abbots recognised in the same 
 way the grace of God. Sometimes temporal magnates add to the grace 
 of God the grace of the emperor, and spiritual princes the grace of the 
 pope ' Dei et imperiali gratia? ' Dei et apostolicae sedis gratia! 
 
 7 Lamartine, Revolut. de 1848, i. p. 47, says 'of himself: 'II tentait 
 Dieu et le peuple. Lamartine se reprocha depuis severement cette 
 faute. C'est un tort grave de renvoyer a Dieu ce que Uieu a laisse a 
 rhomme d'Etat, la responsabilite ; il y avait la un defi a la Providence.' 
 
Chap. VII.] THE STATE AS A DIVINE INSTITUTION. 291 
 
 Gradually, however, the exclusive use of the phrase ' Grace of God ' 
 comes to signify immediate or direct authority ; as opposed to the derived 
 authority of a vassal. The expression corresponded above all to the 
 mediaeval tendency to derive all power from God. 
 
 (c ) After the Reformation the Lutheran theologians began to proclaim 
 the saying of Paul, 'the powers that be, are ordained of God,' as a 
 Christian dogma, and to declare those in authority the anointed repre- 
 sentatives of God. Luther himself was less narrow ; he once wrote to 
 King Henry VIII of England : ' I, Martin Luther, by the grace of God 
 ecclesiastes, to Henry, by the ungrace of God King of England.' . . . 
 The theologians who held by the letter did not consider that the apostle 
 Paul expressly applied that saying to the Roman Emperor Nero, who 
 had received his power from the Roman people, and meant to oppose 
 the theocratically minded Jewish Christians who contemned the heathen 
 emperor. They overlooked the fact that the apostle Peter had quite the 
 same intention, when he recommended to the Christians obedience to 
 human government (i Peter ii. 13). They gloried in being the defenders 
 of the divine right of temporal princes. 
 
 (0 Still more decidedly Louis XIV of France and James II of Eng- 
 land attempted to make ' the grace of God ' a new political dogma, and 
 thereby to obtain a higher sanction for the absolutism of the king. 
 Unlike all the other human rights of property, family, parliament, the 
 right of the king was to be specifically divine, that is to say, absolute. 
 He was to be raised above the sphere of human law. Meantime the 
 French estates refused to sanction the king's divinity, and the English 
 Parliament resisted still more vigorously. The English Revolution of 
 1688 and the French Revolution of 1789 definitely rejected this theo- 
 cratical principle. 
 
 (e] The most decided adversaries of this principle were the German 
 publicists, PufTendorff and Thomasius, but above all, Frederick the 
 Great, who saw in it the fundamental error of European politics. 
 
 (/") Stahl has recently attempted to give a new acceptance to the 
 false idea, and to smuggle it anew into the theory of the State in the 
 form of an objective divine right of authority, as distinct from the per- 
 sonal deification of the absolute king. In vain : the modern world 
 cannot be bewitched by this abortive product of a diseased imagination. 
 
 U 2 
 
CHAPTER VIII. 
 
 III. THE THEORY OF FORCE. 
 
 Might is THE State is the work of violent domination, it is based 
 on the right of the stronger.' Thus we are assured by 
 certain philosophers, but still oftener by despots 1 . 
 
 This doctrine is favourable to despotism, for it justifies 
 every act of violence ; but it may also serve the purpose of 
 revolutionaries as soon as they are strong enough to exercise 
 force openly. It is ordinarily invoked by the brutal might 
 which violates right. It is a sophism attractive only for the 
 strong, more likely to crush than to deceive the weak : it 
 may deceive the man who holds it, but not others. 
 
 It has been said that history proves the truth of this 
 opinion. Certainly, force shows itself more often in the 
 foundation of States than contract, but only very seldom has 
 brute force alone arbitrarily produced States, and never great 
 and lasting States. As a rule, if force, especially in the 
 form of war, has had its share in the foundation of new 
 States, the force was still only the servant of real claims of 
 right. It was not the source of right, but only broke through 
 the obstacles which prevented it flowing in its proper chan- 
 nels. Might did not create right, but supported it, and 
 compelled recognition for it. Wherever in history force 
 appears in its nakedness, there it is not an instrument of 
 creation, but of destruction and death. 
 
 1 Plutarch (Life of Camillus. c. 17) puts this theory into the mouth 
 of the Gallic king Brennus : ' The most ancient of all laws, which ex- 
 tends from God to the beasts, gives to the stronger rule over the weaker.' 
 
THE THEORY OF FORCE. 293 
 
 This doctrine is a most flagrant contradiction of the con- 
 ception of personal freedom. It recognises only masters 
 and slaves. By free men (liberi] it understands freed men 
 (libertini\ It equally contradicts the idea of Right or Law, 
 which manifestly has a spiritual and moral significance : 
 mere physical force ought to serve right and, if it pretends 
 to be right, it has risen against its proper master 2 . 
 
 However, even the errors 01" this doctrine contain a re- Element of 
 siduum of truth. It makes prominent one element which doctrine. 
 is indispensable to the State, namely force (Macht\ and has 
 a certain justification as against the opposed theory which 
 bases the State upon the arbitrary will of individuals, and 
 leads logically to political impotence. It lays emphasis on 
 realities and on facts, and warns us against vain attempts at 
 realising the dreams of mere speculation, where natural 
 forces resist. 
 
 Without force a State can neither come into being nor 
 continue. Force is required within, as well as without ; 
 where force has produced firm and enduring results, it seeks 
 and commonly obtains a connection with right, that is a 
 recognition and purification by means of right. Without 
 right the might of the stronger is brutal, it is the wolf that 
 devours the lamb. United with right, it becomes worthy of 
 the moral nature of man. 
 
 2 ' Le plus fort n'est jamais assez fort pour etre toujours le maitre, s'il 
 ne transforme sa force en droit, et 1'obeissance en devoir.' Rousseau, 
 Contr. Soc. i. ch. 3 ; quoted by Schmitthenner, Statswissenschaft, i. 
 P- IS- 
 
CHAPTER IX. 
 
 IV. THE THEORY OF CONTRACT. 
 
 influence of ESPECIALLY since the time of Rousseau-, the doctrine 
 
 the theory of , i /- r 
 
 the social that the State is a free work of contract, of convention 
 between its citizens, has enjoyed great and wide-spread 
 popularity. It flattered men's self-complacency ; for every 
 one might fancy himself a founder of the State : and it 
 appeared to suit the wishes of all ; for every one might in- 
 terpret the terms of the contract as he chose. This theory 
 obtained a fatal authority at the time of the French Revo- 
 lution. By the help of it the old political forms were torn 
 down, and manifold but unsuccessful attempts were made 
 to erect on the ruins a new edifice which should please 
 everybody. But, although this theory found especial ac- 
 ceptance as the justification of revolution, it had served 
 before to defend the legitimacy of absolute rule". 
 
 [It should be noted that the Theory of Contract is applied in dif- 
 ferent ways by Hobbes, Locke, and Rousseau. According to Hobbes 
 (Leviathan, ch. 17) men only pass from the 'state of nature' to the 
 social state by surrendering their rights to a sovereign (one, few, or 
 many). Locke (Treatises on Government, Book ii. ch. ii. 6) supposes 
 rights, e.g. of liberty and property, to exist in the state of nature : by 
 the 'original compact' (Locke uses the term 'compact,' not ' contract') 
 a form of government is instituted to secure these rights (c. viii). Ac- 
 cording to Rousseau men pass from the state of nature to the social 
 state by the social contract (as on Hobbes's theory), but the sovereign to 
 whom each surrenders his rights is 'the people,' so that each is sovereign 
 as well as subject (Contr. Soc. i. c. 6). This sovereignty is inalienable 
 (ii. c. i) : a government is not instituted by a contract (iii. c. 16) ; the 
 government is only the minister of the General Will. Thus, according 
 to Hobbes, a revolution against the de facto government, which he 
 identifies with the sovereign, implies a return to the state of nature, 
 
THE THEORY OF CONTRACT. 295 
 
 What was said of the theory of force applies conversely in 
 this case. The theory of force, as a rule, favours despotism, 
 but may, exceptionally, excuse the results of revolution. 
 The theory of contract is especially favourable to anarchy, 
 but exceptionally defends the oppression of minorities by 
 arbitrary majorities, or the tyranny of a conqueror over 
 those who have surrendered to him. 
 
 This theory claims universal validity. It makes the rise, The theory 
 and in a certain sense also the continuance, of all States U1 
 depend on contract. But history does not afford a single 
 instance in which a State has really been brought about by 
 contract between individuals. There are indeed particular 
 cases of contracts between two or more States which have 
 produced a new State : there are also some cases in which 
 princes and chiefs have, by a contract with particular classes 
 or estates of the people, produced new constitutions : but 
 there is no instance in which a State has been formed like 
 a trading or an insurance company by its * equal ' citizens. 
 The opinion that the continuance of States depends upon a 
 perpetual renewal of contract between individuals, receives, 
 as little support from history. Rather do we find that the 
 individual is born as a member of the State, and is begotten, 
 born and educated with the particular characteristics of his 
 nation and his country before he is in a position to have and 
 to express a will of his own. 
 
 The evidence of history is thus absolutely opposed to this 
 theory. Even at the time when the doctrine of social con- 
 tract was most widely accepted and exercised most influence, 
 it was contradicted by manifest facts. The people was 
 broken up into ' free and equal citizens, 7 but even in the 
 primary assemblies the minorities did not contract with the 
 
 anarchy, and is quite unjustifiable. According to Locke, a revolution 
 might be justifiable, where the government had ceased to fulfil the trust 
 reposed in it, i.e. to protect personal rights. According to JRousseau, 
 a revolution would be only a change of ministry. Contrary to what is 
 very commonly supposed, Locke does not speak of any contract between 
 government and people. His theory is almost identical with that of 
 Rousseau. Cp. T. H. Green, Works, ii. pp. 366-396.] 
 
296 THE RISE AND FALL OF THE STATE. [Book IV. 
 
 majorities, who carried out their will as if it had a superiority 
 and validity of its own. The Constituent Assembly was 
 indeed regarded as a selection and a representation of all 
 the citizens, and had as its appointed task to agree upon a 
 constitution ; but even here the form of procedure was that 
 of a decision of one united body, rather than of a contract 
 between a number of individuals. People adopted a fiction 
 of contract, and deceived themselves and others by speaking 
 of the consent of individuals, where the majority, as organ 
 of the whole, was exercising an authority which was often 
 an intolerable tyranny \ 
 The theory This theory may be disproved not only by history but by 
 
 illogical. ..,../ T , , , ,. 
 
 logical criticism. It assumes the freedom and the equality 
 of the individuals who conclude the contract ; but political 
 freedom, which is here presupposed, is only conceivable in 
 the State, and not outside it. Man has indeed the aptitude 
 for this freedom, just as he has the impulse to, and the need 
 for, the State, but this freedom can never be realised, except 
 in the organic freedom of the State. Further, if individuals 
 were only equal, a State could never come into being, for it 
 implies as a necessary condition political inequality, without 
 which there is neither ruler nor ruled 2 . 
 
 The main error lies in representing individuals as con- 
 tracting. If individuals make contracts, private rights are 
 created, but not public rights. What belongs to the in- 
 dividual as such, is his private property, his individual pos- 
 sessions. With that he can deal, one like another can make 
 contracts about it. But contracts cannot have a political 
 character unless there is already a community above the 
 individuals ; for a contract, if political, does not deal with 
 the private good of individuals, but with the public good of 
 the community. 
 
 1 Rousseau (i. c. 5) feigns an original unanimity which creates the 
 subsequent law of majorities: 'La loi de la pluralite des suffrages est 
 elle-meme un etablissement de convention et suppose, au moins une fois, 
 I'unanimiteV 
 
 2 Arist. Pol. ii. 2, 3, 1 261 a. 24: ov yap ytverat TTO\IS l opo'tow' 
 Tpov yap ffvupaxia (an alliance) teal iro\is. 
 
Chap. IX.] THE THEORY OF CONTRACT. 297 
 
 Thus, neither a nation nor a State can arise out of con- 
 tract between individuals. A sum of individual wills does 
 not produce a common will. The renunciation of any 
 number of private rights does not produce any public right. 
 
 For practical politics this doctrine is in the highest degree Practically 
 dangerous, since it makes the State and its institutions the 
 produce of individual caprice, and declares it to be change- 
 able according to the will of the individuals then living. It 
 destroys the conception of public law, instigates the citizens 
 to unconstitutional movements, and exposes the State to 
 the uttermost insecurity and confusion. It is to be con- 
 sidered, therefore, a theory of anarchy rather than a political 
 doctrine. 
 
 Nevertheless, it contains an element of truth. In oppo- Yet contains 
 
 . . an element 
 
 sition to the theory which sees in the State a mere product of truth. 
 of nature, it accentuates the truth that the human will can 
 determine and influence the formation of the State; and in 
 contradiction to a thoughtless empiricism, it vindicates the 
 rights of human freedom and the rationality of the State. 
 
 Notes. i. The 'famous sentence of Aristotle (Pol. i. 2, 12), that the 
 State is prior to the individual citizen as the whole is prior to the part, 
 contradicts the idea that the State can be made out of individuals. The 
 political individual, the citizen, is only a member in the body of the 
 State, and can have no separate existence apart from his connection 
 with it. 
 
 2. The error of founding the State upon individual will is connected 
 with the more widely accepted error of supposing that Right or Law 
 (Rechf] is the product of Will. Certainly the free will of man is able to 
 affect and alter in many ways what is right and just, but the greatest 
 part of this has been fixed from everlasting by the order of the world 
 and the nature of men and circumstances, and is altogether independent 
 of the will of men. Most Right is not invented, but discovered and re- 
 cognised, found not formed. ' Thou shalt ' has greater influence in the 
 production of law than 'we will.' Even Hegel, who derives Right, not 
 from ' the particular individual will,' but from ' the true will,' which is 
 ' in and for itself,' has not properly comprehended the nature of Right, 
 although he has completely seen the error of the theory of contract. 
 Compare Philosophic des Rechts, 258. 
 
 3. The Genevese citizen J. J. Rousseau by his brilliant dialectic ob- 
 tained the victory for the theory of contract in public opinion. Another 
 
298 THE RISE AND FALL OF THE STATE. [Book iv. 
 
 Mailer's Swiss, the Bernese patrician, Ludwig von Haller, attacked the prevalent 
 the^tate. doctrine of the law of nature with great energy, and thoroughly refuted the 
 theory of contract. He was less successful in the positive part of his 
 system, which he called * Restoration.' His doctrine ought not to be 
 confounded with the theory of force : but he is the teacher of reaction, 
 as Rousseau was of revolution. 
 
 Haller founds the State upon ' the natural law that the stronger rules.' 
 In the superiority of the one, and in the need of the other, he recognises 
 the basis of all rule, and of all dependence. He calls it an external, un- 
 alterable ordinance of God, but this shows that by might he does not 
 mean the same thing as force, and he carries out the opposition between 
 them. l Power is limited by duty, by the moral law which God has 
 written on the hearts of men, which reveals itself in the conscience of 
 children, and in all times among all peoples : * Shun evil and do good/ 
 and * Injure no one and leave to every one his own.' The law of justice and 
 the law of love guard against power (potentia) degenerating into violence 
 (vis). These two laws are implanted by God in man, they are innate, they 
 are universal and necessary, eternal and unalterable, they are intelligible 
 to every one, and the highest and mightiest, to whom all other human 
 laws must submit, cannot be dispensed from the observance of them by any 
 one. They are also the mildest and most loving, their yoke is easy and 
 their burden is light. Not the will of the whole people, not the common 
 good, not even the fear of man's violence, but the will of God alone is 
 the basis of this law of duty. Thus it is valid even for the powerful, 
 every transgression of it is a forbidden misuse of force, whether com- 
 mitted by the meanest head of a house or the greatest potentate a want 
 of justice or a want of love. Justice must be demanded from the strong 
 as from the weak. Love and benevolence must be expected from the 
 better part of the human heart. Against the possible misuse of the 
 highest power there is no help to be found in human arrangements. 
 There is no human judge over the sovereign. There is no help except 
 in God. * The belief in God,' as Plutarch says, l is the bond and cement 
 of all human society, and the support of justice.' Religion alone can 
 keep power in its limits, and strengthen the weak. 
 
 We have reproduced the chief points in Haller's doctrines in his own 
 words. It is obvious that he derives Right and the State, not from 
 justice but from power, and regards the former only as a limit of the 
 latter. Might and might alone produces right. The greater the might, 
 the higher the right. Whereas, in truth, might alone is only de facto and 
 not dejure. This train of thought pervades the whole system. Rever- 
 ence for actual power often prevents him seeing the ideal moral character 
 of Law ; the desire to secure the highest power, and the right of the 
 sovereign against every infringement sometimes becomes contempt and 
 hatred towards every endeavour to secure the rights of subjects against 
 
Chap. IX.] THE THEORY OF CONTRACT. 299 
 
 misuse of supreme power, and to limit its exercise as if it were a crime 
 to protect the divine law of duty by human arrangements against human 
 violation. He is therefore a declared opponent of the whole consti- 
 tutional system, and he works out in an extreme manner the mediaeval 
 idea that sovereignty is a property. 
 
 [For a criticism of this chapter of Bluntschli's see A. Fouillee, La 
 Science Sociale Contemporaine, ch. i. M. Fouillee defends the theory of 
 Social Contract as an expression of the ideal of the State.] 
 
CHAPTER X. 
 
 V. THE NATURAL SOCIABILITY AND POLITICAL 
 CONSCIOUSNESS OF MAN. 
 
 The state IT is not enough to refute the current speculative theories. 
 
 thetodai" We have still to discover the one common cause of the 
 
 hanuw rise of States, as distinct from the manifold forms in which 
 
 they appear. This we find in human nature, which besides 
 
 its individual diversity has in it the tendencies of community 
 
 and unity. These tendencies are developed, and peoples 
 
 feel themselves to be nations, and seek a corresponding out- 
 
 ward form. Thus the inward impulse to Society (Statstrieb*) 
 
 produces external organisation of common life in the form 
 
 of manly self-government, that is, in the form of the State. 
 
 This social This social tendency works at first instinctively and un- 
 
 passes'from consciously. The many look up, half with trust and half 
 
 scfous to n the with f ear > t a leader by whose courage and genius they are 
 
 Sage! " impressed, and whom they honour as the supreme expression 
 
 of their community. They arrange themselves under him, 
 
 and obey his commands. Gradually, however, with advanc- 
 
 ing civilisation and experience, the hidden impulse reveals 
 
 itself, and there is formed a consciousness and a will of the 
 
 State, first of all, as is natural, in the leaders and chiefs of 
 
 the people : in them it becomes an active consciousness and 
 
 an ordering and effective will of the State, while the mass of 
 
 the governed does not as yet advance beyond a passive 
 
 a [Compare Aristotle's phrase : <f>vffft 77 op^ \v -ndaiv lirl TT)J/ 
 oivuviav, Pol. i. 2. 15, 1253 a. 30.] 
 
NATURAL SOCIABILITY OF MAN. 301 
 
 consciousness of the State. Gradually this consciousness 
 extends itself among the higher, and at last also among the 
 lower classes and orders of Society, and becomes even 
 among them active and effective. 
 
 This assumption of a political tendency in human nature 
 at first unconscious, but afterwards conscious, does not 
 contradict the historical origin of States, but explains them. 
 
 Among the powerful it rises to the passion of domination, 
 among the weak it becomes servile submission, but among 
 the free it is enlightened by understanding and filled by that 
 moral self-consciousness which is in harmony with the moral 
 common consciousness. Only the free State is a true State, 
 for only in it is there a common political spirit (Statsgeisf) 
 permeating all classes of the people. 
 
 This view, which had already been expressed by the This view 
 
 . ! contains the 
 
 ancients , contains all that is true in the false speculative truth in the 
 
 ,.., . rri oi. various false 
 
 theories, without the accompanying errors. The State is theories. 
 indirectly divine, since God has implanted the social impulse 
 in human nature, and has, in this way, willed the realisation 
 of the State. Sound religious feeling is thus not injured by 
 our declaring the State to be, in the first place, the appointed 
 work of man. Again, our view recognises the significance 
 of the real force which is indispensable for the formation of 
 the State ; for the essential power depends upon the common 
 impulses of human nature. Finally, the element of free 
 will has its rights accorded to it ; but instead of scattered 
 individual wills, we recognise the common will of the nation 
 or the State. 
 
 This general will exists in germ among a people as naturally 
 as the tendency to union and organisation, which we call the 
 political tendency. This common will, in manifesting itself, 
 becomes the will of the State, whereas mere individual will 
 remains individual even if two individuals make a contract 
 between them. Thus the proper expression of the common 
 
 1 Cp. supra, p. 297. Cp. also Cic. de Rep. i. 25 : < Ejus (populi) 
 prima causa coeundi est non tarn imbecillitas, quam naturalis quaedam 
 hominum quasi congregatio.' 
 
302 THE RISE AND FALL OF THE STATE. 
 
 will is not a Contract, but a Law (Gesetz) in the case of 
 permanent regulations, an Order (Befeht) in the case of 
 administrative police, a Judgment (Urtheit) in the adminis- 
 tration of justice. The State has in itself organs which 
 enable the common will to become conscious of itself, to 
 resolve, and to carry out its resolutions. 
 The State a The State is thus not an arrangement only for the purpose 
 
 necessary ., . _ . ., . 
 
 good. of taming evil passions. It is not a necessary evil, but a 
 
 necessary good. Only by the realisation of the State can 
 peoples and humanity, taken collectively, manifest their real 
 inward unity and attain to a free corporate existence. The 
 State is the fulfilment of common order, and the organisa- 
 tion for the perfection of common life in all public matters. 
 
 Thus understood, the State is in the first place a human 
 and terrestrial formation ; but nothing prevents us from 
 placing alongside of the religious ideal of an invisible 
 Church, which is a community of spirits united by religion, 
 the political ideal of an invisible State which is a community 
 of spirits united politically. Theologians speak of a more 
 perfect Church in heaven, and so the statesman may con- 
 sider the earthly State as only a preparation for the heavenly. 
 
 But the actual State is that in which we live and work. 
 Political science has to do with it alone, and such a State is 
 to be completely explained and understood from a consider- 
 ation of human nature. 
 
BOOK V. 
 
 THE END OF THE STATE. 
 
CHAPTER I. 
 
 THE STATE AN END OR A MEANS? HOW FAR IS 
 IT END OR MEANS ? 
 
 THE question is often raised whether the State is an end 
 or a means ? i. e. whether the State has an end in itself 
 (Selbstzweck\ or simply serves as a means to enable indi- 
 viduals to attain their ends ? 
 
 The ancient theory of the State, especially that of the Ancient 
 Greeks, regarded the State as the highest aim of human thestate as 
 life, as perfect humanity, and was therefore inclined to regard an ' 
 the State as an end in itself. As compared with the State, 
 individual men appeared only as parts, not as beings with 
 separate personal rights. The State did not serve the indi- 
 vidual, but the individual the State, as the member serves 
 the body. The welfare of private men was therefore unhesi- 
 tatingly sacrificed to that of the State, and in fact the former 
 was only so far justified and valuable as it was serviceable to 
 the welfare of the State. In the same way individual freedom 
 was only regarded as a part of national freedom, and met 
 with neither encouragement nor protection when it sought 
 to go its own way in opposition to the general welfare of 
 the nation and the State. 
 
 In complete opposition to this fundamental theory of the Modem 
 ancients is the opinion, which has been often maintained by thesSte as 
 English and American writers, that the State is not an end a ' 
 in itself, but is simply a means to secure the welfare of indi^ 
 viduals. Macaulay repeatedly throughout his works a main- 
 
 [See Essay on Machiavelli, in Essays (Popular Edition), p. 47.] 
 X 
 
306 THE END OF THE STATE. [Book V. 
 
 tains that the chief defect of ancient politicians and of 
 Machiavelli lies in the fact that they do not, like the 
 moderns, recognise the great principle that ' societies and 
 laws exist only for the object of increasing the sum of 
 private happiness.' This modern school regards the State 
 simply as an institution or machine which gives to indi- 
 viduals security for their life, their property, and their per- 
 sonal freedom, or at most as an artificial creation designed 
 to raise and promote the welfare and happiness of all indi- 
 viduals, or at any rate of the greater number. Since the 
 time of Bacon this opinion has been zealously defended by 
 many politicians, and even by theorists. No one can really 
 deny it who sees in the State only a collection of indi- 
 viduals. Macaulay believes that the improvement in the 
 conduct of public affairs in recent times is chiefly due to 
 the influence of this theory. Robert von Mohl considers it 
 preposterous to attribute equal importance to men and to 
 a mere institution for their welfare, 
 one-sided- It seems to me that both the ancient and the modern 
 
 ness of both . . . . 
 
 theories. view contain a germ of truth ; but both commit the error of 
 regarding only one side of the matter and of overlooking or 
 denying the other side. 
 
 The form of the question itself, whether the State is a 
 means or an end, leads to this one-sidedness and therefore 
 to error. From one point of view a thing may be regarded 
 as a means for obtaining other ends, from another as con- 
 taining its end in itself. A picture is often a means of 
 obtaining a livelihood for the artist or a profit for the 
 picture-dealer. Yet a true work of art is to the artist the 
 aim of his highest effort ; he sees in it the expression of his 
 most vivid feelings, the embodiment of his ideal. In this 
 way it has its end in itself. So, too, marriage serves un- 
 doubtedly as a means for husband and wife to satisfy their 
 individual needs, and to open to both a more happy exist- 
 ence. But marriage is also the union of two sexes separated 
 by nature, and on this union is founded the family, i. e. a 
 higher collective unit, to which the individual existence of 
 
Chap. I.] HO W FAR IS IT END OR MEANS? 307 
 
 all its members is subordinate. Each member of the family 
 is willing to sacrifice a part of his personal interests and 
 will to the higher end which is involved in marriage and 
 the family. 
 
 The same is true of the State. On the one hand it is 
 a means for the advantage of the individuals who compose 
 it. From another point of view it has an end in itself , and 
 for its sake the individuals are subordinate, and bound to 
 serve it. 
 
 The one-sided view of the ancients, which overlooked the Danger of 
 individual in the nation, seriously endangered his liberty theory? 6 " 
 and his welfare, and led up directly to the conception of the 
 omnipotence, which easily degenerated into the tyranny, of 
 the State. 
 
 The equally one-sided view of the moderns, which is of the 
 unable to see the wood for the trees, fails to recognise the theory" 
 majesty of the State, and thus tends to dissolve it into a 
 confused mob of individuals and to encourage anarchy. 
 
 The ancients failed to give sufficient attention to an im- Modem 
 portant task of the State, viz. the protection of personal of the 
 freedom and the promotion of the personal welfare of the mdlvldual - 
 majority. Modern politics can claim the merit of having 
 recognised this function of the State, and of having brought 
 it into more general practice than the ancients did. In the 
 present day a policy is justly regarded as contemptible and 
 hateful which treats the welfare of individuals as a ball to be 
 tossed about at the caprice of rulers, or dropped altogether 
 at the dictation of circumstances. It is acknowledged now 
 that law and its administrators do not merely exercise rule 
 over individuals, but render very essential and important 
 services to them. A large number of useful and beneficent 
 public institutions in the present day owe their origin to this 
 view. It is to it that we must trace the modern develop- 
 ment of personal freedom, and especially of freedom of 
 opinion. It has been applied by Christianity to the re- 
 ligious life, and by the Teutonic sense of law to the whole 
 legal existence of the individual. 
 
 X 2 
 
308 THE END OF THE STATE. [Book V: 
 
 The state a But in spite of this it is a logical and political error to 
 maintain that the State exists only for the sake of private 
 individuals, and that the administration has no object but 
 to care for their welfare. Such a contention would destroy 
 the very essence of the State, and would reduce Public 
 Law (Statsrechf) into a mere preliminary condition of Private 
 Law (Privatrecht}. In all nations of a manly spirit there are 
 thousands of men who, when the State is in danger or need, 
 will undertake heavy burdens, and will endanger both the 
 peace of their families and their own lives. This spirit of 
 self-sacrifice can only be explained on the supposition that 
 these men prefer the safety and welfare of their State and 
 nation to their own. The deeds of ancient heroes would be 
 the folly of idle fanaticism if the State were only a means 
 of serving individual interests, if the collective life of the 
 nation had not a higher value than the life of many in- 
 dividuals. In the great dangers and crises of the national 
 life it becomes clear to men that the State is something 
 better and higher than a mutual assurance society. When 
 the love of fatherland is kindled, it melts the selfish ambition 
 of the individual, and when once the sense of duty towards 
 the State is awakened in the masses it inspires and elevates 
 them. 
 
 Their welfare Just as the nation is something more than the sum of 
 persons belonging to it, so the national welfare is not the 
 same as the sum of individual welfare. It is true that a 
 close relationship exists between the two, and that they 
 usually rise and fall together. If the individual welfare of 
 the majority is diminished, that of the State is usually 
 suffering from serious evils. But the lines and direction of 
 the two are not always parallel. Sometimes they cross 
 each other, and sometimes they are altogether separate. 
 Every now and then the State is compelled, either for its 
 own preservation, or in the interest of future generations, 
 to make heavy demands from its present members, and to 
 impose weighty burdens upon them. It sometimes happens, 
 also, that the needs of individual welfare call for extra- 
 
Chap. I.] HOW FAR IS IT END OR MEANS? 309 
 
 ordinary aid and support from the State, which thus incurs 
 serious obligations. 
 
 It follows from this that we must examine more closely 
 under what conditions the State is a means for individual 
 interests, and under what conditions and within what limits 
 the State, as an end in itself, is justified in demanding the 
 subordination of its individual members. 
 
 [Cp. Fouillee, Science Sociale Contemporaine, p. 253 : ' En un sens, 
 la societe humaine n'est qu'un moyen ; en un autre, elle est line fin, 
 parce qu'en derniere analyse elle se resout en line multiplicite innom- 
 brable d'individus qui travaillent chacun pour le bien de tous et tous 
 pour le bien de chacun.'] 
 
CHAPTER II. 
 
 FALSE VIEWS OF THE END OF THE STATE. 
 
 i. That it is IT has often been asserted in theory, and still more often 
 the ruHng m in practice, that the real end of the State is the rule of the 
 supreme power ^ especially of princes over their subjects, 
 
 If the maintenance of this rule were the end of the State, 
 the logical conclusion must be that the ideal State should 
 be as absolute and as extensive as possible, so that the final 
 aim of political effort would be absolute universal monarchy, 
 or rather universal despotism. This would make it im- 
 possible to reconcile national freedom with the development 
 of human powers. 
 
 The whole conception has its origin, not in human nature, 
 nor in the social impulses which nature has implanted in 
 mankind, but in the ambition of rulers and their haughty 
 desire to exalt themselves. 
 
 Aristotle long ago condemned this opinion in the famous 
 dictum 1 , 'All constitutions which regard only the private 
 good of the rulers are corruptions or perversions of the 
 normal constitutions.' It is forgotten that a nation exists 
 within the State ; that the subjects are men like their rulers, 
 and possess the same human capacities, feelings and powers ; 
 that it is therefore preposterous to regard the one class as the 
 
 1 Politics, iii. 6. 12 79 a, 19. 
 
FALSE VIEWS OF THE END OF THE STATE. 311 
 
 sole possessors of political rights, and the others as simple 
 objects of their rule, as things. All the arguments against 
 slavery are equally valid against this sort of despotism. 
 
 Rule is unquestionably an attribute of the power of the 
 State, but it is not the end of the State ; on the contrary it 
 is a means to realise the end of the State. It is rather 
 a duty towards the nation than a right to be enjoyed by 
 the ruler. 
 
 Rule therefore requires to be limited and defined by the 
 constitution. The ideal of a State which approaches as nearly 
 as possible to perfection does not consist in absolute, but in 
 constitutional, i. e. relative rule. It often happens that some 
 form of government, originally founded with good intentions, 
 ceases in time to suit the altered conditions of a nation. In 
 such a case it cannot be the duty of a healthy policy to leave 
 this system unaltered just as it was inherited from previous 
 generations : on the contrary, one's aim should be to improve 
 the now useless system, and to restore harmony with the 
 other conditions of the national life. 
 
 According to the theocratic theory, the end of the State 2. That it is 
 is the realisation of God's kingdom upon earth. Stahl 2 says : the divine" 
 The duty of the State depends upon the service of God. w 
 It should establish the rule of God, and maintain justice, 
 discipline, and morality, which are God's commands for 
 social life.' In the middle ages this conception was generally 
 believed both by Christians and Mohammedans. But the 
 modern world, while granting the religious importance of 
 this view, and fully comprehending how the whole machinery 
 of the world was revealed to the pious spirit by the light of 
 the divine administration, utterly rejects the erroneous and 
 fatal way in which divine rule was applied to direct the 
 conduct of human affairs. 
 
 The comparison on which the idea of theocracy rests, that 
 the prince rules over a nation as God rules over the world, 
 is obviously false. God's rule over the world is the rule of 
 
 2 Rechtsphilosophie, ii. 2. 
 
312 . THE END OF THE STATE. [Book v. 
 
 an absolute over relative beings, of the creator over his 
 creatures : we cannot discover his origin, nor can we define 
 its methods or its objects. The rule of a prince over a 
 nation is the rule of a man over men, i. e. similar beings ; 
 the prince's life is guided and his qualities limited just as 
 those of his subjects, and the latter are fully capable of 
 criticising him from a human standpoint. 
 
 The comparison of a prince with God is therefore false 
 from every point of view, and, as it leads to pride and 
 excessive self-esteem, it is also harmful. The end of the 
 State must be recognisable by men, it must be determined 
 by human nature, and it must be at any rate nearly attain- 
 able by human effort. 
 
 3 . That it It is altogether erroneous to place the end of the State 
 someexter- re outside the people and country which form it, so that it 
 object. b ecomes merely a means to secure external objects. 
 
 The clerical party has been accustomed to prove the 
 necessity of the States of the Church by pointing out that 
 the independence and authority of the Roman Catholic 
 Church require a Pope who shall be at the same time 
 sovereign ruler in Rome. They fail to perceive that this 
 argument clearly tells against the temporal power. For by it 
 they deny the independence of the Papal States, and with it 
 their character as a State, because no State can exist as the 
 slave, wanting both will and legal rights, of some external 
 power, even though this latter be the Roman Catholic 
 Church. They presume that the Roman people who 
 compose this State have submitted to a political serfdom 
 in the interests of a religious and non-political community, 
 a presumption which is equally opposed to the character of 
 the people and to the religious nature of the Church. 
 
 History has declared its judgment upon this enormity. 
 Rome now belongs, not to Catholic Christendom, which is 
 divided into many States, but to the Roman, or rather to the 
 Italian, nation, of which the Romans are members. 
 
 But even in the present day there are several examples of 
 the same error. The principality of Lichtenstein obviously 
 
Chap. II.] FALSE VIE WS OF END OF THE STA TE. 313 
 
 does not exist for the sake of the small village of Liechtenstein 
 and its scanty population. It serves only for an external 
 object, viz. to support the rank and dignity of the princely 
 dynasty which lives outside the country at the imperial court 
 of Austria. This is obviously a State which has not its end 
 in itself. 
 
CHAPTER III. 
 
 INSUFFICIENT OR EXAGGERATED VIEWS OF THE 
 END OF THE STATE. 
 
 i. That its AFTER Kant and Fichte the opinion long prevailed in 
 15 Uhe Germany that the true end of the State was merely the 
 assurance of rights, and especially those of person and 
 
 property. p rope rty. 
 
 Kant (Rechtskhre, 47-49) expressly declared that ' the 
 safety (i.e. the end) of the State does not consist in the 
 welfare or happiness of the citizens, but in the agreement of 
 the constitution with the principles of law.' Fichte (Natur- 
 recht, in his Works, iii. 152) maintains that l the assurance 
 of the rights of all men is the only general will ' (i. e. the 
 will of the State). Starting from this view of Kant, Wilhelm 
 von Humboldt assigns very narrow limits to the activity of 
 the State, and defines its end as ' the maintenance of security 
 against both external enemies and internal dissensions V 
 Even in our own century, when the idea of nationality is so 
 strong, Eotvos (Moderne Ideen, ii. 91) maintains that 'the 
 end of the State is the security of the individual.' 
 
 This opinion arose in the latter half of the eighteenth 
 century d . In those days men sought to find some funda- 
 
 a [Humboldt's Sphere and Duties of Government supplies the motto 
 to Mill's Liberty. For Mill's views cp. also his Pol. Econ. Book V. 
 In practice however Mill allows the State very extensive functions. 
 Much more extreme is the view of H. Spencer, The Man v. the State. ~] 
 
 6 [It is as old as the Greek sophists. Cp. Arist. Pol. iii. 9, 8, 128ob, 
 10, where Lycophron the Sophist is said to have held that ' Law (6 
 
VIEWS OF THE END OF THE STATE. 315 
 
 mental limitation to the over-government of that enlightened 
 despotism which, benevolent as it was, proved oppressive 
 and destructive of personal freedom, and which was accus- 
 tomed to justify every interference with family life, with the 
 free choice of a career, and with the administration of 
 private revenues, by a professed regard for the general 
 welfare. The definition of the end of the State as the 
 maintenance of legal security seemed to offer a convenient 
 weapon for opposing this over-government successfully, and 
 the State thus limited was termed a Rechtsstat (Legal State), 
 in opposition to the detested Polizeistat (Police State) c . 
 
 This narrowing of public life by restricting the end of the 
 State failed to satisfy either the instincts or the necessities 
 of modern nations. No one doubted that the maintenance 
 of legal security is one of the duties of the State, but no 
 modern nation or government could allow its political 
 activity to be limited to so narrow a domain. Even the 
 champions of the opinion were compelled by their personal 
 experience to break through these limits, and to direct their 
 policy to higher ends. Fichte began by asserting that the 
 ' protection of property ' was the chief end of the State, but 
 in the great struggle against the universal despotism of 
 Napoleon, which was willing enough to protect property, he 
 rose to the conception of a national State, which should 
 serve as the organ of the national spirit. As a Prussian 
 minister, Wilhelm von Humboldt strove to effect the in- 
 tellectual advancement of the Prussian nation by means of 
 State-schools, though in his theory he had condemned them, 
 and to extend the power of the Prussian State, though it 
 was already amply sufficient to enforce civil and criminal 
 law. 
 
 vo/ios} is only concerned with the securing of mutual rights and is not 
 able to make the citizen good and just (cyyvr^s d\\rj\ois ruv jkicaioav, 
 dAA' ovx olos Troitiv dyaOovs KOLL diKaiovs TOVS TroA/ras).' See Oncken, 
 Staatslehre des Aristoteles, i. p. 217. Locke, Treatise on Government ', 
 Book II. ch. ix, holds that the end of political society and government, 
 or, as he expresses it, the reason why men enter into society, is that 
 every one may the better preserve himself, his liberty, and property.] 
 [See above, Book I. ch. vii. p. 68.] 
 
316 . THE END OF THE STATE. [Book v. 
 
 Defects of In fact this formula about legal security does not exhaust 
 the end of the State, and especially of the civilised State of 
 modern times : it would correspond much more to the views 
 of the middle ages, which did not advance far beyond the 
 conception of private law. 
 
 The sense of law (Rechtssinn) is not the only active force 
 in a nation. It has also a number of economic necessities, 
 which have nothing to do with legal security, such as roads, 
 canals, railways, posts and telegraphs. The State alone can 
 satisfy these needs, and it would not venture to do so if its 
 sole end was the assurance of rights. Again, the nation has 
 important intellectual interests, national schools, schools of 
 science and art, technical schools. For these the care of 
 the State is indispensable ; it is impossible to leave them to 
 the chance of private caprice or to the calculating authority 
 of the Church, which is always seeking to bring the State 
 under its own control. The middle ages neglected these 
 interests because they adopted this narrow view of the State 
 as an institution for maintaining legal security. 
 
 Moreover, the nation is a political being, which is con- 
 cerned not only with the making and administration of laws 
 for the security of private rights, but in a far higher degree 
 with political government and the development of its liberties. 
 
 its results. This insufficient definition of the end of the State, when 
 practically applied, has the following results : 
 
 (a) The neglect of economic interests. 
 
 (b) The neglect of common intellectual interests. 
 
 (c) The paralysis and death of public spirit in the nation, 
 and thus the weakening of the power of the State. 
 
 (d) The encouragement of a petty and pedantic system of 
 law, the result of which is a litigious temper fatal to the 
 authority of the State. 
 
 2 . That its Another equally prevalent view, that the genera! happiness 
 
 secure is the true end of the State, is as much too wide as the 
 
 harness, former is too narrow. The happiness of men is for the 
 
 most part independent of the State. Even most of the 
 
 material goods on which human welfare is dependent, e. g. 
 
Chap. III.] VIEWS OF THE END OF THE STATE. 317 
 
 dwelling, food, clothing and income, are acquired, not through 
 the State, but by the labour and saving of individuals. Still 
 more is this true of the spiritual goods, on which the ideal 
 wealth and happiness of mankind are founded. It is not 
 the State which endows men with their talents and capacities; 
 these are the gift of nature, and they differ in individual 
 cases instead of being common to all. The State can 
 confer on no one the delights of friendship and love, the 
 charm of scientific study or of poetical and artistic creation, 
 the consolations of religion, or the purity and sanctification 
 of the soul united with God. 
 
 Men are not citizens in their whole life and being ; they 
 have their own natural endowments and their special duties. 
 The State rests upon the community of the nation, not upon 
 the differences of individuals ; its end therefore cannot em- 
 brace all the ends of private life. 
 
 This error, like the other, has serious and harmful results Harmful 
 
 . ... results of 
 
 when practically applied : this view. 
 
 (a) The State is led to encroach upon departments which 
 do not belong to its rule, and to exercise tyranny when it 
 ought to restrict itself to the protection of private freedom. 
 
 (b) The State being really incapable of managing these 
 departments of private life, will by unskilful handling do 
 harm and obstruct the natural development, in spite of its 
 desire to increase the sum total of private happiness. 
 
 (c) As the State strives after unattainable objects and 
 squanders its forces in a false direction, it will be led away 
 from its true aims, and will lose part of its power to ac- 
 complish those duties that lie to its hand. 
 
 This error proved a source of serious evil to the political 
 life of antiquity; but the party of enlightenment in the 
 eighteenth century went astray in the same manner. The 
 end of the State in modern politics must be more accurately 
 defined and limited. 
 
CHAPTER IV. 
 
 THE TRUE EA T D OF THE SJ'ATE. 
 
 only one THERE is only one conception of the State, although it is 
 
 general end . . 
 
 of the state, realised in very various ways among different nations and in 
 different lands and periods. Logic, therefore, compels us 
 to accept also one general view of the end of the State, in 
 spite of the fact that in history the different nations who 
 form States strive after very various objects. The unity of 
 the common end admits of these special differences, but it 
 combines and harmonises them. Robert von Mohl (En- 
 cyclopadie, p. 73) was right in asserting that each nation has 
 to pursue various objects according to its special character 
 and needs ; but his theory wanted that unity of conception 
 which is necessary to prevent hopeless diversity and devia- 
 tions in the conduct of the State. On the other hand, von 
 Holtzendorff (Politik, B. iii), who has treated this subject 
 with special attention, gives the name of ' harmony of the 
 ends of the State ' to what we call the unity of the end. 
 
 ' justice is The question now arises, how is this single and supreme 
 end of the State to be formulated? Many say that it is 
 justice, the realisation of law. This definition seems to us 
 too narrow, and it is erroneous if law is held to include both 
 public and international law, and is not limited to the legal 
 security of individuals (comp. Chapter III). Law is rather 
 a condition of politics than its end : justitia fundamentum 
 regni. And the life of nations is not only a judicial life ; 
 there is also the economical and intellectual life, and the 
 life of the national power. Even the legal-minded Romans 
 did not consider jus to be the supreme end of the State. 
 
THE TRUE END OF THE STATE. 319 
 
 Hegel, as Plato long before him, says that the end of the | Morality 
 State is morality {Sittlichkcit) and the realisation of the 
 moral law. But the two powers which determine and con- 
 dition the moral life, viz. the spirit of God and the spirit of 
 the individual man, are both outside the control of the 
 State. The domain of morality is far more comprehensive 
 than the domain of politics ; and if the State attempts its 
 control it oversteps its proper limits, and exerts a harmful 
 influence upon morality. 
 
 The Romans saw the real function of the State in the The securing 
 public welfare. Their two expressions, res publica and salus welfare 3 " 
 publica, are logically as well as verbally connected ; they 
 are, in fact, as substance and quality, as potentiality and 
 realisation. 
 
 This formula of the end of the State has been frequently 
 misunderstood, mainly because attention has been given, 
 not to the community (the res publica), but to the crowd of 
 individuals, or to the wiles of rulers. It has been used too 
 often to excuse the arbitrary despotism either of princes or 
 of majorities, and it has been completely discredited by the 
 horrors of the Parisian Committee of Public Safety (1793-5). 
 
 But the expression is really above criticism, if one regards is not in- 
 the natural limits of the State, and especially the judicial 
 order and administration, and if one avoids trespassing upon 
 matters outside those limits, such as the free life of the in- 
 dividual and of religious communities. To every statesman 
 the welfare of his nation has been the first object to strive 
 for, and every patriotic citizen is enthusiastic for the safety 
 of his fatherland. The public welfare is therefore an indis- 
 pensable object of policy, and its promotion is undoubtedly 
 the chief duty of the State. This definition of the end of 
 the State includes also the development and perfecting of 
 law, and generally the improvement of all common relations 
 and conditions of life. It includes also the administration 
 of law, which is necessary to secure the peaceful course of 
 the common life, and which prevents or punishes wrongs by 
 which the community is harmed. This political principle 
 
326 TIfE END OF THE STATE. [Book V. 
 
 of the Romans, salus populi suprema lex esto, does not err 
 in being too narrow, but rather in straining the power of the 
 State, and extending it to alien matters. 
 but is in- - Still, from one point of view, the expression is insufficient. 
 
 sufficient in ... ,. . . 
 
 times of Although in ordinary times policy aims at securing the 
 national welfare, yet there are moments in a nation's life 
 when it has to face extraordinary duties. There are cir- 
 cumstances in which the State, like an individual, must risk 
 its existence, and with it the national welfare. At such a 
 time it may be a patriotic duty to resign a life which cannot 
 be prolonged with honour. Suppose that an enemy of 
 overwhelming power offers to a small nation many external 
 advantages, such as decreased taxation, the security of peace, 
 or a better administration. A simple regard for the public 
 welfare would dictate the acceptance of the offer, while its 
 rejection might bring disaster or even ruin upon the State. 
 Nevertheless it might be a fatal duty to prefer death with 
 honour rather than voluntary submission to the foreigner ; 
 and it is possible that a heroic and desperate struggle may 
 secure a subsequent revival of the State. A splendid ex- 
 ample of this was given by the Athenians in the time of 
 Themistocles. Sometimes ruin is the necessary and worthy 
 termination of an existence that is no longer possible. The 
 tragic fate of Carthage or of Jerusalem may be deplored, 
 but in both cases it was inevitable. Sometimes, too, a 
 small State must perish because its people are no longer 
 capable of maintaining their independence, and because it 
 is called upon to enter into the higher collective life of a 
 nation. No unprejudiced German or Italian would deplore 
 the destruction of those petty States which had become 
 useless and impotent, but would rather glory in their fusion 
 into a larger and more important whole. In such cases our 
 formula about the public welfare is insufficient, unless it is 
 applied to the new community. 
 
 defin'tlon ~^ ut a ^ ^cse objections are avoided if we formulate the 
 proper and direct end of the State as the development of the 
 national capacities^ the perfecting of the national life^ and, 
 
Chap. IV.] THE TRUE END OF THE STATE. 321 
 
 finally, its completion ; provided, of course, that the process 
 of moral and political development shall not be opposed to 
 the destiny of humanity. This formula includes everything 
 that can be regarded as a proper function of the State, and 
 excludes everything that lies outside the State's range. It 
 regards the idiosyncracies and the special needs of different 
 nations, and thus, while it firmly maintains the unity of the 
 end of the State, it secures the variety of its development. 
 The life- task of every individual is to develope his capacities 
 and to manifest his essence. So, too, the duty of the State- 
 person is to develope the latent powers of the nation, and 
 to manifest its capacities. Thus the State has a double 
 function. Firstly, the maintenance of the national powers ; 
 and, secondly, their development. It must secure the con- 
 quests of the past, and it must extend them in the future. 
 
 Within this common end are included certain special ten- This general 
 dencies. Very often these are pursued singly, and justifica- fndSdeT 
 tion is sought in the peculiar character of some given nation, tendencies, 
 but this conduct is fraught with danger to the State as a 
 whole. As illustrations may be mentioned : 
 
 (i) The development of the national power (Macht). The E.g. the de- 
 State must have power in order to maintain its independence SiSSf* 
 and to enforce its decrees. It is only as possessing power power ; 
 that a State can exist and live. But States vary very much 
 according to the kind and degree of this power. 
 
 (a) World-powers ( Weltmdchte) are States whose import- 
 ance and activity extend far beyond their own domain : they 
 play a decisive part in the politics of two continents or of 
 the whole world, and therefore they are specially bound to 
 care for the peace and order of the world (i.e. international 
 law). 
 
 () Great powers (Grossmdchte) are not necessarily world- 
 powers, though every world-power is of course a great 
 power. The world-power must be a maritime power, 
 because it cannot exert its influence on the destinies of 
 the world without the connexion given by the sea. But a 
 great power may be simply a land-power, e. g. Prussia before 
 
 Y 
 
322 THE END OF THE STATE. [Book V. 
 
 the formation of the German Empire. So, too, both then 
 and now, Austro-Hungary is rather a great than a world- 
 power. A great power also exerts an extensive influence 
 far beyond the limits of its own country : it cannot be over- 
 looked, nor can its voice be disregarded without danger 
 when the relations of its own continent undergo important 
 alterations. If at any time either of these powers abuses 
 its strength to oppress other rightful States, the other powers 
 are justified in resisting. Even a man of great genius, like 
 Napoleon I, was unable to raise the great power of the 
 French nation into a European supremacy, and the failure 
 of this attempt led to his overthrow. So, too, Russia was 
 not strong enough to subdue Turkey. Austria could not 
 maintain its rule over Italy. The maritime supremacy of 
 England has been at last compelled to admit the rivalry of 
 other nations. 
 
 (c) Intermediate and peaceful powers (neutral States) are 
 not strong enough to play a great part in foreign politics, 
 and are mostly absorbed in domestic affairs. The policy of 
 these States, modest as it is, has very great importance, not 
 only for their own inhabitants, but also because it limits 
 and moderates the dangerous currents of la grande politique . 
 
 (d) Real petty States have only a very dubious and in- 
 secure existence in our epoch, which prefers the formation 
 of greater and stronger States. They can only secure 
 themselves by seeking the protection of the great powers, 
 or by attaching themselves to some stronger State. But 
 in the middle ages the opposite tendency prevailed, and 
 the peoples of Europe, especially the Germans and Italians, 
 were inclined to favour the very smallest political units. 
 
 A State has two chief means for increasing its power in 
 relation to foreign States, (i) diplomacy, and (2) the army 
 and navy. A State which regards as its chief function the 
 maintenance of its military strength, of the warlike courage 
 of its members, and its armament, is called a military State. 
 Examples of such a State are Sparta among the Greeks, 
 and the kingdom of Prussia before the foundation of the 
 
Chap. IV.] THE TRUE END OF THE STATE. 323 
 
 German Empire. When a State is threatened from with- 
 out, or is growing to its necessary limits, this extraordinary 
 strain of its military forces is inevitable. But in a normal 
 State which has reached its full development, it must never 
 be forgotten that military power is only a means, and not an 
 end of policy, and that undue straining of this power will be 
 harmful to the true ends of the State. 
 
 (2) Sometimes also it is economic interests which are or of 
 specially prominent. Thus we speak of pastoral, agricul- fntTre^ts ; 
 tural, industrial, and mercantile States. 
 
 It is true that these interests are mainly those of private 
 individuals, and only in a lesser degree interests of the 
 whole nation. But on this very account, an exclusive or 
 undue devotion to them leads to the neglect of the other 
 functions of the State, and damages all other interests. 
 Moreover, the public spirit of such nations is never fully 
 developed, but is corrupted by the selfish and narrow 
 devotion to private interests. In a pastoral State the nation 
 will remain poor and ignorant ; in an agricultural State men 
 look with mistrust and disfavour upon the higher culture, 
 because rude manners are the natural accompaniment of 
 their primitive pursuits. To an industrial State the chief 
 dangers lie in disturbances among the artisans and the 
 exclusion of foreign commodities, while a mercantile State 
 may be easily led astray by a shop-keeping spirit. 
 
 (3) The life of a nation may also be chiefly directed by orofin- 
 
 . v , i . 11 tellectual 
 
 intellectual interests, and thus arises what we may call an interests ; 
 intellectual State (Culturstaf). The military State of Sparta 
 was opposed, in the time of Pericles, by the intellectual 
 State of Athens, which has bequeathed to posterity undying 
 proofs of its love of art and of the capacity of the Athenians 
 for acquiring knowledge. Florence, Venice, and Antwerp 
 have had periods in which intellectual interests have sur- 
 passed all others. The Chinese State in the present day is 
 another example, although its culture is stationary rather 
 than progressive ; and both Zurich and Geneva pride them- 
 selves on giving special attention to their public schools. 
 
 Y 2 
 
324 THE END OF THE STATE. [Book V. 
 
 Noble as these objects are, their excessive promotion, to 
 the detriment of the other powers of the nation, is the sign 
 of an unhealthy policy. 
 
 or of legal (4) In some States the chief function is considered to be 
 fo l r a freed e om : the development of the legal guarantees for national and 
 individual freedom, and thus arise free legal States (freie 
 Rechtsstateri}) as notably the Swiss Cantons and the States 
 of North America. This formula of the end of the State 
 lies, even more than those discussed above, at the heart of 
 the general conception of that end. 
 
 or of (5) Finally, when the consciousness of nationality gives 
 
 unity"* the chief impulse to public life, when the manifestation of 
 
 national unity seems to be the chief end of the State, we 
 
 have national States. Such was France in former times, 
 
 and such are in our own day the kingdom of Italy and the 
 
 German Empire. 
 
 indirect Besides the proper and direct end of the State, which 
 
 functions of . . 
 
 the state, relates to the nation itself, we must consider all the indirect 
 functions of the State, which relate merely to private life. 
 
 Here it is especially important to find some accurate 
 definition of the limits of State action. 
 
 The duties of an individual may be formulated, like those 
 of the State, as the development and manifestation of his 
 individual character and capacity ; but again, this must be 
 in harmony with the ends of the family, of the nation, and 
 of humanity. To fulfil these duties, private freedom is 
 essential. It is, in the first place, the duty of the State 
 to protect this private freedom against unjust attack, and 
 especially to avoid any attempt on its own part to restrict or 
 oppress it. 
 
 Limitations A preliminary necessity is to form a clear conception of 
 acdon. the way in which the State is limited by its own nature. 
 
 (i) The State is an external organisation of the common 
 life. It has organs, therefore, only for things which are 
 externally perceptible, and not for the inner spiritual life 
 which has never manifested itself in words or deeds. It is 
 therefore impossible for the State to embrace all the ends 
 
Chap. IV.] THE TRUE END OF THE STATE. 325 
 
 of individual life, because many, and those the most im- 
 portant, sides of that life are concealed from its view and 
 inaccessible to its power. The natural gifts of individuals 
 are wholly independent of the State, which can give neither 
 intelligence to the fool, nor courage to the coward, nor sight 
 to the blind. The State has no share in kindling love 
 within the heart; it cannot follow the thought of the student, 
 nor correct the errors of tradition. As soon as questions 
 arise about the life, and especially the spiritual life, of 
 individuals, the State finds both its insight and its power 
 hemmed in by limits which it cannot pass. 
 
 (2) The State is wholly based upon the common nature 
 of men, and especially of its own people. Therefore it 
 cannot control private life in what is essentially individual, 
 but only so far as that life is affected by the common nature 
 of all men and by common necessities. For example, the 
 State can secure to all men equally the possession of a 
 corporeal thing, which we call property, but it must leave 
 to the individual the disposal and management of this 
 property. The property of Paganini in his violin, of Liszt 
 in his pianoforte, or of Kaulbach in his crayons, is a wholly 
 different thing from the property of an unskilled person in 
 those instruments. With this more subtle form of owner- 
 ship the State has nothing to do, because it is individual and 
 not common. So, too, the State can regulate in a rough 
 and general way the conditions of marriage and the rights of 
 married persons : in fact, it is bound to do so, because 
 upon these depends the security of the family and the moral 
 health of the nation. But the manner in which any parti- 
 cular marriage is completed, and the more delicate forms of 
 family life, lie outside the control of the State. Wilhelm von 
 Humboldt saw this, and was led astray into a desire to with- 
 draw the institution of marriage from legal regulation, and 
 to leave it altogether to private freedom. The Canon Law 
 fell into the opposite error, and endeavoured to impose legal 
 regulations upon matters which pertained to private freedom. 
 When the State punished heresy as a crime, it overstepped 
 
326 THE END OF THE STATE. 
 
 its natural limits and encroached unduly upon personal 
 freedom. 
 
 (3) The rule of the State extends no further than that of law, 
 because every rule which has the power of compulsion rests 
 upon the foundation of law. But law in its turn is limited, 
 
 (a) By the necessity of the peaceful co-existence of indi- 
 viduals, or by the recognition of the necessary conditions of 
 common life (private law, criminal law) ; and 
 
 () By the existence and development of the nation, to 
 which the private life of individuals is subordinated so far as 
 the security and welfare of the former demand (taxation, 
 military obligations, constitutional and administrative law). 
 
 So far as law is in question, the State is the supreme 
 authority, because the making and administering of law 
 belong by their very essence to the State. 
 
 (4) The State can extend its administrative care, and 
 therefore its influence, beyond the domain of judicial organ- 
 isation, but it has then no power of compulsion, and its 
 functions are limited to the support and encouragement of 
 important social objects for which State help is needed 
 (economical and educational measures of the State). The 
 care of the State for the national welfare is here expanded 
 into a care for the welfare of society, but only because the 
 latter is in need of assistance. 
 
 [Note. Besides the works of Mill and Spencer already referred to 
 above, ch. iii. note a, the following books in English may be mentioned 
 as dealing, from different points of view, with the limits of State action : 
 Burgess, Political Science, Part I. Book II. ch. iv ; Cunningham, Politics 
 and Economics ; Donisthorpe, Individualism-, Green, Lectures On 
 Political Obligation in Works, ii, and Lecture on Liberal Legislation 
 and Freedom of Contract in Works, iii ; Goschen, Address to the 
 Edinburgh Philosophical Institution on Laissez-Faire and Government 
 Interference ; Farrer, The State in relation to Trade ; Jevons, The State 
 in relation to Labour (these two last both in ( The English Citizen ' 
 series); Mackay (editor), A Plea for Liberty (with introduction by H. 
 Spencer) ; Montague, Limits of Individual Liberty ; Ritchie, Principles 
 of State Interference', Sidgwick, Political Economy, Book III ; Elements 
 of Politics, Part I ; J. F. Stephen, Liberty, Equality, Fraternity ; 
 Woolsey, Political Science, Part II. ch. v.] 
 
BOOK VI. 
 
 THE FORMS OF THE STATE. 
 
CHAPTER I. 
 
 THE DIVISION OF ARISTOTLE. 
 
 MORE than two thousand years ago Aristotle laid down Aristotle's 
 a division of the forms of the State which must be regarded 
 as the accepted view even in the present day. In making 
 this division he started from the conception of sovereignty, or 
 rather of governmental authority. In every State there is 
 a supreme organ *, in which power is concentrated and to 
 which all other organs are subordinate. The form of this 
 organ stamps a peculiar mark upon the State, and it is 
 natural therefore to make it the basis of a division of States. 
 
 Aristotle calls all those States which regard the good of Normal 
 the community normal (6p6ai), while those which regard 
 
 only the good of the rulers he calls perversions ( 
 of the normal State 2 . 
 
 Starting from this conception, he finds three normal 
 forms, each of which is accompanied by its corresponding 
 perversion. ' The supreme power,' he says, * must be 
 vested either in an individual, or in a few (the minority), 
 or in the many (the majority).' From this he derives the 
 following normal forms : 
 
 1. Kingship (/3ao-tXem), as Aristotle calls it, or Monarchy, 
 the more common name now the rule of an individual. 
 
 2. Aristocracy, the rule of a minority consisting of the 
 best citizens (or exercised for the best interests of the State). 
 
 3. The rule of the majority, of the masses, is called by 
 Aristotle ' Polity V In his day the democracy of the Greek 
 
 1 Aristot. Pol. iii. 6. i, 2, 1278 b, 6. 
 
 2 Ib. iii. 6. n, 1 279 a, 17. 
 
 3 Pol. iii. 7. 1-3, 1279 a J 22 sec l- [Cp- Eth. Nic. viii. c, io.j 
 
330 THE FORMS OF THE STATE. [Book VI. 
 
 cities, especially of Athens, had degenerated, and therefore 
 he avoids the term Democracy for the rule of the majority 
 exercised for the common interests, and restricts it to the 
 perversion of that rule. But in later times Democracy has 
 become again the usual term for this third form of the 
 State, and we shall employ it in that sense. 
 Perversions. The three perversions are thus designated by Aristotle : 
 
 1. Tyranny or Despotism, the rule of an individual exer- 
 cised primarily in his own interests. 
 
 2. Oligarchy, the rule of the rich for their own ad- 
 vantage. 
 
 3. Democracy 4 , in Aristotle's phrase, or, as we prefer to 
 call it, Ochlocracy *, the arbitrary rule of the poor (and. we 
 may add, the uneducated) masses. 
 
 Quality more i n ma king this division, Aristotle seems to have laid the 
 
 important 
 
 thanQuan- chief stress upon the number of persons who share the 
 supreme authority, just as in the Linnean system the num- 
 ber of stamens determines the genus of a plant. But this 
 runs counter to his own fundamental principle, that the 
 form of a State depends upon the quality, and not the 
 quantity, of the ruling organ. Aristotle himself 5 saw the 
 risk of this misconception, and therefore pointed out that 
 
 4 Aristot. Pol. iii. 7. 5-8. 3, 1279!), 4-26. Cicero, de RepubL i. 
 26, expresses the idea of Aristotle as follows : ' Quum penes unum est 
 omnium summa rerum, regem ilium unum vocamus, et regnum ejus 
 reipublicae statum. Quum autem est penes delectos, turn ilia civitas 
 optimatium arbitrio regi dicitur. Ilia autem est Qivits&popularis, in qua 
 in populo sunt omnia.' The three perversions arise when ' ex rege 
 dominus (fit), ex optimatibus/#^V0, ex populo turba et confusio ; ' i. 45. 
 
 [The term ox^oKparia is first used for the lowest form of democracy 
 by Polybius, vi. 4.] 
 
 5 Aristot. Pol. iii. 8. 6, 1279 b, 34 seq. [Cp. iv. c. 4.] Misled by 
 several modern accounts of the matter, I had previously overlooked 
 this, and had thus unfairly criticised the great political philosopher. 
 Sparta was a monarchy, although two kings ruled together. [Not 
 according to Aristotle. He calls it an ' aristocracy,' in the lower sense 
 of the term, according to which it applies to a form of mixed govern- 
 ment ; Pol. iv. 7. 4, 1293 b, 16; v. 7. 10, 1307 a, 35. The Spartan 
 kingship he considers only ' a hereditary generalship for life ' an office 
 compatible with any form of government; iii. 15. 2, 1286 a, 2.] 
 Venice was an aristocracy, although there was a doge at the head of 
 the State. 
 
Chap. I.] THE DIVISION OF ARISTOTLE. 331 
 
 the difference of number is naturally connected with a 
 difference of character in the ruling power, and that it is 
 the latter which is the ultimate criterion. Nevertheless, 
 he has not expressed himself definitely enough about the 
 principles of quality. 
 
 There is another point in which Aristotle's division re- Aristotle's 
 quires correction. It is incomplete, because history shows complete. 
 us a number of States which do not come under any of 
 his three normal forms. In all of them the supreme power 
 belongs to men, whether it is to one man, or to the best, or 
 to the people. But there have been States in which no 
 human authority has been recognised, in which the supreme 
 power has been attributed either to God, or to a god, or 
 some other superhuman being, or to an Idea. The men 
 who exercised rule were not regarded as its possessors, but 
 as the servants and vicegerents of an unseen ruler, free 
 from the weakness of human nature. 
 
 This fourth form of State, when directed to the welfare ideocracy. 
 of the subjects, may be designated by the general term 
 of Ideocracy (Theocracy) ; and its perversion may be called 
 Idolocracy. 
 
 Note. Schleiermacher (Abhandlungen der Berl. Akademie der 
 Wissensch. 1814, Ueber die Begriffe der verschiedenen Statsformeri) has 
 maintained that the three ancient divisions, monarchy, aristocracy, and 
 democracy, ' are always running into each other.' For example, in a 
 democracy the leading men may resemble an aristocracy ; and some- 
 times an individual, e. g. Pericles, may rule like a monarch. The same 
 truth applies to a monarchy, and Mirabeau was right in saying (Speech 
 of 1790 in his Works, viii. 139), ' In a certain sense republics are 
 monarchical, and again in a certain sense monarchies are republics.' 
 Nevertheless, the old division is by no means an empty one, and it is 
 perfectly true that the form of the supreme power does give a definite 
 stamp to the whole constitution of the State, and that the most important 
 political principles stand in the closest relations to it. 
 
CHAPTER II. 
 
 THE SO-CALLED MIXED STATE. 
 
 The Roman EVEN in ancient times the attempt was made to add 
 to Aristotle's division a fourth form, called the Mixed 
 State a . Cicero especially declared the Roman State to be 
 a model of this fourth form, a mixture of monarchy, aristo- 
 cracy, and democracy, and maintained this form to be the 
 best of the four \ 
 
 what is By a Mixed State may be understood one in which 
 
 Mixed * monarchy, aristocracy, or democracy are moderated or 
 limited by other political factors, e.g. a monarchy may 
 be limited by the formation of an aristocratic Senate or 
 Upper House, and of a primary or representative Assembly 
 of the people. In that case it is true that such a divided con- 
 stitution is better than when an individual, or a few, or the 
 majority rule absolutely and without restraint. But such a 
 mixture as this does not create a new form of State, for the 
 supreme governing power is still concentrated in the hands 
 of the monarch, or of the aristocracy, or of the people. 
 On the other hand, if it is understood that the supreme 
 
 a [Aristotle himself recognised mixed constitutions : e. g. Pol. iv. c. 7.] 
 1 Cicero, de Republ. i. 29 : ( Quartum quoddam genus reipublicae 
 maxime probandum esse censeo, quod est ex his, quae prima dixi, 
 moderatum et permixtum tribus : ' and i. 45 ; ' Placet enim, esse quiddam 
 in republica praestans et regale, esse aliud auctoritati principtim 
 partitum ac tributum, esse quasdam res servatas judicio voluntatique 
 multitudinis.' [Polybius (vi. n) had previously described the Roman 
 constitution as mixed. Plato (Laws, i. 712) treated Sparta as a mixed 
 government, but without using the phrase. On the whole question, see 
 Cornewall Lewis, Use and Abuse of Political Terms, pp. 72-90.] 
 
THE SO-CALLED MIXED STATE. 333 
 
 governing power is itself divided between the monarch, the 
 aristocracy, and the people, so that two supreme govern- 
 ments exist side by side, each independent of the other, 
 then Tacitus is right in rejecting the idea of a Mixed State, 
 and in maintaining that its existence, or at any rate, its 
 continuance, is impossible 2 . 
 
 In later times men have considered England to be a The English 
 Mixed State of this kind, in which rule is divided between 
 three supreme powers, King, Lords, and Commons, and 
 they have asserted that the English Constitution is perfect, 
 just because it is the ideal realisation of this mixed form. 
 But it is an error to suppose that the English Constitution 
 has arisen * from a division of the supreme governing 
 power. It was the monarchy which, in old times, gave to 
 the State its special form, and the monarchy has been gra- 
 dually limited, first by a powerful aristocracy, and later by 
 the admission of democratic elements. The external form 
 of the State has always been monarchical, and to the sove- 
 reign is attributed not only the supreme governing power 
 (the executive), but also the highest place in the legislative 
 bodies or parliament c . 
 
 Moreover, it is generally forgotten that the principle of The govem- 
 Aristotle's division does not rest on the nature and com- EgTsi'ature, e 
 position of the legislative power ; for in any advanced State s?dered n " 
 this is usually representative of the chief elements of the 
 whole nation. On the contrary, it depends on the anti- 
 thesis between the government and the governed, and upon 
 the question to whom the supreme administrative power 
 belongs. This latter cannot be divided, not even between 
 
 2 Tacitus, Ann. iv. 33 : ' Cunctas nationes et urbes populns aut 
 primores aut singuli regunt : delecta ex iis et consociata reipublicae 
 forma laudari facilius quam evenire, vel si evenit, baud diuturna esse 
 potest.' 
 
 *> [It is not the same question, whether a government is mixed, and 
 whether it has arisen from a mixture. Cp. Aristotle's remarks about 
 the Solonian constitution at Athens ; Pol. ii. 12. 2, 3, 1273 b, 35 seq.] 
 
 c [Throughout the book Bluntschli has been misled by exaggerating 
 the power of the monarchy in the English constitution. For a more 
 correct view, see Bagehot, English Constitution^ 
 
334 THE FORMS OF THE STATE. 
 
 a king and his ministers, for this would create a dyarchy or 
 triarchy, and would be opposed to the essential character of 
 a State, which, as a living organism, requires unity. In all 
 living beings there is a variety of powers and organs, but in 
 this variety there is unity. Some organs are superior and 
 others inferior, but there is always one supreme organ, in 
 which the directing power is concentrated. The head and 
 the body have no separate and independent life, but they 
 are not equal. So also for the State, a supreme organ is 
 a necessary condition of its existence, and this cannot be 
 split into parts, if the State itself is to retain its unity. 
 
 There is not, therefore, any such fourth form of State as 
 has been called a Mixed State ; and so far as mixture is 
 possible, it is amply treated in a consideration of the three 
 simple States enumerated above. 
 
 Note. In our days there has been much talk of ' democratic monarchy,' 
 and the formation of such States has been designated as the work of the 
 age. If the expression implies that monarchy must now-a-days base 
 itself upon the masses (the demos}, and must stand in close connexion 
 with them, it is correct, but such a State is a pure monarchy, and not in 
 any sense mixed. If, again, it implies a monarchy limited by demo- 
 cratic institutions or, like the July-monarchy of 1830 in France, 
 ' surrounded by republican institutions/ it has also a certain meaning ; 
 but in this case, as history shows, there is a danger that the principles 
 of the two institutions may come into conflict, and that monarchy may 
 be overthrown by the rising democracy or republic. But if it implies a 
 mixing or division of the supreme executive power, so that it is half 
 monarchical and half democratic, then it has no reasonable meaning, and 
 a State so constituted could not possibly endure. The French Con- 
 stituent Assembly of 1789 believed, with Rousseau, in the possibility of 
 such a division of the sovereignty between two equal powers, one of 
 which should belong to the nation, and the other to the king. But as 
 soon as it was practically tried, the system showed itself inconsistent 
 and unmanageable. Pinheiro-Ferreira (Principes du droit public, 475) 
 declares that monarchy to be democratic in which there are no privileges ; 
 but he includes under privileges any aristocratic distinction. To him, 
 therefore, the expression merely implies a monarchy in which there are 
 democratic but no aristocratic organisms, i. e. an incomplete state in 
 which the aristocratic elements are disregarded or suppressed. Compare 
 below, Chapter XVII, on Constitutional Monarchy. 
 
CHAPTER III. 
 
 LATER DEVELOPMENTS OF ARISTOTLE'S THEORY, 
 
 MONTESQUIEU, while following in essentials the division Monies- 
 of Aristotle, made a distinct scientific advance in seeking qt 
 for each of the three forms monarchy, aristocracy, and 
 democracy a spiritual or moral principle, apart from the 
 number of the ruling power. Whether he succeeded is 
 another matter. In his view virtue is the principle of 
 democracy, moderation of aristocracy, honour of monarchy, 
 and fear of despotism. He thus made despotism a fourth 
 kind of State, but it is better treated by Aristotle as a per- 
 version of the normal polity. 
 
 Schleiermacher 1 made a notable attempt to classify the Schieier- 
 various States according to different stages in the develop- " 
 ment of political consciousness. A State originates when 
 the people acquire the consciousness of the l necessary dis- 
 tinction (Gegensatz) between the government and the 
 subject.' The first step is when a small people or tribe 
 acquires this consciousness, and the new sentiment usually 
 seizes ' equally upon the whole mass which is ripe for 
 political life. 7 Then the sense of this distinction developes 
 among all ; they unite to form the government, and then 
 separate again to become subjects. This is democracy, in 
 which the opposition between public spirit and private 
 
 1 Schleiermacher, Ueber die Begnffe der verschiedenen Statsformen, in 
 the Abhandlungen der Berliner Academic, 1814. 
 
336 THE FORMS OF THE STATE. [Book VI. 
 
 interests is only slightly apparent. Or it may happen that, 
 although the whole mass is ripe for political life, the 
 impulse to form a State may affect it unequally : the political 
 consciousness may develope first in an individual or a few. 
 This creates inequality, which leads either to monarchy or 
 aristocracy. In this stage, while the State is still small, 
 the three forms are very similar, and are readily inter- 
 changed; but the natural inclination is always towards 
 democracy, because the masses speedily overtake the 
 individual or the few who were the first to acquire political 
 consciousness, 
 
 In the second stage, which unites several of these small 
 tribes, one exercises rule over others. This form of State is 
 essentially aristocratic, as in the earlier stage it is essentially 
 democratic. It cannot be democratic, because the majority 
 of the tribes are subject to the ruling one, and therefore 
 unequal. Externally it may assume the form of monarchy, 
 but the king must belong to the ruling tribe, and is therefore 
 only an aristocratic king. 
 
 The third and final stage, to which the latter is an inter- 
 mediate step, is reached when a great people becomes fully 
 conscious of national unity. The democratic character of 
 the first stage could not fully develope the political distinc- 
 tion of government and subjects, nor could it reach the 
 dimensions of a great nation. In the aristocracy of the 
 second stage the ruling tribe had always its separate interests, 
 and national unity was not the principle of the State. It is 
 in the third stage that true Monarchy is fully developed, 
 and the monarch represents the unity of the State, and 
 government in its full power. 
 
 This view of Schleiermacher gives an intellectual basis to 
 the three recognised forms of States, and connects them 
 with the stages in the development of the political idea. 
 Democracy appears as the lowest, and monarchy as the 
 highest, stage. Although no new principle of division is 
 introduced, yet a deeper insight is obtained into the spirit 
 of the different forms. 
 
Chap, ill.] DEVELOPMENTS OF ARISTOTLE'S THEORY. 337 
 
 But the course of history by no means corresponds with 
 this logical development of Schleiermacher ; in fact, the 
 historical order is often the reverse monarchy, aristocracy, 
 and democracy. This is really the more natural order, 
 because the active political consciousness is usually de- 
 veloped first in the upper classes of society, who live under 
 more favourable conditions, and then is gradually extended 
 to wider and lower circles. 
 
CHAPTER IV. 
 
 THE PRINCIPLE OF THE FOUR FUNDAMENTAL 
 FORMS OF THE STATE. 
 
 Four forms THE different forms of State are specifically divided, as 
 Aristotle recognised, by the different conceptions of the 
 distinction between government and subjects, especially by 
 the quality (not the quantity) of the ruler (Herrscher). 
 
 1. The first form is Ideocracy, of which the highest type 
 is Theocracy. Here the people regard their ruler as a 
 superhuman being, who is raised above them by nature : 
 God Himself is regarded as the true governor of the State. 
 
 2. In direct opposition to Ideocracy is Democracy. In 
 the former the people are subjected to an external power 
 outside and above themselves ; in the latter the people 
 govern themselves, i. e. collectively they form the govern- 
 ment, but as individuals they are subjects. 
 
 3. In Aristocracy the distinction between government 
 and subject is human, and within the limits of the nation : 
 an upper class or tribe becomes the government, while the 
 other classes and tribes are subjects. But while the latter 
 have nothing to do with the government, the individual 
 members of the ruling class are also subjects. 
 
 4. In Monarchy the distinction between government and 
 subjects is complete, but it is again human. The government 
 is concentrated in an individual, who is merely a ruler, and 
 not at the same time a subject, but who belongs altogether 
 to the State, and personifies the unity of the nation. 
 
 Their origi- In each of these four fundamental forms an original type 
 (Urtypus) is reflected : 
 
PRINCIPLE OF THE FUNDAMENTAL FORMS. 339 
 
 Theocracy represents the rule of God over the world, but 
 a rule which is exerted directly, and in a way harshly and 
 despotically. 
 
 Monarchy glorifies the unity of humanity in * Man ' as an 
 individual : the ruler represents the collective State, the 
 national unity is personified in its prince. 
 
 Democracy expresses the idea of the community of the 
 nation, or of all individuals, and presents to us the State as 
 a parish or commune (Gemeinde). 
 
 Aristocracy embodies the distinction between the noble 
 and the lower elements of the nation, and gives the rule to 
 the former. Its type is the nobility of higher race and 
 quality, just as the commune is the type of Democracy. 
 
 From one point of view Theocracy and Monarchy stand Consider- 
 in contrast to Aristocracy and Democracy. In the two these forms, 
 former, the supreme power and majesty of government are 
 so concentrated that the ruler is not also a subject, and 
 that he represents no private interests, but only the interest 
 of the State. In Theocracy, this elevation of the govern- 
 ment is divine, and therefore absolute ; in Monarchy it is 
 human, and therefore relative. On the other hand, in 
 Aristocracy and Democracy the distinction between govern- 
 ment and subject is not so clearly marked : the same men 
 at one moment rule and at another obey ; they have both 
 public and private interests. Hence it is that both are 
 often classed under the common name of Republic. In 
 Democracy this mixture of functions extends to the whole 
 people : in Aristocracy it is limited to the ruling class. 
 The latter, in relation to the other members of the nation, 
 are merely rulers, but among themselves they are usually 
 organised democratically, and thus both govern and are 
 governed at the same time. Thus Aristocracy appears to be 
 an intermediate stage between Democracy and Monarchy. 
 
 But, from another point of view, it is Monarchy and 
 Aristocracy which 'are connected, and stand in contrast to 
 the other two forms. In them the distinction between 
 government and subject is humanly organised in such a way 
 
 Z 2 
 
340 THE FORMS OF THE STATE. [Book VI. 
 
 that the rulers feel and know themselves to be independent ; 
 they are so regarded by the people ; they govern in their 
 own name and by independent right, though of course this 
 is more completely the case in monarchy than in aristocracy. 
 On the other hand, whether God or the people be regarded 
 as ruler, their authority must be exercised by some inter- 
 mediate persons, either priests or magistrates. These latter 
 belong personally to the class of subjects, and they exercise 
 only delegated authority as the servants of God or of the 
 people. They cannot therefore be regarded as real rulers ; 
 they only administer the government for the real rulers, 
 who are unable to act in person. They are constantly 
 forced to refer to a superior power, which itself rules them, 
 and which confers upon them an authority that they do not 
 possess in themselves. 
 
 The distinction of States according to the forms of 
 government is the foundation of constitutional law, and 
 belongs to the domain of public law (Statsrecht). The same 
 distinction is to be found in the tendencies of their political 
 life, even in opposition to the form of their constitution. 
 A State may be ruled in a spirit tending to theocracy 
 (theokratisirender Geist\ although it recognises some human 
 ruler, e. g. an ecclesiastical prince or a priestly caste. So too 
 a State may tend to aristocracy, although its public law 
 recognises no aristocracy, e. g. the English State, where the 
 monarchical form is modified by an aristocratic spirit. There 
 are also States tending to democracy, though they are not 
 democracies, e. g. Norway ; and others tending to monarchy 
 which have no real monarch, e. g. the French Republic. 
 
 Note. F. Rohmer {Lehre von den politischen Parteien, 219 sq.) 
 divides States according to the four ages of human life, and in making 
 this division he regards, not the form of the State, but its political 
 spirit, i. e. its party-character. His four divisions are : 
 Idolstat, in which the political spirit is Radical. 
 Individualstat ,, ,, Liberal. 
 
 Rassestat (race-state) Conservative. 
 
 Formenstat ,, ,, ,, Absolutist. 
 
 A monarchy, for example, may pass through all these phases of the 
 
Chap. IV.] PRINCIPLE OF THE FUNDAMENTAL 
 
 political spirit in order. R. v. Mohl's objection (Stats^vissenschaft, I. 
 p. 262), that a nation can be neither young nor old because children and 
 old men live in it side by side, rests upon a misconception of the theory 
 which he opposes. The ancients perceived clearly that nations, as 
 organic units, pass through successive ages analogous to the youth and 
 age of individuals, and Savigny has made the idea familiar to the legal 
 circles of Germany. But in addition to this succession of periods in a 
 nation's history, one must also consider that a nation has an innate 
 character of its own. Just as some individuals are by nature childlike 
 or even childish, and remain so in the prime of life, while others have 
 an elderly and staid character even in youth, so there are nations which 
 are childish and elderly by nature. This is most evident in the great 
 race-divisions. The Negroes are children several thousand years old, the 
 Red Indians have for centuries displayed the characteristics of age. In 
 Europe, the continent of manly nations, the Spaniards quite apart from 
 the period they have reached represent the elderly, as the Germans 
 the youthful, spirit. Whether young or old, and whether this youth or 
 age is due to natural character or to the period of its history, the people 
 transfer their spirit to the State in which they live. The manly forms 
 of constitutional monarchy become a simple farce among the childish 
 people of Haiti. 
 
CHAPTER V. 
 
 THE PRINCIPLE OF THE SECOND AR Y FORMS OF 
 THE STATE. 
 
 Division of THE quality of the head of the State determines the form 
 
 fccording to of the whole body. But it is necessary to consider in the 
 
 EhesL g bjectl second place the rights of the subjects, in order to fully 
 
 determine the legal character of the constitution, and to 
 
 complete the Aristotelian division. 
 
 As in considering the government one looks at the ruling 
 organ, so in considering the subjects, i. e. the nation in its 
 narrow sense, one looks at their control over the govern- 
 ment and their share in legislation. 
 
 By following this method of classification we arrive at the 
 following three secondary forms of States. 
 
 Unfree; i. The subjects are treated merely as a passive mass, 
 
 bound to unconditional obedience to the governing power. 
 They have no right of control nor any share in legislation. 
 Such a State is absolutely governed, and we may call it the 
 unfree form. And it is not only unfree when it is exposed 
 to the arbitrary caprice of a despot (Despotism), but in a 
 political sense it is equally unfree when the ruler recognises 
 the restraints of law and protects personal property and 
 freedom (Absolute Government). 
 
 Half-free.- 2. Some of the subjects, i. e. the upper classes, have the 
 right of control and a share in public business, and thus 
 limit the government. But the rest of the people, and 
 especially the lower classes, have no political rights or 
 
PRINCIPLE OF THE SECONDARY FORMS. 343 
 
 freedom. These States are half free ; and may be illustrated 
 by the mediaeval States which were organised upon feudal 
 principles or upon class privileges (Lehens- und Stdndestateri). 
 
 3. All classes have political rights. The whole country or Free states. 
 nation controls the government and takes part in legislation. 
 These are free States, or republics in the widest sense of the 
 word (or national States, Volksstaten). 
 
 This control or share in the government is exercised 
 either (a) directly through the assembly of citizens, as was 
 usual in ancient times (Ancient Republics), or (b) indirectly 
 through committees and representatives, the system of the 
 present day (Modern Representative States). 
 
 If we now bring together the fundamental and the second- ^ f p g|j cation 
 ary divisions, we obtain the following results : division to 
 
 1. Theocracy tends, by its principle, to the class of unfree fundamental 
 States. But it is not necessarily despotic, for the ruling God, 
 
 or the priesthood inspired by Him, may recognise and re- 
 spect a law of the community. It may therefore approach 
 to the second or to the third class, so far as the exercise of 
 the divine rule is influenced by the co-operation of aristo 
 cratic classes or of a national assembly. In this sense the 
 Jewish theocracy was republican. 
 
 2. Aristocracy gravitates towards the second class, the 
 half-free States. But it may be regarded as unfree when the 
 demos is wholly without political rights ; or it may rise to be 
 a free national State ( Volksstat] if the demos is allowed, as in 
 Rome, to have a real representation. 
 
 3. Democracy naturally belongs to the third class, the free 
 States. But it may become a despotism to the minority, or 
 an absolute government as regards individual citizens : and 
 again, in relation to a servile class (e. g. the slaves and helots 
 of antiquity or the negroes in America), it may appear as a 
 half-free State. 
 
 4. Monarchy, the most various of all kinds of State, forms 
 numerous combinations with these three classes. The des- 
 potisms of the East and the absolute governments of the 
 West are obviously unfree ; the kingdoms and principalities 
 
344 THE FORMS OF THE STATE. 
 
 of the middle ages, restricted by the clergy and the secular 
 nobles, were half-free; the Roman kingdom as organised 
 by Servius Tullius, the kingdom of the old Franks and the 
 modern Norwegians, all of which have given to the national 
 assembly a distinct share in the government, may serve as 
 examples of free monarchies : and finally, the constitutional 
 monarchy of the present day is the nearest approach which 
 monarchy has yet made to a free State with a representative 
 constitution. 
 
 When Aristotle's division, which rightly starts from the 
 summit, is thus completed by a consideration of the base, 
 the chief objections to it are removed. It is no longer 
 possible to maintain that it wants precision, or that it fails 
 in explaining such points as the close connexion between 
 modern representative democracy and constitutional mon- 
 archy, or the essential difference between absolute monarchy 
 and mediaeval monarchy limited by class privileges (stdndisch 
 beschrdnkte Monarchic). 
 
 Note. This analysis of the secondary forms of States was suggested 
 by the very interesting study by Georg Waitz of the difference of State 
 forms (Politik, p. 107 sq.). Waitz gives the name of Republic to a 
 state in which the government rests either with the nation or its delegated 
 representatives. On the other hand a Kingdom exists when an indi- 
 vidual governs by his own power and in complete independence of the 
 people. In his view the Aristotelian division is secondary, and his own 
 is primary. According to him the Roman Empire becomes a Republic 
 and the German Empire a Kingdom : the old Roman Patriciate is a 
 Kingdom, the Napoleonic Empire a Republic. But this method brings 
 confusion rather than order into the two divisions. The arrangement 
 given above and based both upon the quality of the ruler and the rights 
 of the subjects, is logically clear and necessary to complete the division 
 of Aristotle. It also explains satisfactorily why it is that constitutional 
 monarchy is more closely related to representative democracy than it 
 is to absolute monarchy. 
 
CHAPTER VI. 
 
 THEOCRACY OR IDEOCRACY. 
 
 THEOCRACY is a form of state which belongs to the Theocracy 
 infancy of the human race. The earliest political develop- "arTyd"?. 
 ment took place in Asia and Northern Africa, and here the 
 first states are theocratic. 
 
 In the early youth of humanity the sense of dependence 
 upon the divine being and upon the mysterious forces of 
 nature was extremely vivid, and the influence of God or 
 nature upon the life and education of men was more direct 
 and powerful than it has since been. All ancient sagas and 
 myths represent one or more gods as holding personal 
 intercourse with mankind. Plato's account of the original 
 condition of the Hellenic race agrees with the belief of all 
 early peoples. He tells how Kronos, reflecting on the 
 weakness and incapacity of the men of that time ' placed as 
 kings and princes not men but demons (6V/uoi>f?), beings of 
 superior and divine origin.' Plato was himself in favour of 
 this theocratic conception, and in his theory of the State he 
 employs artifices to allure men back to the old belief in 
 divine rule a . 
 
 In this belief in gods and demons 1 as the true heads of it involves 
 the State was inevitably involved the preponderant influence p^fest^ oi 
 
 a [See Plato, Laws, iv. 713.] 
 
 1 An extraordinary demonocratic state of the present day is described 
 by A. H. Layard {Nineveh and its Remains ', vol. i. pp. 269, &c ). The 
 Jezidi, a tribe of the mountains of Mesopotamia, are subject to a priestly 
 ruler, the great Scheik, and worship Satan, who they believe will one 
 day be restored to his high estate in the celestial hierarchy. 
 
346 THE FORMS OF THE STATE. [Book VI, 
 
 of the priests, the chosen mortals who were vowed to the 
 service of the gods and who alone could understand their 
 will and their utterances. Among such peoples therefore 
 the priests have supreme rank. In some the priests rule 
 directly in the name of one or more gods. In others kings 
 are at the head of the State, but they rule only as repre- 
 sentatives and organs of the gods, and either are themselves 
 high-priests or are under the influence and control of the 
 priesthood. The former may be called pure, the latter 
 limited, Priest-states (reine and gebrochene Priesterstateri}. 
 The latter form the stage of transition from Theocracy to 
 Monarchy. 
 
 Meroe. A pure Priest-state was that of the Ethiopians in Meroe. 
 
 The priestly caste was supreme : from their own body they 
 nominated some of the best, and of these God chose one in 
 a solemn ceremony : the people immediately did obeisance 
 to the divine nominee and revered in him the representative 
 of God. But the power of this chief was restricted on every 
 side by the divine laws and by the continued manifestations 
 of God's will in the oracles communicated through the 
 priests. A strict ceremonial ordered all his movements and 
 left no room for free decision ; everywhere the priests ac- 
 companied him and co-operated with him. Even his life 
 was not secure : if he displeased God, this was revealed to 
 the priests, they announced to him the message of divine 
 wrath, and nothing remained for him but to appease the 
 offended deity by a voluntary death 2 . 
 
 Egypt- Of the mixed priest-state we see an example in Egypt. 
 
 According to popular tradition the gods originally ruled 
 directly. Some centuries later human kings are found, but 
 they were regarded either as gods or as the descendants of 
 gods, and their power was limited by the divine law, by a 
 strict etiquette, and by the influence of the supreme priestly 
 caste. The divine precepts regulated such minute details 
 that the king could not even choose his own food, but his 
 
 2 Diodorus Sic. Hist. iii. 5, 6. Cp. Leo, Weltgeschichte, i. p. 79. 
 
Chap. VI.] THEOCRACY OR IDEOCRACY. 347 
 
 frugal meals were fixed for all time 3 . It is true that the 
 priests did not dare to bring him to trial during his lifetime, 
 but after his death they formed a solemn public tribunal 
 and issued a judgment on which depended his honour 
 among posterity, the reception of his soul in the lower world, 
 and even his resurrection. The Egyptians believed so 
 strongly in the life after death that they took the greatest 
 pains to preserve the body from corruption, to adorn it with 
 extravagance, and to build for its reception palaces which 
 suggested all the needs of life. It is obvious therefore what 
 hopes and fears must have been based on this judgment and 
 what tremendous power it placed in the hands of the 
 priests. 
 
 The old Indian state resembled the Egyptian, and was India. 
 also mainly Ideocratic. In the order of castes the king 
 stood below the Brahmins. A Brahmin would consider 
 himself and his daughter degraded if he gave her in mar- 
 riage to the king. Yet the royal dignity was so highly 
 esteemed that a certain divinity was considered to pertain 
 to it. According to the laws of Manu the king's body is 
 pure and holy, being composed of elements which have 
 their origin in the eight divine guardians of the world. ' As 
 the sun blinds he the eyes and the heart, and no one on 
 earth dare look him in the face. God has created him for 
 the preservation of all beings. No one may scorn him even 
 in infancy and say "he is a simple mortal," for a great 
 divine force dwells within him V 
 
 The Indian king was also surrounded by priests. He 
 must be consecrated by them on his accession. The seven 
 or eight ministers, whose advice he must take on all matters, 
 were mostly Brahmins. He could take no important step 
 without first consulting a council of conscience composed of 
 Brahmins. He was bound by the strictest ceremonial, and 
 
 3 Diodorus Sic. Hist. i. 71, 72. Cp. Duncker, History of Antiquity 
 (trans, by Abbott), i. p. 188. 
 
 * Manava Dharma Sastra. Laws of Manu (trans, by Sir W. 
 Jones), v. 96, 97 ; vii. 3-8. 
 
348 THE FORMS OF THE STATE. [Book VI. 
 
 the laws of Manu reminded him in the gravest terms of his 
 responsibility, though they did not define it very precisely. 
 1 The foolish monarch who oppresses his subjects with in- 
 justice will speedily lose both kingdom and life, he and his 
 whole family V 
 
 The Indian state, being of Aryan origin, was freer than 
 the preceding : the royal dignity and power were more fully 
 developed than in the more sombre states of Meroe and 
 Egypt. But in all we find a rigid system of caste and great 
 privileges in the hands of the priests, who had absolute 
 mastery over the intellectual life of the nation, and were 
 richly endowed with earthly goods. In Egypt they held a 
 third of the land 6 , and according to the Indian law ' a king, 
 even though he be dying of want, may not levy a tax on a 
 Brahmin well-read in the sacred books, nor allow such a 
 Brahmin to starve V The lower classes were oppressed and 
 despised, and there was no prospect of individual advance- 
 ment to brighten their hard lot. The Egyptian peasants 
 were simple serfs who cultivated the property of the priests, 
 the kings, or the warriors. The shepherds and artisans 
 were bound by birth to their occupation, were subject to 
 arbitrary taxation, and had no active part in political insti- 
 tutions. Compulsory labour of all kinds was common in 
 these countries. 
 
 For centuries this theocratic character has prevailed in 
 the states of Asia, and it is still visible in the eastern em- 
 pires. It is true that as the secular ruler has increased his 
 power by the conquest of vast territories, the authority of 
 the priesthood has been obscured and driven into the back- 
 ground. But the rulers themselves have become gods, and 
 thus the theocratic character of the state has been main- 
 tained, though not in the old form. First the ruler was God 
 in person, and kings and priests were His instruments ; then 
 the rule passed more and more into the hands of the priest- 
 hood, headed by a priestly, or later by a military, king ; 
 
 5 Laws of Manu, vii. 54, etc. 
 6 Diodorus Sic. i. 73. 7 Laws of Mami, vii. 1 33. 
 
Chap. VI.] THEOCRACY OR IDEOCRACY. 349 
 
 finally the king himself was venerated as a god, and a super- 
 human despotism arose. This was the case in the Persian 
 empire, as in the later rule of Mohammedan Sultans and 
 the Emperors of China. 
 
 Vitagpa, the king of Iran about the year 1000 B. c., in Persia, 
 whose time Zarathustra (Zoroaster, Serduscht) appeared as a 
 prophet, called himself priest-king, and in the Persian sacred 
 books (the Zend-Avesta) the king is placed, not in the caste 
 of warriors as in India, but in that of priests (the ' learned in 
 law and in god 8 '). The whole political system was re- 
 ligious, there was no distinction between law and morality, 
 the invisible world of good and evil spirits was regarded as 
 in constant connection with the visible world of humanity. 
 But when kings arose in Persia outside the priestly class, 
 the state became more and more a despotism, and the in- 
 fluence of the Magi, though still considerable, was far less 
 than in earlier times. The king became as all-powerful as 
 the god who had raised him to rule ; his court was the 
 earthly copy of the heavenly court of Ahuramasda, the good 
 spirit. Divine honours were paid to him : he sat upon his 
 lofty throne of gold, adorned with purple robe, tiara on his 
 head, the golden staff in his hand, the sword by his side, 
 ' glittering like the sun in the shining firmament/ and before 
 him foreign envoys prostrated themselves in the dust, like 
 slaves before their lord, or worshippers before their god. 
 Gifts were offered to him like sacrifices to a god, and when 
 he died he was carried to the gorgeous mausoleum in Per- 
 sepolis, there to continue the life of the blest. He was 
 honoured with a solemn ceremonial and symbolic rites 9 . 
 In reality this ceremonial enclosed him like a golden net, 
 deprived him of all freedom of will, and mocked his boasted 
 omnipotence. 
 
 Nevertheless, this change from priestly rule to despotism 
 
 8 Vuller, Fragmente iiber die Religion des Zoroaster (Bonn, 1831), 
 PP- 33> 69. Cp. Spiegel, Avesta (Leipzig, 1852-63), vol. iii ; also 
 Duncker, History of Antiquity, v. p. 132. 
 
 9 See Leo, Weltgesch, i. 120 sq. ; Duncker, vi. 389 seq. 
 
350 THE FORMS OF THE STATE. [Book VI. 
 
 marks a distinct step in advance. It overthrew the rigid rule 
 of a revelation which the priests read in the stars and which 
 was deemed divine, and it broke through the innumerable 
 forms which were imposed upon the whole political life by 
 the observance of fixed supernatural laws. A free human 
 will, despotic though it was, began to express itself in public 
 affairs, and could give attention to changes of political 
 conditions and to the new needs of the people. Thus the 
 iron system of caste was early broken up in Persia. 
 The Jewish The most notable of ancient theocracies was that of the 
 Jews in the Mosaic dispensation. It was based on the firm 
 foundation of a pure religion, and of a vivid belief in a single 
 God, the creator and preserver of the world. 
 
 Among the Jews the king was God himself, Jahve or 
 Jehovah. He was the immortal lord of a mortal but chosen 
 people. He was both legislator and ruler. The whole 
 system of law, which we call Mosaic, was regarded as the 
 revelation of God, with whom Moses spoke in the solitude 
 of the mountain-top, whose will he received with fear and 
 trembling and announced to the people with loyal truth. 
 Thunder and lightning manifested the presence of God 
 upon Mount Sinai. 
 
 The whole people was elevated by His divine rule. In 
 Egypt they had been despised and regarded as outcasts with 
 whom intercourse was degrading. Now they were filled 
 with the lofty thought that they were the nation chosen 
 and preferred by God. Although they were divided into 
 hereditary tribes, and had one special priestly tribe (that 
 of Levi), yet all were descendants of Abraham, Isaac, and 
 Jacob, they formed as it were a ' nation of priests.' Thus 
 their ruling principle was not that of rigid caste distinctions 
 but the brotherhood of the tribes. 
 
 The divine law was preserved in an Ark overlaid with 
 gold, over which rose the golden mercy-seat, guarded by two 
 cherubim and revered as the seat of divine revelation. The 
 ark and the mercy-seat were both concealed behind a curtain 
 in the Holy of Holies within the tabernacle which was God's 
 
Chap. VI.] THEOCRACY OR IDEOCRACY. 351 
 
 residence, and was carefully guarded by the priests. There 
 the High Priest received the commands of Jehovah and an- 
 nounced them to the people. The High Priest, descended 
 from Moses' brother Aaron, was the natural organ of the 
 divine will, and also the representative of the people before 
 their Lord. In exceptional and critical times Jehovah sent 
 inspired individuals, or prophets, to restore His neglected 
 authority, to awaken the conscience of kings or people, to 
 punish backsliding, to urge repentance and amendment, 
 and to reveal the future destiny of the nation. The judges 
 who were placed at the head of the tribes to administer the 
 law, did so in the name of Jehovah, ' for the judgment is 
 God's.' Therefore they shall 'not respect persons in judg- 
 ment, but shall hear the small as well as the great, and not 
 be afraid of the face of man.' If any cause was too hard 
 for them, they were to demand God's judgment through the 
 Levites, and this judgment they must carry out or die 10 . 
 
 The whole soil of the Promised Land was the property of 
 Jehovah, and the various families only held it as tenants. 
 In recognition of the divine ownership a tenth of the 
 produce of land and flocks had to be given to the taber- 
 nacle for the maintenance of the priests. Every seventh 
 year was a year of rest, even for the land which was not 
 tilled, just as the seventh day of the week was a day of rest 
 for men ; and after seven times seven years came the year 
 of jubilee, in which the original division of the soil was 
 renewed, so that impoverished families recovered their 
 lands, while those who had grown rich had to resign 
 their surplus. A Jew could never be a slave; if poverty 
 compelled him to sell himself he was treated as 'a hired 
 servant and a sojourner,' and was released in the year of 
 jubilee. A slave among the Jews was always of foreign 
 blood 11 . 
 
 When the Jews afterwards demanded a king, that they 
 
 10 Deuteronomy i. 17, and xvii. 8, &c. Cp. Duncker, ii. 201 sq. 
 
 11 Numbers xxv. ; Deuteronomy iv. and v. Cp. Duncker, ii. 219. 
 
352 THE FORMS OF THE STATE. [Book VI. 
 
 might be ' like other nations,' Jehovah granted their wish 
 through the mouth of their judge, Samuel, but He consoled 
 the latter by saying, ' Hearken unto the voice of the people 
 in all that they say unto thee : for they have not rejected 
 thee, but they have rejected me, that I should not reign 
 over them ] V So the state passed from pure theocracy to 
 monarchy, but the monarchy was always partly theocratic, 
 and influenced by the religious character and mission of the 
 Jewish people. . 
 
 Theocracy In Europe we find only isolated and feeble echoes of the 
 old theocracy. Caligula appearing in public as Jupiter with 
 golden beard and lightning ; Heliogabalus sacrificing as a 
 priest to the sun ; Gessler in the Swiss legend bidding the 
 free mountaineers to revere the emperor's hat : all these are 
 only caricatures of a form of state which had perished, and 
 which had no claim to permanence. But there are a few 
 relics of theocracy in the Roman empire, e.g., in the statues 
 and temples to living emperors, the name of Divus given 
 to them after death, and the ceremonial of the later 
 Byzantine court. 
 
 In the middle ages the influence of the clergy, always de- 
 voted to the theory of theocracy, gave to the Christian states 
 a theocratic colouring. This is apparent in secular as well 
 as in ecclesiastical principalities, though naturally more so 
 in the latter. Thus the Emperor has to receive priestly 
 consecration *. But however fond men were in the middle 
 ages of deriving all right and power from God, they never 
 regarded their rulers as anything but men, and they im- 
 posed manifold human restraints upon their power. 
 
 The only real theocracy in Europe is the Christian Church, 
 the hierarchy of the clergy. Secular princes and govern- 
 
 12 1 Samuel viii. 7. 
 
 b [The prince chosen by the seven Electors assumed the title of King 
 of the Romans : he was not formally Emperor until his coronation by 
 the Pope, which was often delayed for some time. Charles V was the 
 last Emperor who received this papal coronation : his successors 
 assumed the imperial title on election. The Holy Roman Empire 
 ended with the abdication of Francis II in 1806.] 
 
Chap. VI.] THEOCRACY OR IDEOCRACY. 353 
 
 ments are always being reminded of their human origin by 
 the Church. The fundamental forms of the mediaeval state 
 are rather aristocracy or monarchy than theocracy. 
 
 On the other hand, the Mohammedan states which arose The Moham- 
 
 . i , 1 . medans. 
 
 in the middle ages must be regarded as theocratic in 
 character. It is true that the Mohammedans did not, like 
 the Jews, believe in a direct and regular government by 
 God ; Mohammed did not restore the theocracy of Moses. 
 But the Koran teaches that God confers rule upon whom 
 He will, and treats the human head of the State as the 
 representative vicegerent and vassal of God. In the 
 Caliphate, the ideal of the political system of Islam, are 
 combined the functions of high-priest and of king. The 
 Caliph is Emperor and Pope in one. There is no valid 
 distinction between religion and law, theology and juris- 
 prudence; theologians are also lawyers. Islam has much 
 more in common with theocracy than Christendom has 13 . 
 
 The modern world is obviously hostile to the theocratic 
 form of State, and to everything that suggests it : witness 
 the disappearance of ecclesiastical principalities, and the 
 abolition of the Pope's temporal power in iSyo 14 . 
 
 The following are the ordinary characteristics of theocratic General char- 
 
 ~ acteristics of 
 
 States : Theocracy. 
 
 1. There is a close intermixture of religion and law, of 
 ecclesiastical and political institutions and maxims, with a 
 preponderance in favour of the religious elements. The 
 prospect of the life after death so dominates over the 
 earthly life that it obstructs its free development. 
 
 2. The principle of authority is exalted to a superhuman 
 height, and becomes by its nature absolute. All civil and 
 political life is dependent upon it. The subjects do not 
 
 13 For other states with a theocratic tendency, see Bluntschli, article 
 Ideokratie in the Deutsches Statsworterbuch, v ; also v. Mohl, Encyclo- 
 pddie der Statswissenschaft, 41. 
 
 14 Even the constitution of Montenegro, which a few years ago 
 possessed a priestly-military chief in the Vladika, has approximated to 
 the other states of Europe by separating the priestly dignity from the 
 sovereignty. 
 
 A a 
 
354 THE FORMS OF THE STATE. [Book VI. 
 
 stand in any human relation to their chief, they are not con- 
 nected with him by common patriotism, common nationality, 
 or common race. The ruler is raised to an inaccessible 
 height and becomes omnipotent. 
 
 3. So far as this divine authority is based upon a revela- 
 tion made long ago and no longer continued, as among the 
 Jews upon the Mosaic dispensation, and among the Moham- 
 medans upon the Koran, it founds a firm but unchangeable 
 organisation. 
 
 If, on the other hand, the deity is supposed to issue new 
 decrees to suit changing circumstances and momentary 
 needs, then there are only two ways in which its human 
 representatives can learn the divine will. Either there are 
 definite external forms for its manifestation, or it must be 
 known by internal inspiration. The first method was 
 employed by the Chaldeans who read the stars, by the 
 Jews who watched the aspect of the rising sun, by the 
 Roman augurs and haruspices who scrutinised the entrails 
 of the sacrifices and the flight of birds, by the Greeks who 
 questioned the oracles, and by the Germans who cast the 
 dice. It leads always to superstition and fraud. A belief 
 in inspiration, on the other hand, leads to a passive sur- 
 render of the intellectual powers that were given for active 
 use, and to a passionate confidence in the expected impulse 
 from above. 
 
 Thus in a theocracy the human organs which are indis- 
 pensable for deciding matters of legislation and government, 
 are very imperfectly developed and can never be relied 
 upon. 
 
 4. The secular magistrates are subordinate to the priests, 
 who regard themselves as nearer to God. If they rule 
 directly, the State is obviously a priest-state, while if a 
 secular sovereignty co-exists with them, their supremacy 
 still remains beneath the surface, and it is a latent priest- 
 state. 
 
 In every priesthood there is something effeminate, so that 
 in a priest-state the manly qualities are subordinate to the 
 
Chap. VI.] THEOCRACY OR IDEOCRACY. 355 
 
 feminine, and self-confidence and freedom never reach full 
 development. Under clerical rule laymen must always be 
 obstructed and kept in the background. 
 
 5. There is a harsh criminal jurisdiction and cruel punish- 
 ments 15 . Human justice represents the wrath of God, the 
 free movement of the individual intellect is condemned as 
 impious, and a slight offence is treated as an insult to the 
 divine majesty. 
 
 6. The education of the people falls wholly into the hands 
 of the priests. Schools become instruments for the attain- 
 ment of clerical objects. Science, art, and all kinds of skill 
 are only encouraged so far as they serve these objects ; as a 
 rule they are distrusted and neglected, and if they seem to 
 threaten any danger to religious authority they are suppressed 
 and persecuted. They are regarded, not as having any value 
 in themselves, not as free creations of the human intellect, 
 but merely as slaves of the Church. 
 
 15 See Duncker's remarks in \hzHistory of Antiquity, iv. 398. 
 
 A a 2 
 
CHAPTER VII. 
 
 THE CHIEF KINDS OF MONARCHY. 
 
 MONARCHY is the most widely recognised form of State 
 in the world. It is found in all continents, in Asia and 
 Europe it is almost universal, and it has been so from the 
 beginning of history to the present day. But monarchies 
 differ so much both in idea and in form that it is difficult to 
 classify their main divisions. 
 
 Despotism. i. The transition from theocracy to human kingship forms 
 Despotism, of the kind which mainly prevailed in Asia. The 
 distinguishing mark of Despotism is the concentration of all 
 rights in the monarch, so that no one has any right apart 
 from or in opposition to him. He may recognise the re- 
 strictions of religious or moral duty, or of his responsibility 
 to God, but his power is not limited by the rights of his 
 subjects, who are mere slaves and dependent upon his 
 arbitrary grace and favour. 
 
 Such a despotism must seek some justification for itself 
 by appealing to the divine omnipotence. The despot must 
 be revered as the vicegerent of God, his power is unlimited 
 because it comes from above. Thus despotism is closely 
 allied to theocracy, and shares its defects, in spite of the 
 human character of the ruler. The Mohammedan States of 
 the middle ages had this tendency towards despotism, and it 
 is only in our own day that they have approximated more 
 nearly to the human monarchy of the rest of Europe. 
 
 Civilised 2. Despotism may be regarded as the barbarous form of 
 
 onarchy. mo narchy. The peoples of Aryan origin rejected it long 
 
 ago as degrading, and recognised the rights of classes and 
 
THE CHIEF KINDS OF MONARCHY. 357 
 
 individuals apart from those of kings and princes. The 
 subjects have regarded themselves as freemen, not as slaves. 
 Whenever the monarchical power has been strained so as to 
 verge upon despotism, they have regarded it as an injustice, 
 and have seized the first opportunity to compel the ruler to 
 respect their rights. Civilised monarchy, therefore, is always 
 conditioned and limited by a judicial organisation to secure 
 common rights. The position and power of the monarch 
 is raised rather than lowered by this, for it is a nobler task 
 to guide the political forces of a free people, than to direct 
 the stupid obedience of a servile mass. The more a State 
 can combine the unity and energy of the whole with the 
 freest development of the members, the more perfect is its 
 organisation. This is possible in a civilised monarchy, in a 
 despotism it is impossible. 
 
 The human intellect has made many attempts in different 
 periods and among different nations to find the exact 
 measure of the limitations that should be imposed upon 
 monarchy. 
 
 One of the earliest forms is the Kingship of the Family, Patriarchal 
 or Patriarchy (Geschlechtskonigthum^ Patriarchie]. The king ings ' 
 is regarded as the head of the chief family, as the elder and 
 father of the race. This early and artless institution, which 
 is found in the Vizpati of the Indian races and the Kuning 
 of the German tribes, is regulated by the relations and spirit 
 of the family. 
 
 Equally bound up with the institutions of personal pro- Feudal 
 perty and security is the patrimonial principality of the 
 middle ages, whether in the form of the feudal State 
 (Lehensstaf) or of a simple territorial lordship (Landesherr- 
 schaft, dominium terrae}. This, too, is influenced by family 
 rights and dynastic conceptions, but it also confounds the 
 State with the ownership of the soil, and treats the function 
 of the ruler as a right over property. 
 
 These two forms, in which political consciousness is as 
 yet undeveloped, may be termed immature phases of 
 monarchy. 
 
358 THE FORMS OF THE STATE. [Book VI. 
 
 Military and 3. When the political consciousness is only partially 
 
 cipSr in ~ awakened, and is directed only to a single function of the 
 ruling power, we have one-sided (einseitige) forms of mon- 
 archy. Such are military principalities in which the military 
 function is primarily regarded, or judicial principalities 
 (Gerichtsherrschafi] in which the judge is the ruler. The 
 former is more absolute and energetic, the latter more 
 limited and peaceful. 
 
 Absolute 4. When the political consciousness is excessively de- 
 
 veloped in the prince, the central power obtains decisive 
 preponderance in his hands, and the people have no political 
 rights. This absolute monarchy is the civilised form corre- 
 sponding to the barbarous form of despotism, but it differs 
 from it in that the monarch recognises a judicial organisa- 
 tion, and is willing, at any rate as a rule, to respect it. In 
 the Roman Empire this power was more absolute than in 
 modern states, in which it has been restricted even in the 
 middle ages by Christianity and by the development of 
 freedom. 
 
 Limited e Limited monarchy is at once more noble and better 
 
 Monarchy. * J 
 
 proportioned. It retains the unity and supremacy of the 
 central power, and seeks to combine with these the liberty 
 of all classes and individuals of the nation. In the middle 
 ages such a monarchy was restricted by the privileges of 
 nobles or of estates, as in modern times by representative 
 and constitutional forms. 
 
 Kingship 6. In treating of monarchy it is necessary to notice the 
 distinction between Kingship and Empire (Kaiserthum), a 
 distinction which is found in all stages of development, 
 in the rude despotisms of Asia, and in the civilised states 
 of Europe. 
 
 The idea of Kingship refers to the nation, that of Empire 
 to humanity. Kingship is the supreme institution of the 
 single national State, Empire is the crown of the world. The 
 emperor is raised above kings as humanity above the sepa- 
 rate nations. The rulers of Oriental empires are always 
 kings of kings. Julius Caesar conceived the thought of the 
 
Chap. VII.] THE CHIEF KINDS OF MONARCHY. 359 
 
 universal rule of Rome, and history has given his name to 
 this lofty conception of the State. But this idea can never 
 be fully realised until the world has advanced to a universal 
 organisation of humanity. Till that time all attempts to 
 restore the Empire must be, like those in the past, partial 
 and imperfect 1 . 
 
 1 On the idea and the history of the Empire, see the article on Kaiser- 
 thum in the Deutsches Statsworterbuch. 
 
CHAPTER VIII. 
 
 I. FAMILY KINGSHIP AMONG THE GREEKS AND 
 GERMANS. 
 
 character- THE conception of kingship among the tribes and states 
 
 Gr'ee^amT y of early Greece and Germany is remarkably similar, while 
 
 Monarchy. ^at which prevailed among the ancient Romans, who come 
 
 between them in point of time, differed in important re- 
 
 spects from both. 
 
 The kingship of the Greeks and Germans is the transition 
 from the ideocratic form of single rule in the east to a 
 human and political institution. The kings were believed 
 by the people to derive their descent from the gods, from 
 Zeus or Woden *, but they were not themselves regarded as 
 gods, and they were subject to human restraints. 
 
 Therefore, the honours paid to the king were greater than 
 his power. He represented the nation in its relations with 
 
 1 Hence the expressions of Homer, K 8e Aibs 
 5torp($is. Cp. Iliad) ii. 204-6 : 
 
 OVK ayaOov TroXvicoipavir]' els Koipavos eff 
 "Eh @affi\vs, o5 !5o>tf Kpovov i 
 ^KrJTTTpov T ^5e 0e/itoray, iva 
 Cp. Hermann, Griech. Statsalterth. 56 ; also Sophocles, Philoct. 
 138-140: 
 
 T\va yap T\vas trtpas 
 real yvwfia trap' orca TO Oetov 
 
 Cp. the praise of kingship in the Indian epic, Rama, in Holtzmann, 
 
 Indische Sagen, ii. p. 316 : 
 
 ' As for the body the eye always 
 To all sides carefully looks, 
 So for the realm the prince of men, 
 Root of virtue and law. 
 
GREEK AND GERMAN FAMILY KINGSHIP. 361 
 
 the gods, and officiated as intermediary between the two in 
 sacrifice and prayer 2 , when these were not performed by a 
 special priesthood. Thus in Athens, after the monarchy 
 had been abolished, the sacrificing archon retained the title 
 of king. 
 
 Their pecuniary estimation was much higher than that of 
 the other members of the State. The ivergild of the king 
 in Germany was usually many times as great as that of the 
 noble. They were also very superior to their subjects in 
 wealth, the greater part of the land was their domain, and 
 they received the largest share of conquered territory 3 . 
 Their residence, or palace, was larger and more richly 
 adorned than the other houses 4 . Their treasuries, or hoards, 
 were rich in ornaments and precious stones. They had ex- 
 ternal ensigns of their royal rank, the sceptre 5 , the throne, 
 and the announcement of their approach by heralds. Their 
 dress was always conspicuously brilliant. The ancient kings 
 
 Wrapped in blind darkness 
 
 Waste and confused is the world 
 
 Unless the king keeps order 
 
 And shows what is just and unjust.' 
 
 According to Jornandes, c. 14, the Amals spring from the race of the 
 Asa. Hengist and Horsa are believed to be descended from Woden. 
 On the gradual development and extension of monarchy among the 
 German tribes, even among those which originally had no kings, see 
 Dahn, Die Konige der Germanen (Miinchen, 1861-71), and Gierke, 
 Deutsches Genossenschaftsrecht, i. p. 48, &c. 
 
 2 Aristor. Pol. iii. 14. 12, 1285 b. 10. In the Scandinavian countries 
 this characteristic of the kings is more prominent than in the known 
 history of any German state. Comp. Grimm, Deutsche Rechtsalt. p. 243. 
 King Hakon of Norway, though inclined to Christianity, was compelled 
 by the still heathen peasants to sacrifice in ancient fashion at the Thing, 
 to drink from the sacred goblet, and to eat horseflesh. Konrad 
 Maurer, Die Bekehrung des nonvegischen Stammes zum Christenthum y 
 i. p. 160 if. 
 
 3 Tacitus, Germ. c. 14 : ' Materia munificentise per bella et raptus ' ; 
 c. 26 : ' Agros inter se secundum dignationem partiuntur.' In spite of 
 incessant alienations, the kings and princes of Germany retained extensive 
 territories throughout the middle ages. 
 
 4 Homer, Od. iv. 45-46 : 
 
 "Hs re yap r]\iov a'tyXrj ire\v 
 
 Comp. vi. 301, and the ' Hallen ' of the German princes. 
 5 Homer, //. ii. 100-8. Cp. Grimm, Rechtsalt. p. 241. 
 
362 THE FORMS OF THE STATE. [Book VI. 
 
 of India and China always appeared in a long robe worked 
 in gold thread, and with a yellow umbrella 6 . 
 
 The existence of royal families and their supposed descent 
 from the gods prove that ancient monarchy was hereditary. 
 Yet there were no fixed rules of succession. Among the 
 Greeks regard was paid to personal courage and capacity. 
 Women and children were almost always excluded, and as 
 acknowledgment by the nobles and people was necessary, 
 it sometimes happened that the hereditary succession was 
 broken through 7 . Among the Germans the practice pre- 
 vailed of election by the nobles and recognition by the 
 people, but as a rule the succession was hereditary, and 
 children obtained the crown more often than in Greece. 
 There was nothing, however, to prevent the free community 
 from preferring a more distant member of the royal family 
 if he seemed more likely to be a capable ruler 8 . 
 Limits to The political power of these kings was considerable, but 
 
 royal power. , . . ..... 
 
 was subject to important limitations. 
 
 i. The king presided over and directed both the council 
 of princes and the national assembly 9 . But in both, ac 
 cording to Tacitus, his authority depended rather on his 
 persuasive influence than on his right of command 10 . 
 
 6 Grimm, Rechtsalt. p. 239 ; Thierry, Recits des Temps Merovingiens, 
 ii. 82 ; Rama, 1. 782 (in Holtzmann, Indische Sagen, vol. ii). 
 
 7 Comp. the history of CEdipus. Among the Indians we find a 
 similar combination of hereditary right (by primogeniture) with election 
 by the princes ; v. Holtzmann, Indische Sagen, ii. 184. 
 
 8 Tacitus, Germania, c. 7 : ' reges ex nobilitate sumunt.' The German 
 name for king, Chuningcn: Kun-ing, comes from chun or chuni, family. 
 Childebert II became king of Austrasia at the age of five (Thierry, Temps 
 Meroving. ii. 43). Instances of departure from hereditary succession are 
 more common in the history of the Visigoths and Lombards. F. Dahn 
 (Die Konige der Germanen, i. 32) lays more stress upon hereditary 
 right, Thudichum (Der altdeutsche Stat, p. 60) upon election, but both 
 recognise the combination of the two principles. A similar combination 
 is to be found among the Indians ; v. Holtzmann, Indische Sagen, ii. 184 
 (Rama, 1. 22). 
 
 9 The @ov\rj or ytpovres of the Greek kings corresponds to the 
 concilium principum which Tacitus describes among the Germans ( Germ. 
 cc. n, 12). 
 
 10 Tac. Germ. c. n : 'auctoritas suadendi potius quam jubendi.' 
 
Chap. VIII.] GREEK AND GERMAN FAMILY KINGSHIP. 363 
 
 2. He was the chief judge, and though he did not pro- 
 nounce the decision, he defended and maintained the law 11 . 
 His power was not at all arbitrary, as he was bound to 
 respect the decision of the court. 
 
 3. He was the head of the military organisation, and 
 usually the leader of the army 12 . It was by war that his 
 power increased 13 . But the Germans, just because they 
 respected hereditary right more than the Greeks, were often 
 compelled by the minority of the king to appoint heretogan 
 (duces, dukes) to take the actual command, though the king 
 was still regarded as the supreme head of the national force 
 (ffeerbann). 
 
 4. Real government was very little developed among the 
 early Greeks and Romans, though its germs were concealed 
 under the attributes of the king which have just been 
 enumerated. 
 
 5. In both races the king's existence and rights were 
 hemmed in by the rights of gods and men. The Greeks 
 laid special stress upon the obligation of their kings to re- 
 spect the divine ordinances and the national laws and 
 customs, and they pointed to this as distinguishing them 
 from oriental despots u . The king was within the judicial 
 organisation, not above it ; he was not outside the nation, 
 but at its head. The German kings were still more limited 
 by the rights of the whole body of freemen 15 . 
 
 But there was one peculiarity of the German kingship The German 
 
 r Camitatns. 
 
 11 Hence Homer calls the kings SiKaa-noXoi (II. i. 238) and 0fjuffTo-rr6\oi. 
 The Indian name for king, rag, comes from rag (right, richten), as rex 
 from regere. Comp. Lassen, Ind. Alterth. i. 808 ; also Holtzmann, Ind. 
 Sagen, ii. 184 (J?ama, 1. 23) : 
 
 'The burden of justice 
 which the King's majesty bears.' 
 
 12 Arist. Pol. iii. 14. 12, 1285 b. 9 : fcvpioi S' rjaav TTJS TC Kara ir6\fAoi> 
 rjycfjiovias. In many of the German tribes a successful heretoga founded 
 a royal dynasty. 
 
 13 Cp. Caesar, de B. G. vi. 23. 
 
 14 Dionys. Hal. v. 74; Arist. Pol. iii. 14. 12 and 14. Cp. Sophocl. 
 Oed. Rex, 1. 850 sq. ; Antig. 1. 451, and Oed. Col. 1. 1372 sq. 
 
 15 Tac. Germ. c. 7, ' nee regibus infinita aut libera potestas ; ' and 
 c. u, * penes plebem arbitrium.' 
 
364 THE FORMS OF THE STATE. 
 
 which led to a great increase in its power. This was the 
 comitatuS) a body of men bound by oath to personal fidelity, 
 whose constant aim was to defend the king's honour and 
 power against all opponents. This institution is the germ 
 from which sprang the later feudal organisation, which was 
 destined to break through and to a great extent to transform 
 the old constitution. 
 
CHAPTER IX. 
 
 II. NATIONAL MONARCHY IN ANCIENT ROME. 
 
 IN some points the kingship of ancient Rome seems Conception 
 closely akin to that of the Greeks and Germans, but in Monarchy, 
 others it displays such important differences that we must 
 regard it as a new and more developed form. In the very 
 appointment of the kings there are two notable points of 
 difference hereditary succession is less prominent than 
 nomination or election, and popular belief does not attri- 
 bute divine descent to the kings. 
 
 It is true that the founders of Rome were believed to 
 have divine blood in their veins, and Romulus was placed 
 among the gods after death. But from his time the gods 
 exerted their influence in the choice of kings, and in all 
 other matters, only by the signs of the auspices, by the in- 
 visible impulse of the soul, and by the irresistible might of 
 destiny. Thus, though the idea of divine influence re- 
 mained, the Roman kingship was purely human ; the 
 insight and will of the individual were more regarded than 
 descent and the family 1 . 
 
 The Roman king was chosen either by his predecessor 
 or by the interrex with the help of the senate and the ap- 
 proval of the gods. The choice was for life only, so that 
 no hereditary dynasty was created, and it depended more 
 
 1 In the same way inheritance among the Romans was based not so 
 much upon family relationship as upon the individual will of the 
 testator, who was free to name his own heir. 
 
366 THE FORMS OF THE STATE. [Book VI. 
 
 upon individual character than upon descent. The elected 
 king himself proposed the lex curialis by which the royal 
 authority and the auspices were given to him 2 , just as the 
 imperium was conferred upon the magistrates of the sub- 
 sequent republic. Thus the Roman kingship was from the 
 first an individual magistracy. 
 
 This conception is obviously quite different from that of 
 the Greeks and Germans. The character of the kingly power 
 shows an equally important divergence. In many points it 
 is similar : the king is the high-priest who sacrifices for the 
 nation ; he assembles and guides the Senate and the Comitia ; 
 he is the supreme judge, though in certain cases there is an 
 appeal from him to the people ; he is the rightful head and 
 leader of the army; he is rich in lands and revenues 3 . 
 
 Administra- But his power is stronger and more complete than that 
 of the Greek kings, though the latter are the hereditary 
 descendants of the gods. The strong political sense of the 
 Romans is obvious from the first in the extent of the ad- 
 ministrative power which they confer upon their magistrates, 
 in order that they may take energetic measures in defence 
 of the public welfare. The imperium is distinctly Roman 
 in origin, and it is this which distinguishes their kingship 
 from the previous forms. 
 
 External The external ensigns of the Roman are quite as imposing 
 
 as those of the Greek and German kings, but they also 
 manifest their greater power. The fasces which the twelve 
 lictors carry before them are not mere symbols, but real 
 instruments of punishment for the disobedient. The im- 
 perium and the lictor's axe are always connected in fact and 
 thought by the Romans 4 . 
 
 2 This is the so-called lex regia, which was renewed under the Empire. 
 Ulpian, L. \. pr. de constit. Princip. ; Cicero, dfc lege agrar. ii. n. Cp. 
 Mommsen, Rb'misches Statsrecht, i. 588. 
 
 3 Cp. Niebuhr, Rom. Gesch. i. 356 ; Rubino, Untersuch. iiber rbm. 
 Verf. i. Abschn. 2 ; Mommsen, ibid. ii. 9. 
 
 * Cic. pro Flacco, c. 8 : ' Opifices et tabernarios atque illam omnem 
 faecem civitatum, quid estnegotii concitare in eum praesertim qui nuper 
 summo cum imperio fuerit, summo autem amore esse propter nomen 
 ipsum imperil non potuerit. Mirandum vero est homines eos, quibus 
 
Chap. IX.] NATIONAL MONARCHY IN ANCIENT ROME. 367 
 
 The imperium, which was transferred to the king with the Legislative 
 auspices, gave him the right both of issuing edicts and of P 
 laying down the principles of law. It must never be for- 
 gotten that the Roman State was founded by a king, and 
 that it was his power which passed by tradition to his suc- 
 cessors. Permanent laws needed the consent of the Senate, 
 and from the time of Servius Tullius 5 the sanction of the 
 people (jussu populi\ but at the same time the royal will 
 was essential and usually decisive. The king alone could 
 propose a law, and he could prevent any law from being 
 discussed or voted upon 6 . Besides these laws the king 
 could in his edict lay down, without the counsel and con- 
 sent of any assembly, the legal maxims which he intended 
 to follow. This jus edicendi was unquestionably a right of 
 the kings, though seldom exercised by them : it was not 
 created for the later magistrates, but was handed on to 
 them from their predecessors. 
 
 Thus the judicial power of the Roman kings was far Judicial 
 greater than that of the German. Both presided, at first in p 
 person, over the law-courts, but the rex was not bound by 
 the decision of the assessors. He not only directed the 
 course of the trial, but also laid down the principle (jus 
 dicit) which was to apply to the particular case. In early 
 times he often gave judgment himself. On him depended 
 almost the whole administration of civil and criminal 
 kw 7 . 
 
 odio sunt nostrae secures ' &c. Cp. ibid. c. 34, * non imperium non 
 secures ; ' also Livy, xxiv. 9. 
 
 Hal. iv. 36. 
 
 6 Rubino (Untersuch. p. 18) has thrown great light on many points 
 of the public law of ancient Rome, but he has gone too far in attributing 
 the legislative power exclusively to the king. It is true that the terms 
 constituere, instituere, dare jus, are used instead of the more modest 
 expression, rogare legem, but the former do not imply that the senate 
 and people had no right in the matter. 
 
 7 Cic. de Rep., ' omnia conficiebantur judiciis regiis ; ' ibid. ii. 31. 
 Zonaras, Annal. vii. 13. 
 
368 THE FORMS OF THE STATE. [Book VI. 
 
 Military The military power of the Roman kings was very exten- 
 
 sive. In the field he had absolute power of life and death 
 over both officers and soldiers. Even in republican times 
 we see not only dictators, whose power was that of the 
 kings undiminished, but also consuls, putting to death 
 officers against the petition of the army, and even decimat- 
 ing whole legions 8 . 
 
 officials. The king was the source of all other political and priestly 
 
 offices. He nominated the tribunus celerum, the leader of 
 the knights, and the praefectus urbi, who governed the city 
 in his absence. From him the augurs and pontiffs derived 
 their powers of divination and their knowledge of the 
 sacred law 9 . 
 
 important The essence of the imperium is a strong administrative 
 
 position of . . . , . . . 
 
 the Roman power which can act decisively whenever and wherever poli- 
 tical needs or momentary circumstances require, and which 
 can enforce measures for the public welfare. Such a power 
 was only exercised by the Greek kings to a very slight extent, 
 and among the Germans was unknown ; but in the Roman 
 state it assumed the greatest importance from the first. As 
 the Romans loved absolute rule over their family and their 
 property, so their political imperium was also absolute. Their 
 kings were not only judges in time of peace, their chief 
 functions, as the name indicates, was that of governors (rex, 
 regere). 
 
 In this way it becomes intelligible that the whole policy 
 of the Roman state in the kingly period should be directed 
 by the royal will, that all institutions should be referred to 
 the kings, and that they should have been able to undertake 
 and complete works which appear gigantic even in the present 
 day. The king had to look after the supply of food and the 
 cultivation of the soil, to watch over the morals of the 
 citizens, and to exercise extensive police powers. All the 
 functions which were afterwards divided among consuls, 
 
 8 Livy, ii. 59 ; v iii. 7 ; ix. 16. Brisson, De FormuL, p. 455, etc. 
 * Rubino, Untersuch. pp. 114 and 298. 
 
Chap. IX.] NATIONAL MONARCHY IN ANCIENT ROME. 369 
 
 praetors, censors, and aediles, were originally combined in the 
 single hand of the king 10 . 
 
 To sum up : Rome was the first state in history to produce 
 a human and national monarchy with complete concentra- 
 tion of political authority and with almost absolute ad- 
 ministrative power. 
 
 . 136. 
 
 Bb 
 
CHAPTER X. 
 
 III. THE ROMAN EMPIRE. 
 
 The Umpire THE Roman Empire, which was founded by Julius Caesar 
 coHectbTof and established by Augustus, and which has exercised so 
 5fil! lican great an influence upon the political development of all later 
 times, was not formed, as has been sometimes maintained, 
 out of a simple accumulation of republican magistracies. It 
 was really a revival of the old monarchical power on a far 
 vaster scale and in harmony with the intervening changes a . 
 It is true that the Emperors assumed a number of 
 functions which had belonged to republican magistrates : the 
 tribunicia potestas secured their personal inviolability, gave 
 them the right of veto, and enabled them to pose as 
 champions of the lower classes : the censorial power b gave 
 them the supervision of morals and the function of revising 
 at will the lists of senators and knights : the dignity of 
 pontifex maximus made them supreme arbiters of the sacred 
 law. From time to time they took the office of consul. 
 
 a [Mommsen (Rom. Statsr. II. Abth. ii.) rightly describes the Princi- 
 pate, as instituted by Augustus, rather as a restoration than an abolition 
 of the Republican constitution. Comp. Mon. Ancyr. 6. 12 : 'in con- 
 sulatu sexto et septimo . . . rem publicam ex mea potestate in sena- 
 t[us populique Romani a]rbitrium transtuli.' Nominally the position of 
 the Princeps was that of a magistrate raised above the rest by his 
 superior dignitas, though in fact the possession of the proconsular 
 imperium made him supreme. But this itself was only an extension 
 of republican precedent, and did not put the Princeps above the laws.] 
 
 & [Augustus held the census in virtue of the consular e imperium. But 
 the censorship still existed as a separate office, and was held by later 
 emperors, e. g. Claudius, Vitellius, Vespasian, and Titus. It was abolished 
 by Domitian, and its duties were merged in the indefinite powers of the 
 emperor. See Mommsen, Rom. Statsr. ii. 3. 6.] 
 
THE ROMAN EMPIRE. 3-71 
 
 But the conception of their power did not rest upon this 
 cumulation of offices, but upon the creation of a new 
 centralised government, of a real monarchy. Republican 
 forms might conceal the change for a time, but it was 
 obvious to clear-sighted men even in the days of Augustus. 
 At the accession of Tiberius the principle of monarchy was 
 clearly expressed in the Senate by Asinius Gallus when he 
 asserted that * it was impossible to divide the indivisible, 
 that the body of the state was one, and could therefore only 
 be ruled by the mind of one man V 
 
 The Emperors assumed only the modest title of Princfys 
 (Senatus) la , but their power was so great that few could 
 resist its temptations, and most of them were ruined either 
 in intellect or in morals. The Empire was not hereditary but Election to 
 
 ii r> i it f the Empire. 
 
 elective : its first holders were chosen, nominally for ten 
 years, really for life. They were not regarded as of divine 
 origin, and they recognised the supremacy of the people. 
 Their authority was conferred upon them by a law of the 
 people 2 . But though descent and family connexion were 
 not in principle regarded in the choice of an emperor, they 
 usually had great practical influence, and the chosen prince 
 received in full personal right a power as extensive as that 
 of the Roman people itself had been under the Republic. 
 And when once that power had been conferred it could 
 neither be diminished nor withdrawn. 
 
 1 Tac. Ann. i. 12. In i. I, he says of Augustus : 'cuncta discordiis 
 civilihus fessa nomine principis sub imperium accepit.' Comp. the con- 
 ferences of Maecenas and Agrippa with Augustus in Dio Cass. 52. 
 
 la According toMommsen {Rom. Statsr. ii. 733), the name of Princeps 
 has no reference to the Princeps Senatus^ but is used in the sense of 
 Princeps omnium or civium. [See also art. on Princeps by Prof. 
 H. F. Pclham in Journal of 'Philology ', viii. 323.] 
 
 2 Ulpianus, L. i. pr.de constit princip. \ ' Quod principi placuit, legis 
 habet vigorem, utpote, cum lege regia, quae de imperio ejus lata est, 
 populus ei et in eum omne suum imperium et potestatem conferat. 
 Gaius, i. 5. 6. de jure nat. [The proconsular e imperium was not 
 conferred by a lex popzdi. The Princeps was recognised as Imperator 
 by the salutation of the senate or of the army. On the other hand, he 
 received the tribunicia potestas by a law of the comitia (the comitia 
 tribuniciae potestatis) following on a decree of the senate. See Mommsen, 
 Rom. Statsr. ii. pp. 812-3, 8 3^-9-] 
 
 B b 2 
 
372 THE FORMS OF THE STATE. [Book VI. 
 
 Analysis of The imperial power, in addition to the special magistracies 
 ,"ow e e r la which the Emperor usually held, may be thus analysed : 
 
 1. The disposal and command of the whole military 
 forces of the state, and of the praetorian guard in the city. 
 The introduction of standing armies, which became neces- 
 sary as the boundaries were extended, secured the existence 
 of the empire and enforced obedience 3 . It was this function 
 which gave to the emperors the title of imperatores, which 
 had a different meaning in earlier times. 
 
 2. The absolute government of. the richest and most 
 important provinces [?], from which the Emperors derived 
 enormous wealth and power. On the whole, the provinces 
 gained considerably by the change of constitution. Their 
 great men were admitted to the senate and to office by the 
 Emperors, while the oppressions and exactions of the 
 imperial legati were far less than those of the ever-changing 
 proconsuls and propraetors of the Republic. The more 
 permanent interests of the Emperors enjoined a more 
 merciful and orderly administration. 
 
 3. The decision of all questions of foreign policy, the 
 right of peace and war, and of concluding treaties 4 . 
 
 4. The right of convening the senate, of proposing 
 matters for discussion, and of giving legal force to its 
 decisions 5 . It is well known how obsequious and sub- 
 missive the senate was to the Emperors. 
 
 5. A decisive voice in the appointment to magistracies 
 and all important offices. Both the comitia (which retained 
 for a time a formal existence) and the senate were bound 
 
 3 Maecenas urged Augustus strongly to form a standing army 
 (ffTpcLTiwras aOavaTovs}, and to leave the mass of the people to their 
 peaceful occupations. Dio Cass. 52. 
 
 * Lex de Imp. Vespasiani, in Bruns, Fontes Juris Romani, p. 118 : 
 ' foedusve cum quibus volet facere liceat' 
 
 5 Ibid. : ' utique ei senatum habere, relationem facere, remittere senatus 
 consulta per relationem discessionemque facere liceat . . . utique cum 
 ex voluntate auctoritateve jnssu mandatove ejus praesenteve eo senatus 
 habebitur omnium rerum jus perinde habeatur servetur ac si e lege 
 senatus edictus esset habereturque.' [See also Mommsen. Rom. Statsr. 
 ii. 860 ff.] 
 
Chap.X.] THE ROMAN EMPIRE. 373 
 
 by law to respect the Emperor's recommendation of candi- 
 dates 6 . 
 
 6. The absolute power of acting for the welfare and 
 honour of the state, which forms the real essence of the 
 imperial authority 7 . It was by virtue of this power that 
 not only the edicts, but also the decrees and rescripts of 
 the Emperor obtained the full force of laws, so that he was 
 able to cover the whole field of legislation 8 . 
 
 To prevent any hostile criticism or resistance, the lex de 
 imperio definitely announced that it overrode all other laws, 
 whether of the senate, \hzpopulus, or the//<?fo, and that no 
 one could be brought to account for breaking the latter in 
 obedience to itself. The irresponsibility of the Emperor 
 was not confined to himself, but was also extended to all 
 his ministers and agents the very opposite of the modern 
 system 9 . 
 
 In fact the imperial power was absolute and unlimited 10 ; 
 it held the same position in the state that the right of pro- 
 perty and the patria potestas held in private life. It was 
 the concentration of the Roman world-rule in the hands of 
 an individual. Its ideal principle, seldom followed in prac- 
 tice, was the public welfare (salus publica). This great 
 political principle of the Romans becomes, in later times 
 
 6 Lex de Imp. Vesp. : ' utique quos magistratum potestatem imperium 
 curationemve cujus rei petentes senatui populoque Romano commenda- 
 verit quibusque suffragationem suam dederit promiserit eorum comitis qui- 
 busque extra ordinem ratio habeatur.' 
 
 7 Ibid, : 'utique quaecumque ex usu reipublicae majestate divinarum 
 humanarum publicarum privatarumque rerum esse censebit ei agere 
 facere jus potestasque sit.' 
 
 8 Savigny, System des rom. Rechts, i. p. 121 ff. 
 
 9 Lex de Imp. Vesp. : ' Si quis hujusce legis ergo adversus leges 
 rogationes plebisve scita senatusve consulta fecit fecerit sive quod cum 
 ex lege . . . facere oportebit non fecerit hujusve legis ergo id ei ne 
 fraudi esto neve quid ob earn rem populo debere debeto neve cui de ea 
 re actio neve judicatio esto neve de ea re apud . . . agi sinito.' 
 
 10 The name of dominus, which suggested servi by contrast, was 
 rejected as an insult to the people by the early emperors. Sueton. 
 Octav. 53 : ' domini appellationem utmaledictum et opprobrium semper 
 exhorruit.' Ib. Tib. 27; Tac. Ann. iv. 37, 38. The gross flattery of 
 later times introduced the term as a regular title. 
 
374 THE FORMS OF THE STATE. 
 
 at any rate, more important in all state matters than per- 
 sonal right (jus], though the latter was nobly developed in 
 the domain of Private Law. 
 
 The history of the Roman Empire, magnificent as are its 
 proportions, has bequeathed this lesson to the world that 
 such excessive power is beneficial neither to the ruler nor 
 to his subjects n . 
 
 causes of the The rise of the Empire may be justified by the fatal 
 necessity created by general corruption and decay. The 
 Roman aristocracy was degenerate and impotent to guide 
 so unwieldly a state. From time to time it strove to 
 restore its former authority, but as a rule it passively 
 yielded to the force of circumstances 12 . The mass of the 
 people, with no claim to rule, no longer accustomed to 
 arms, devoted to the occupations and joys of peace, pre- 
 ferred the government of a single Emperor to that of the 
 senate, and consoled themselves for their own impotence 
 with the humiliation of the nobles. The character of the 
 Roman people decayed sooner than their ability ^ and their 
 own slavery was a fitting penalty for that insatiable lust of 
 rule which had urged them on from conquest to conquest. 
 
 11 Compare the following words of Tiberius, which may have been 
 honestly meant at the time, with his actions. Sueton. Tib. 29 : l dixi 
 nunc et saepe alias, Patres Conscripti, bonum et salutarem principem, 
 quern vos tanta et tarn libera potestate exstruxistis, senatui servire debere 
 et universis civibus saepe et plerumque etiam singulis : neque id dixisse 
 me poenitet' 
 
 12 The occurrences at the time of Claudius' accession show that the 
 lower classes of Rome had no great love for the republican constitution. 
 
CHAPTER XI. 
 
 IV. THE PRANKISH MONARCHY. 
 
 THE German tribe of the Franks founded a great empire Caroiingian 
 upon Roman soil. Their monarchy, a combination of monarchy - 
 Roman and German elements, marks the transition from 
 the organisation of the ancient world to that of the middle 
 ages 1 . The Frankish king was more powerful than his 
 purely German predecessors, but less absolute than the 
 Roman emperors. The monarchy that existed in the time 
 of Charles the Great was formed by the mixture of the 
 German ideas of freedom and law with the Roman concep- 
 tions of the power and supremacy of the state. 
 
 Several causes combined to strengthen the power of the. Causes of it 
 Caroiingian kings : a remarkable succession of distinguished stl 
 and fortunate rulers ; the rapid increase of their territorial 
 empire, which demanded a powerful and comprehensive 
 government ; the necessity of a strong military force always 
 ready for action ; the victories achieved by this force ; and 
 finally the fact that the majority of their subjects had been 
 brought up under the Roman Empire, and were accustomed 
 to its conceptions and its vigorous institutions. 
 
 In one point monarchy took a backward step among the hereditary 
 Franks. The hereditary principle, derived from private su 
 property, was applied to the crown, and the old election 
 shrunk up into an almost meaningless form. This gave rise 
 
 1 For the stages of the transition in the case of the other German 
 tribes which settled upon Roman soil, see Felix Dahn, Die Konige der 
 Germanen. 
 
376 THE FORMS OF THE STATE. [Book VI. 
 
 to the division of the empire among several sons, which 
 proved the source of serious harm both to the State and the 
 nation 2 . The succession to the throne belongs properly to 
 politics and to public law, which demand the unity of the 
 state, but the Frankish practice treated the function of rule 
 as if it were merely the possession of an individual or 
 family, and thus conformed in this point to what we have 
 called above the patrimonial principle 3 . 
 
 The following are the chief changes which the Franks 
 introduced into the kingly power : 
 
 Legislation i. Legislation became much more important in the 
 Fra n n ifs. th Frankish empire than it had been in the narrow circle of 
 a single German tribe, and at the same time it fell more 
 under the influence of the kings than before. The Roman 
 maxim that ' the emperor's will has the force of law ' was 
 naturally unacceptable to a nation of German origin. But 
 among the Franks the right of proposing laws, which was 
 generally decisive, passed to the king and his council. The 
 king's sanction was needful to give validity to laws, and they 
 were promulgated in his name. 
 
 But it is very important to remember that the counsel 
 and consent of the assembled nobles, both ecclesiastical and 
 secular 4 , was regarded both by custom and by law as indis- 
 
 2 Charles the Great made a slight effort to remedy these evils in his 
 Capitulary on the division of the Empire in 806, c. 6 : ' placuit inter 
 praedictos filios nostros statuere atque praecipere, propter pacem quam 
 inter eos perpetuo permanere desideramus, ut nullus eorum fratris sui 
 terminos vel regni limites invadere praesumat, neque fraudulenter ingredi 
 ad conturbandum regnum ejus vel marcas minuendas ; sed adjuvet 
 unusquisque illorum fratrem suum, et auxilium illi ferat contra inimicos 
 ejus juxta rationem et possibilitatem, sive inter patriam, sive contra 
 exteras nationes ' (in Pertz, Monumenta Germaniae Historica, Legum 
 torn. i. p. 141). C. 5 of the same law mentions election by the people. 
 Comp. Eichhorn, Deutsche Stats- und Rechtsgesch. i. 139 and 159; 
 Guizot, Essais sur VHistoire de France, pp. 2o6ff. See especially 
 Waitz, Deutsche Verfassungsgesch. iii. 2741!. 
 
 3 Thus the succession to the throne was treated on the same principles 
 as the terra salica. Comp. Zopfl ; z. ii. 33 ; Waitz, iii. 274. 
 
 *Hincmar, de Or dine Palatii Epistola [in Migne, Patrologia, torn. 
 cxxv. cols. 993-1008 ; also published separately with a French transla- 
 tion by M. Prou in the Bibliotheque de locale des Hautes tudes, fascic. 
 58], c. 29 : * in quo placito (the Campus Mail] generalitas universorum 
 
Chap. XL] THE PRANKISH MONARCHY. 377 
 
 pensable for legislation. On the other hand, the approval 
 of the people was of very subordinate importance, and was 
 usually dispensed with except in matters which concerned 
 the organisation of church and state, or the rights of the 
 people themselves ( Volksrechi) 5 . 
 
 In this co-operation of the nobles we see the first step 
 towards that representation of estates (standiscJi) which ob- 
 tained such great development in subsequent centuries, and 
 which has produced the representative state. 
 
 2. Government. The size of the state and the great Government. 
 political changes that were going on rendered necessary an 
 administrative power which was unknown to the older 
 Germans. It was no longer merely a matter of maintaining 
 peace and law, but some regard must be paid to the general 
 welfare. The idea of the Roman imperium was too foreign 
 to be accepted, so the Franks found a basis for their new 
 government in the native mundium or guardianship (mundi- 
 burdium^ also sermo or verbum regis}. This royal guardian- 
 ship bears the same relation to the Roman imperium as that 
 
 majorum tarn clericorum quam laicorum conveniebat : sen lores, propter 
 consilium ordinandum ; minores, propter idem consilium suscipiendum 
 et interdum pariter tractandum, et non ex potestate sed ex proprio 
 mentis intellectu vel sententia confirmandum.' Ibid. c. 30 : ' aliud 
 placitum cum senioribus tantum et praecipuis consiliariis habebatur 
 (usually in autumn but oftener if needed), in quo jam futuri anni status 
 tractari incipiebatur.' [See also Waitz, Deutsche Verfassungsgesch. (ed. 
 1860), iii. 478, etc.] Hence many of the Capitularies contain such 
 expressions as ' cum consilio servorum Dei et optimatum meorum ' (Cap. 
 Karlomanni, a. 742, Pertz, i. 16), and 'cum consensu episcoporum 
 comitum et optimatum Francorum ' (Cap. Pippini, a. 744, Pertz, i. 20). 
 The treaty of 851 between the sons of Lewis trie Pious says expressly in 
 c. 6 (Pertz, i. 408) : ' Et illorum, scilicet veraciter nobis fidelium, com- 
 muni consilio, secundum Dei voluntatem et commune salvamentum, 
 ad restitutionem sanctae Dei ecclesiae et statum regni, et ad honorem 
 regium atque pacem populi commissi nobis pertinenti, adsensum praebe- 
 bimus ; in hoc, ut illi non solum non sint nobis contradicentes et 
 resistentes ad ista exsequenda, verum etiam sic sint nobis fideles et 
 obedientes ac veri adjutores atque cooperatores, vero consilio et sincero 
 auxilio, ad ista peragenda quae praemisimus, sicut per rectum unus- 
 quisque in suo ordine et statu suo principi et suo seniori esse debet.' 
 
 5 Capit. Car. Magni, a. 803 (Pertz, Legum, i. 115), c. 19 : * Ut populus 
 interrogetur de capitulis quae in lege noviter addita sunt. Et postquam 
 omnes consenserint, subscriptiones et manufirmationes suas in ipsis 
 capitulis faciant.' 
 
378 THE FORMS OF THE STATE. [Book VI. 
 
 of the powers of a German father or husband to the Roman 
 patria potestas. Its power is not at all arbitrary or abso- 
 lute ; its chief functions are the protection of the rights and 
 the furtherance of the welfare of the people 6 ; in fact it in- 
 dissolubly combines the conception of duty with that of 
 right. This novel idea is not yet fully clear, but it contains 
 a healthy germ, which is capable of real political develop- 
 ment. 
 
 Military In this form of monarchy the king both can and must 
 
 command. His commands were issued in the so-called 
 ban^ which was both military and judicial (Heerbann and 
 Gerichtsbanri}. By the military ban he had at his disposal 
 the whole armed force of the kingdom, though his power 
 was limited by custom and by fixed rules of service. But 
 strong kings, and notably Charles the Great, summoned 
 even for aggressive wars not only their feudal following, but 
 whole divisions of the people in arms (Heerbann], and 
 threatened defaulters with the severe penalty of sixty 
 shillings 7 . 
 
 judicial The judicial ban, so important for the administration of 
 
 the country, belonged to the king, but was usually exercised 
 through the counts of districts (Gaugraferi), whose powers 
 were derived from the king. As the organisation of the 
 state grew stronger, limits were placed upon the old rights 
 of private war in civil disputes and criminal cases, and 
 throughout the land the king ; s peace, protected by the 
 royal ban, replaced the old national peace which had been 
 too easily broken. 
 
 The revenues of the royal chamber and exchequer, which 
 had increased considerably, were at the king's absolute dis- 
 posal. The royal domains received large additions from the 
 
 6 Du Cange, Glossarium, s. v. mundiburdis et mundiburdium ; Capit. 
 Car. Magni, a. 802, c. 40 (Pertz, i. 96). Hincmar, de Ord. Pal. c. 6 : 
 1 Et rex "in semetipso nominis sui dignitatem custodire debet. Nomen 
 enim regis intellectualiter hoc retinet ut subjectis omnibus rectoris omcium 
 procuret." ' 
 
 7 Zopfl, ii. 36. Capit, Car. Magni, a. 811, c. i (Pertz, i. 172): 
 ' Quicumque liber homo in hostem bannitus fuerit, et venire contemp- 
 serit, plenum heribannum, id est solidos sexaginta, persolvat.' 
 
Chap. XL] THE PRANKISH MONARCHY. 379 
 
 conquest of Roman provinces and the suppression of ancient 
 kingdoms and duchies, and all over the country were to be 
 found royal residences and palaces surrounded by vast 
 estates. The old land- and poll-taxes of the provincials 
 were retained, the Roman duties on commodities were aug- 
 mented, tribute was imposed upon the conquered peoples, 
 and large sums exacted from them by way of indemnity 8 . 
 
 3. The royal power made itself felt in every branch of the Administra- 
 
 , . . -1 r i r cr - , tive officials. 
 
 administration by means of an organised system of officials 
 dependent upon the king. After the model of the Byzantine 
 court, the most important of these officials were grouped 
 round the king's person. Among these were the comes 
 palatii (Pfalzgraf\ the supreme judge and representative of 
 the king ; the chaplain (apocrisiarius, referendarius)^ who 
 was at the head of the court clergy, and had to report about 
 ecclesiastical affairs ; the chancellor (camerarius), who pre- 
 sided over the royal chancery and conducted diplomatic 
 correspondence ; the chamberlain, who organised the pomp 
 and show of the court ; the seneschal, responsible for the 
 servants and the domestic managements ; the cellarer, who 
 received payments in kind and provided the wine for the 
 royal table ; the marshal (marescalcus, or Rossknecht\ the 
 manager of the stables ; the house-steward (mansionarius), 
 whose duty it was to see that the king had a suitable resi- 
 dence on his journeys ; the four chief huntsmen, and the 
 falconer 9 . 
 
 The itinerant officials of the king (rnissi dominici] were 
 sent out yearly to visit the different provinces of the king- 
 dom. It was through them that the king was enabled to 
 see clearly the condition of affairs, to hear the complaints 
 and wishes of the people, and to act with decision when it 
 was necessary to enforce obedience to the laws and to pro- 
 tect public order 30 . 
 
 8 Comp. Zopfl, 40 ; Waitz, ii. 498 ff. 
 
 9 See Hincmar, de Ord. Pal. cc. 16-24 > Waitz, Hi. 499 ff. 
 
 10 Capit. Car. Magni, a. 802 (Pertz, i. 97-99), and a. 810 (Ib. i. 
 163-4) ' Guizot, ssaiSj pp. 191 ff. ; Waitz, iv. 411-488. 
 
380 THE FORMS OF THE STATE. [Book VI. 
 
 The counts of districts or shires ( Gaugrafen) had supreme 
 judicial power, while that of the counts of hundreds (Zent- 
 grafeti) was limited. Both derived their jurisdiction, the 
 one directly and the other indirectly, from the king, as the 
 supreme judge upon earth. Their military powers sprang 
 from the same source. In the early period of the Frankish 
 monarchy the position of count was not hereditary, but was 
 a real office, to which the king had the right of appointment. 
 Under Charles the Great's successors, however, the natural 
 tendency to hereditary succession soon began to obscure 
 this official character and to create a hereditary right to the 
 dignity. 
 
 Gradually the missi dominid became obsolete, the duchies 
 were restored, and the offices of the kingdom sank into 
 family property. Thus the power of the Romano -German 
 monarchy perished, and the aristocracy of princes and lords 
 took its place. 
 close con- 4. There is one other notable point about the Frankish 
 
 nexion with ,,... . . j 
 
 Empire and monarchy, and this is its close connexion with the Western 
 Empire a connexion established by Charles the Great 
 and of both with the extension of Christianity and with the 
 Christian Church. 
 
 The state had become Christian, and the monarchy had 
 received consecration at the hands of a priest u . The king 
 felt himself bound to maintain and extend the pure Christian 
 belief in his territories, while his duty as emperor was to 
 destroy heathenism and heresy as far as his power reached. 
 This duty was fulfilled by Charles the Great on a large scale 
 and with great severity 12 . Christendom itself was repre- 
 sented as a single body with two organisations, one sacer- 
 dotal and the other monarchical, Church and State 13 . But 
 
 11 Hincmar, de Ord. Pal. c. 5 : ' principes sacerdotum sacra unctione 
 reges in regnum sacrabant.' 
 
 13 Even before he received the imperial dignity, Charles the Great 
 bore the title 'devotus sanctae Dei ecclesiae defensor humilisque 
 adjutor.' 
 
 13 See Hincmar, c. 5. for the reported saying of Pope Gelasius to the 
 Emperor Anastasius : ' duo sunt (potestates) quibus principaliter, una 
 
Chap. XI.] THE PRANKISH MONARCHY. 381 
 
 though the king was the head only of the latter, he enforced 
 among the clergy also the recognised Christian discipline. 
 He summoned synods, superintended the conduct of bishops 
 and monasteries, and issued many laws and ordinances on 
 ecclesiastical matters. So too the spirit of the hierarchy 
 exercised a marked influence upon political institutions and 
 upon the legal principles of the secular organization u . 
 
 cum specialiter cujusque curae subjectis, mvmdus hie regitur : auctoritas 
 sacra pontificum et regalis potestas.' [See Migne, Patrologia t lix. col. 41 ; 
 also Bryce, Holy Roman Empire, chap, vii.] 
 H Comp. Eichhorn, i. 158. 
 
CHAPTER XII. 
 
 V. FEUDAL MONARCHY AND MONARCHY LIMITED BY CLASS 
 PRIVILEGES. 
 
 A. Feudal Monarchy. 
 Decline of THE Frankish monarchy contained all the essential con- 
 
 Carohngian . , r ...... 
 
 Monarchy, ditions of a true monarchy, and so far it is the beginning of 
 a new development of the modern state. But the opposing 
 powers and passions were so strong in the nation, and the 
 traditions of German nobles and freemen were so hostile to 
 a strong central administration, that it was only possible for 
 exceptionally powerful rulers to exert to the full their kingly 
 authority and to bring out the real character of the state. 
 Weak kings were powerless, and under their rule the ten- 
 dency was obvious to dissolve the unity of the state, to limit 
 and discredit the central power, and to give independence 
 to local governments. 
 
 Feudal With the decline and extinction of the Carolines the 
 
 Monarchy, \ 
 
 royal authority :sank into obscurity, and the princes and 
 lords seized the administration of isolated peoples and terri- 
 tories. The Romano-Germanic universal monarchy was 
 replaced by the feudal monarchy, which gives to the middle 
 ages their special political character, 
 itscharac- The following are the most notable characteristics of 
 
 tenstics. 
 
 feudal monarchy : 
 it is based i. Every previous monarchy had been based upon a tribe; 
 
 upon Classes. . * 
 
 or a nation or a united people, and might therefore be called 
 a national or popular (volksthumlicK) institution. But the 
 
FEUDAL MONARCHY. 383 
 
 feudal monarchy, although connected with a special nation 
 of which the king is the head, had its essential basis in the 
 personal bond of fealty between the king, the supreme lord 
 of the land, and his vassals, who derived from him their 
 power, rank, and property. The mass of the people, as not 
 being bound by this feudal tie, were only regarded in a sub- 
 ordinate and indirect way. Thus the monarchy was rather 
 the institution of a class or estate than of the nation : it 
 was founded not so much upon the people as upon the 
 feudal vassals (Gefolgeschafi}. 
 
 2. Personal fidelity, ennobled and strengthened by the Fealty and 
 
 .-,/-, i ^^ ^ Homage. 
 
 idea of honour, became now an important political concep- 
 tion \ All vassals, on receiving their fiefs from a lord, 
 swore to him the oaths of fealty and homage 2 . These 
 oaths and the whole feudal system may be most clearly 
 traced in the mixed Saxon and Norman law of the English 
 kingdom. The tenants in chief took the oath of homage 
 (Mannschaftseid] 3 to the king upon their knees, while they 
 stood to swear the oath of fealty 4 with their hand upon the 
 gospels. Bishops and abbots were exceptions, as they took 
 the latter oath only. The oath of homage was the more 
 
 1 In Tacitus' account of the German comitatus, he points to these 
 moral qualities as the basis of the institution; v. Germ. 13, 14 : 
 ' Magnaque comitum aemulatio, quibus primus apud principem suum 
 locus ; et principum, cui plurimi et acerrimi comites. Haec dignitas, 
 hae vires ; magno semper electorum juvenum globo circumdari in pace 
 decus, in bello praesidium .... Quum ventum in aciem, turpe principi 
 virtu te vinci, turpe comitatui virtutem principis non adaequare. Jam 
 vero infame in omnem vitam ac probrosum superstitem principi suo ex 
 acie recessisse. Ilium defendere tueri, sua quoque fortia facta gloriae 
 ejus assignare praecipuum sacramentum est. Principes pio victoria 
 pugnant, comites pro principe.' 
 
 a In French legal phrase, foi et homage^ 
 
 3 The formula of this oath shows the importance attached to personal 
 fidelity. Bracton {Rolls Series], i. p. 632 : * Devenio homo vester, de 
 tenemento quod de vobis teneo, et fidem vobis portabo de vita et 
 membris et terreno honore contra omnes gentes.' Comp. Du Cange, 
 s. v. homagium. 
 
 * Bracton, i. 632, gives the formula of the oath of fealty; ' Hoc audis, 
 domine, quod fidem vobis portabo de vita et membris, corpore, et 
 catallis, et terreno honore, sic me Deus adjuvet et haec sancta Dei 
 evangelia.' Comp. Du Cange, s. v.fidelitas. 
 
384 THE FORMS OF THE STATE. [Book VI. 
 
 specially and directly connected with the possession of the 
 fief. The oath of fealty was more general, and could there- 
 fore be exacted from other subjects who were not bound by 
 the feudal tie. Instances of this are to be found in the 
 Carolingian times, doubtless under the influence of feudal 
 conceptions 5 . 
 
 The fealty thus sworn was mutual. The lord was equally 
 bound with the vassal, but the latter alone was bound to 
 homage 6 . 
 
 Tenure of 3. The endeavour on the part of the feudal monarchy to 
 bring all subjects into the relation of vassalage had a ma- 
 terial influence upon the tenure of land. The Norman kings 
 of England strove to obtain supreme possession (Obereigen- 
 thum) of the whole land, so that not only all fiefs, but also 
 allodial estates, were regarded as being derived from the 
 king. Thus the national right of free property in the soil 
 was transformed into the feudal right of dependent occupa- 
 tion or tenure 7 . This is a general characteristic of feudalism, 
 but it is especially clear in the history of English law 8 . 
 Authority 4. By parallel steps all political power came to be re- 
 the King, garded as derived from the king. The king received his 
 authority as a grant from God 9 . The lords received their 
 
 5 Capit. Car. Magni, a. 811, c. 13 (Pertz, i. 175) : ' Ut missi nostri 
 populum nostrum itemm nobis fidelitatem promittere faciant secundum 
 
 . consuetudinem.' 
 
 6 This is expressed in the English maxim, ' quantum homo debet 
 domino ex homagio, tantum illi debet dominus ex dominio.' Reeves, 
 Hist, of English Law (ed. by Finlason, 1869), i. 175. Assises de 
 Jerusalem, Haute Cour, 322 (Kausler, p. 372) : L'assise et la lei de 
 Jerusalem juge et dit que, autant doit li rois de fei a son home lige, 
 come Thome lige doit a luy, et ains est tenu li rois de guarantir et de 
 sauver et de desfendre ses homes liges vers toutes gens qui tort leur 
 vorreent faire, come ses homes liges sont tenus a lui de guarantir le et de 
 sauver vers toutes gens. Et, por ce, ne peut il mie mettre la main sur 
 son home lige sans esgart de ces pers.' 
 
 7 See above, Bk. ii. chap, n, note. 
 
 8 In France the cognate principle, nulle terre sans seigneur, was 
 accepted as early as the thirteenth century; Loysel, ii. 2. i. The feudal 
 system was never so widely extended in Germany or Italy. 
 
 9 According to the Sachsenspiegel (i. i), God gave the temporal 
 sword to the emperor alone ; whence it followed that kings only received 
 their power through the emperor. This theory, however, was not 
 
Chap. XII.] FEUDAL MONARCHY. 385 
 
 right to rule from the supreme feudal lord, the king, just as 
 the planets derive their light from the sun 10 . But they 
 ruled, not as mere officials of the state or organs of the 
 government, but by their own right and for their own 
 ends,, in the same way as they held their fiefs. This 
 combination of political rule with personal independence, 
 and the hereditary connexion of the various grades of 
 authority with certain families and estates, are specially 
 characteristic of the feudal system. The king cannot re- 
 fuse to grant authority to his vassals who have a here- 
 ditary right to it, nor can he interfere with the exercise 
 of that authority, nor define or limit its scope. Every 
 circle of the administration is essentially distinct and in- 
 dependent. 
 
 Thus the unity of the State existed only in form. Any Power of the 
 attempt to act with decision was met by insuperable diffi- 
 culties. The greater and lesser vassals thwarted and re- 
 stricted the central power, instead of acting as its agents. 
 The national life was split into a variety of individual forms, 
 and the single state was dissolved into a number of petty 
 sovereignties. Free scope was given to the will and the 
 inclination of individuals, especially of the magnates, but 
 no common political action of the whole body was possible. 
 The aristocracy alone was powerful and free : the monarchy 
 had dignity without strength : the people found the natural 
 development of its powers obstructed on all sides. The 
 further the lower classes were removed from the centre, 
 from the feudal suzerain, the more oppressive was the 
 arbitrary authority of the intermediate lords. 
 
 The two elements of the monarchical power among the 
 Germans, the military and the judicial ban^ were now divided 
 among the numerous lords and vassals. The executive 
 
 generally accepted, and the kings, while respecting the superior dignity 
 of the emperor, professed to derive their power immediately from God. 
 As an old French maxim put it, 'Le roi ne tient que de Dieu et de 
 Tepee/ Loysel, i. 2. 
 10 Sachsenspiegel, iii. 58. 
 
 C C 
 
386 THE FORMS OF THE STATE. [Book VI. 
 
 government was far weaker and more limited than that of 
 the Frankish kings. The whole constitution had become 
 aristocratic, although monarchy was retained as an ornament. 
 The kings of the Capet line had little to distinguish them 
 from the great lords n : even the German kings were often 
 foiled in internal affairs by the action of the princes. It 
 was only exceptionally, when circumstances were specially 
 favourable or dangers specially threatening, that the kings 
 were enabled to exercise a strong central power. That this 
 was the case in England after the Norman Conquest was 
 due, partly to the fact that the Norman nobles saw their own 
 security in a close alliance with the crown, and partly to the 
 necessity of an energetic government to maintain the new 
 dynasty on the throne. 
 
 5. Guizot has propounded the question why it is that 
 feudalism was always hateful to the people, not only at the 
 time of its decay, but when it was at the zenith of its 
 power. The chief reason for this is thus stated by him : 
 ' Feudalism was a confederation of petty sovereigns, of petty 
 despots, unequal among themselves and bound by duties 
 and rights to each other, but invested with arbitrary and 
 absolute powers in their own domains, over their direct 
 and personal subjects. ... Of all tyrannies the worst is 
 that which' can thus count its subjects and can see from its 
 seat the boundaries of its rule. The caprices of human will 
 were there manifested in their intolerable variety and with 
 irresistible promptitude. It was a system in which the in- 
 equality of conditions was most rudely visible : wealth, power, 
 independence, all the advantages and rights stood in imme- 
 diate and visible contrast with misery, weakness, and servi- 
 tude. . . . Despotism was as great as in a pure monarchy, 
 privilege was as much developed as in an organised 
 
 11 Hugo Capet wrote to the Archbishop of Sens : ' Regali potentia in 
 nullo abuti volentes, omnia negotia reipublicae c'onsultatione et sententia 
 fidelium nostrornm disponimus.' Mirabeau, Essai sur le despotisme ; 
 GEuvres, ii. p. 390. Comp. Luchaire, Histoire des Institutions 
 Monarchiques, i. 243 ff. 
 
Chap. XII.] FEUDAL MONARCHY. 387 
 
 aristocracy, and both displayed themselves in the crudest 
 and most offensive form. Despotism was not mitigated 
 by the distance and elevation of a throne ; privilege 
 was not disguised under the majesty of a great corporation. 
 Both belonged to an individual who was always present, 
 always alone, and always in close neighbourhood to his 
 subjects. 12 ' 
 
 This description contains some truth, but in its entirety it The system 
 applies to France alone among mediaeval states. The feudal wholly op- 
 system was not everywhere detested, and the attachment pref 
 even of peasants to their lord was not rare. Also it was not 
 essential to the system that the lords should have ' arbitrary 
 and absolute power ' over their vassals. Where such power 
 was exercised as was the case in France and too often in 
 other countries it was in direct opposition to the system 
 which established, from the summit to the base, circles of 
 administration in which the powers were derived from above 
 and independent. Even the serfs had fixed hereditary 
 rights ; their duties could not be increased at the lord's will^ 
 and their persons could only be disposed of according to. 
 tradition and customs. The manorial law (Hofrechf) had 
 the same fixity and sanction for the lower, as the feudal law 
 for the higher classes 13 . 
 
 But apart from the cases in which the lords exceeded their 
 rights, there can be no doubt that the small size of the lord- 
 ships and the difficulty of escaping from oppression, which 
 was so close at hand, were among the worst characteristics 
 of feudalism. 
 
 6. The Feudal State was pre-eminently a legal state (Rechts- Existence of 
 stat\ Although the principle of the public welfare was ob- rights. 
 scured, the various political rights were clearly limited and 
 defined. Like private and personal rights, they could be 
 
 12 Guizot, Essais (No. v. Du caractere politique du regime fcodal], pp. 
 
 33-5- 
 
 13 This is proved by numerous local customs and judicial decisions 
 ( Weisthiimer}. Many of these point to a defiant attitude on the part of 
 the peasants towards their lords. 
 
 C C 2 
 
388 THE FORMS OF THE STATE. [Book VI. 
 
 disposed of at will by the ordinary legal processes of sale, 
 exchange, donation, inheritance, etc. They were protected 
 either by judicial process or by the admitted right of private 
 war. On the one hand, there was a definite legal organisa- 
 tion which secured freedom to individuals and to separate 
 corporations, but not to the nation as a whole : on the other 
 hand, there was a continuous internal war, an ever-recurring 
 anarchy. These, like the double face of Janus, are the two 
 inconsistent appearances presented by the feudal state in 
 the middle ages. 
 
 B. Monarchy limited by Estates or Class Privileges. 
 
 Limits on Before the close of the middle ages feudal monarchy 
 
 powerf a gradually gave way to a monarchy limited by class privileges 
 (stdndisch beschrdnkte Monarchic) which is the mediaeval pre- 
 decessor of the modern representative monarchy. From 
 about the year 1250 this form prevailed in most of the 
 European states, and it lasted for three centuries until in the 
 sixteenth it was transformed into absolute monarchy. 
 
 The king or prince still derived his power from God or 
 from his suzerain, and regarded this power as the property 
 of himself and his dynasty. Within the range of his princely 
 authority he felt himself to be master and endured no 
 opposition to his will. But the range was now very limited : 
 everywhere the prince was confronted by the rights of 
 classes, of corporations, and of individuals, which he was 
 bound to respect as he would have his own rights respected. 
 The possessor of these rights was prepared to defend them, 
 if necessary, with arms or with the more peaceful weapons 
 of law. 
 
 Legislation. The king had no legislative power by himself. The counsel 
 and consent of the national estates (Reichsstdnde) were 
 necessary for the edicts of the king, the approval of the 
 provincial estates (Landstdnde) for those of the prince. 
 
 Administra- The administrative power was still very slightly developed 
 and very limited. There was no body of officials to carry 
 
Chap. XII.] MONARCHY LIMITED BY ESTATES. 389 
 
 out the will of the central government. The tenants in 
 chief, to whom the royal rights were entrusted, exercised 
 them within their domains as their own. The court offices 
 were held, mostly in hereditary succession, by vassals and 
 ministers who served their lord according to traditional 
 forms with more show than reality. Usage and etiquette, 
 the traditions of classes, and family spirit were far more 
 influential than the sentiment of duty to the law and public 
 spirit. The provincial estates, in which the nobles pre- 
 ponderated, exercised an often oppressive control over the 
 princely government by their complaints and remonstrances. 
 Not infrequently they attacked the prince's ministers and 
 called for their dismissal or their punishment. Sometimes 
 they demanded the guardianship of the prince's person, or 
 that their commissioners should be entrusted with a share 
 in the government. 
 
 The king was still regarded as the supreme judge, and jurisdiction, 
 occasionally sat in person to administer justice. But the 
 judgment was pronounced by the assessors (Sckoffen\ and 
 the king had only to carry it out. He himself was bound 
 by the law and could be called to account for wrong-doing. 
 It was an old German custom that every lord possessing 
 judicial rights should, if accused, be tried before his own 
 representative. Thus the German king, though at the same 
 time he was Roman Emperor and the secular head of 
 Christendom, could, under certain circumstances, be com- 
 pelled to appear before the Count Palatine of the Rhine, 
 and to submit himself to the judgment of the princes. So, 
 too, the count (Graf) might be judged by his acting magis- 
 trate (Schultheiss). 
 
 The police administration was undeveloped and usually Police, 
 combined with the functions of the judge. There were as 
 yet no gens d'armes, and the modern police system was non- 
 existent. 
 
 Even the military power of the prince was restricted by Military 
 
 powers. 
 
 the feudal laws and customs. The vassals owed only a fixed 
 and very limited service, and this they regarded as a burden 
 
390 THE FORMS OF THE STATE. 
 
 on their land and were eager to prevent any energetic use 
 of it. 
 
 The German kings frequently experienced how difficult it 
 was to check the defiant independence of the great dukes, 
 and how little the fealty of the princes of the empire towards 
 their head could be relied upon. 
 
 It was possible for kings and princes to obtain a more sub- 
 missive and useful army by employing mercenaries, and this 
 was often done. But mercenaries had to be paid, and if the 
 estates refused to grant any taxes for the purpose, their pay 
 had to come out of the king's personal revenue, and this often 
 involved him in debt and difficulties. Moreover, as these 
 mercenaries were often foreigners, they made the prince hate- 
 ful to the country which they held in servitude. 
 
 Taxation. The king had no right to raise taxes except when the 
 estates had first recognised their necessity and approved their 
 levy, which an aristocratic body was by no means inclined to 
 do. Many of the taxes were gradually made into charges 
 upon real property, the burden of which fell mostly on the 
 lands of the peasants, and they thus became fixed and in- 
 variable. In this, as in the other points, it is obvious that 
 both estates and individuals were wanting in a sense of com- 
 mon duties to the State. 
 
CHAPTER XIII. 
 
 VI. MODERN ABSOLUTE MONARCHY. 
 
 THE mediaeval monarchy, , limited by privileged classes, Rise of 
 was directly followed, not by the modern representative 
 monarchy, but by absolute monarchy, which obtained 
 strength from the struggle with the estates. Both the mixed 
 German and Romance and the pure German nations of 
 Europe had to pass through this stage before they could 
 realise the modern form of state. 
 
 Absolutism appeared first and most conspicuously in in the 
 France and Spain. Where the German element prepon- countri 
 derated in a nation, it was difficult for the kings to establish 
 despotism, which conflicted with the legal principles and 
 traditions of the Germans. Roman traditions, on the other 
 hand, which were now revived both in theory and in practice, 
 were altogether favourable to monarchy J . 
 
 Ever since the twelfth century, when feudalism was at its 
 zenith, the French lawyers had been striving with united 
 energies to establish the monarchy upon the old foundations 
 of the imperial law of Rome. The maxim of their school 
 was that the government must be one, indivisible, and 
 absolute, qualities which they combined under the expres- 
 sion of a sovereign power. Starting from this point, they 
 treated the rights of jurisdiction and government enjoyed by 
 the feudal nobles as encroachments and abuses, inconsis- 
 tent with the interests of king and people, and either to be 
 swept away or to be limited as much as possible. They 
 
 1 Thierry, Recits des Temps Meroving. i. 16. 
 
392 THE FORMS OF THE STATE. [Book VI. 
 
 represented the French kings as the successors of the 
 Roman emperors, Roman law as the one true law, the legal 
 usages of feudalism they treated with disdain. Centuries 
 elapsed before these theories were carried out in practice 
 and the rule of the nobles was really broken. But the 
 internal struggle never ceased until the feudal system with 
 its variety of forms had been annihilated, and absolute 
 monarchy, which had been growing stronger and stronger, 
 arose upon its ruin. 
 
 The maxim of the Roman law, quod prindpi placuit legis 
 habet vigorem, was revived as a principle of politics in the 
 French form, Qui veut le roi, si veut la lot*. When once 
 unrestricted power of legislation was conceded to the king, 
 it was easy for him to remove the obstacles which feudalism 
 and the rights of the estates had opposed to the develop- 
 ment of the central power, of the national spirit, and the 
 public welfare. The judicial tribunals, inspired by the 
 study of Roman law, and especially the Parliaments of 
 Paris and the provinces, helped to give the victory to this 
 tendency. Public opinion, especially in the towns, which 
 had preserved Roman traditions and had been to some 
 extent free from feudal influences, was favourable to the new 
 conception. The citizens hated the lesser nobles more 
 than they feared the king, and hoped, by weakening the 
 former, to secure the progress of their trade and manufacture. 
 The peasants also gained rather than lost by the increase of 
 the royal power over their aggressors. 
 
 Monarchy triumphed over feudalism, in France under 
 Louis XI (1461-1483) 3 , in Spain under Philip II (1556- 
 
 2 Beaumanoir, ii. 57 : <Ce qui li pleot a fere, doit estre term por a 
 loi ' ; but he adds as a limitation, ' pourvu qu'il ne soit pas fet contre 
 Dieu, ne contre bonnes incurs, car s'il le feroit, ne le devroient pas si 
 souget soufrir.' Even in 1688, in the reign of Louis XIV, Delaunay 
 stated the principle in no absolute sense : * que la loy est la volonte du 
 Roy et non pas que la volonte du Roy soit loy.' But at all times 
 ardent partisans could be found to exalt the monarchical power above 
 the limits which the middle ages had imposed upon the Roman 
 principle. 
 
 3 Louis XI forbade the Duke of Brittany to use the expression, * par 
 
Chap. XIII.] MODERN ABSOLUTE MONARCHY. 393 
 
 1598). In France there were occasional reactions, but in 
 Spain absolutism was more secure and showed itself more 
 sombre and cruel. One is horrified to think that Philip II 
 ventured to condemn as criminals the whole population of 
 the Low Countries, over which he had received only limited 
 rights of government. It was not till Louis XIV's reign 
 that the absolute power of the French monarchy reached its 
 zenith, and from that time it went rapidly downwards 
 towards the precipice of the Revolution. The German 
 dynasties, great and small, set themselves to copy Louis 
 XIV 4 , and in the eighteenth century a Christian ruler, 
 Joseph I, condemned to death the whole Bavarian people, 
 which he ruled only by usurpation, and justified himself 
 by an appeal to his divine right 5 . 
 
 The political principle of this new absolutism was ex- Principles of 
 pressed by Louis XIV with surprising naivete in his famous Monarchy, 
 phrase Letatfest moi. The king no longer regarded himself 
 as the head, the highest and most powerful member of the 
 
 la grace de dieu,' which had previously been usual in the case of all the 
 great lords. ScharTner, Franzos. Rechtsgesch. ii. 273. The death of 
 Charles the Bold of Burgundy in a war with the Swiss, which Louis had 
 helped to bring about, removed the leader of the feudal aristocracy and 
 decided the victory of the monarchy in France. 
 
 * Frederick the Great in the Antimachiavel, 10 : ' II n'y a pas jusqu'au 
 cadet du cadet d'une ligne appanagee, qui ne s'imagine d'etre quelque 
 chose semblable a Louis XIV. II batit son Versailles, il a ses maitresses, 
 il entretient ses armees. Us s'abiment pour 1'honneur de leur maison, 
 et ils prennent par vanite le chemin de la misere et de I'hopital.* 
 
 5 Hormayr, Lebensbilder, i. 256, Patent of Joseph I (20 Dec. 1705) : 
 1 Alle Bayern seyen der beleidigten Majestat Josephs I als des ihnen 
 von Gott dem Allmachtigen vorgesetzten alleinigen rechtmassigen 
 Landesherrn schuldig, und daher ohne weiters mit dem Strange vom 
 Leben zum Tode zu richten. Nur aus allerhochster Clemens und 
 landesvaterlicher Mildigkeit (!) werde verordnet, das allezeit 15 zu 15 
 urn's Leben spielen und jene, auf die das wenigste Loos fallt, im 
 Angesicht aller aufgehenkt werden solle.' [' All Bavarians are guilty 
 of treason towards Joseph I, the lawful ruler appointed by God to rule 
 over them, and are therefore condemned to death by the halter. But 
 out of supreme clemency and paternal gentleness (!) it is ordained that 
 lots shall be cast for their life among every thirty men, and that the 
 fifteen upon whom the lot shall fall shall be hanged in the presence of 
 all.'] It is astounding to read such an insane interpretation of law and 
 mercy in the eighteenth century, just before the commencement of the 
 age of philosophic enlightenment. 
 
394 THE FORMS OF THE STATE. [Book VI. 
 
 body politic, but he completely identified the State with his 
 own person, so that no member of the State except himself 
 was endowed with political rights. His personal welfare 
 was the welfare of the State, his individual rights were the 
 rights of the State. He was all in all, beyond him was nothing. 
 This identification of the monarchy with the State quite 
 different from the personification of the majesty of the State 
 in the king was the more important and dangerous because 
 at the same time, in the seventeenth and eighteenth 
 centuries, the theory was developed of the omnipotence of 
 the State. In the middle ages the State had been split up 
 into a number of fixed and independent units, over which it 
 exercised no decisive power. Now theory had rushed to the 
 opposite extreme, and there was no political sphere which 
 was free from State control. Even civil law and personal 
 rights were regarded as a product of the State and subject 
 to its pleasure. 
 
 influence of The political and legal theorists of the day are to a great 
 clergy!' 8 ' ' extent responsible for the harm that resulted from this idea. 
 The former busied themselves with finding plausible justi- 
 fication for the royal encroachments, while the latter made 
 none of the opposition that their duty enjoined upon them. 
 Quite as culpable were the court divines, whether Jesuits, 
 high-churchmen, or orthodox Lutherans, who distorted the 
 Christian idea that government has a divine basis, to re- 
 present the kings as the immediate vicegerents of God's rule 
 upon earth, as in fact earthly deities. Because God is the 
 supreme ruler of the world, which He has created and 
 which He has filled and maintained with His Spirit, there- 
 fore kings are to be the supreme rulers of nations to which 
 they have no such relations. As the Roman emperors loved 
 to pose as deities, so Louis XIV delighted to play the part 
 of Jupiter, but the representation was more suited to Pagan 
 than to Christian times. 
 Decline of At the very period when this omnipotence was ascribed 
 
 Absolutism . ' Jr 
 
 in theory and often put into practice, we find instances of 
 kings who are completely powerless, who have sunk to be 
 
Chap. XIII.] MODERN ABSOLUTE MONARCHY. 395 
 
 the passive slaves of ambitious ministers or greedy mistresses. 
 In such a system everything depended upon the personal 
 character of the monarch 6 . Men of distinguished ability 
 and energy, like Louis XIV himself before his powers were 
 exhausted by pleasure and old age, could keep up at any 
 rate the appearance of omnipotence, although even they 
 could not remain fixed on so dizzy a height. But a weak 
 prince, such as Charles II of England, Ferdinand VII of 
 Spain, or Louis XV of France, handed over to others the 
 despotic power that in theory was reserved for the Crown. 
 Everywhere the people sank into indescribable misery. 
 Any one who wishes fully to appreciate the effects of 
 absolutism in civilised Europe should study the social history 
 of Spain, Italy, or Austria, between 1540 and i74o 7 . 
 
 Fortunately so many hostile traditions and institutions 
 survived from former times as to prevent the complete and 
 permanent development of a political principle which might 
 be suited to the peoples of Asia, but was wholly alien to 
 European life. The restored dynasty of the Stuarts sought in England, 
 to emulate Louis XIV, and James II attacked not only the 
 ancient and chartered rights of Parliament, but also the 
 more recent constitution of the Church. The result was the 
 expulsion of his dynasty from the throne : and the elevation 
 of William of Orange, the greatest statesman and prince of 
 his time, led to the firm foundation of the modern represen- 
 tative system. 
 
 The double and decisive overthrow of absolute monarchy 
 
 6 { Unlimited power corrupts the possessor ; and this I know, that when 
 law ends, there tyranny begins ; ' speech of Lord Chatham (quoted in 
 Brougham, Statesmen of the Time of George III, i. 37). Guizot, Essais, 
 p. 245 : ' C'est le vice de la monarchic pure d'elever le pouvoir si haut 
 que la tete tourne a celui qui le possede et que ceux qui le subissent 
 osent a peine le regarder. Le souverain s'y croit un dieu, le peuple y 
 tombe dans 1'idolatrie. On peut ecrire alors les devoirs des rois et les 
 droits des sujets ; on peut meme les precher sans cesse ; mais les situa- 
 tions ont plus de force que les paroles, et quand 1'inegalite est immense, 
 les uns oublient aisement leurs devoirs, les autres leurs droits.' 
 
 7 Laurent, tudes sur rHistoire, xi. 136: * Si la revolution avait 
 besom d'une justification, elle la trouverait dans 1'incompatibilite 
 radicale de la monarchic absolue avec le droit et par suite avec les 
 interets de Thumanite.' 
 
396 THE FORMS OF THE STATE. 
 
 in other in England was not immediately fatal to this institution in 
 countries. the ^ st of Europe> g ut a u confidence in it was shattered, 
 and it gradually advanced towards ruin. Its principles 
 were rejected by the liberal philosophy of the eighteenth 
 century. In the person of Frederick II, this philosophy 
 ascended the throne of a rising State, and thence proclaimed 
 the maxim that the king is not the proprietor of the land, 
 nor the lord of the people or State, but ' the first servant 
 of the State V The principle of absolute monarchy was 
 fatally weakened before the French Revolution, and was in 
 no condition to withstand the storm. In spite of numerous 
 fluctuations it finally perished in all the civilised states of 
 Europe as the people became conscious of their freedom. 
 Russia. It is only in Russia that absolute monarchy survives to 
 
 our own day 8 . Religious sentiments are stronger in the 
 East than in the West, and the immense size of the country 
 and its comparative want of civilisation require a strong 
 central government. The greatest reforms, such as the 
 enfranchisement of the serfs by Alexander II, in 1858, 
 could never have been accomplished except by the decisive 
 will of the emperor. They would hardly have been called 
 for by the aristocracy, and a free and cultivated burgher 
 class does not exist as a political or social power. The 
 lower classes are not wanting in ability to manage their own 
 affairs in their villages and business associations, but are 
 incapable of taking any important part in politics or 
 legislation. 
 
 a [Hegel (Geschichte der Phil. ii. 195) calls Frederick the 'philosopher- 
 king ' (in the sense of Plato's Republic} not because, as a private person, 
 he dabbled in Wolffian metaphysics and French philosophy, but because 
 he made the welfare of his State a principle in his government against 
 particular rights, &c. Cp. Hegel's Philosophy of History, Eng. trans. 
 p. 460.] 
 
 8 The Russian laws call the Czar an ' independent and absolute 
 sovereign/ and base his power expressly upon divine command : ' God 
 Himself orders men to submit to his supreme authority, not only from 
 fear of punishment, but as a religious duty.' Legislation belongs ex- 
 clusively to the Czar, though he usually takes the advice of his Council. 
 Sammlung der russischen Reichsgesetze (Swod), Bd. i. Sect. i. Art. I. 
 Foelix, Revue Etrangere, iii. 700. 
 
CHAPTER XIV. 
 VII. CONSTITUTIONAL MONARCHY. 
 
 A. Its Origin and Progress. 
 
 CONSTITUTIONAL monarchy is the fruit of modern times Rise of Con- 
 but its germ is to be found, as was pointed out by Montes- Monarchy, 
 quieu, in ' the forests of ancient Germany.' The first great 
 but immature step towards the creation of that form of state 
 which we now call constitutional, was taken when German 
 princes established themselves upon Roman soil, when 
 Roman political ideas were brought into contact with 
 German rights. 
 
 Then followed the period of feudal monarchy and of the 
 limitation of the royal power by a strong aristocracy. The 
 unity of the State was lost, the welfare of the people was 
 neglected, and the king had no power proportionate to his 
 dignity. Then the national tendency to unity revived, and 
 the German feudal State was again illuminated and fertilised 
 by the political principles of Rome. The people began to 
 move at the same time, but the princes anticipated them, 
 and seized the iron sceptre of absolute power. Classes began 
 to struggle with each other and with the princes. As the 
 middle ages came to an end the modern constitution of the 
 State was close at hand. It is the end of a history of more 
 than a thousand years, the completion of the Romano- 
 Germanic political life, the true political civilisation of 
 Europe. 
 
 This form of State was first developed in England, where i. in Eng- 
 land, 
 
398 THE FORMS OF THE STATE. [Book VI. 
 
 it had long been slowly but surely ripening. In no Euro- 
 pean country did the monarchy retain so much power in the 
 middle ages as in England, but nowhere were the rights and 
 liberties of the nobles and the people so courageously 
 defended and so securely founded. 
 
 Kn.^iisi, B u t the English were not spared the fevers of political 
 
 1! " strife. Two great revolutions threatened the whole edifice 
 of the State with ruin. The first, in the middle of the 
 thirteenth century, was the attempt of the barons to take 
 the government from the king into their own hands. This 
 was the object of the Provisions of Oxford in 1258, which 
 were forced upon Henry III by Simon de Montfort 1 . In 
 the second, which arose in the seventeenth century from 
 Charles Fs struggle with the Long Parliament, both monarchy 
 and aristocracy were for a time swept away by the fanatical 
 party of democratic Puritans. 
 
 But on both occasions the disease did not last long enough 
 to permanently weaken the body politic, and though the 
 external symptoms were bad enough, it had not sufficient 
 internal strength to give an alien direction to the national 
 life. Both times England quickly recovered from the shock, 
 the connexion with the past was never broken, and the 
 national development remained organic and normal. Both 
 revolutions resulted in distinct progress. From the first is 
 to be dated the summoning of town representatives to par- 
 liament, the origin of the later House of Commons. The 
 second was completed by the foundation of the new con- 
 stitutional monarchy in 1689, which is henceforth a national 
 institution 2 . 
 
 1 Guizot, Essais, p. 388. [The Provisions of Oxford, which estab- 
 lished a very temporary system of government and which had nothing 
 directly to do with the origin of town representation, have hardly the 
 importance which Bluntschli attributes to them. A far greater date in 
 the history of constitutional government is the year 1399 when a revolu- 
 tion placed the House of Lancaster upon the throne to which he makes 
 no allusion.] 
 
 2 For a general view of the results of the Revolution of 1688, see 
 Macaulay, History of England (Popular Edition), ii. p. 240 ; Gneist, 
 Engl. Verf.- Gesch . 6 2 8-7 2 4. 
 
CH.XIV.] PROGRESS OF CONSTITUTIONAL MONARCHY. 399 
 
 Constitutional monarchy is a combination of all other Character- 
 
 . istics of Con- 
 
 forms of State. It preserves the greatest variety without stitutionai 
 
 sacrificing the harmony and unity of the whole. While 
 giving free room to the aristocracy to exercise its powers, it 
 imposes no restraint upon the democratic tendencies of the 
 people. In its reverence for the law we can even see an 
 ideocratic element. But all these various tendencies are 
 held together in their due relations by the monarchy, the 
 living head of the State organisation. 
 
 Constitutional monarchy in England has its stages of Results of 
 development. The following belong to the time of William tion of 1688. 
 of Orange : 
 
 1. Absolute monarchy was rejected as an unconstitutional 
 encroachment, to which resistance was justifiable. 
 
 2. In opposition to the mystical conceptions of orthodox 
 theologians who revered the royal rights as divine, these 
 rights were declared to be human and limited by the con- 
 stitution 3 , just as much as the rights of the Lords and 
 Commons in Parliament, or the personal liberties of every 
 Englishman. 
 
 3. The Declaration of Rights (1689) authoritatively 
 formulated and secured the rights of Parliament and the 
 liberties of the nation. The union of this declaration with 
 the settlement of the succession made it impossible for the 
 monarchy in the future to sever itself from these rights and 
 liberties. 
 
 4. The irresponsibility of the king was declared to be a 
 rule of the constitution, but the expulsion of the Stuarts 
 proved clearly that exceptions could be made to the rule, if 
 king and people came into irreconcileable collision. 
 
 5. Ministers were made responsible to Parliament, the 
 
 3 Act of Settlement, 1700, art. iv. Stattttes of the Realm, vii. 638 
 [quoted in Stubbs, Select Charters, 528-31]: ' Whereas the Laws of 
 England are the birthright of the people thereof, and all the Kings and 
 Queens, who shall ascend the Throne of this realm, ought to administer 
 the government of the same according to the said laws, and all their 
 officers and ministers ought to serve them respectively according to the 
 same/ etc. 
 
400 THE FORMS OF THE STATE. [Book VI. 
 
 Commons having the right of accusing, the Lords of trying 
 them. 
 
 Other rights of Parliament were recognised, viz. : 
 
 (6) to share in legislation, 
 
 (7) to grant taxes and to regulate the royal household, 
 
 (8) to control the executive government. 
 
 (9) The judicial administration, based upon the sworn 
 juries selected from the people, was made completely inde- 
 pendent and its powers extended. 
 
 (10) Freedom of the press and of political meetings was 
 granted, so that public opinion could criticise and control 
 the government. 
 
 The Hanoverian kings found it difficult to understand 
 these principles and their consequences, but circumstances 
 were too strong for them to refuse their recognition of the 
 free constitution. In our own day the influence of Prince 
 Albert induced the royal family to become unreservedly 
 constitutional, and thus the monarchy has lost neither 
 respect nor power, while it has thrown off the prejudices of 
 dynastic tradition, and has become a truly national monarchy 
 ( Volkskonigthuni). 
 
 The English king has realised that he does not represent 
 his own will, but that of the State. Thus the ministers and 
 since the English ministers are kept in power by the con- 
 fidence of Parliament, or rather of the House of Commons 
 the popular representatives have more influence over the 
 government than in continental states. So far the English 
 monarchy may be called parliamentary or republican. But 
 the reverence for the crown is nowhere stronger than in 
 England ; and however strong the aristocratic elements and 
 the Parliament may be, the English constitution has re- 
 mained a monarchy 4 . 
 
 * [Bluntschli here quotes passages from Burke and Sir Robert Peel to 
 prove the importance of the royal power. It is hardly necessary to 
 remind English readers that our constitution is a monarchy only in the 
 popular, and not in a scientific sense. For the real functions of the 
 crown in England, see Bagehot, English Const, pp. 33-88.] 
 
CH.XIV.] PROGRESS OF CONSTITUTIONAL MONARCHY. 401 
 
 The second grand effort to introduce a constitutional n. France. 
 monarchy was made by the French. The constitution of S^i? 1 " 
 1791 was intended by its authors to be a masterpiece 
 directly deduced from modern political principles. But the 
 principles of the Constituent Assembly were rather repub- 
 lican and democratic than monarchical. Its members were 
 influenced, not so much by the English constitution, as by 
 Rousseau's theories of the sovereignty of the people and 
 of the two powers, and by the constitutional democracy of 
 America with its three powers, each independent, but held 
 together by the unity of the sovereign people. The con- 
 stitution of 1791 was essentially democratic: its monarchy 
 was alien to the system, a survival from the past with which 
 on all other points the Revolution had completely broken. 
 
 Napoleon revived the monarchical power and raised the The First 
 nation from the mire into which it had sunk. The central 
 authority was once more concentrated in his strong hand. 
 The Revolution was still recent, and the country required 
 a strong dictatorship to carry it through the European war. 
 But he was too energetic a ruler to give France a new con- 
 stitutional monarchy, and the times were not suited to such 
 an experiment. Yet he allowed some rude approaches to it. 
 He recognised the people as the source of his power, and 
 he opened to all Frenchmen the way to honour and ad- 
 vancement. He sought to create in the Senate a new aris- 
 tocracy which, as he said, ' should protect the sovereignty, 
 while the democracy elevates to the sovereignty 5 .' If his 
 dynasty had been peaceably prolonged, a national consti- 
 tutional monarchy might in time have been founded upon 
 these beginnings. But to Napoleon himself the political 
 rights of the other corporations were displeasing as limita- 
 tions upon his absolute will, and his fall involved all his 
 institutions in the same ruin. 
 
 5 Las Casas, Mtm. iii. 32. Compare above, Book ii. ch. 10. The 
 best description of the ideal Napoleonic state, an ideal which was never 
 practically realised, is to be found in the Idles Napoleoniennes, written 
 by Louis Napoleon in 1839. 
 
 Dd 
 
402 THE FORMS OF THE STATE. [Book VI. 
 
 The charter The Charter of Louis XVIII (4 June, 1814) was in its 
 essence a compromise between the old dynasty which re- 
 turned from exile and the French people which had witnessed 
 the Revolution and the rule of Napoleon, a compromise 
 between the claims of the old monarchy and the new prin- 
 ciples of government, between legitimacy and the revolution. 
 In form it was a free gift of the king, and emanated from 
 his exclusive authority 6 . It contained other contradictions 
 besides this, but at the same time it was better than the 
 previous attempts to realise a constitutional monarchy in 
 France. 
 
 While the forms of the English constitution had been 
 apparently copied, the spirit was altogether different. Greater 
 power was allowed to the French than to the English king, 
 or rather, as the Charter professed to be issued by the abso- 
 lute authority of the monarch 7 , his power was less limited. 
 But the French monarchy was much less secure than the 
 English, not only because the character of the people was 
 more unstable and prone to change, but because the Revo- 
 lution had destroyed the aristocracy and had trained the 
 whole people in democratic opinions and tendencies. 
 
 The peers (pairie\ who shared the right of legislation with 
 the crown and formed a supreme court for political offences, 
 were to be ' a truly national institution, uniting the recol- 
 lections of the past with the hopes of the future, the old 
 regime with the new/ But in reality the new nobles of 
 Napoleon's time were put too much in the background, and 
 the old decaying aristocracy was too generously treated. The 
 hereditary peers were very inferior to the English House 
 of Lords, and could never be regarded as a permanent or 
 ' truly national institution. 7 The Chamber of Deputies was 
 to replace 'the old assemblies of the Champs de Mars as well 
 
 6 See the preamble : ' Nous avons volontairement et par le libre 
 exercice de notre autorite royale accorde et accordons, fait concession et 
 octroi a nos sujets . . . de la Charte constitutionnelle qui suit.' 
 
 7 ' Bien que 1'autorite toute entiere residat en France dans la personne 
 du Roi.' 
 
Ch.XIV.j PROGRESS OF CONSTITUTIONAL MONARCHY. 403 
 
 as the third estate of the States General.' But it was really 
 a pure plutocracy, and was employed for the profit of the 
 official class. The mass of the citizens, who were wealthy 
 and civilised and had played an important part in the re- 
 volutionary period, could neither elect nor be elected. The 
 peasants, to whom the Revolution had given free property 
 and even political rights, were equally excluded, while the 
 lower classes were wholly disregarded. The demos, now a 
 great political power in France, was not likely to support 
 a constitution which left it entirely unrepresented. 
 
 The Revolution had strengthened two conflicting ten- 
 dencies, that towards centralisation and that towards the 
 extension of democracy. If carried to extremes, the one 
 led back to absolute monarchy, the other to revolutionary 
 anarchy. The Charter sought to strengthen and control 
 the former, and thus to restrain the latter tendency 8 . 
 
 The Charter survived the first popular storm, which was Revolution 
 roused by the absolutism of Charles X and by the revo- 
 lutionary press. The party cry of Louis Philippe and of the 
 July Revolution of 1830 was that ' the Charter should be a 
 reality.' But the hereditary was replaced by a life peerage, 
 and the basis of the Chamber of Deputies was enlarged, 
 though it retained its plutocratic character a . 
 
 Then came a second storm, of which no one had foreseen Revolution 
 the violence, and in February, 1848, the whole constitution, 
 though better than what followed, and though containing 
 in itself the capability of improvement, was overthrown in 
 
 8 De Tocqueville, Democracy in America (trans, by Reeve), i. 93 : ' In 
 the French Revolution there were two impulses in opposite directions, 
 which must never be confounded the one was favourable to liberty, the 
 other to despotism. . . . The Revolution declared itself the enemy of 
 royalty and of provincial institutions at the same time ; it confounded 
 all that had preceded it despotic power and the checks to its abuses 
 in indiscriminate hatred, and its tendency was at once to overthrow and 
 to centralise. This double character of the French Revolution is a fact 
 which has been adroitly handled by the friends of absolute power.' 
 
 a [The qualification for a vote was lowered from 300 to 200 francs of 
 direct taxes. Even after this the number of electors was less than half 
 a million, and this limited franchise was a prominent cause of the 
 failure of the Orleanist monarchy.] 
 
 D d 2 
 
404 THE FORMS OF THE STATE. [Book VI. 
 
 one day, the majority being too surprised and stupefied to 
 resist a desperate minority. For the second time the demos 
 sought to rule France. 
 
 The representative democracy of the first Revolution was 
 restored with a President of the Republic ; but his authority 
 was seriously checked and limited by the National Assembly, 
 which was divided by bitter party passions, and wasted its 
 strength in endless debates. The popular instinct, however, 
 turned again to monarchy, and a second Napoleon became 
 the conqueror and the heir of the democracy. Louis Napo- 
 leon seized upon the administration, and justified his action 
 by the consent of the vast majority of Frenchmen. 
 The Second The constitution of the new Empire (1852) recalled rather 
 the Roman than the English state. In fact, the Napoleonic 
 ideas had a distinctly Roman character, and thus commended 
 themselves to the Romance element of the French 9 . Homage 
 was paid to the majesty of the people as the source of all 
 political power; the constitution was subject to its consent; 
 the Legislative Body depended upon its approval ; even the 
 imperial power was derived from its will 10 , and the Emperor 
 was responsible to the popular voice. Democratic equality, 
 so dear to the masses, was unreservedly recognised in the 
 right of universal suffrage. Upon this broad basis the im- 
 perial power was raised to majestic dignity. The initiative 
 in legislation, the supreme control of politics, diplomacy, 
 the army and the official body, were placed in the Emperor's 
 hands. Even the members of the council of state could be 
 dismissed at his pleasure. The constitution recognised only 
 two great powers the majority of the people and the Em- 
 peror. All that stood between them had the merest shadow 
 of independence. Ministers were responsible only to the 
 head of the State, but some of them were merely orators 
 
 9 The constitution of 1852 bore an external resemblance to the 
 Napoleonic constitution of the year VIII (1801), but the differences 
 were really considerable. De Parieu, Pol. p. 201. 
 
 10 Napoleon Ill's title ran : ' par la grace de Dieu et la volonte 
 nationale Empereur des 
 
Ch.xiv.] PROGRESS OF CONSTITUTIONAL MONARCH Y. 405 
 
 employed to defend the government in the Chamber, and 
 these men sometimes obtained an influence dangerous not 
 only to the representatives but also to the Emperor n . The 
 power of the Legislative Body was negative rather than 
 positive ; it might reject but it could not improve a harmful 
 or unjust law ; it had no initiative, and could only confer 
 with the Council of State about proposed changes by means 
 of commissions. The Senate was professedly created to 
 defend popular liberties, to maintain the constitution, and 
 in exceptional cases to take the initiative in proposing re- 
 forms. But it was by its nature aristocratic, and its members 
 were compelled to adhere to the Emperor, partly by the fact 
 that they owed their dignity to him, and partly by the social and 
 party relations of France. The chief object of the govern- 
 ment was to maintain harmony between the Emperor and 
 the masses, and therefore very scanty liberty was allowed to 
 opposition either in the chambers or in the press 12 . 
 
 This autocratic constitution failed to satisfy the revived 
 desire for popular liberty. Napoleon III was compelled to 
 make concessions in the direction of constitutional mon- 
 archy I2a . A senatorial decree (Sept. 1869) granted to both 
 Houses the right of initiation, allowed ministers to become 
 members of them, and made the latter responsible to the 
 Senate. These changes were submitted to the people, and 
 approved in \^Q plebiscite of 1870 (20 April) by 7,350,142 
 votes to 1,538,825. 
 
 But these concessions failed to save the constitution in Revolution 
 the crisis which was brought about by the collapse of x 7 * 
 Napoleon's policy and of the French army in the war with 
 Germany. A new revolution in Paris (4 Sept. 1870) 
 
 11 De Paiieu, Pol. p. 204, who alludes to M. Rouher, but without 
 mentioning his name. 
 
 12 In the Reveries Politiques of Louis Napoleon, which were written 
 as early as 1832, is to be found a sketch of a French constitution, which 
 bears the same relation to the constitution of 1852 as the ideals of 
 youth to the ripe judgment of manhood. 
 
 l2a These concessions commenced with the decrees of Jan. 19, Feb. 5, 
 March 14 and 23, 1867. 
 
406 THE FORMS OF THE STATE. [Book VI. 
 
 abolished the Empire and again tried the experiment of a 
 Republic *. 
 
 in. RO- The changes experienced by France in the revolutionary 
 
 Countries, period and afterwards exercised an important influence upon 
 other, and especially upon the Romance, countries. In 
 Italy the victorious arms of the French established republics 
 on the model of their own ; and afterwards Napoleon I 
 erected vassal kingdoms both in Italy and Spain which were 
 copies of the French empire. It seemed as if the constitu- 
 tion of modern Europe was to be dictated from Paris, but 
 the fall of Napoleon's supremacy was immediately fatal to 
 his ephemeral creations. 
 
 More important in the development of constitutional 
 monarchy, though also of only short duration, were the 
 constitutions proclaimed in 1812 in Sicily and Spain, 
 i. siciiy. The constitution of Sicily, which was mainly the work of 
 
 Lord William Bentinck, was naturally modelled upon that of 
 England. At the same time the aristocratic traditions of the 
 Norman period were made use of, and the modern theory of 
 the division of powers was more clearly recognised than in 
 England. The legislative power was given to the Parliament, 
 which, however, included only the two Houses without the 
 king. The king had to confirm laws, not as a part of Parlia- 
 ment but as a separate and external power 13 . The Chamber 
 of Peers consisted of the Sicilian barons and prelates. The 
 secular peers were hereditary, but the king could create new 
 peers among nobles who possessed a net revenue of 6000 
 francs. The Lower House consisted of representatives, 
 and a very small income was sufficient qualification for the 
 suffrage or a seat. 
 
 The executive power rested with the king, but his minis- 
 ters and privy councillors were responsible to Parliament 
 for its exercise. In all important matters the king was 
 
 b [The existing French constitution was drawn up by a National 
 Assembly in 1875 (25 Feb.). For an analysis of it see Demombynes, 
 Les Constitutions Enropeennes (Paris, 1883), ii. pp. 1-166.] 
 
 13 Articles i, 2, and 14. A German translation of the constitution 
 appeared in the Portfolio for 1848. 
 
CH.XIVJ PROGRESS OF CONSTITUTIONAL MONARCHY. 407 
 
 bound to consult his Privy Council, and in some, e.g. the 
 bringing of troops into Sicily, the appointment of foreign 
 officers, the creation of new magistracies, or the granting of 
 pensions for political services, he had to obtain the consent 
 of Parliament. 
 
 The judicial power was exercised in the king's name, but 
 1 only by the officials fixed by the law.' Each Sicilian was 
 allowed to resist any illegal restraint ; the censorship, except 
 for theological works, was abolished \ feudal rights were 
 suppressed, etc. 
 
 It is obvious that this constitution was an imitation of 
 English forms, with a certain admixture of the theories put 
 forth in the French constitution of 1791. The republican 
 element preponderated in both, but in Sicily the contrast 
 with monarchical tradition was the more marked because 
 the absolutist court of the Bourbons could not endure the 
 constitution, and the quarrel between the clericals and the 
 Jacobins was fought out with all the heat and frenzy of the 
 southern character. When Naples was restored to the king, 
 he felt himself strong enough to revoke the constitution 
 which he had sworn to observe, and to restore absolute 
 government. But this first effort to combine the political 
 forms of England with the theories of the French Re- 
 volution, and thus to form a new constitutional system, 
 remained a model for many subsequent attempts in the 
 same direction. 
 
 Similar theories about the constitutional State and the 2 . Spain. 
 division of the three powers inspired the very complete con- 
 stitution which was issued by the Spanish Regency (March 
 19, 1812) at a time when the king was a prisoner, and great ' 
 part of the country was in the hands of the French. It took 
 as its model the French constitution of 1791, and proclaimed 
 the principle that the people is sovereign (Art. 3), but at the 
 same time it allowed very extensive rights to the king. 
 Legislative power was entrusted to the ' Cortes combined 
 with the king' (Art. 15), and the latter was also charged 
 with the 'supervision of justice ' (Art. 171). But reiterated 
 
408 THE FORMS OF THE STATE. [Book VI. 
 
 votes on the part of the Cortes could compel the king to 
 sanction a law. The Spanish constitution differed very 
 essentially from the English, because it did not admit an 
 intermediate Chamber of Peers, but placed the king face to 
 face with one assembly of national representatives, the 
 Cortes 14 . 
 
 In spite of its defects and the want of enthusiasm with 
 which it was received, this constitution became popular after 
 its arbitrary abrogation by the restored king, Ferdinand VII 
 (May 4, 1814), and several attempts were made (in 1820 and 
 1836) to restore it by force. The Estatuto Real vi 1834, 
 which gave Spain a representative government, was in- 
 sufficient to satisfy the people. In 1836 the Queen-Regent, 
 Christina, was compelled to recognise the constitution of 
 1812, and in the next year the influence of the progressist 
 party obtained the formal sanction of a new constitution 
 based upon that of 1812, with partial modifications taken 
 from the Estatuto Real. This recognised the king's right to 
 sanction laws without limitation, and established two houses, 
 a senate and a chamber of deputies 15 . A revision of the 
 constitution in 1845 (May 23) by the moderate party 
 (moderados) brought it nearer to the French Charter of 
 1830 16 . 
 
 Even this did not terminate the constitutional struggles, 
 and the country continued to be tossed alternately by clerical 
 reaction and radical anarchy, by court intrigues and military 
 dictatorships. The misrule of the bigoted Queen Isabella 
 brought about a new revolution in 1868, which expelled 
 both the Bourbons and the Jesuits. For a long time the 
 monarchical party looked round in vain for a king, until in 
 1870 the duke of Aosta, second son of the Italian king 
 Victor Emmanuel, accepted the offered crown as Amadeo I. 
 
 14 A German translation of the constitution is to be found in Politz, 
 ii. 263 ff. ; and in Schubert, Verf. ii. 44 ff. Comp. Gervinus, Geschichte 
 des XlX.Jahrhunderts, ii. 135 if. 
 
 15 Biilau, Europ. Verf. seit 1828, p. 221. 
 
 16 Schubert, Verf. ii. 105 ff. and 116 ff. [See also Laferriere et Batbie, 
 Constitutions d' Europe et d'Amerique, p. 474.] 
 
Ch.XIV.] PROGRESS OF CONSTITUTIONAL MONARCHY. \^ 
 
 For a time there seemed a favourable prospect for consti- 
 tutional government, but before long the king was disgusted 
 by the ceaseless conspiracies, and abdicated of his own accord 
 (February n, 1873). Soon afterwards the military party 
 seized the government, and prepared the way for the re- 
 storation of constitutional monarchy with the young Alfonso 
 XII, who was proclaimed king on the ist of January, 1875. 
 Meanwhile the Bourbon claimant, Don Carlos, supported by 
 the priests and the legitimists, had been striving to assert 
 his hereditary rights in the northern and Basque provinces, 
 with no result except to increase the misery of the people. 
 In 1876 a Cortes was summoned to draw up a new con- 
 stitution, which was approved by King Alfonso on the 3oth 
 of June. According to this the nation was to be re- 
 presented by a Senate, of which the members were partly 
 senators by right, partly nominated by the king, and partly 
 elected (Electoral Law of February 8, 1877), and by a 
 Chamber of Deputies (Electoral Law of December 28, 
 
 The Spanish constitution of 1812 was imitated in the 3- Portugal. 
 Portuguese constitution of 1822, which, however, was never 
 fully recognised. In 1826 Don Pedro, to strengthen the 
 position of his daughter Donna Maria da Gloria, drew up a 
 new constitution, which better preserved the monarchical 
 principle, and also, following England and the French 
 Charter, added to the Chamber of Deputies a house of 
 hereditary and life peers. This constitution recognised four 
 powers : (i) the legislative power, belonging to the Cortes 
 under the sanction of the king; (2) the mediating power 
 (moderador\ held by the king, ' as the supreme head of the 
 nation, to maintain the balance and harmony of the other 
 political powers ; ' (3) the executive power, in the hands of 
 king and ministers; (4) the judicial power, entrusted to 
 independent courts 17 . 
 
 c [For an analysis of this constitution, see Demombynes, i. 398 ff.] 
 17 Articles u, 13, 71, 75, 118 of the Constitution of 1826. Both 
 
 constitutions are given in Politz, ii. 299 ff. ; the latter in Schubert, Verf. 
 
 ii. 148. [See also Laferriere et Batbie, p. 488.] 
 
410 THE FORMS OF THE STATE. [Book VI. 
 
 Even after the victory of Don Miguel and the absolutists 
 who would have nothing to do with either constitution, 
 two parties continued to strive with varying success, the 
 democrats for the constitution of 1822, and the 'chartists' 
 for the charter of 1826. In 1838 the latter constitution was 
 revised, and hereditary peerages and the council of state were 
 abolished 18 . The mass of the people took little part in these 
 changes of institutions. Nevertheless, under the influence 
 of the modern Coburg dynasty, political conditions have 
 developed more successfully and peaceably in Portugal than 
 in Spaing 
 
 4 . Brazil. Constitutional monarchy made its way from Portugal to 
 
 Brazil, which became independent of the mother-country in 
 1822, and there underwent the same struggles and the same 
 alternations of fortune, but also made the same progress, as 
 in Europe. [The monarchy was overthrown in 1889.] 
 
 5 . Italy. It took a long struggle to free Italy from the degrading 
 
 yoke of absolute rule. Although the Napoleonic kingdoms 
 of Italy and Naples had been nothing more than limited 
 autocracies, the absolutism of the restored Bourbon and 
 Hapsburg princes was endured with impatience by the 
 people. Secret conspiracies and open revolts struggled 
 against the cruel reaction, and were only put down with the 
 help of foreign arms. When the king of Naples agreed in 
 1820 to grant his subjects the Spanish constitution of 1812, 
 Austrian troops at once stepped in to restore the old 
 despotism. The movements between 1830 and 1840 were 
 equally futile, as the massive power of Austria, on which the 
 dynasties leaned for support, was always ready to suppress 
 any attempt at constitutional government. 
 
 It was only after 1840 that the spirit of reform obtained 
 greater strength by allying itself with the national desire for 
 freedom from foreign rule. In 1847 all Italy was roused, 
 and the movement seemed to have the support of the new 
 
 18 Schubert, Verf.ii. 173. 
 
 d [For the contemporary constitution of Portugal, see Demombynes, 
 
 i. 487-] 
 
Ch.XIV.] PROGRESS OF CONSTITUTIONAL MONARCHY. 4 1 1 
 
 Pope, Pius IX. Even before the outbreak of the Revolu- 
 tion in Paris, Ferdinand II in Naples, and Charles Albert in 
 Piedmont, were compelled to establish constitutions. But 
 the former hastened to destroy the work as soon as he could 
 do so with safety, although he had sworn to maintain it ' in 
 the name of the Holy Trinity l9 .' The result of his treachery 
 was that, when his son Francis II was urged by necessity to 
 restore constitutional government in 1860, the people re- 
 fused to trust him, and the dynasty was expelled. 
 
 In Piedmont matters went better. The House of Savoy 
 adhered with rare determination to the constitution of the 
 4th of March, 1 848, which Charles Albert had accepted on 
 the model of the French Charter of 1830. It is true that 
 Charles Albert failed in his design to form a kingdom of 
 Italy under his sceptre. The victories of Radetzky checked 
 his ambition, and perhaps preserved the peninsula from the 
 flood of a premature democracy. But even in this period 
 of reaction Victor Emmanuel remained loyal to the promise 
 of his father. His wonderful successes in 1859 and 1860 
 were to a great extent due to the confidence which the 
 Italians felt in his loyalty to the constitution and the nation, 
 and in the great statesman, Cavour, whom he appointed to 
 manage his affairs. French assistance drove the Austrians 
 from Lombardy, the new national kingdom extended itself 
 over the principalities of central Italy, and the bold campaign 
 of Garibaldi added to it Naples and Sicily. With the help 
 of Prussia Venice was annexed in 1866, and finally, in 1870, 
 the Franco-German war compelled the French troops to 
 evacuate Rome, and enabled the Italians to occupy their old 
 capital. The German victories destroyed the last eccle- 
 siastical State of Europe. The new Italian monarchy has 
 remained firmly constitutional, and even the republican 
 party followed the example of Garibaldi in recognising this 
 form of government as best suited for existing conditions. 
 
 Belgium forms the transition from the Romance to the 6. Belgium. 
 
 19 Proclamation of 8 Feb. 1848, in the Portfolio, i. 64. 
 
412 THE FORMS OF THE STATE. [Book VI. 
 
 German States. The Belgian constitution of 1831 was 
 copied from the French Charter of 1830, but makes greater 
 concessions to the burgher democracy. This is seen in the 
 assertion that 'all powers are derived from the people' 
 (Art. 25 : one must remember that Belgium had no native 
 dynasty, and was compelled to call in a foreign king), in the 
 rejection of class distinctions (Art. 6), and in the wider 
 suffrage. The system of two chambers is retained, but the 
 Senate is elected only for a period of eight years, and the 
 electors are the same as for the Chamber of Deputies, the 
 only distinction being that a higher qualification of age and 
 property is required for senators (the original plan was to 
 give the nomination of senators to the king). Under the 
 wise and statesmanlike rule of Leopold of Coburg, Belgium 
 was very little affected by the crisis of 1848, and has since 
 continued to increase in prosperity in spite of the passionate 
 contests between the ultramontane and liberal parties' 20 . 
 iv. Teutonic In Scandinavia the constitutional system has had a pe- 
 oiusSde* culiar history. In Sweden, the Diet was composed in the 
 f ^Sweden s i xteentn century of four estates, each with a separate vote, 
 viz. the nobles and knights, the clergy, the citizens, and the 
 peasants. The kings were often compelled to rely upon the 
 two lower orders for support against the great power of the 
 nobles, whose influence was chiefly exerted outside the Diet 
 in the Council (comprising both the Council of State and 
 the ministers). Gustavus III was the first to break through 
 this preponderance of the nobles, which threatened both 
 the existence of the crown and the security of the country, 
 by opening (1789) political offices, except 'the highest 
 offices of the State and the Court,' to non-nobles. 
 
 The Swedish constitution of the 7th of June, i8o9 21 , is a 
 development from the earlier constitution of 1772 22 . The 
 
 20 Theodor Juste, Gesch. der Griindung der constitutionellen Monarchic 
 in Belgien, 1850, 2 Bde. [For fuller details of the Belgian constitution, 
 see Demombynes, i. 236 ff., and for the complete text, Laferriere et Batbie, 
 p. 66.] 
 
 21 Schubert, Verf. ii. 368. [Laferriere et Batbie, p. 321.] 
 
 22 Schubert, ii. 349. 
 
Ch.XIV.] PROGRESS OF CONSTITUTIONAL MONARCHY.^ 
 
 functions of the Council of State and the four secretaries of 
 State are regulated with much greater care and precision than 
 in other modern constitutions, and the exclusive pretensions 
 of the nobles to fill these posts are restricted. The estates 
 remained until recent times four in number, and without 
 their consent the king could neither change the constitution, 
 issue laws, nor levy new taxes. As a rule a majority of three 
 estates bound the fourth, but in the case of constitutional 
 laws all the estates and the king must be unanimous. 
 
 In many points this constitution recalls the mediaeval 
 organisation of Germany. Although presenting many ad- 
 vantages it has found, outside Sweden, little attention and 
 no imitators, mainly because the division of estates made it 
 difficult to obtain a decisive expression of the national will. 
 In 1866 the ordinary system of two chambers superseded 
 the four estates '. 
 
 Far more democratic is the Norwegian constitution of the 2. Norway. 
 4th of November, 1814. The Swedish king (Charles XIII), 
 whom the peace made king of Norway also, was compelled 
 by circumstances to accept the constitution which the Nor- 
 wegians themselves had drawn up in the spring of 1814, to 
 secure their personal freedom and independence. Legisla- 
 tion is the function of the people and exercised by the 
 Storthing (Art. 49). The king has the right of sanction, but 
 cannot reject a law which has been passed three times by 
 the Assembly. The Storthing is chosen by the people 
 (mostly landed proprietors), and then divides itself into two 
 chambers, the Lagthing and the Odelsthing. The executive 
 power belongs to the king, his ministers being responsible. 
 Subsequent efforts to extend the royal power and to create 
 a political aristocracy have all failed. The opposition of 
 the free peasants and citizens to both changes has been the 
 more vigorous because of the jealousy with which Norway 
 has maintained its independence of Sweden 23 . 
 
 e [Rigdagsordnung u. Riddarhusordnungvon 22 June, 1866.] 
 
 23 Schubert, Verf. ii. 404 ff. Comp. art. Norwegen in the Deutsches 
 
 Statsworterbuch. [The constitution is to be found in Laferriere et 
 
 Batbie, p. 372.] 
 
414 THE FORMS OF THE STATE. [Book vi. 
 
 s. Denmark. In Denmark the revolution of 1660 was directed against 
 the nobles, and the assistance of the citizens made the 
 monarchy absolute. It was not till the present century that 
 constitutional government was introduced, at first in the in- 
 complete form of provincial estates (law of 28th May, 1831), 
 but made more democratic by the fundamental law of the 
 5th of June, 1849. The struggles of Danes and Germans 
 have turned upon the difference of nationality rather than of 
 constitution. In 1866 (28th July) a revision of v the con- 
 stitution was made by the king and the Rigsdag (composed 
 of two chambers, Landsthing and Folkething) f . 
 
 4 . Holland. In the modern kingdom of the Netherlands, which re- 
 placed the old republic of the United Provinces and the 
 later Napoleonic kingdom of Holland, constitutional mon- 
 archy was at once introduced (28th March, 1814, and after 
 the union of Belgium by a new law of 24th August, 1815). 
 The new constitution of the i4th of October, 1848, was an 
 advance in the same direction, and the constitutional spirit 
 has been lately strengthened in Holland. 
 
 v. German The old ' Roman Empire of the German people ' had be- 
 
 States. The 
 
 Empire. come a powerless dignity in the last century of its nominal 
 existence. All real power was in the hands of the princes, 
 amongst whom the emperor only retained an influential 
 position as Archduke of Austria and King of Hungary and 
 Bohemia. 
 
 But in their own separate territories most of the princes 
 had broken through the restraints imposed by their estates 
 and had established absolute government. Their power, 
 derived from imperial offices which had become hereditary, 
 was, after mediaeval fashion, half theocratic, half patriarchal. 
 It was extended by the Roman conception of sovereignty, 
 and acknowledged no restraints except the slight bond of 
 obedience to the empire and the obligation to appear before 
 the Imperial Chamber (Reichskammergericht] and the Aulic 
 Council (ReichshofratK). 
 
 /[For the Danish Constitution, which was voted on Nov. 7, 1865, 
 and sanctioned July 28, 1866, see Laferriere et Batbie, p. 399.] 
 
Ch.XIV.] PROGRESS OF CONSTITUTIONAL MONARCHY. 4 1 5 
 
 The first State to establish this independent absolutism Rise of 
 was Prussia. While Austria grew into a great European 
 power almost outside the Empire, and became the rival of 
 France, a new State arose in the north, and rapidly acquired 
 strength in a contest with the mediaeval empire, which was 
 waged however in the spirit of German nationality. The 
 Austrian and Catholic houses of rfapsburg and Lorraine 
 rested for support upon the imperial dignity, traditional 
 rights, the nobles, the clergy, and an army composed of 
 various races ; while the Protestant house of Hohenzollern 
 became the representative and the champion of the national 
 liberty and spirit of Germany. 
 
 Frederick the Great (i 740-1 786) deserves to be reverenced 
 as the father of constitutional monarchy upon the continent. 
 If he had been better understood by the peoples and more 
 imitated by the princes, the transition from the absolute to 
 the constitutional form of State would have been much 
 easier to accomplish. No one has more energetically con- 
 tended against the doctrine that the king is the lord and 
 master of his State ; no one has more definitely maintained 
 that monarchy is an office and the king only the chief servant 
 of the State. The whole mediaeval theory of divine right 
 and proprietary rule he unhesitatingly rejected. That he 
 neither revived the old constitution of the estates, nor 
 created new representative institutions, is easily explicable 
 by the fact that he was too far ahead of his subjects, who 
 were not yet ripe for a share in the government. But he 
 prepared the way for constitutional monarchy : (i) by car- 
 rying out the principle that the royal rights are duties to the 
 State, (2) by his legislation (the Preussische Landrecht}^ and 
 (3) by compelling all officials to discharge their political 
 duties with zeal and fidelity. 
 
 The French Revolution led Germany astray from the path 
 marked out by Frederick, as it made the princes timid and 
 the people radical. 
 
 The constitutions which Napoleon's influence established The Con- 
 in the States of the Confederation of the Rhine may to the Rhine. 
 
41 6 THE FORMS OF THE STATE. [Book VI. 
 
 some extent be regarded as marking the transition to con- 
 stitutional monarchy. They cleared away the last remnants 
 of the old estates, collected the fundamental laws into a 
 single act, and gave a sort of representation, though despic- 
 able and powerless, to property, industry, and education. 
 The Con- The desperate effort of the War of Liberation freed 
 1815'" D Germany from the foreign yoke, and offered a favourable 
 opportunity for introducing the modern organisation in 
 a national and liberal spirit. The few great statesmen that 
 the country possessed, Stein, Humboldt, and at first Har- 
 denberg, wished for such a change, and Frederick William 
 III had publicly expressed himself favourable to it. But 
 the absolutist sentiments of the German dynasties and of 
 the noble and official classes were too strong, the Revolu- 
 tion had inspired an overwhelming mistrust of all modern 
 ideas, and the political education of the people was still 
 very immature. Both the German confederation and the 
 sovereign states which composed it retained absolute 
 government, only slightly limited by recollections of the 
 provincial estates. The i3th article of the Act which con- 
 stituted the confederation, declared that ' in all States of 
 the Confederation there shall be a constitution of local 
 estates ' (landstandische Verfassung), but the Austrian 
 statesmen expressly provided against any interpretation of 
 this phrase to imply a ' representative or constitutional 
 monarchy. 7 
 
 Constitu- It was quite exceptional when a few states established 
 18x5. a kind of constitutional monarchy in imitation of the 
 
 French monarchy, but modified by survivals of the old 
 provincial estates. The lead was taken by the Duchy of 
 Nassau (2 Sept. 1814), where the constitution was very 
 short-lived, by Luxemburg (24 August, 1815), and notably 
 by Saxe-Weimar-Eisenach, which presented the rare spec- 
 tacle of a prince, Karl August, personally inclined to free 
 institutions. 
 
 More important was the action of the Southern States 
 Bavaria (26 May, 1818), Baden (22 August, 1818), and 
 
Ch.xi V.] PR GRESS OF CONS TITUTIONAL MONAR CH Y. 4 1 7 
 
 Wtirtemberg (25 September, 1819) where the far-sighted 
 government had first to put down the opposition of the old 
 estates. These States adopted constitutional government 
 from politic motives, in order to strengthen themselves 
 against the greater States which were despotically ruled. 
 
 Their example was followed by the Kingdom of Hanover 
 (17 Dec. 1819), the Grand Duchy of Hesse (17 Dec. 1820), 
 and Saxe-Meiningen (23 August, 1829). 
 
 All these constitutions gave ample powers and rights to 
 the king. Tn fact, monarchy was more secure among the 
 conservative Germans than in France, and as long as it 
 understood and followed the advance of liberal ideas, was 
 allowed the management of public affairs with more con- 
 fidence than was felt elsewhere. 
 
 The arrangement of the chambers was copied from the 
 English and French models. But the upper chambers, 
 composed for the most part of the landed nobility (Grund- 
 adel), whose claims and ideas belonged to the past, with 
 the addition of a few officials dependent upon the court, 
 could never acquire sufficient respect and authority. The 
 lower chambers were less plutocratic than in France, but as 
 they followed the lines of the old estates, they were often 
 declared to be ' class rather than representative ' institu- 
 tions. This, however, is unfair. The distinction between 
 the mediaeval organisation of estates and the modern repre- 
 sentative government is not that the latter does not recognise 
 the difference of estates among the people, but that it is 
 national, and lays stress rather upon the unity of the nation 
 and the State than upon the special interests of the classes 
 that compose the nation. Now this modern principle is 
 expressly recognised, for example, in the Bavarian Consti- 
 tution, which calls upon the deputies to swear that they 
 will ' consult for the general welfare of the whole land with- 
 out regard to separate estates or classes.' 
 
 The development of constitutional monarchy was hin- 
 dered for many decades by the distrust and hostility of the 
 governments of the two great States of Germany. In 
 
 E e 
 
4i8 THE FORMS OF THE STATE. [Book VI. 
 
 Prussia all efforts at reform failed, and instead of the pro- 
 mised representation of the people, only provincial estates 
 were granted. The Austrian Government believed that 
 absolute government was the only means of maintaining 
 the unity of its various provinces. The German Con- 
 federation directed all its activity to maintain the so-called 
 * monarchical principle,' and to establish a police supervision 
 over the people. 
 
 New move- The French Revolution of 1830 led to new movements 
 ^830.* a in Germany, and impelled a number of States to introduce 
 the constitutional system. The electorate of Hesse received 
 a constitution (5 Jan. 1831) which was devised to protect 
 popular liberties against the despotism of the prince. In 
 Saxony a constitution was modelled upon that of Bavaria 
 (4 Sept. 1831); and Hanover obtained a new fundamental 
 law (26 Sept. 1833), which was, however, rejected by the 
 next king, Ernst August, and only restored in 1840 in a 
 modified form. 
 
 Thus, in spite of the hostility of the two great States, 
 constitutional government steadily advanced in Germany, 
 although it was often more formal than real, and suffered 
 much from an officious bureaucracy and from the conflicts 
 of parties both within and without the assemblies. 
 Prussia. At last, on the 3rd of February, 1847, Frederick William 
 
 IV issued a patent creating a common Landtag for Prussia 
 on the basis of the old provincial estates. This assembly 
 received the right of advice in legislation, of consent to new 
 taxes, and of petitioning about internal affairs. Thus 
 Prussia stepped from the class of absolute to that of limited 
 monarchies, and began to draw nearer to the representative 
 states of Germany. The impulse had been given to the 
 introduction of the modern system, and the constitution 
 was the stronger for preserving the connexion with existing 
 relations instead of simply copying the ordinary forms of 
 constitutional government Although the rights of the 
 Landtag were miserably insufficient, progress had become 
 possible, and the defects of the constitution might be 
 
Ch.XIV.j PROGRESS OFCONSTITUTIONALMONARCHY. 419 
 
 removed as the people advanced in political education. 
 Unfortunately the government was so hostile to the legiti- 
 mate wishes of the Landtag that it lost the confidence even 
 of the moderate parties. When Europe was shaken by the 
 political earthquake of 1848, the new edifice collapsed. On 
 the 5th of October, 1848, a new constitution was drawn up, 
 which was mainly the work of the democratic and revolu- 
 tionary party. Six months later the king issued an electoral 
 law (30 May, 1849), which led to the drawing up of the 
 revised constitution of the 3ist of January, 1850 24 . Since 
 that date many important changes have been made, mostly 
 in the direction of strengthening the central authority. 
 Although the constitution had many and serious defects, 
 it has furnished a legal basis for political life in Prussia. 
 
 The events of the next few years proved that the spirit of 
 the constitution had not been so generally accepted as the 
 form. Dissatisfaction was shown by the upper house 
 (Herrenhaus), which was composed of the representatives 
 of absolutism and of mediaeval chivalry. The monarchy, 
 accustomed to unchecked power, found it hard to accept 
 its altered position. It was only gradually that the popular 
 representatives (Haus der Abgeordneteri) became conscious 
 of the limits of their power and of the great gulf which 
 separated the Prussian government from the parliamentary 
 system of England. But during the obstinate and bitter 
 struggles between reform and reaction, between authority 
 and liberty, the constitution took deeper and deeper root, 
 and hostilities gradually gave way to the sense of duty 
 towards the State. In the fire of the war of 1866 with 
 Austria all the elements of opposition were fused into 
 unity. 
 
 Austria was also taken unawares by the Revolution of Austria. 
 1848. The various peoples, who had hitherto been held 
 together by the Hapsburg dynasty, now struggled for separa- 
 tion, and Vienna was for a moment in the hands of youthful 
 
 24 The text is to be found in Zacharia, Die detitschen Verfassungsgesetze 
 der Gegenwart, p. 74 if. [See also Laferriere et Batbie, p. 138.] 
 
 E e 2 
 
420 THE FORMS OF THE STATE. [Book VI. 
 
 and inexperienced enthusiasts. Unity disappeared every- 
 where except in the army, the last bulwark of the monarchy. 
 The victories of the army enabled the Austrian statesmen 
 to recover the reins of government, and under the pressure 
 of internal and external dangers, they undertook to recon- 
 struct a new and more united State. The constitution 
 which was granted on the 4th of March, 1849, was the first 
 attempt to organise the Austrian empire upon the principles 
 of constitutional monarchy. But the experiment was never 
 put into practice. It seemed impossible to unite in a single 
 assembly peoples which varied so completely both in race 
 and in civilisation ; and the revolt of Hungary made it more 
 essential than ever to retain a dictatorial and united govern- 
 ment. As the ruling dynasty had always been the connect- 
 ing link between the Austrian provinces, it was thought best 
 to concentrate all powers over the State in the hands of the 
 emperor. An imperial patent (20 August, 1851) declared 
 ministers to be responsible to the sovereign alone ; by a 
 cabinet decree of the same day the imperial council 
 (ReichsratH) was transformed into a crown council ; and by 
 another patent (31 Dec.) the constitution of 1849 was sup- 
 pressed. A decree of the cabinet (31 Dec.) promised the 
 erection in the crown lands of deliberative committees 
 composed of the nobles, lesser landowners, and industrial 
 classes 28 . But in reality absolute monarchy was restored 
 with a machine-like body of officials to carry out its will, 
 with a moral support in the Catholic clergy, and a material 
 support in the strong army. 
 
 After 1858 absolutism suffered a series of defeats in 
 Prussia, Bavaria, Baden, Wiirtemberg, the electorate of 
 Hesse, &c., and in the Italian war of 1859 Austria dis- 
 covered the powerlessness of her three props, the bureau- 
 cracy, the army, and the clergy. Again the imperial 
 government saw no way of escaping from its financial and 
 political difficulties except in granting a representative con- 
 stitution. In an imperial diploma of the 2oth of October, 
 25 Zacharia, p. 62 ff. 
 
CkXIV. PROGRESS OFCONST1TUTIONALMONARCHY. 421 
 
 1860, this resolve was announced, and an attempt was made 
 to carry it out in the Fundamental Law of the 26th of 
 February, 1861. 
 
 According to the diploma the powers of the monarchy 
 were to be brought into harmony with * the consciousness 
 of historic rights in the various kingdoms and provinces.' 
 Each people was to have its own Landtag with partial 
 autonomy, and at the same time all were to co-operate in 
 the general Reichstag both in legislation and in controlling 
 the imperial government. There were to be two Reichstags, 
 one for the whole monarchy, the other for the western pro- 
 vinces. This constitution, however, had only a tentative 
 existence, as the Hungarians refused to send deputies to 
 the Reichstag. 
 
 An imperial declaration (20 Sept. 1865) suspended the 
 action of the Reichstag and again freed the government 
 from its control. But the disasters of 1866 brought about 
 a new change. After the defeat of Koniggratz [or Sadowa] 
 and the treaty of Prague with Prussia, earnest negotiations 
 were carried on with Hungary, which steadily refused to 
 give up its ancient rights, or to exchange them for a Con- 
 stitution that was merely a gift from the emperor. At last 
 they agreed to make peace on condition that the legal 
 continuity of the Hungarian Constitution should be ac- 
 knowledged, that the laws of 1848 and the independence 
 of their kingdom should be preserved, and that all the 
 encroachments that had been attempted should be declared 
 null. This was virtually the restoration of dualism. Hence- 
 forth there is a Reichstag and a ministry for Hungary, and 
 another Reichstag and ministry for the Austrian provinces 
 on this side of the Leitha. A series of laws from 1867 
 onwards organised the responsibility of ministers, the 
 method of representation, the judicial and civil administra- 
 tion. The suspended constitution, so far as it was ap- 
 plicable, had to be revived. The two Diets appointed a 
 joint assembly (' delegations ') which was to act with the 
 three common ministers, viz. those of finance, war, and 
 
422 THE FORMS OF THE STATE. [BookVi: 
 
 foreign affairs, in arranging a general policy for the whole 
 empire. It is doubtful whether this compromise will be 
 permanent, but it is certain that neither Austria, Hungary, 
 nor Bohemia would tolerate a return to absolutism, and 
 that, though they may differ as to forms, they are un- 
 animous in the desire for a constitutional monarchy which 
 shall secure influence and control to the national repre- 
 sentatives. 
 
 Proposed The attempt to extend constitutional forms from the in- 
 Consdtution dividual states to the German Confederation led to the 
 drawing up of a constitution (28 March, 1849) which was 
 to embrace all the German states except Austria. The 
 Prussian kings were to be hereditary emperors ; each state 
 was to be represented in a federal senate (Statenhaus), and 
 the German people were to send deputies to a national 
 assembly ( Volkshaus\ But the scheme was never carried 
 out. Austria prepared for war rather than accept such 
 a solution of the German question; the king of Prussia 
 would not accept the imperial crown from the hands of the 
 national assembly ; Bavaria refused its adhesion ; and the 
 nation itself was not sufficiently decided. Dynastic and 
 separatist influences were stronger than the sense of na- 
 tional unity, and were able to foil all later efforts, especially 
 those of Prussia, to unite Germany more closely under a 
 constitutional monarchy. The war of 1866 was necessary 
 to overcome the obstacles interposed by Austria and the 
 ruling dynasties. 
 
 North Ger- The North German Confederation (i 6 April, 1867) can 
 federatk^n, only be called a constitutional monarchy with considerable 
 reservations. The direction of a common policy was en- 
 trusted to the Prussian king as hereditary President and 
 General of the Confederation. He was aided by a Federal 
 Chancellor, named by himself but responsible, who was the 
 head of a Chancery for carrying out the administration. 
 The executive power, therefore, resembles that in a con- 
 stitutional monarchy. On the other hand, the President 
 was checked, not only by the Reichstag, containing repre- 
 
Ch.XIV.] PROGRESS OFCONSTITUTIONALMONARCHY. 423 
 
 sentatives of the German nation, but also by the Federal 
 Council (BundesratJi), in which the governments of the 
 allied States had seats and votes. These two bodies 
 exercised the legislative power and controlled the federal 
 administration. 
 
 The constitution of the German Empire (i6th April, 1871) German 
 strengthened the monarchical element by the addition of the ^7^' 
 imperial title. But even in the present day the Emperor has 
 only a limited right of veto in the case of certain military 
 and financial measures ; he has no independent and direct 
 share in legislation ; and the Federal Council (Bundesrath) 
 is not merely a legislative senate, but a joint ruler of the 
 empire. To some extent, therefore, there is a collective 
 government of the various princes and local rulers, and this 
 is more like an aristocracy than a monarchy. The mixture 
 of principles in the Empire, which Puffendorf declared to 
 be monstrous two centuries ago, has not yet been fully 
 cleared up. But in spite of peculiarities and inconsistencies 
 the constitution of Germany has shown both force and 
 vitality, and if monarchical power and unity, with 'the re- 
 cognition of national rights and liberties, forms the essence 
 of constitutional monarchy, must certainly be regarded as 
 belonging to this class of States. 
 
 Looking back over the whole subject we see that the Resume, 
 system of representative or constitutional monarchy has 
 obtained a most decisive predominance in Western Europe. 
 Almost every civilised European State has recognised not 
 only personal rights but the political rights of the nation 
 and of the classes composing it, and has admitted national 
 representatives to a share in legislation. Monarchy is no 
 longer absolute and unlimited, but has become a supreme 
 legal power (pberste Rechtsmacht) limited by the rights of 
 the subjects. 
 
 But in other points the constitutional forms are very 
 varied. In England the monarchy is surrounded by ?, 
 powerful aristocracy, and the actual conduct of affairs is 
 
424 THE FORMS OF THE STATE. [Book VL 
 
 dependent rather upon the majority in Parliament and the 
 ministers who are responsible to it, than upon the in- 
 dividual will of the sovereign. On the continent there is 
 no aristocracy which enjoys such power and respect. There 
 the democratic element is the most prominent after the 
 monarchy : aristocracy has only a moderating and mediating 
 influence. The constitutional struggles on the continent are 
 between monarchy and democracy, which are always striving 
 to find their proper relations to each other and to the whole 
 State. Each contends for exclusive rule and the suppression 
 of its rival, but the momentary defeat of either has always 
 been followed by a sudden revival. Constitutional monarchy 
 on the continent avowedly strives to assume an organic form 
 which shall give its proper rights to each part of the body 
 politic, to the monarchy its full power and majesty, to the 
 aristocracy dignity and influence, and to the demos peace 
 and liberty. 
 
 On the continent generally, and especially in France [i. e. 
 before 1870] and Germany, monarchy is the active head of 
 the State, not only in form but by the whole character of the 
 constitution. Only when it comes into conflict with national 
 instincts, and with the great current of history, is it checked 
 by the incalculable force of public opinion which, as a rule, 
 is passive and stationary. Except in such a case as this, it 
 is far stronger than aristocracy, which in Germany is willing 
 to serve the crown for its own ends, and in France murmurs 
 in impotence ; it is stronger even than the national represen- 
 tatives, who can control the Government but cannot them- 
 selves govern. In France the Bourbon monarchy relied 
 mainly upon the wealthy burghers, Napoleon III upon the 
 lower classes. In the separate German States monarchy 
 looks for support partly to the army and partly to the 
 officials, who in their turn act as the chief restraint upon 
 the crown, while in the Empire it relies upon the support 
 of the masses and the governments of the different States, 
 Nowhere has an organisation been founded which shall 
 satisfy the claims of the demos ; though numerous efforts 
 
Ch.xiv.] PROGRESS OF CONSTITUTIONAL MONARCHY. 425 
 
 have been made in this direction. When this has been 
 accomplished, when the ruling dynasties have laid aside 
 their mediaeval prejudices and conformed to the modern 
 ideas, the long struggle will be over, and full security 
 will have been given to that limited monarchy which is 
 destined to combine the unity of the whole with the liberty 
 of every part, and to bring into harmony the political spirit 
 of Rome and the German sentiment of freedom. 
 
 Note. The above subject, has been treated by Gustav Zimmermann in 
 a pamphlet, which attracted great attention at the time it appeared, 
 entitled Die Vortrefflichkeit der constitutionellen Monarchic fur England 
 und die Unbrauchbarkeit der constitutionellen Monarchic fur die Lander 
 des Europdischen Continents, Hannover, 1852. (The excellence of con- 
 stitutional monarchy for England and the impossibility of its application 
 in continental countries.) This pamphlet is the absolutist rejoinder to 
 the more fertile radical literature on the subject. Zimmermann, like 
 most of his opponents, derives his notion of constitutional monarchy 
 solely from the external forms and maxims of the English constitution. 
 He is probably quite right in maintaining that the English system is not 
 applicable to the continent, because its contradictions and its defects, 
 which at home are corrected and softened down by tradition and by the 
 interests of the ruling aristocracy, would be made far worse if it were 
 carried out in a democratic spirit. But the English system is not 
 identical with constitutional monarchy ; it may be the greatest and, in 
 spite of logical errors, the most successful effort to realise it, but it is not 
 the sole perfect realisation. To say that conditions on the continent are 
 unsuited for the English system, is not to say that they are also unsuited 
 for constitutional monarchy, i. e. for a monarchy which recognises that 
 its own political rights, like those of the subject classes, are fixed and 
 limited by the constitution and that for legislation especially all parts 
 of the body politic must work together. An organic monarchy is 
 necessarily constitutional, because the organism itself is the constitution. 
 Zimmermann's perpetual designation of the chief authority as the 
 property of the prince shows that, in spite of his keen eye for details, he 
 has no real comprehension of the modern conception of the state. The 
 choice of this mediaeval standpoint brings him into collision with the 
 whole current of modern life. For a time he may contrive to dam the 
 flood, but as the waves rise he must be swept away with his frail edifice. 
 (I leave this passage as it was written in 1857. It has been confirmed in 
 1866.) If there is one principle which is clearly grasped in the present day, 
 it is that political power is a public duty as well as a public right, that it 
 belongs to the political existence and life of the whole nation, and that it 
 can never be regarded as the property or personal right of an individual. 
 
 \ 
 
CHAPTER XV. 
 
 B. False Ideas of Constitutional Monarchy. 
 
 Errors : ALMOST all the civilised States of Europe have adopted 
 the system of constitutional monarchy, hoping to find in it 
 a means of reconciling, not only the contradiction bequeathed 
 by the middle ages, between absolute rule on the one hand, 
 and a weak and divided State on the other ; but also the 
 various currents of contemporary politics, and especially 
 those of monarchy and democracy. It is therefore of direct 
 practical importance to discuss the foundations of this system. 
 But it is first necessary to clear away some errors and mis- 
 conceptions that have prevailed on the subject. 
 
 i. That the The French Revolution set itself in the early years to 
 executive realise the idea of Rousseau, that the State contains two 
 r only> powers, the will or legislative power, and physical force or 
 the executive power. 'The people wills, the king executes,' 
 was considered in France to be the essential formula of con- 
 stitutional monarchy \ 
 
 1 Rousseau, Contr. Soc. iii. I : ' Toute action libre a deux causes, qui 
 concourent a la produire, Tune morale, savoir la volonte qui determine 
 1'acte, 1'autre physique, savoir la puissance qui 1'execute. . . . Le corps 
 politique a les memes mobiles, on y distingue de meme la force et la 
 volonte ; celle-ci sous le nom de puissance legislative, 1'autre sous le 
 nom de puissance executive.' Mirabeau, Speech of i Sept. 1 789 : ' Deux 
 pouvoirs sont necessaires a 1'existence et aux ibnctions du corps politique ; 
 celui de vouloir et celui d'agir. Par le premier la societe etablit les 
 regies qui doivent la conduire au but qu'elle se propose, et qui est in- 
 contestablement le bien de tons. Par le second ces regies s'executent, 
 et la force publique sert a faire triompher la societe des obstacles que 
 cette execution pourrait rericontrer dans Topposition des volontes indi- 
 viduelles. Chez une grande nation ces deux pouvoirs ne peuvent etre 
 
IDEAS OF CONSTITUTIONAL MONARCHY. 427 
 
 This idea sets the people in opposition to the king, and in 
 fact suppresses monarchy altogether, as it makes the king a 
 mere servant of the popular will, which is external to him, 
 and formed without his having any part in it. The fall of 
 Louis XVI, and the proclamation of a Republic by the 
 Jacobins, were doubtless the result of historical circum- 
 stances, but they were also the natural consequence of this 
 principle of the constitution. 
 
 If, on the other hand, the king is regarded as the equal of 
 the legislative power, instead of being excluded from it as 
 a subordinate, the necessary unity of the State organism is 
 destroyed, and an impossible dyarchy 2 , a monster with two 
 heads, is created. This must split up the State, or else 
 must speedily give way to either the monarchical or the 
 democratic principle. 
 
 To avoid this absurdity Sieyes wishes to make the head 2. That the 
 of the State purely passive, and regarded this as the basis of pS-liy 
 the constitutional system. Napoleon, a born monarch if ever pas! 
 man was, branded this proposal with indelible contempt : 
 4 How can you expect a man of talent and honour to resign 
 himself to play the part of a hog which is to be fattened 
 upon two millions? 37 
 
 A more common expression is that ' the king has the 3. That the 
 
 exerces par elle-meme ; de la la necessite des representants du peuple 
 pour Texercice de la faculte de vouloir, ou de la puissance legislative ; 
 de la encore la necessite d'une autre espece de representants pour 
 1'exercice de la faculte d'agir ou de la puissance executive.' Thiers, Hist. 
 de la Revol. Prang, i. 97 : ' "La nation veut, le roi fait," les esprits ne 
 sortaient pas de ces elemens simples, et ils croyaient vouloir la monarchic, 
 parce qu'ils laissaient un roi comme executeur des volontes nationales. 
 La monarchic reelle, telle qu'elle existe meme dans les Etats libres, est 
 la domination d'un seul, a laquelle on met des bornes au moyen du 
 concours national. . . . Mais des 1'instant que la nation peut ordonner 
 tout ce qu'elle veut, sans que le roi puisse s'y opposer par le veto, le roi 
 n'est plus qu'un magistrat. C'est alors la republique avec un seul 
 consul au lieu de plusieurs. Le gouvernement de Pologne, quoiqu'il y 
 cut un roi, ne fut jamais (?) nomme une monarchic.' 
 
 2 The discord which is produced by this dyarchy was well understood 
 by the democratic-republican party in France, and they took advantage 
 of it to get rid of the monarchy altogether. 
 
 a Las Casas, Mem. iv. 
 
428 THE FORMS OF THE STATE. [Book VI. 
 
 royal power right to rule and govern, but the exercise of this right 
 by C mini$tert, belongs not to him, but to his ministers.' This relation 
 has practically existed at certain times in several countries, 
 and may still do so. But if it is recognised as a permanent 
 political principle, it must lead to the abandonment of 
 monarchy and the introduction of a republic. For if the 
 person to whom a right is ascribed is permanently deprived 
 of its exercise, he loses the real substance of the right, and 
 is certain before long to lose also the empty title, which will 
 pass to whoever has the exercise of the right. In the middle 
 ages the vassals and tenants first exercised proprietary rights 
 over the soil, then they obtained the use or possession, and" 
 finally they wrested the complete and formal proprietorship 
 from the former lords. When the Caroling Mayors of the 
 Palace had usurped the royal power from the Merovings, 
 they were not long in seizing the royal title as well. When 
 once the real power of government passes from the king to 
 his ministers, the authority of the latter becomes republican, 
 and the monarchy is an empty form 4 . To keep a mere 
 symbol at the head of the State, instead of a living and 
 active individual, may be Ideocracy, but it is not Monarchy. 
 4. That the It is therefore absurd to maintain that in constitutional 
 soniuSarac- monarchy the personal character of the king is a matter of 
 important, indifference, that it does not matter whether he is dis- 
 tinguished or a nullity, whether he is intelligent or feeble- 
 minded, whether he is of noble character or a scamp. 
 Constitutional monarchy tends to provide that the king 
 shall be able not only to do as little harm, but also to do 
 as much good as possible. It is only in this sense that his 
 power is limited ; he is no mere puppet in the hands of his 
 ministers. It would be a monstrous system which denied 
 the dignity and qualities of manhood to the holder of the 
 
 * The radical-democratic party in the Frankfurt Parliament of 1848 
 was not altogether wrong in designating ' constitutional monarchy ' as 
 a ' sinecure ' and a ' hat without a head,' with no function except to 
 * appoint a premier' (who will usually be opposed) and to 'rear a 
 
Chap. XV.] IDEAS OF CONSTITUTIONAL MONARCHY. 429 
 
 supreme position in the State, or which granted the smallest 
 measure of political liberty to the possessor of the highest 
 political rights. How would loyalty or affection towards the 
 monarch be possible, if it was a matter of indifference 
 whether he was worthy of such sentiments, or whether he 
 was even capable of understanding and returning them? 
 This principle would lead to the logical conclusion, that the 
 most imbecile prince, as having the least insight and will of 
 his own, would be the most constitutional monarch 5 . Could 
 such a form of State satisfy the longing of nations for a well- 
 adjusted and intelligent organisation ? 
 
 It is customary to justify this conception by appealing to 
 the English constitution, but in England the personality of 
 the sovereign is not at all a matter of indifference, but the 
 reverse 6 . 
 
 The famous formula of M. Thiers, le rot regne et ne s : That the 
 gouverne pas, is equally incorrect as a description of consti- but does not 
 tutional monarchy. The skilful minister failed in his own & 
 attempt to put it into practice. Louis Philippe certainly did 
 not fall because he attempted to govern as well as to reign, 
 and his successor, Napoleon III, won the favour of the 
 masses precisely by undertaking the government himself. 
 
 The expression reign implies the formal rights of majesty 
 and dignity, while the word govern refers to the practical 
 direction of the policy of the State. Both rights belong 
 equally to the head of the State, and to refuse him the latter 
 or (which is the same thing) to give him the form without 
 
 5 Hegel, RechtsphiL 280, went too far in maintaining that 'a 
 monarch has nothing to do but to say yes, and to dot the i's.' He has 
 to say no as well as yes, and to give not only the ' formal decision ' but 
 also the really decisive word. And besides deciding, he ought to take an 
 active initiative when necessary. J. H. Fichte, Beitrag zur Statslehre, 
 1 the most empty-headed regent would be in that case the ideal.* 
 
 6 Any one may be convinced by reading Brougham's Statesmen of the 
 time of George III, that the individuality of the king has a great influ- 
 ence upon his ministers, and that it is a mistake to suppose that the royal 
 will is a matter of no importance. [Bluntschli forgets that George Ill's 
 reign was an exceptional period in English history, in which the king 
 strove, and for a time successfully, to make himself more of a real ruler 
 than his immediate predecessors had been.] 
 
430 THE FORMS OF THE STATE. 
 
 the reality, is to destroy the monarchical power : rex est qui 
 regit. 
 
 Government (regieren) is not to be confounded with ad- 
 ministration (uerwalteri). It is not the king's function to 
 apply himself wholly to the petty details of the latter, nor 
 would such conduct be for the advantage of the State. 
 6. That the Others, starting from the idea of the sovereignty of the 
 
 king must , r ... 
 
 obey the people, have asserted as the principle of constitutional 
 monarchy that ' the king is bound to govern according to 
 the will and the opinion of the majority of the people.' This 
 sacrifices the monarchy to democratic ideas. The rule of 
 the majority is democracy. But one of the great merits of 
 monarchy lies in the fact that the king is bound to defend 
 the rights and liberties of the minority against the encroach- 
 ments of the majority. Monarchy would cease to exist if 
 the king were simply a delegate and servant of the majority 
 which really ruled the State. The democracy thus con- 
 stituted might keep a phantom and powerless king at its 
 head, but he would remain there only as long as his masters 
 found it more convenient to disguise their real power 7 . 
 
 7 This was exactly what the French National Assembly of 1789 tried 
 to do. Thiers rightly describes the assembly as ' democratique par ses 
 idees et monarchique par ses sentiments.' History has shown how im- 
 possible it is for such a condition to last. In France the powerless 
 monarchy was destroyed by the omnipotent democracy (1792). 
 
CHAPTER XVI. 
 
 C. The Monarchical Principle and the Conception of 
 Constitutional Monarchy. 
 
 CONSTITUTIONAL monarchy must be a real and not a 
 phantom monarchy. 
 
 The essence of Monarchy is the personification of the The essential 
 
 r , ~ . .... 11T characteris- 
 
 majesty and sovereignty of the State in an individual. It tics of 
 differs from Theocracy because it attributes the right of rule 
 to the monarch himself instead of regarding him as the 
 representative of God who is the real ruler. It differs from 
 Republics with a doge or president at their head, in the fact 
 that the latter are compelled to regard themselves as the 
 servants or delegates either of the aristocratic minority, or 
 of the democratic majority, whereas the monarch is not the 
 subject of these powers, but the independent holder of 
 the Government. In a republic, political authority has a 
 collective, in monarchy an individual, expression. The 
 monarch is, in the supreme sense, the personality of the 
 State (Statsperson). 
 
 In this conception there are two sides, both of which 
 must be present, if the name of monarchy is to be pre- 
 served : 
 
 I. The personal elevation of the head of the State, as the 
 individual representative and organ of the supreme power. 
 
 II. The substantial concentration in the monarch of the 
 highest dignity and power of the State. The two poles of 
 the prince's activity are the initiative and the sanction. 
 
 I. With the first principle may be combined they allow 
 
432 THE FORMS OF THE STATE. [Book VI. 
 
 legislative (i) the checking of the monarch in legislation by the 
 mtohrteria? representation of the other elements of the nation, and 
 oo operation; ^ the o kijg at i O n on the part of the king to exercise his 
 rights and duties in conjunction with his ministers. For 
 however high the position of the other members of the body 
 politic, the monarchy stands still higher, and by providing 
 that the king's will shall be the will of the State and not his 
 own personal will, the constitution only lightens his task and 
 preserves his authority from misconception or disaster, 
 but not But this principle is inconsistent with the idea 
 
 subordinate ( x ) tnat tne rnonarch is a mere idol or form, and not a 
 
 monarchy. liying be j n g . Qr 
 
 (2) that the monarch is subordinate to the national repre- 
 sentatives or to his ministers, and that he may be compelled 
 by them to express a will other than his own, or to act in 
 opposition to his own will. 
 
 Necessary Since the supreme power belongs to his person, he must 
 t f hTm OTarch. preserve the freedom and the rights of his personality 1 . His 
 person does not belong to the State entirely and in all rela- 
 tions, but it does so belong in a special degree, and more than 
 any other person. He may be also a husband or father, the 
 member of a Church, or perhaps a scholar or poet. But in 
 all public affairs the will of the State ought to find expression 
 in his individual will. In a monarchical State great value is 
 placed upon the individual care and energy of the monarch, 
 and it would be monstrous to ascribe to him the highest 
 rights and then on that very ground to place him under the 
 guardianship of others. It is not the chambers which create 
 a law, public respect for a law is based upon the free sanction 
 given to it by the king. The ministers do not give their 
 authority to the king's decrees ; on the contrary, they them- 
 selves receive their authority from the king, and serve him 
 as the organs, though it may be the indispensable organs, 
 
 1 Guizot, Mem. ii. 237 : 'Dieu seul est souverain et personne ici-bas 
 n'est Dieu, pas plus les peuples que les rois. Et la volonte des peuples 
 ne suffit pas a faire des rois ; il faut que celui qui devient roi porte en 
 lui-meme et apporte en dot, au pays qui 1'epouse, quelques-uns des 
 caracteres naturels et independants de la royaute.' 
 
Chap. XVI.] CONSTITUTIONAL MONARCHY. 433 
 
 of his will. So far as the king is not bound by the con- 
 stitution to the consent and co-operation of other members 
 of the State organism, so far he is completely free to express 
 his own personal will and to act in accordance with it. 
 
 The peculiarity of constitutional as contrasted with other His relations 
 
 r f i ... . with legisla- 
 
 torms or monarchy, consists in the monarch being unable tureand 
 either to legislate or, as a rule, to exercise the functions of m 
 government by himself alone. For legislation the consent of 
 the chambers is necessary, while in the work of government 
 he must admit the co-operation of ministers. But constitu- 
 tional monarchy does not transfer the centre of gravity in 
 the government either to the chambers or to the ministers. 
 
 A system in which the majority in the chambers or among 
 the ministers could formally and necessarily determine the 
 action of the prince, would be in contradiction with the 
 monarchical principle, and would really be a Government 
 of Parliament and ministers 2 . Doubtless the constitutional 
 monarch will in practice often conform to the decisions of 
 the chambers, or the advice of his ministers, because he 
 will see in them the expression of the will of the State. But 
 if he wishes to discharge his duties as king he must reserve 
 to himself the free right of examining them from the stand- 
 point of the national welfare. 
 
 Within these limits the constitutional monarch can move 
 with perfect freedom. It is preposterous to think of pre- 
 venting him from expressing his own opinion. Every 
 capable man must utter his real sentiments 3 , and though 
 political considerations may often restrain the monarch, no 
 
 2 For the system of government by Parliament and ministers, see below, 
 Book vii. 
 
 3 Guizot, Mem. xii. 184: ' Un trone n'est pas un fauteuil vide, auquel 
 on a mis une clef pour que nul ne puisse etre tente de s'y asseoir. Une 
 personne intelligente et libre, qui a ses idees, ses sentiments, ses desirs, 
 ses volontes comme tous les autres reels et vivants, siege dans ce 
 fauteuil. Le devoir de cette personne, car il y a des devoirs pour 
 tous, egalement sacres pour tous, son devoir, dis-je, et la necessite de 
 sa situation, c'est de ne gouverner que d'accord avec les grands pouvoirs 
 publics institues par la Charte, avec leur aveu, leur adhesion, leur 
 appui.' 
 
 Ff 
 
434 THE FORMS OF THE STATE. [Book VI. 
 
 one has the right to deny him freedom of speech or to impose 
 the necessity of falsehood upon him 4 . 
 
 The monarch ought also to examine into the state of the 
 country with his own eyes and ears ; he should inform him- 
 self of the needs of the people, watch all the manifestations 
 of public life, and when the general interests and welfare 
 demand it, he should promptly take the initiative in preparing 
 the necessary laws or measures. This is the way in which 
 the great monarchs of former times have distinguished them- 
 selves 5 . Constitutional monarchy also opens a great career 
 in such matters to princes of ability, and it should be very 
 careful not to close it. 
 
 Power and II. The second principle is that the monarch must have 
 
 th^Consti- the highest dignity and full power in the State. This 
 
 monarch. principle is accepted even in the English constitution, which 
 
 imposes more limitations upon the royal rights than have 
 
 been found tolerable by most of the continental monarchies. 
 
 The following conclusions are involved in this principle : 
 
 i. Constitutional monarchy is not an aggregate of isolated 
 
 rights, but the unity and fulness of all rights of sovereignty fi . 
 
 Absolute monarchy goes further than this, in that it grants 
 
 4 See the noteworthy remarks in Stahl, Das monarchische Princip. 
 p. 9. Luther, Tischreden (Table- Talk) : 'There is nothing more graceful 
 or praiseworthy in a prince than to speak freely his opinion, and to do 
 and say without fear whatever he has at heart.' How could he respect 
 the free speech of others, if his own freedom is subject to restraint ? 
 
 5 Frederick the Great, Essai sur les Formes du Gouvernement : 'Le 
 souverain represente 1'Etat : lui et ses peuples ne forment qu'un corps, 
 qui ne peut etre heureux qu'autant la concorde les unit. Le prince 
 est a la societe qu'il gouverne ce que la tete est au corps : il doit voir, 
 penser et agir pour toute la communaute, afin de lui procurer tous 
 les avantages dont elle est susceptible. Si Ton veut que le gouverne- 
 ment monarchique 1'emporte sur le republicain, 1'arret du souverain 
 est prononce : il doit etre active et integre et rassembler toutes ses 
 forces pour fournir la carriere qui lui est ouverte. Le souverain est 
 attache par des liens indissolubles au corps de TEtat ; par consequent 
 il ressent par repercussion tous les maux qui affligent ses sujets, et la 
 societe souffre egaleinent des malheurs qui touchent son souverain.' 
 
 6 Article 57 of the Final Act of Vienna (1820) correctly expressed 
 the monarchical principle in its first paragraph, but it included all three 
 kinds of monarchy, absolute, limited by class privileges (standisch\ 
 and constitutional monarchy. The second paragraph was hostile to the 
 
Chap. XVI.] CONSTITUTIONAL MONARCHY. 435 
 
 to the other political corporations neither independent rights 
 nor any necessary share in the exercise of the royal rights : 
 it claims all rights for itself, and allows to others only grace 7 . 
 Constitutional monarchy, on the other hand, is limited in 
 that it recognises the rights of other corporations and the 
 liberty of its subjects. 
 
 2. The monarch has a share in legislation which is 
 usually decisive as regards the substance of a law, and 
 always so as regards its form. He has the initiative and the 
 sanction of all laws, and they are promulgated in his name. 
 If this fundamental rule be denied, the monarchical principle 
 is encroached upon by republican influences, the supreme 
 authority is given to the chambers, and the king, so far as 
 legislation is concerned, becomes their subject. In a 
 monarchy the rights of the chambers can only be con- 
 current and not exclusive. 
 
 3. The whole Government is concentrated in the monarch: 
 it belongs to him as of independent right, and is exercised 
 in his name. 
 
 In a constitutional monarchy the ministers or other officials 
 cannot govern in their own name, although at the same time 
 the king cannot govern without their co-operation and agree- 
 
 development of constitutional forms : ' The whole sovereign power must 
 be concentrated in the head of the State, and it is only in the exercise of 
 certain definite rights that the sovereign can be bound by the co- 
 operation of the estates.' The subsequent growth of constitutional 
 monarchy has made this article out of date. 
 
 7 One can see that this idea does not follow from the conception of 
 monarchy, by comparing the expressions of Frederick the Great, him- 
 self a somewhat absolute ruler. Antimachiavel , i : ' Le Souverain, bien 
 loin d'etre le maitre absolu des peuples qui sont sous sa domination, 
 n'en est que le premier magistrat.' (Elsewhere he uses the expressions, 
 ' le premier serviteur,' or < domestique de 1'Etat.') Mirabeau, on the 
 other hand, abandons monarchy and sets up the Republican rule of the 
 people, when he says to princes : ' vous etes les salaries de vos sujets, 
 et vous devez subir les conditions auxquelles vous est accorde ce salaire 
 sous peine de le perdre' (Essai sur le Despotisme, (Euvres, ii. 279). 
 Still more definite were the expressions about the true position of the 
 monarch used by Frederick II, in his first audience with his ministers 
 (i June, 1741) : ' I think that the interest of the country is also my own, 
 that I can have no interest except that of the country. If ever the two 
 should not agree, the welfare of the country must have the preference.' 
 
 Ff 2 
 
436 THE FORMS OF THE STATE. [Book VI. 
 
 ment. All their rights and functions are derived from the 
 royal power, and they cannot employ these rights, as in the 
 feudal monarchy of the middle ages, for their own ends, but 
 must use them for the State, and so as to preserve its organic 
 unity. In relation to the ministers, as in legislation, the king 
 has the initiative and the sanction : and while the former 
 can and must be exercised by the ministers as well, the 
 latter belongs to the king alone, and the ministers have only 
 the right of free consent to the royal commands 8 . 
 
 Constitutional monarchy recognises the mediaeval principle 
 that all authority starts from above and descends to the 
 various lower stages, that government proceeds from the 
 centre to the circumference, and not in the reverse direction. 
 But the mediaeval splitting-up of the Government into in- 
 dependent fractions has been avoided in the present day. 
 
 All individual organs of the State are subordinate to the 
 monarch, not only those whose action is entirely dependent 
 upon his will, but also the ministers whose consent is 
 necessary before he can express the will of the State, the 
 judges whose range of action is entirely free from his in- 
 fluence, and even the chambers which share the legislative 
 power with him as independent forces in the State. As 
 the head is superior to all other members of the body, so 
 the monarch occupies the highest place in the body politic. 
 
 Constitutional monarchy is relative and not absolute ; it 
 suits itself to different relations and needs, and varies accord- 
 ing to national character and history. It is therefore mis- 
 leading to derive the conception of it from the English 
 constitution alone. 
 
 The following characteristics are common to all forms of 
 constitutional monarchy : 
 
 persona 
 
 power c 
 
 shall be independent of both the" national representatives and of the 
 
 ministers. This theory opens a comfortable back-door to the absolutism 
 
 of princes, but it is fatal to the whole constitutional organisation. (In 
 
 his second edition (i. 136 ff.) von Stein has completely altered his views 
 
 on this point.) 
 
Chap. XVI.] CONSTITUTIONAL MONARCHY. 437 
 
 (1) The dignity and power of the monarch are regulated General 
 
 charactens- 
 
 by the constitution. The constitutional prince does not tics of Con- 
 
 . . . stitutional 
 
 stand outside or above but in the constitution. It is the Monarchy, 
 regard for the legal organisation fixed by the constitution 
 and binding upon the monarch which gives its name to this 
 form of government. Whether the constitution should be 
 written or not, is by no means a matter of indifference, but 
 it is not essential for the conception 9 . 
 
 In England, the mother-country of constitutional monarchy, 
 there are single constitutional laws and written declarations 
 of the national liberties, but there is no complete and 
 systematic code of the political organisation, such as is pre- 
 ferred in modern times and usually known as a constitution. 
 The English laws have arisen gradually as the result of 
 political struggles and of special needs at different periods 
 of the history of the nation. Modern constitutions have 
 mostly been elaborated all at once as complete and connected 
 legal systems under the influence of some general theory of 
 the State. 
 
 Constitutional monarchy is possible in both forms. But, 
 without contesting the importance of unwritten law, the 
 greatest value has always been placed upon written charters 
 and confirmations of political rights. This is in harmony 
 with the conditions of modern life : in later times the 
 consciousness of right has not grown up in direct connexion 
 with custom, and it can only find the necessary security and 
 clearness in the fixity which is given by a written document. 
 
 (2) The constitutional monarch is bound to respect not 
 only the letter of the constitution, but also the laws of the 
 State. He can only expect and demand obedience as 
 regulated by the constitution and the laws 10 . 
 
 9 There are some * paper constitutions,' as Frederick William IV 
 called them in a speech from the throne, which are easily destroyed 
 because they are merely built upon theory, without any real roots in the 
 nation. But a^ constitution does not become a ' paper constitution ' by 
 being formulated in writing ; on the contrary this gives greater strength 
 and security to its provisions. 
 
 10 Compare the article Monarchic in the Deutsches Statsworterbuch. 
 
438 THE FORMS OF THE STATE. 
 
 (3) Legislative power only belongs to the king in com- 
 bination with the representative chambers. He needs their 
 consent as well as their counsel in order to promulgate a 
 law. 
 
 (4) The financial arrangements and the granting of taxes 
 are also dependent upon the co-operation and consent of the 
 representative bodies. 
 
 (5) In government and administration the co-operation 
 of the ministers is necessary. The king's ordinances, 
 decrees, and commands are not legally binding upon a third 
 person until the royal signature has been countersigned by 
 a minister. 
 
 (6) The responsibility of the ministers and of all other 
 officials is indispensable. 
 
 (7) The independence of jurisdiction and the exclusion 
 of the cabinet from judicial functions is a necessary check 
 upon the government and an important guarantee for the 
 rights of subjects. 
 
 (8) Classes and individuals must be regarded as possessing 
 not only personal and private, but also public rights, and 
 these are no less inviolable than the rights of the monarch. 
 
 Constitutional monarchy must be understood to be the 
 national kingship of a free nation. 
 
CHAPTER XVII. 
 
 ARISTOCRACY. 
 I. THE GREEK FORM. SPARTA. 
 
 As Athens was the highest expression of ancient demo- 
 cracy, so Sparta was among the Greeks the most marked 
 example of aristocracy. In general the Greek character was 
 more inclined to democratic than to aristocratic forms, and 
 it was only in relation to foreign barbarians that they liked 
 to consider themselves a born aristocracy. But the Dorian 
 race, to which the Spartans belonged, preferred aristocratic 
 forms and tendencies for their domestic institutions as 
 well. 
 
 The ideal principle of aristocracy is the rule of the nobler Origin of the 
 
 . , ,. Spartan 
 
 elements of the nation over the subordinate masses. The aristocracy. 
 way in which these nobler elements are estimated and 
 exalted varies in different states. In Laconia the ruling 
 race was that of the Spartans, who had conquered the land 
 with arms and had subjected the old inhabitants, the Periceci 
 or Lacedaemonians. Rulers and subjects were divided by 
 birth. The first conquerors organised the government so 
 as to transmit it to successive generations of their descend- 
 ants. Thus hereditary political rights, a characteristic of 
 all ancient aristocracies, had a natural origin in this en- 
 deavour to maintain acquired power, and became a funda- 
 mental principle of the whole State. 
 
 This hereditary rule of the Spartans was not modified by its exciusive- 
 any intermixture of races. The distinction between Spartans 
 
440 THE FORMS OF THE STATE. [Book VI. 
 
 and aliens remained as strict and absolute as a difference of 
 caste, and intermarriage was forbidden. Only very rarely 
 and exceptionally was an alien admitted to the full rights of 
 citizenship. The ruling race was never invigorated by the 
 admission of new families, and the subjects were not consoled 
 by the prospect that the best of their descendants might rise 
 by merit to be leaders of the State. This exclusiveness 
 appears the more strange and oppressive as the Spartans 
 were not very careful in other points to maintain the purity 
 of their blood. Spartan wives, whose husbands had fallen 
 in war, were given to the embrace of Helots, that they might 
 give birth to Spartan children. 
 
 Education. But education was all the more carefully organised, and 
 this completed the advantages of birth. The two together 
 were intended to preserve the supremacy of the Spartans. 
 The State was so careful to give a political and military 
 education to its youth, that it did not scruple to sacrifice 
 for this end the unity and the freedom of the family. No- 
 where was individual life so subordinate to public life; 
 nowhere was the omnipotence of the State carried to such 
 an extreme as in Sparta. Man was regarded as existing only 
 for the State. 
 
 internal Among themselves the Spartans were possessed of equal 
 
 equahty. r jgh ts . anc [ democratic equality within the aristocracy was 
 carried so far that Lycurgus made it a basis of his constitu- 
 tion that all Spartan families should possess equal property a . 
 Each family had an equal lot (K\rjpos) in the division of the 
 land, and was forbidden to alienate it. To prevent the 
 accumulation of personal property, which might create a 
 distinction between rich and poor, the use of gold and silver 
 was prohibited. The Helots, who cultivated the lands of 
 the Spartans, were not the property of individuals, but 
 belonged, like the lands themselves, to the State ; and their 
 payments in kind were by law equally divided. Even the 
 
 a [The equality of property in Sparta is denied by Grote, History of 
 Greece, Part ii. ch. 6. But Plato, Laws, iii. 684, certainly points to a 
 tradition of an original equality at the time of the Dorian conquest.] 
 
Chap. XVII.] THE GREEK ARISTOCRACY. 441 
 
 Syssitia, or public meals, at which the citizens were divided 
 into separate tables, were common and equal for all. Thus 
 equality was much more complete and secure among the 
 aristocratic Spartans than among the democratic Athenians. 
 
 But the Spartan rule was by no means exercised in a de- institu- 
 mocratic form, to which in fact the character both of the tlc 
 State and of the nation was opposed. A popular assembly TheEcciesia, 
 (KK\r)o-ia or a\ia) existed in Sparta, but the real power was in 
 the hands of the Senate (ye/jovo-m), which usually decided all 
 public business 1 . Their decisions were in important matters 
 submitted to the ecdesia, but merely for acceptance or re- 
 jection. In the latter no one could speak except the kings, 
 the ephors and senators, and no one could vote except men 
 of at least thirty years of age. 
 
 The composition of the State was regulated by aristocratic The Senate, 
 considerations. The 9000 heads of Spartan families were 
 divided into 30 Oboe, which may be compared with the 
 Roman Curice. The two royal Oboe nominated the two 
 kings, and each of the other 28 Oboe nominated one senator, 
 who was to some extent the peer of the kings 2 . Thus the 
 senate was composed of thirty members, and this arrange- 
 ment prevented the exclusive preponderance of single fami- 
 lies, while it served the dignity and rights of the different 
 families as a whole. The Spartans paid the greatest respect 
 to old age, as the essential condition of wisdom. All sena- 
 tors, except the king, must be at least sixty years old. This 
 excessive regard for age seems to be a blot on the constitu- 
 tion. Years bring weakness as well as wisdom : and the 
 conduct of the state requires not only the experience of age, 
 but also the full productive power and fresh vigour of man- 
 hood. The election was made by the acclamations of the 
 popular assembly, which had been previously canvassed by 
 the candidates. By canvassing for this high dignity the old 
 
 1 The ecdesia of the Spartans had the same power and importance as 
 the national assemblies of ancient Greece in the time of Homer. See C. 
 Trieber, Forschungen zur spartanischen Verfassungsgeschichte, Berlin, 
 1871, p. 114. 
 
 a Homer gives the name of acnA.es to these councillors of the king. 
 
442 
 
 THE FORMS OF THE STATE. 
 
 [Book VI. 
 
 Kings and 
 Ephors. 
 
 Artificial 
 character 
 of the con- 
 stitution. 
 
 Its dura- 
 bility. 
 
 men expressed their conviction that they could still render 
 good service to the State and their willingness to devote the 
 rest of their life to its service : the acclamation of the as- 
 sembly expressed the confidence of the people. The dura- 
 tion of the office, which was for life, was a security against 
 the capricious changes of popular favour, but involved the 
 danger that it might be retained in spite of growing weak- 
 ness and incompetence. 
 
 The Spartan aristocracy was limited, partly by the king- 
 ship, which represented in a more lofty manner the unity 
 and dignity of the State, and partly by the democratic in- 
 stitution of the ephors, the changing organs of the people, 
 who controlled the official activity both of the kings and of 
 the senate, and also exercised an extended jurisdiction in 
 affairs of State. 
 
 The Spartan constitution impresses one as a work of art. 
 Like Plato's Republic, it gratifies the sense of external 
 beauty and harmony, but its interior is so unnatural 3 that 
 on the whole it repels rather than attracts. Its architecture 
 may inspire admiration, but it offers no temptation to dwell 
 within it. If the Athenians deserve to be blamed for having 
 preferred the rule of the masses to a well-ordered State, the 
 Spartans may also be accused of having sacrificed human 
 freedom to political organisation. Their system is more 
 distinguished, but it affords less pleasure and comfort than 
 the Athenian : the one maintains an even balance of politi- 
 cal capacity, the other offers at once more light and more 
 shade : the one is too stationary, the other too mobile. 
 
 In durability, the Spartan constitution had an immense 
 advantage. Solon witnessed, without being able to prevent, 
 the victory of tyranny over the democracy which he had 
 established with its mixture of the aristocratic elements of 
 birth and wealth. After the fall of the tyrants, pure demo- 
 cracy was introduced at Athens, but it fell into obvious and 
 
 3 The Greeks did not realise this as we do, because the freedom of the 
 individual life did not appear especially natural to them, and the Spartan 
 constitution agreed with their ideal. Comp. Trieber, /. c. 
 
Chap. XVII.] THE GREEK ARISTOCRACY. 443 
 
 hopeless collapse before it had existed a century. On the 
 other hand, the constitution of Lycurgus maintained the 
 greatness of Sparta for five centuries. When Sparta did fall 
 it was because that constitution had been violated by the 
 accumulation of wealth, by the corruption which was thus 
 introduced, and by the demagogic intrigues of the ephors 4 . 
 The durable power of the constitution itself is the more 
 astonishing when we consider that its provisions were op- 
 posed both to human nature and to the current of events, 
 but it may have been partly due to the ideocratic belief of 
 the people that its founder was the favourite of Zeus, and 
 himself a demi-god. 
 
 The similar constitution of Crete, and the equally aristo- 
 cratic constitution of Carthage, can boast of equal durability 6 . 
 In fact, history proves that aristocracies, by making stability 
 the essential principle of their organisation, can maintain 
 themselves and the State much longer than democracies 
 can preserve the rule of the demos. 
 
 4 Laurent (ii. 290) points out that the immutability of the constitution 
 was a cause of the depopulation of Sparta. 
 
 b [The constitution of Sparta is criticised by Aristotle in Pol. ii. c. 9: 
 that of Crete in c. 10 : and that of Carthage in c. 11.] 
 
CHAPTER XVIII. 
 
 II. THE ROMAN ARISTOCRACY. 
 
 Comparison IN its essential character, the Roman Republic was as 
 and Roman much an aristocracy as Sparta, but of a higher kind. The 
 tks. Romans drew a sharp distinction between the public rights 
 
 of the State and the freedom of individuals and families. 
 They had also a conspicuous sense of the grandeur and 
 power of the State which they were eager to increase, but 
 they never assumed the right of shaping the individual life 
 to suit the State. Thus they avoided that artificial and 
 narrow exclusion of every foreign element which may have 
 preserved the purity of national virtue among the Spartans, 
 but at the same time made them incapable of maintaining 
 that prominent position in the outside world to which des- 
 tiny had called them. From the beginning the Romans 
 were free from that rigidity of class distinctions which is 
 found in Sparta. Classes in Rome did not stand immov- 
 ably face to face, each paralysing the action of the other, 
 but contributed by their struggles and varying influences to 
 a higher development of political life. The Roman con- 
 stitution is a work of art like the Spartan, but on the one 
 hand it is more in conformity with human nature and the 
 general conditions of the world, and on the other hand it is 
 more distinguished by its wealth of forms and the grandeur 
 of its relations. The Roman State impresses one very no- 
 tably as an organism. 
 Aristocratic If we consider the principal aspects of the Roman 
 
 character of *,,. ^11 i i 
 
 Republic we find the aristocratic character everywhere pre- 
 
THE ROMAN ARISTOCRACY. 445 
 
 vailing, although modified by monarchical and democratic the latter 
 
 . J obvious in 
 
 institutions. This is manifest in (i) the relations of classes; 
 (2) the national assemblies ; (3) the senate ; (4) the magis- 
 tracies. 
 
 The Roman patricians did not. like the Spartans, derive * The - 
 
 , lationsof 
 
 their origin from a single race, but from the Latins and classes ; 
 Sabines, and partially from the Etruscans, just as the English 
 nobles combine Saxon and Norman blood. From the first 
 this fact must have acted to prevent rigidity and despotism 
 on the part of the patriciate. And afterwards, though all 
 political power was for a long time in their hands, it was 
 moderated by the organisation of the plebs with its own 
 magistrates, and by the necessity of giving an increasing 
 share in the government to the new plebeian aristocracy. 
 Ultimately from the union of the old with the new aristo- 
 cracy arose the class of optimates *, a class which was never 
 exclusive, but which was of supreme importance in the 
 Roman State. 
 
 As long as the Republic lasted, the aristocracy retained 
 the traditions of government and the familiarity with public 
 affairs. It was distinguished by birth, education, wealth, 
 power, religious and political knowledge. At the same time 
 it never ceased to draw to itself new forces from the plebs. 
 While it advanced to the highest power, and became first 
 the equal and then the superior of kings, it never ceased to 
 be in complete accord with the people from whom it had 
 sprung. 
 
 The Romans were as careful about political education as 
 the Spartans, but they treated it as the business of the family, 
 and not of the State. Hence came the variety and the 
 hereditary character of political tendencies, while in Sparta 
 everything was uniform within the aristocracy. Most of the 
 great Roman families were, and remained, conservative; 
 but some, for example the patrician Valerii and the plebeian 
 Publilii and Sicinii, were inclined to liberal principles. The 
 
 1 Compare above, Book II. ch, x. p. 131, 
 
446 THE FORMS OF THE STATE. [Book VI. 
 
 Claudii, with rare exceptions, may be. compared with the 
 English Tories. 
 2 . the na- Of the three Roman assemblies only the youngest, the 
 
 tional assem- , , . . rr,, 
 
 biies ; comitia tnbuta a , had a democratic organisation. They were 
 
 ^frlbuta not originally destined to take any part in the government, 
 but only to act as an organ of the wishes and opinions of 
 the plebeians, and as a limit upon the excessive power of 
 the patriciate. Later, however, they not only became a fac- 
 tor in legislation, but usurped the whole legislative power. 
 But even in the later years of the Republic, when the aris- 
 tocracy was rapidly declining and monarchy was close at 
 hand, it was only in very exceptional cases, and under the 
 influence of some ambitious tribune, that the comitia of the 
 tribes exercised a really decisive power. As a rule the en 
 croachments of democracy were hindered, partly by regard 
 for the immense authority of the senate, and partly by the 
 tribunes themselves, as they alone could make proposals and 
 each of them could control and obstruct the action of the 
 other b . The ordinary function of the comitia tributa was to 
 act as a check upon the obstinacy and excessive power of 
 the aristocracy. 
 
 Comitia The comitia curiata, which lost all their original import- 
 
 ance and sank into a mere form in the later times of the 
 Republic, were thoroughly aristocratic. They formed the 
 assembly of the old patrician aristocracy of birth, arranged 
 by families and curia, and the senate was originally only a 
 committee of the heads of these families. If the plebeians 
 
 [For the relation of the Tribe-assembly of the plebs (Concilium 
 plebis tributunt] to the assemblies of the populus (comitia proper), see 
 Mommsen, Forschungen. He distinguishes (i) the assembly of the 
 corporation of the plebs, whose plebiscites finally acquired the force of 
 leges by the lex Hortensia of 287 B.C. ; and (2) the assembly of the 
 whole people (populus) by tribes (comitia tributa) , which in the fourth 
 century B.C. began to absorb much of the business of the comitia 
 centuriata. But as the numbers of the patricians diminished, the differ- 
 ence between an assembly of ft& populus and of the /Mr became almost 
 purely formal.] 
 
 & [The Tribunate, which was originally merely the organ of the cor- 
 poration of the plebs, thus became practically an instrument of senatorial 
 government, until the Gracchi turned it to other uses.] 
 
Chap.XVUL] THE ROMAN ARISTOCRACY. 447 
 
 were ever admitted to the comitia curiata it was only in a 
 very subordinate position. 
 
 The most important of the assemblies, the comitia cen- Comitia 
 turiata, in which the whole nation met together, was so 
 organised as to give the most decisive preponderance to the 
 upper classes. 
 
 (a) Great weight was attached to property. The first 
 class alone, consisting of those who paid the highest rating, 
 contained eighty centuries, and if the eighteen centuries of 
 the knights voted with them, they had an absolute majority 
 of votes. The same relation of voting power to property 
 prevailed also in the four other classes : four persons in the 
 second class were equal to six in the third, twelve in the 
 fourth, and twenty-four in the fifth class. The numerous 
 proktarii and the still more numerous capite censi were all 
 crowded into one of the 193 centuries, and had thus a very 
 slight influence in an assembly where the aristocracy of 
 wealth was so powerful la . 
 
 (fr) Birth and nobility of profession were also considered. 
 Thus the eighteen centuries of the knights, which were 
 formed on these principles, were placed, as the most noble, at 
 the head of the assembly. 
 
 (c) Age too had a greater voting power than youth, for the 
 centuries of the seniores contained by the natural laws of 
 mortality only half as many members as those of ihejuniores, 
 though both counted as the same. 
 
 (d) If we put the classes out of sight, it is obvious that the 
 whole external appearance of the assembly was the reverse of 
 democratic. The taking of the auspices, the fixed military 
 organisation of the whole body, the presidency of great 
 magistrates, and the rule that they alone had the right of 
 addressing and treating with the people (jus agendi cum 
 populo\ all gave the assembly a dignified and moderate 
 character. It was not unnatural that a Roman should look 
 
 la On the constitution of the comitia centuriata compare Madvig, 
 Verfassungund Venvaltung des romischen Stats, i. 109 ff. ; and on its 
 later development, Ib. i. 117 ff. 
 
448 THE FORMS OF THE STATE. [Book VI. 
 
 with a certain lofty contempt upon the chaos and turbulence 
 of a Greek ecclesia 2 . 
 
 This aristocratic organisation of the nation was entrusted 
 with the making of the real laws and with the election of the 
 higher magistrates. 
 
 3 . The Se- The Senate was also a very important institution of the 
 Roman state by its composition and its functions. Origin- 
 ally consisting of the heads of the patrician families, of the 
 prinripeS) and representing mainly the aristocracy of birth, it 
 became later an assembly of statesmen who had proved their 
 capacity by holding high office. The history of the senate 
 shows us the transformation of the patrician nobility, which 
 continued to be respected as the source of the auspices and 
 the guardian of sacred traditions, into the later nobility of 
 office. The great magistrates of Rome might be compared 
 with kings, and the ancients themselves called the senate, 
 which consisted of men who had held these magistracies, c an 
 assembly of kings ' ; so high was the position of this political 
 aristocracy. The censors, as the guardians of morals were 
 entrusted with the honourable task of forming the list of 
 senators from among the ex-magistrates and of excluding 
 unworthy individuals. The senators sat and voted according 
 to the rank of the office they had held, as having been consuls, 
 censors, praetors, aediles, or quaestors. Their business was 
 conducted with the strict formality that characterised Roman 
 rule. It was opened with prayer and sacrifice, all its pro- 
 ceedings were conducted by the ruling magistrates, who also 
 
 2 Cicero, pro Flacco, c. 7 : ' Nullam illi nostri sapientissimi viri vim 
 concionis esse voluerunt ; quae scisceret plebes aut quae populus juberet, 
 summota concione, distributis partibus, tributim et centuriatim descriptis 
 ordinibus, classibus, setatibus, auditis auctoribus, re multos dies pro- 
 mulgata et cognita, juberi vetarique voluerunt. Graecorum autem 
 totae res publicae sedentis concionis temeritate administrantur. Itaque 
 ut hanc Graeciam, quae jamdiu suis consiliis perculsa et afflicta est, 
 omittam : ilia vetus, quae quondam opibus imperio gloria floruit, hoc 
 uno malo concidit, libertate immoderata ac licentia concionum. Quum 
 in theatro imperiti homines, rerum omnium rudes ignarique, con- 
 sederant, turn bella inutilia suscipiebant ; turn seditiosos homines 
 reipublicae praeficiebant ; turn optime meritos cives e civitate eji- 
 ciebant.' 
 
Chap. XVIII.] THE ROMAN ARISTOCRACY. 449 
 
 brought forward proposals and took the votes ; and the deli- 
 berations were preserved from digression or encroachment 
 by the intervention of the tribunes or magistrates. 
 
 All important state business was either prepared or decided 
 in the senate. It provided for the worship of the gods and 
 their festivals and sacrifices. It conducted the negotiations 
 with foreign states and envoys, and managed all the important 
 diplomacy of Rome. Its criticism of laws and its approval 
 were usually decisive. In the sphere of administration its 
 own decrees (senatusconsulta) took the place of laws. It 
 managed all the finances, granted taxes, and determined the 
 objects and the amount of expenditure. The levying and 
 arrangement of troops were in its hands, as were also the 
 granting of powers and instructions to the proconsuls and 
 propraetors who had received provinces, and the control of 
 the whole provincial administration. In serious crises the 
 senate could grant to the consuls that unlimited power 
 which seemed necessary to save the republic from harm. 
 
 It may be doubted whether the Roman magistracies were 4. the magi; 
 
 ...... . tracies. 
 
 monarchical or aristocratic institutions, but it is certain that 
 they were not democratic. This is obvious in the external 
 forms that surrounded them, the purple border of the toga, 
 the raised curule chair, the voluntary band of assessors and 
 friends, the procession of lictors, and the connexion with the 
 gods which is expressed in the auspices taken on appoint- 
 ment and kept up by frequent consultations afterwards. 
 The extensive and in itself absolute power which lay in the 
 imperium of the magistrates was essentially royal 3 . The re- 
 publican side of their character was visible only in the short 
 duration of their office, and in the division of their power 
 between two or more magistrates of equal rank. An aristo- 
 cratic principle, which is peculiar to the Roman constitution 
 and is very notable, is seen in the power of every magistrate 
 to obstruct by his veto any official action of a magistrate of 
 
 3 Cicero, de Legibus, iii. 3 : ' regio imperio duo sunto.' Polyb. vi. 
 1 1 , 7 : ruv VITCLTOW ovaiav, TtAcuys iiovap\ucov e^atVcr' ivai Kai 
 
450 THE FORMS OF THE STATE. 
 
 equal or inferior rank 4 . This principle moderated the omni- 
 potence of the imperium, without weakening its activity when 
 the necessity or the advantage of the State called for its 
 exercise. 
 
 The magistrates were chosen by the whole people, but the 
 election to the higher offices was reserved to the comitia 
 centuriata^ in which the aristocracy of wealth preponderated, 
 and which were managed by the magistrates and limited by 
 the auspices. Moreover such election was as a rule open 
 only to those who belonged to the national aristocracy, either 
 because they belonged to a distinguished family, which gave 
 them a famous name, a large body of clients, and popular 
 favour, or because they had great wealth which enabled them 
 to gain over the masses by public games at their expense, or 
 because they had acquired reputation and influence as suc- 
 cessful generals, or eloquent orators. After the higher magis- 
 tracies had been opened to the plebeians, they were no longer 
 limited to the nobles by birth ; but in all but very exceptional 
 cases they were practically confined to that great political 
 and social aristocracy into which the patriciate was trans- 
 formed. Also those who had held these offices formed the 
 senate. 
 
 It must be admitted, therefore, that the Roman republic, 
 in spite of the influence of monarchical and democratic ele- 
 ments, was essentially an aristocracy. And it was not an 
 aristocracy of a family, or of a class, like the numerous forms 
 of the middle ages, but the most magnificent and powerful 
 national aristocracy that the world has ever seen. 
 
 4 Hence the formula in Cicero, de Leg. iii. 3 : ' ni par majorve potestas 
 prphibuisset.' It is the same principle which prevailed in the Roman 
 private law among co-proprietors: 'neganti major potestas.' Comp. 
 Gellius, Nodes Atticae, xiii. 12, 15. 
 
CHAPTER XIX. 
 
 III. REMARKS UPON ARISTOCRACY. 
 
 MONTESQUIEU a has declared moderation to be the prin- The essential 
 ciple of aristocracy, and it is true that moderation is needed aristocracy. 
 for its security as it is suggested by the consideration that 
 the subject masses are superior in number and physical 
 force. The feeling that its power has no external limits may 
 impel a democracy to an immoderate use of that power. 
 But aristocracy cannot easily free itself from the fear of opposi- 
 tion and revolt, and is thus induced as a rule to keep its pre- 
 ponderance from being too oppressive. It knows that its 
 position is insecure without moderation, and therefore its 
 policy is usually conservative. 
 
 But this fails to express the essential principle of aristo- 
 cracy, which is rather to be found in the moral and intel- 
 lectual superiority of the ruling class. It is no true aristocracy 
 unless the best (ol apio-rot) really rule \ Aristocracy loses all 
 real vitality when the ruling class degenerates from the quali- 
 ties which raised it to power, when its character decays, and 
 it becomes weak and vain. It perishes equally, even though 
 
 a [e L? Esprit des Lois, iii. ch. 4.] 
 
 1 Montesquieu's assertion that virtue is the principle of democracy 
 [ibid. iii. ch. 3] is not nearly so correct as Aristotle's dictum (Pol. iv. 8, 
 7. 1294 a. 10) : ' The characteristic of aristocracy is virtue, that of 
 democracy freedom.' But historical reality has little in common with 
 the ideal of philosophers. De Parieu, Polit. p. 36 : ' L'aristocratie a 
 toujours en fait designe le gouvernement des plus puissants plutot 
 que celui des plus vertueux.' This work of De Parieu contains many 
 excellent remarks upon aristocracy. 
 
 G g 2 
 
452 THE FORMS OF THE STATE. [Book VI. 
 
 its great qualities remain, when the subject classes attain to 
 equal distinction, and the old aristocracy is too negligent or 
 too disdainful to complete and strengthen its own forces by 
 their admission. The Roman aristocracy obtained its great- 
 ness, and the English aristocracy has preserved its influence 
 and respect, because both remained in living union with the 
 life of the people, and constantly derived new vigour by re- 
 cruiting themselves from the classes below them, 
 its exclusive- Exclusiveness is the cardinal fault of every aristocracy. 
 
 ness is often . ' 
 
 fatal. The privileges of the ruling class are founded upon its 
 
 qualities, but in the endeavour to secure the former by the 
 strong defence of hereditary succession, it has often lost 
 sight of the latter altogether. Such a limited aristocracy 
 may maintain itself upon a small scale, but when its relations 
 are extended it becomes unequal to the task. Sparta and 
 Venice became weak when they had made great conquests. 
 Neither the Spartans proper nor the Venetian nobili were 
 numerous or strong enough to rule extensive territories, and 
 the rest of the people, excluded from political life and in- 
 fluence, could give but feeble assistance 2 . So, too, the 
 aristocracy of Berne was ruined, not so much by the internal 
 degeneration of the patriciate, as because it failed to recruit 
 itself from the distinguished men of the city and country, 
 various All aristocracy is based upon the distinction of quality, 
 
 aristocracy, but the particular quality chosen depends upon the peculiar 
 character and condition of the people. If it is birth, as in 
 so many of the mediaeval aristocracies, we have an aristo- 
 cracy of family, a noblesse ( Geschlecter- oder Adelsaristokratie\ 
 in which the rights of families or of classes have a great 
 influence upon the constitution. The preference of culture 
 and education forms an aristocracy of priests or of scholars. 
 If age is regarded as the qualification for rule, we have an 
 aristocracy of elders (Aldermdnner) or senators ; if military 
 distinction, an aristocracy of knights ; if property, either in 
 land or moveables, an aristocracy of landowners or capitalists, 
 
 2 See Machiavelli, Discorsi> i. 6. 
 
Chap. XIX.] REMARKS UPON ARISTOCRACY. 453 
 
 or in other words a plutocracy, which Cicero declares to be 
 the most hateful of all forms of state 3 . The aristocracy of 
 optimates has a party character, because it combines a num- 
 ber of families and persons. An aristocracy of office may be 
 regarded as founded upon political motives, especially while 
 it remains an elective aristocracy, but less so when, as 
 happened in the middle ages, it gradually becomes here- 
 ditary, and thus turns into an aristocracy of birth, or noblesse. 
 Not infrequently several qualities are combined to form an 
 aristocracy, and this is stronger than one which is based upon 
 a single quality, because the latter has to face the hostility of 
 all classes and persons who have other natural claims to aris- 
 tocratic position. 
 
 Aristocracy is eager to make its advantages conspicuous, General 
 and therefore to display the external grandeur and dignity of tics? ct< 
 the State. It may dispense with the affection, but never (^External 
 with the respect of its subjects, and it seeks to impress them 
 by an imposing display of external pomp, which gives dis- 
 tinction to political forms and also strengthens authority. 
 This is a marked advantage of aristocracy over democracy, 
 because the latter may too easily degrade both their magis- 
 trates and the State itself to the level of common life. 
 
 But the advantage also involves a danger that the ruling (2) Harsh- 
 classes may over-estimate themselves and may pay too little ne 
 care and attention to their subjects. Aristocracies have 
 often displayed towards the lower classes a harshness and 
 cruelty which have been the more intolerable because 
 accompanied by contempt. Convincing evidence of this is 
 to be seen in the treatment of the Helots by the Spartans, 
 the oppression of plebeian debtors by the Roman patricians, 
 the sufferings of Irish cottiers at the hands of English 
 landlords, and the greedy despotism exercised by English 
 governors over the Hindus of India and the negroes of 
 Jamaica 4 . 
 
 3 Cicero, de Rep. i. 34 : ' nee ulla deformior species est civitatis quam 
 ilia in qua opulentissimi optimi putantur.' Comp. Leo, Naturlehre des 
 Stats, p. 89 ff. 
 
 4 Comp. De Tocqueville on the English aristocracy, (Euvres, t. viii. 
 
454 THE FORMS OF THE STATE. [Book VI. 
 
 (^Excessive As democracy as a rule is too fickle and changeable, so 
 aristocracy rushes into the opposite fault of excessive fixity 
 and obstinacy. Democracy, conscious that its power is un^ 
 limited, easily forgets the conditions of its maintenance. 
 Aristocracy, full of anxiety to maintain itself, often falls into 
 the error of thinking that the best way to accomplish this is 
 to hold fast to the old system and to rigidly exclude every 
 change. As a matter of fact aristocracies have shown more 
 capacity for a policy of conservatism than democracies, and 
 their existence has always been longer. They avoid rash 
 political experiments, they advance by cautious and measured 
 steps, and it is only when threatened by real danger that 
 they display decisive energy and copy for a time the charac- 
 teristics of monarchy. Within limits this is a good quality 
 and springs from the natural instinct of self-preservation ; 
 but if carried beyond those limits it becomes a fatal error. 
 ( 4 ) Excessive This conservative spirit shows itself also in the natural 
 ^wditary tendency to make heredity the fundamental principle of its 
 institutions. In the middle ages, when the whole of Europe 
 was impressed with an aristocratic character, this tendency 
 was especially conspicuous. Even the Empire, although 
 originally founded upon the idea of monarchy, became 
 essentially an aristocracy after the fall of the Hohenstaufen 5 . 
 
 5 This was well known to the Frenchman Bodin, but since then many 
 German historians have found it convenient to forget it. Bodin, de 
 Rep. ii : ' Et quoniam plerique imperium Germanorum monarchiam es?e 
 et sentiunt et affirmant, eripiendus est hie error. . . . Neminem autem 
 esse arbitror, qui cum animadverterit, trecentos circiter principes Ger- 
 manorum ac legatos civitatum ad conventus coire, qui ea, qnae disci- 
 mus, jura majestatis habeant, aristocratiam esse dubitet. Leges enim 
 turn imperatori, turn singulis principibus ac civitatibus, cum etiam de 
 bello ac pace decernendi, vectigalia ac tributa imperandi, denique 
 judices imperialis curiae dandi jus habent. . . . Sceptra quidem, regale 
 solium, pretiosissimae vestes, coronae, antecessio, subsequentibus Chiis- 
 tianis regibus, imaginem regiae majestatis habent, rem non habent. Et 
 certe quodam modo jure omnibus ornamentis ac honoribus cumulari 
 mereatur : sed ea est aristocratiae bene constitutae ratio, ut quo plus 
 honoris eo minus imperil tribuatur ; et qui plus imperio possunt, minus 
 honoris adipiscantur, ut omnium optime Veneti in republica constituenda 
 decreverunt. Quae cum ita stnt, quis dubitet, rempublicam Germanorum 
 aristocratiam esse?' Philipp Chemnitz (Dissert, de ratione status in 
 imperio nostro Rom. Germ., 1640) based his schemes of reform upon 
 
Chap. XIX.] REMARKS UPON ARISTOCRACY. 455 
 
 The imperial dignity itself did not become hereditary, but 
 was filled up by the choice of the hereditary electors. But 
 the Emperor, in spite of his dignified position, had very 
 little power. Before deciding any important matters he had 
 to consult the Diet. The electoral college prepared all 
 laws and had the first vote in the Diet. The second vote 
 belonged to the other princes, who had contrived to trans- 
 form what were originally offices of State into hereditary 
 sovereignties. After the princes came the college of the 
 imperial cities, but in these the government was usually 
 held by a patrician oligarchy, so that their representation 
 was really aristocratic. The government was exercised by 
 the Emperor and Diet conjointly : the central authority 
 was everywhere hindered and obstructed by the feudal 
 independence of the landowning nobles. In all the politi- 
 cal and legal relations of the middle ages, the aristocratic 
 inclination to hereditary succession is visible. It regulated 
 everything ; fiefs, imperial offices and dignities ; all grades 
 of jurisdiction, whether of counts, bailiffs, territorial lords, or 
 even the local assessors ; knighthood and court service ; 
 rank and office in towns and villages, and the manorial 
 holdings of the peasants. 
 
 Modern times, on the other hand, have shown a decided 
 aversion to heredity as a political principle. Both tendencies 
 contain an element of truth, but both are wrong if carried 
 to excess. In our own day it is right to struggle against 
 the restraints which rigid heredity imposes upon modern 
 development and the satisfaction of new needs ; it is right 
 to claim the free recognition of individual worth, and to 
 insist that political offices, which demand personal ability 
 and subordination to the whole, shall not be subject to 
 
 the idea that Germany was an aristocracy. Comp. Perthes, Das deutsche 
 Statsleben vor der Revolution, 1845, 246. Puffendorf called the 
 Empire a mongrel compound of monarchy and aristocracy, but recog- 
 nised the prevailing tendency to aristocracy. [Nobody now denies that 
 the Empire after the fall of the Hohenstaufen was an aristocracy with 
 an ornamental monarch. The same arguments might have convinced 
 Bluntschli that the English monarchy is equally ornamental.] 
 
456 THE FORMS OF THE STATE. [Book VI. 
 
 hereditary rules or treated as the property of particular 
 families. But it is wrong to break off the connexion 
 which hereditary succession maintains between the present 
 and the past : it is wrong to introduce loose and frequent 
 change where the stability of tradition is needed, or to alter, 
 without need, conditions which may serve as strong pillars 
 of the State, and which may transmit to the future great 
 moral interests and forces. To do this is to build upon 
 the sand : it involves a breach of the organic nature both of 
 nation and State, for their life does not vary with each 
 generation, but is prolonged in unbroken course from 
 century to century 6 . 
 (s) Devotion Aristocracy sets itself to preserve external order as the 
 
 to law. 
 
 6 In aristocratic England the importance of political heredity is still 
 fully comprehended. See the expressions of Burke in his Reflections on 
 the Revolution in France (Clarendon Press Series, p. 38): 'You will 
 observe, that from Magna Charta to the Declaration of Right, it has 
 been the uniform policy of our constitution to claim and assert our 
 liberties, as an entailed inheritance derived to us from our forefathers, 
 and to be transmitted to our posterity; as an estate especially belonging 
 to the people of this kingdom without any reference whatever to any 
 other more general or prior right. . . . We have an inheritable crown ; 
 an inheritable peerage ; and an house of commons and a people in- 
 heriting privileges, franchises, and liberties, from a long line of an- 
 cestors. ... A spirit of innovation is generally the result of a selfish 
 temper and confined views. People will not look forward to posterity, 
 who never look backward to their ancestors. Besides, the people of 
 England well know, that the idea of an inheritance furnishes a sure 
 principle of conservation, and a sure principle of transmission ; without 
 at all excluding a principle of improvement. It leaves acquisition free ; 
 but it secures what it acquires. . . . Our political system is placed in 
 a just correspondence and symmetry with the order of the world, and 
 with the mode of existence decreed to a permanent body composed of 
 transitory parts ; wherein, by the disposition of a stupendous wisdom, 
 moulding together the great mysterious incorporation of the human 
 race, the whole, at one time, is never old, or middle-aged, or young, 
 but in a condition of perpetual decay, fall, renovation, and progression. 
 Thus, by preserving the method of nature in the conduct of the state, 
 in what we improve, we are never wholly new ; in what we retain, we 
 are never wholly obsolete. ... In this choice of inheritance we have 
 given to our frame of polity the image of a relation in blood ; binding 
 up the constitution of our country with our dearest domestic ties ; 
 adopting our fundamental laws into the bosom of our family affections ; 
 keeping inseparable, and cherishing with the warmth of all their 
 combined and mutually reflected charities, our state, our hearths, our 
 sepulchres, and our altars.' 
 
Chap. XIX.] REMARKS UPON ARISTOCRACY. 457 
 
 security for its own maintenance. The same motive urges 
 upon it the protection of law and the careful observance of 
 legal forms. Except when its passions have been aroused 
 by danger to its existence, aristocracy is entitled to boast 
 that it has shown more justice than democracy in its treat- 
 ment both of its subjects and of its own members. It is no 
 accidental circumstance that the greatest development of 
 the science of law was the work of an eminently aristocratic 
 nation, the Romans. Equal recognition has been given to 
 the strict but impartial justice of the Venetians, to the wise 
 law of Berne, and to the strong sense of law which charac- 
 terises the aristocratic English. In the middle ages policy 
 itself took the external form of a legal judgment and its 
 execution. 
 
 Contemporary opinion is so unfavourable to aristocracy Decline of 
 as a form of State, that no example has survived the middle ar 
 of the nineteenth century. The aristocracy of ancient 
 Rome was first broken by the rise of democracy and then 
 crushed by the Empire. The mediaeval aristocracies of 
 Italy and Germany were humbled by the growing power of 
 the princes, and ultimately destroyed by the hostility of the 
 burgher class. In the modern State, therefore, the aristo- 
 cratic classes, as a distinct part of the nation, assume an 
 intermediate and not a sovereign position. Everywhere 
 they are subordinate either to monarchy or democracy, and 
 though they may moderate the one and ennoble or restrain 
 the other, they can no longer claim as their right the 
 government of the State. 
 
CHAPTER XX. 
 
 DEMOCRATIC FORMS OF THE STATE. 
 I. DIRECT DEMOCRACY (ANCIENT). 
 
 Difference THERE is a great difference between the ancient idea of 
 
 wicieirtand democracy (^//wwfporwj, the rule of the demos, of the free and 
 
 democracy, equal citizens) and that of modern times. Among the ancients 
 
 men started from the State and sought to secure the liberty 
 
 of all by dividing political rule equally among all. Now 
 
 they start from individual liberty, and strive to give away 
 
 as little of it as they can to the State, to obey as little as 
 
 possible. The old democracy, whether absolute or modified 
 
 in form, was always direct ; modern democracy is as a rule 
 
 representative. It is obvious that the former can only exist 
 
 in a small state, while the latter is also applicable to a 
 
 great nation with extended territories. 
 
 Democracy Th e Greeks, split up into a number of little states, sought 
 
 in Greece. 
 
 and found in democracy the satisfaction of their political 
 tastes. It is undeniable that something democratic is to be 
 found even in the old monarchies and so-called aristocracies 
 of Greece, which distinguishes them from modern monarchy 
 or from the Roman aristocracy. It is also notable that 
 the greatest Greek philosophers, while unfavourable in their 
 judgment of the absolute democracy of Athens 1 , took a 
 
 1 On this point Xenophon, Plato, and Aristotle are all agreed. 
 
DIRECT DEMOCRACY. 459 
 
 moderate democracy as their ideal, and gave to it the name 
 of polity or constitutional government (TroAire/a) in a special 
 sense a . 
 
 Democracy found its most logical expression in Athens, The Athe- 
 
 i 11 1-11 -i nian consti 
 
 and its nature can nowhere be better studied than in the tution. 
 Athenian constitution. In no other state was the rule of 
 the people so extensive ; almost all important business was 
 brought before the ecdesia^ which met so frequently, often 
 once a week, that it would be inconceivable if we did 
 not remember that ordinary and professional labour was 
 carried on not by the free citizens but by the numerous 
 slaves. 
 
 The ecdesia was the visible representation of the many- The **// 
 headed demos. It contained all citizens over twenty years 
 of age, unless they had become liable to any loss of civic 
 rights. In it the Athenians felt themselves to be the 
 lords of the state, each individual to be a part of the 
 sovereign whole. The characteristic mark of democracy is 
 that the majority shall rule and that every citizen shall have 
 a share in the governing power, and this was here fully 
 developed. Every citizen had a free right of speech, and 
 the privileges of age, which existed in the times of Solon, 
 were soon swept away with all other restrictions as burden- 
 some. An orator had free scope for his eloquence, and 
 
 a [Only Aristotle uses iro\iTia in this sense. Cp. Eth. Nic. viii. 10, 
 i ; Pol. iii. 7) 3 ; iv. c. 7 and 8. But this iroXtrcia is not his ideal 
 state, but only the 'best average state.' See Pol. iv. c. I and 2. Plato 
 in the Republic places democracy below oligarchy, but in the Politicus, 
 302, 303, he reverses their positions and distinguishes two kinds of 
 democracy, a good and a bad. It is to this ' good ' kind that Aristotle 
 gives the name of Polity. In discussing the Solon ian constitution (Pol. 
 ii. 12) Aristotle distinguished 77 Trdrpios drjfjLOKparia, which may be con- 
 sidered ' a good mixed constitution,' from the extreme democracy of 
 later times. Plato, in the Politicus, 293, separates the ideal State from 
 all the five or six ordinary forms of government. Whether one, few, or 
 many rule is unimportant in comparison with the question, whether 
 those who rule have the science of ruling or not. But since he thinks 
 this science of ruling is more likely to be found in one or the few than 
 in the many, he generally speaks of the ideal State as kingship or aris- 
 tocracy (as in the Rep?). Aristotle on the other hand vindicates the 
 political capacity of the many (Pol. iii. 15, 7, 8).] 
 
460 THE FORMS OF THE STATE. [Book VI. 
 
 could often exercise a magical influence over the crowd, 
 It was fortunate when great statesmen, like Pericles, could 
 support their opinions by oratory. More often men's minds 
 were carried away by adroit and ambitious demagogues, who 
 ruled the mob by exciting its passions. There is nothing in 
 the modern state which at all corresponds to this influence 
 of oratory, which moved its assembled hearers far more 
 strongly than the press can move its scattered readers. 
 The orator's voice and gestures added meaning and em- 
 phasis to his words, and the approval of the crowd as it 
 listened in the consciousness of power gave a mighty 
 impulse to the debate. In our own day parliamentary 
 speeches have much less influence, partly because our 
 assemblies are smaller and more select, and partly because 
 their power is more limited. 
 
 its powers ; The powers of the ecdesia embraced the whole life of the 
 State. Solon had limited them to the election of magis- 
 trates, the control of the government, and advice about 
 laws, but the demos, led by its orators, soon overstepped 
 these limits. The decisions of the people (^i^iVpora) were 
 as decisive as those of an absolute despot ; like him the 
 demos could command what it pleased, even though con- 
 trary to the law 2 . Legislation properly belonged to the 
 nomotheta, but their decisions were practically determined 
 by the debates and votes of the ecdesia, of which they were 
 only a numerous committee elected in each particular case. 
 The assembly itself decided all the important affairs of 
 government. It appointed ambassadors and determined 
 their instructions ; it heard the envoys of foreign states, 
 decided on peace or war, chose the generals, and fixed both 
 the pay of the soldiers and the conduct of military opera- 
 tions. In its hands lay the fate of conquered towns and 
 countries, the acceptance of new gods, the regulation of 
 religious festivals and new priesthoods, the granting of 
 the rights and privileges of citizenship. It received once 
 
 2 Comp. Aristot. Pol. iv. 4, 25, 29, 1292 a. 6, 24. 
 
Chap. XX.] DIRECT DEMOCRA CY. 461 
 
 in each prytany (35 or 36 days) a financial report of the 
 State revenue and expenditure ; it levied taxes, fixed the 
 tax paid by aliens (/UT<HKIOI/), regulated the coinage, and 
 demanded voluntary contributions. Its approval was neces- 
 sary for the construction of temples, public buildings, roads, 
 walls, and ships. It could employ the public revenues even 
 in favour of private individuals by paying for their admission 
 to the theatre. Its powers did not extend to ordinary juris- 
 diction, but in exceptional cases, when a crime was not 
 covered by the law, or when aggravating circumstances jus- 
 tified extraordinary measures, it debated criminal charges, 
 fixed the penalty, and often decided on the guilt of the 
 accused. The degeneracy which rapidly followed the flour- 
 ishing period of the democracy increased the abuses of this 
 popular jurisdiction. 
 
 In the assembly the majority of citizens present was its character, 
 decisive. The intelligence of the people, even of the 
 lower classes, was more developed than in any other state, 
 ancient or modern. They could appreciate the tragedies 
 of Aeschylus and Sophocles, they listened to the speeches 
 of Demosthenes, they were enriched by commerce and 
 empire, and by the ample reward of every kind of labour. 
 Yet even amongst such a people as this the majority was 
 unable to resist the seductive arts of demagogues, and was 
 unwilling to exercise its power with wisdom and justice. 
 The minority of nobler and more wealthy citizens was 
 oppressed and maltreated, and Xenophon, referring to his 
 native city, declared it to be a necessary consequence of 
 democracy ' that the lot of the wicked should be better than 
 that of the good 3 / 
 
 8 Xen. de Rep. Ath. c. i. I. In c. 2. 19 he asserts that 'the 
 Athenian people is fully able to distinguish between good and bad 
 citizens. But it prefers the bad, and hates the good ; for it is convinced 
 that the virtue of individuals is not beneficial but harmful to the welfare 
 of the masses, and its object is, not the good organisation of the State, 
 but the freedom and sovereignty of the masses/ [But Xen. (?) de Rep. 
 Ath. is only an auti-democratic pamphlet, and should not be quoted as 
 a serious authority.] 
 
462 THE FORMS OF THE STATE. [Book VI. 
 
 i IK- Senate. The constitution of Solon intended that the power of the 
 ecdesia should be limited and to some extent directed by 
 the boule or senate, which was based by Solon upon the 
 aristocratic organisation of the people into the four tribes. 
 The members of the tribes were divided into four classes, of 
 which the upper and richer had greater rights and duties to 
 the State, so as to secure the preponderance in the senate 
 of wealth and education. But from the time of Cleisthenes 
 (B.C. 510) the institution fell more and more under the 
 control of the masses. The senate of 500 became a small 
 popular assembly, filled up without any regard to property 
 or education. The members were not even elected, but 
 were chosen by lot. They were divided, again by lot, into 
 ten sections of fifty each (prytanes), which took it in turns 
 to conduct business every thirty-six days. Such a body 
 could not exercise any independent authority over the mass 
 of the people, from which it rose to ephemeral power and 
 then sank back into insignificance. It served merely to 
 facilitate the initiation of business and to help the mob in 
 the task of self-government. 
 
 TheArchons. The drckons, originally important magistrates and belong- 
 ing to the eupatrids, were to be chosen, according to Solon's 
 constitution, from the richest class (the Tre^ra/coo-io/zeSt/ui/ot). 
 As the democracy developed, lot supplanted the previous 
 qualifications of birth and wealth, and the archons were 
 henceforth only servants of the demos, and powerless pre- 
 
 The judicial sidents of the numerous courts of justice. The latter 
 also were democratically organised, and became a kind of 
 popular assembly, in which no less than 6000 jurors took 
 part ; each case, according to its importance, was decided 
 by a hundred or a thousand jurors. The desire of the 
 masses to share in the profits and influence of justice, 
 which Aristophanes scourged with his satire in the Wasps, 
 became a chronic disease in Athens, and gave rise to the 
 scandalous profession of the sycophants. The popular 
 tribunals regarded themselves as the supporters and pro- 
 moters of popular rule, busied themselves more with party 
 
Chap. XX.] DIRECT DEMOCRACY. 463 
 
 struggles and interests than with the impartial administration 
 of justice, and became an arena for the strife of private and 
 public passions. The corruption of sycophants and judges 
 rapidly increased, and the forms of justice were abused by 
 the arbitrary despotism of the mob 4 . 
 
 4 For the constitution of Athens, see Hermann's excellent book, 
 Griech. Statsalterthiimer (5. Auflage, 1875, neu bearbeitet von Bahr, 
 P- 539 ff -)- 
 
CHAPTER XXI. 
 
 II. CRITICISM OF DIRECT DEMOCRACY. 
 
 Characteris- THE character of direct democracy, with its advantages 
 
 tics of direct , . ., - ., .. 
 
 democracy, and its evils, is represented for all time in the brilliant 
 history of the gifted Athenian people. 
 
 Democracy prefers freedom to authority. To their love 
 of freedom the Athenians owed the perfection of their 
 works of art, which receive and deserve the admiration 
 of posterity. But the democratic freedom of all involves 
 the rule of all. The body of citizens wishes to govern in 
 person, i.e. by great national assemblies. This is only 
 possible in small States, and among a people which has 
 leisure to devote itself to the regular business of the State ; 
 and this again presupposes either great simplicity of life 
 and occupations, as in the small communities of mountain 
 valleys, or else the existence of a labouring class which is 
 not admitted to citizenship. Among a civilised people 
 direct democracy is always a sham, because it cannot exist 
 without this servile part of the population. 
 
 Danger of In these large popular assemblies a sense of unlimited 
 
 popular 
 
 passion and power is easily developed, which leads to blunders of every 
 kind, and often substitutes arbitrary caprice for law and 
 right. The individual may be both honest and prudent in 
 himself, but as a member of the assembly he is liable to be 
 carried away by the passions of the crowd, and to consent 
 to resolutions which, a short time before, he would have 
 
CRITICISM OF DIRECT DEMOCRACY. 465 
 
 unhesitatingly rejected. The orators can only influence by 
 playing upon the popular passions, and when once the 
 storm has been raised no feeling of shame can check its 
 violence \ 
 
 If, then, democracy is to be a good constitution, the importance 
 
 f . ,. . , . , of national 
 
 majority of the citizens must possess political capacity and character, 
 aptness, they must excel both in character and intelligence. 
 Athenian history, however, offers the warnings of experience. 
 Among a people of conspicuous intellectual development, 
 whose character never appeared greater than in times of 
 misfortune and danger, it was for a very short period that 
 pure democracy could escape degeneracy and ruin. And 
 even when Athens was at the zenith of its power and pros- 
 perity, its greatness was not due to the rule of the people 
 but to the practical abandonment of that rule to a single 
 great statesman. Thucydides says of the age of Pericles : 
 ' Athens was a democracy in name, but in reality it was 
 under the rule of the first of its citizens V 
 
 The populace cannot long retain its virtue after having 
 drunk the intoxicating wine of power. Democratic forms 
 may exist as long as the people retains its dread of divine 
 justice, its regard for the restraints of custom and law, and 
 its reverence for the authority of the best men. There can 
 be no doubt that in a democratic state the mass of the 
 people are elevated by taking part in public affairs, and that 
 they are distinguished from the citizens of other states by 
 
 1 Burke expresses this admirably in his Reflections on the Revolution 
 in France (Clarendon Press edition, p. no) : ' Where popular authority 
 is absolute and unrestrained, the people have an infinitely greater, be- 
 cause a far better founded confidence in their own power. They are 
 themselves, in a great measure, their own instruments. They are nearer 
 to their objects. Besides, they are less under responsibility to one 
 of the greatest controlling powers on earth, the sense of fame and 
 estimation. The share of infamy that is likely to fall to the lot of 
 each individual in public acts, is small indeed ; the operation of opinion 
 being in the inverse ratio to the number of those who abuse power. 
 Their own approbation of their own acts has to them the appearance of 
 a public judgment in their favour. A perfect democracy is therefore 
 the most shameless thing in the world. As it is the most shameless, it 
 is also the most fearless.' 
 
 2 Thucydides, ii. 69. 
 
 Hh 
 
466 THE FORMS OF THE STATE. [Book VI. 
 
 a richer and more conscious development of their faculties. 
 The individual is compelled to look beyond the narrow 
 limits of his own occupation and becomes familiarised with 
 the great laws of history and the collective life of nations. 
 But fear and respect soon disappear as the feeling of 
 unrestrained power gets the upper hand, and this power is 
 the more readily abused as the distinction between rulers 
 and ruled, which is recognised by other forms of State, is 
 wanting in a democracy. The populace gives the rein to its 
 evil passions : it envies and oppresses the nobler and better 
 minority, whose existence is a standing reproach and protest 
 against its own rule. The worst qualities of the demos come 
 to the surface pride, arbitrary caprice, the love of frequent 
 and useless change, brutality : the less it rules itself, the 
 more oppressive is its rule of others. Parties are formed 
 whose mutual hatred is stronger than patriotism, and whose 
 mortal struggles distract and ruin their common country. 
 The State is endangered by incessant changes, and brought 
 to ruin by the want of stability. Thus the Athenian State 
 was brilliant in its greatness ; but that greatness was short- 
 lived, and was followed by a long decadence from which 
 Athens never recovered s . 
 
 f ^ characteristic of every democracy is the love of equality. 
 In Athens this principle was developed more logically and 
 one-sidedly than in any later democracy. Wherever it was 
 possible the mass of the citizens acted for themselves, be- 
 cause a system of representation gives a certain preference 
 and superiority to the chosen deputies. When it was neces- 
 sary to appoint individuals to office or to the senate, the 
 Athenians preferred the blind system of lot to election, 
 which might have paid regard to superiority of intelligence 
 and virtue. All magistrates were frequently changed, lest 
 prolonged authority might exalt them above the mass 4 . 
 
 3 The great period of Athenian history began with Cleisthenes (B. c. 
 510), who founded the pure democracy, and ended with the death of 
 Pericles (B. c. 428), so that it lasted only 82 years. 
 
 * Comp. Aristot. Pol. vi. 2. 5, 1317 b. 20. 
 
Chap. XXL] CRITICISM OF DIRECT DEMOCRACY. 467 
 
 The very existence of magistrates who demand obedience, 
 seemed contrary to the democratic maxim of equality : if 
 such inequality was indispensable, it must be softened as 
 much as possible by the use of the lot and by frequent 
 change. The equality which commends itself to a demo- 
 cracy is equality of number. Its formula is not 'each 
 according to his merits/ but 'one as another 5 .' 
 
 Another consequence of democratic equality is ostracism a . Ostracism. 
 Among the Greeks this was carried out openly and was re- 
 garded almost as an honour, but in modern states, though 
 practically exercised, it is not formally recognised, and is 
 usually regarded as a disgrace. Every constitution, if it 
 wishes to last, must have the power of expelling elements 
 which are incompatible with its existence. Democracy is 
 not to be blamed when, as in Athens, it exiles individual 
 citizens whose personal superiority is dangerous to the 
 general equality. But it is a questionable proof of the 
 merits of democracy that it can endure the baseness of 
 the masses better than the superiority of individuals. 
 
 To sum up what has been said, it is evident that direct Direct de- 
 democracy, as it existed in Greece, is fitted only for small SSythnvehi 
 states, and especially for agricultural or pastoral peoples 6 , backward 
 whose life retains the simplicity of ancient customs. In the state * 
 case of a people with a higher civilisation and wider rela- 
 tions, it may give a great momentary impulse, but it soon 
 becomes insufficient and harmful. In the one case demo- 
 cracy appears both natural and moderate ; in the other it is 
 prone to licence and excess. The freedom which it pro- 
 mises becomes in this case the unjust oppression of all 
 nobler elements, the unrestrained and brutal ambition of 
 the mob. The equality on which it professes to be founded 
 
 5 The distinction is thus expressed by Aristotle (Pol. v. I. 12, 
 1301 b. 29; vi. 2. 2, 1317 b. 4) : TO taov rear' dpiOjjLov dAAcfc /-o) /car* 
 dgiav. 
 
 a [On ostracism cp. Arist. Pol. iii. 13. 15-25, 1284 a. 17 ff. ; Grote, 
 History of Greece, Part ii. ch. 33.] 
 
 6 Aristotle (Pol. vi. 4) developes this opinion, which had been con- 
 firmed by experience in Greece, and was so later in Switzerland. 
 
 H h 2 
 
468 THE FORMS OF THE STATE. 
 
 is nothing but a manifest lie and a crying wrong, when once 
 advancing civilisation has brought with it its differences 
 and its contrasts 7 . 
 
 7 Cicero's observation is very true, de Rep. i. 26 : ' quum omnia per 
 populum geruntur quamvis justum atque moderatum, tamen aequabilitas 
 est iniqua, quum habeat nullos gradus dignitatis.' 
 
CHAPTER XXII. 
 
 III. REPRESENTATIVE DEMOCRACY AND THE MODERN 
 REPUBLIC. 
 
 DIRECT democrary has only existed in modern times in Direct super- 
 very exceptional and very favourable circumstances, and presentiive 
 then its form has been much more moderate than that democrac >'- 
 of Athens. It is still visible in some of the mountain 
 cantons of Switzerland, where every year the Landsgemeinde 
 meets, and by the raising of hands distributes the offices 
 and dignities of the little republic, usually to the most 
 respected families, and gives its sanction to the laws which 
 have been prepared by the councils. These simple demo- 
 cracies, little touched by the stream of European life, 
 deserve our respect for their five hundred years of a history 
 that is rich in manly episodes and rarely stained by acts of 
 violence, for the simplicity of their customs and the peace- 
 ful and happy existence of their inhabitants. But in recent 
 times they have been affected by the tendency to introduce 
 the representative forms which prevail in the other Swiss 
 cantons and in the United States of America. The French 
 movements of 1793 and 1848 aimed at a representative 
 constitution, and in the present day it is the ideal of demo- 
 cratic parties everywhere. The modern form of democracy 
 may be declared to be representative democracy. 
 
 As constitutional monarchy originated in England, so re- x. Repre- 
 presentative democracy, or the modern form of Republic, as democracy 
 the Americans prefer to call it, was developed in North America! 8 " 
 America. It is noteworthy that the two chief forms 9f the 
 
470 THE FORMS OF THE STATE. [Book vi. 
 
 modern State owe their origin to the political genius of the 
 Anglo-Saxon race. 
 
 Causes of its Several causes combined to start and develope a new 
 democratic constitution in America. It was only partially 
 due to the extension of a territory which required hard toil . 
 before it could be made fit for cultivation. Earlier history 
 had shown that extensive territories were not favourable to 
 democracy; they had usually been colonised by great 
 monarchies, and the colonists were kept in strict subjec- 
 tion. In South America new settlements had been founded 
 and huge tracts of land had been occupied and made pro- 
 ductive by a numerous population, but it was long before 
 that part of the continent possessed a democracy. The 
 real cause is to be found, not in the soil, but in the char- 
 acter of the men ; but at the same time it may be allowed 
 that the extent of territory gave freedom and security for 
 development, while the hard struggle with nature created a 
 spirit of manly courage and self-reliance. 
 
 New Eng- The English colonists brought from their old home the 
 love of self-government, liberty, and legality. In the new 
 world they also found freedom from the oppression of 
 feudal and aristocratic institutions. From the first com- 
 plete equality prevailed among the planters. The Puritans, 
 who settled in New England, belonged to the English 
 middle class. Their religious belief was opposed to any 
 ecclesiastical hierarchy ; they wished to share in the com- 
 mon priesthood of Christians, and regarded each other as 
 brothers. They sought the other side of the Atlantic to 
 escape the persecutions of the episcopal Church and of the 
 State which maintained it, to preserve their religious and 
 their political freedom. Their ideas were at once theocratic 
 and democratic. They did not rebel against the monarchical 
 and parliamentary constitution of England, but they wanted 
 to free themselves from the immediate oppression of the 
 Government. The first agreement of the ' Pilgrim Fathers/ 
 which all signed on their landing at Plymouth, throws light 
 on the origin of North American democracy. ' In the 
 
Chap. XXII.] REPRESENTATIVE DEMOCRACY. 471 
 
 name of God, amen ; we, whose names are underwritten, 
 the loyal subjects of our dread sovereign King James, having 
 undertaken, for the glory of God, and the advancement of 
 the Christian faith, and honour of our king and country, a 
 voyage to plant the first colony in the northern parts of 
 Virginia, do, by these presents, solemnly and mutually, in 
 the presence of God and of one another, covenant and 
 combine ourselves together into a civil body politic, for 
 our better ordering and preservation, and furtherance of the 
 ends aforesaid ; and by virtue hereof to enact, constitute, 
 and frame, such just and equal laws, ordinances, acts, con- 
 stitutions, and offices, from time to time, as shall be thought 
 most convenient for the general good of the colony. Unto 
 which we promise all due submission and obedience/ 
 Similar proceedings were taken by the first emigrants to 
 Rhode Island, Newhaven, Connecticut and Providence. 
 Thus these communities, which formed the New England 
 group of colonies, with Massachusetts at their head, adopted 
 a form of government which appeared as the joint work of 
 free men. 
 
 Wholly different from this were the conditions of the Virginia, 
 southern group, which was at first called Virginia, until the 
 name was afterwards confined to the most important of the 
 colonies. There the episcopal Church, with its aristocratic 
 constitution, found ready recognition. Although most of 
 the planters belonged to the middle class, the settlement 
 was directed rather by economic than by religious interests, 
 and moreover several members of the aristocracy held large 
 estates there. Later the population was recruited by the 
 arrival of numerous adventurers, and of the criminals and 
 vagabonds who were transported by the London police. 
 
 Still, even in Virginia, it was found impossible to trans- Carolina, 
 plant the aristocratic constitution of England, and the 
 notable attempt which was made by Locke at Shaftesbury's 
 request to draw 7 up a similar constitution for Carolina (1669) 
 was a complete failure. The colonists had no wish to 
 become tenants of the proprietaries, landgraves and caciques 
 
472 THE FORMS OF THE STATE. [Book VI. 
 
 (barons), when they might be free proprietors elsewhere, 
 and in 1693 Locke's constitution was abolished. Both in 
 the northern and southern colonies the planters, prevented 
 by the great distances from meeting in person, instituted 
 representative assemblies composed of freely elected depu- 
 ties, which exercised the autonomy of the colony and 
 controlled the administration. The germs of the institu- 
 tion may be traced as far back as 1619, and it was soon 
 adopted in all the colonies. 
 
 New York There was a stronger intermixture of foreign elements 
 
 syivania. in the central group, of which New York, originally New 
 
 Amsterdam, and Pennsylvania were the most prominent. 
 
 But there too, the influence of the English race led to 
 
 the adoption of the same constitution in essentials. The 
 
 points in which all the colonies were alike, may be thus 
 
 enumerated : 
 
 Common (a) English law without either landlords or feudal 
 
 elements of r ' i_ i i i r i 
 
 the colonial tenure : free property in the soil was the basis of the 
 
 constitu- 
 tions, economic system. 
 
 (b) Essential equality of position and rights, and the 
 absence of any aristocracy like that which still held power 
 in England. This equality was, however, broken by marked 
 differences of race. The Red Indians, the original inha- 
 bitants of the country, were not placed on a level with the 
 white men, nor admitted to share in the government of the 
 community ; but they had special rights and laws of their 
 own. Far lower was the position of the Negroes, the 
 descendants of imported slaves from Africa. They were 
 usually the property of the white planters, but in the excep- 
 tional cases when they obtained freedom they were never 
 admitted to the political rights of citizens. 
 
 (f) The constant habit of self-reliance in contrast to 
 State-aid. This is visible at the time of the first settle- 
 ment, when the neighbours helped each other to build 
 block-houses. 
 
 (d) The general education of the people by means of 
 national schools. These were founded very early by the 
 
Chap.XXIL] REPRESENTATIVE DEMOCRACY. 473 
 
 villages for their own youth, and in many colonies at- 
 tendance was made compulsory. 
 
 (e) A free constitution of the villages, and independent 
 administration of the counties. 
 
 (/) The small number of officials. Of these the most 
 important was the governor of a whole colony, who was 
 elected by the planters in the chartered colonies, nominated 
 by the proprietors in the proprietary, and by the English 
 Government in the crown colonies. Next to him came the 
 presiding judges. Both had to act in co-operation with 
 representatives of the citizens, the governor with his coun- 
 cillors, the judge with the jurors. The justices of the peace, 
 who were nominated in England by the king from among 
 the gentry, were in America always free tillers of the soil. 
 
 (g) Hardly any standing troops, their place being taken 
 by the militia. 
 
 (h) The existence of a House of Representatives, elected 
 in each colony by the free men, which acted with the Senate 
 in making laws, but by itself granted taxes and controlled 
 the administration. 
 
 (/") The custom of short tenure of offices, so as to provide 
 for frequent changes. 
 
 (k) Lastly, the gradual development of a free press and 
 freedom of combination. 
 
 On these foundations an independent representative con- 
 stitution, at first encouraged by the Crown, was built up in 
 each colony long before the separation from England. When 
 the declaration of independence (1776) broke off the con- 
 nection with the English king and Parliament, the new 
 republics were at once complete. 
 
 The Federal constitution of the Union (1787) was only The Union. 
 the logical application of these provincial institutions on 
 a grand scale to the collective State then formed. 
 
 The new form of State was imitated by the French in 2 . France. 
 the constitutions of 1793 and 1795, and again in 1848 and 
 1870, but without permanent success. The political ideas 
 of 'liberty, equality, fraternity,' were adopted with pas- 
 
474 THE FORMS OF THE STATE. [Book VI. 
 
 sionate devotion by the French ; but their traditions were 
 monarchical, and their customs very slightly republican. 
 They have always been inclined to call in State aid rather 
 than to help themselves, to prefer the glory and power of 
 the State to legality or the unassuming labour of consti- 
 tutional life. The French tendency to centralisation has 
 always been more in favour of monarchy than of a re- 
 public a . 
 
 *, switzer- On the other hand, the representative democracy of 
 America found a soil ready prepared for it in Switzerland, 
 to which it was transplanted by French intervention. 
 
 In Switzerland the greater cantons were aristocratically 
 governed ; some, as Bern, Fribourg, Soleure, and Luzern, 
 by a hereditary class of patricians, others, as Zurich, Basel, 
 and Schaffhausen, by the exclusive corporation of burghers. 
 But communal liberty had been retained as the basis of the 
 cantonal organisation, and the Republic, the political ideal 
 of the people, had a deep root in the popular character and 
 customs. There were no standing troops and no per- 
 manent officials. The independence of Switzerland had 
 been won in a struggle with princes and nobles. It was 
 therefore nothing unnatural when, in harmony with modern 
 theories, civil liberties were extended to all classes and to 
 the whole country, and the aristocratic privileges of the 
 patricians and burghers were abolished. This completed 
 the change from an aristocratic to a representative re- 
 public \ 
 
 The attempt of 1798 to form the whole of Switzerland 
 into a united representative democracy was not permanent. 
 The traditions of independence in the older cantons and 
 the elements of internal opposition were too strong to admit 
 
 a [A Republic has been established in France ever since 1870, and 
 the prospect of a royalist restoration seems now to be almost 
 hopeless.] 
 
 1 Act of Mediation, 1 803, xx. 3 : * II n'y a plus en Suisse ni pays 
 sujets, ni privileges de lieux, de naissance, de personnes ou de families.' 
 See Bluntschli, Schweizerisches Bundesrecht, i. 474. Federal Const, of 
 1848 and 1874, art - 4'- ' I n Switzerland there are no subjects, and no 
 privileges of place, of birth, of family, or of person.' 
 
Chap. XXII.] REPRESENTATIVE DEMOCRACY. 475 
 
 of submission to the Helvetic Republic, which was soon 
 dissolved. But in many cantons, and especially in the 
 towns and the new cantons, representative forms were 
 retained, in spite of the partial reaction in favour of aris- 
 tocratic privileges which followed 1814. The reforming 
 movements after 1830 gave freer expression to the repre- 
 sentative form, and in 1848 it was applied to the Con- 
 federation *. 
 
 Modern democracy is essentially different from the old 4- Differ- 
 Greek form. The Persian Otanes (in Herodotus, III. 82) ancient and 
 enumerates five characteristics of ancient democracy: (i) democracy. 
 the equality of all rights (la-ovo^ia) ; (2) the rejection of 
 arbitrary power like that exercised by the oriental despots ; 
 (3) the appointment to offices by lot ; (4) the responsibility 
 of officials ; (5) common deliberation and decision in the 
 popular assembly. Three of these are admitted in the 
 modern State, in constitutional monarchy as well as in the 
 republics ; but the other two, appointment by lot and the 
 popular assembly, are rejected. 
 
 The ancient democracy admitted all citizens equally to a 
 share in the government; the modern democracy intro- 
 duces an aristocratic distinction in the election of the best 
 men as representatives, and is thus a nobler form of demo- 
 cracy. The right of sovereignty is ascribed to the whole 
 body of citizens, to the people, but the exercise of that 
 right is entrusted to the most eminent men, to the repre- 
 sentatives of the people. 
 
 The citizens still take a direct part in public affairs in the 
 following points : 
 
 (a) In the voting on constitutional laws. In Switzerland 
 the principle has been generally recognised since 1830, that 
 constitutional laws require the consent of a majority of the 
 citizens, not reckoning those who abstain from voting 2 . In 
 
 b [For the Swiss Constitution of 1848, see Laferriere et Batbie, des 
 Constitutions d" Europe et d Amerique (Paris, 1869), pp. 84-102.] 
 
 2 Const, of Zurich, 1831, 93: ' If the proposal (of a constitutional 
 change which has been twice discussed by the Grand Council) is 
 
476 THE FORMS OF THE STATE. [Book VI. 
 
 the United States, on the other hand, the vote is entrusted, 
 not to the whole people, but to a numerous assembly of 
 representatives specially selected for the purpose (Con- 
 vention). 
 
 (b) Sometimes in the voting on other laws. In this case 
 the popular decision takes either the positive form of sanc- 
 tion (referendum] so that the acceptance of the citizens gives 
 validity to a law, or the negative form of a veto which en- 
 ables the citizens to reject a law after it has been carried by 
 the representative chambers. In the latter case the number 
 of those voting against the law must exceed half of the 
 whole body of citizens ; while in the former case a simple 
 majority of those voting is decisive. Both forms are bor- 
 rowed from pure democracy, and as they may easily give 
 rise to agitation among the masses, they involve danger to 
 the interests of civilisation and culture. They were first 
 adopted by some of the separate democracies of Switzer- 
 land, and in 1874 were introduced into the Confederation 3 . 
 
 (c) In the election of members of the legislative body. 
 These elections are usually based upon the mathematical 
 principle of equal electoral districts and the counting of 
 heads, but occasionally upon organic divisions, e. g. the 
 communes. The representation is therefore usually incom- 
 plete, and is determined too much by party tendencies. 
 This defect is by no means inherent in or confined to 
 representative democracy; it is equally manifest in con- 
 stitutional monarchy. 
 
 The so\e- The regular exercise of the supreme power is usually en- 
 
 reignty in 
 
 representa- trusted to large assemblies, which are chosen as the most 
 
 tive demo- r . 
 
 crades. perfect and complete representation of the sovereign people. 
 
 accepted, it must be submitted to the whole body of citizens for their 
 acceptance or rejection.' Federal Const, of 1848 and 1874, art. 6 : ' The 
 Federation undertakes to guarantee the cantonal constitutions, provided 
 that they have been accepted by the people and can be revised if an 
 absolute majority of the citizens demands it.' 
 
 3 Federal Const, of 1874, art - 89: ' Federal laws or decisions binding 
 the whole Confederation, which are not of urgent importance, are to be 
 submitted for the acceptance or rejection of the people, if this is de- 
 manded by 30,000 qualified Swiss citizens or by eight cantons. 5 
 
Chap. XXII.] REPRESENTA TIVE DEMOCRA CY. 477 
 
 In Switzerland during the middle ages, the Grand Coun- 
 cils of the towns, and the Landrdthe of the rural cantons, 
 were only extensions of the real Councils, in which authority 
 was concentrated, by the addition of committees of other 
 members of the canton for important business, and in the 
 towns for legislation as well. In the present day the Grand 
 Councils are separated from the government, raised above 
 it, and exalted to be the authorised holders of the sove- 
 reignty 4 . The federal assembly (Bundesversammlung), 
 which consists of two councils, occupies a similar position 
 with regard to the federal government 5 . 
 
 In North America both the National Congress and the 
 legislative bodies of the separate States are composed of 
 two chambers, and are still more distinctly separated from 
 the government. 
 
 In government 'the people have no longer any direct share, Theadminis- 
 even in those states which have kept pure democracy for power, 
 legislative purposes. Everywhere the work of government 
 is entrusted to authorised representatives who carry it on in 
 the people's name. In some states the choice of the head 
 of the government is made directly by the people. For in- 
 stance, the governors of most of the American states and the 
 town councillors of Geneva are elected by the whole body 
 of citizens 6 . The President of the United States is chosen 
 
 4 Const, of Zurich, 1831, 38 : ' The exercise of the supreme power 
 in accordance with the constitution is entrusted to a Grand Council. It 
 has in its hands the making of laws and the superintendence of the local 
 administration. It represents the canton in its external relations/ 
 Cherbuliez, De la Democratic en Suisse, ii. pp. 35 ff. 
 
 5 Federal Const, of 1848, 60 : ' The supreme power in the Con- 
 federation is to be exercised by the Federal Assembly, which consists of 
 two parts, the National Council (NationalratJi] and the Council of 
 Estates (Standeratti}? Federal Const, of 1874, art. 71 : ' With reserva- 
 tion of the rights of the people and of the cantons, the supreme power 
 in the Confederation is to be exercised by the Federal Assembly.' 
 
 6 So in the French Constitution of 1848, art. 43 : ' Le peuple Frangais 
 delegue le pouvoir executif a un citoyen qui re9oit le titre de President 
 de la Republique/ [Bluntschli apparently meant to refer to art. 46 of 
 the constitution : ' Le President est nomine, au scrutin secret et a la 
 majorite absolue des votants, par le suffrage direct de tous les electeurs 
 des departements Fran9ais et d'Algerie/ Laferriere et Batbie, p. 
 cxxxviii.] 
 
478 THE FORMS OF THE STATE. Book VI. 
 
 by electors, who in their turn have been chosen by the pri- 
 mary electors. In others, on the other hand, the choice is 
 in the hands of the legislative body, which thus represents 
 the people in appointing to the chief offices. The latter 
 system prevails in most of the Swiss republics, where the 
 Grand Council appoints both the government and the chief 
 judges, in France, and in a few of the American states. 
 Under the first system the government is obviously more 
 independent and powerful, especially in relation to the 
 chambers, because it can claim to be equally representative 
 of the people, and to have received still greater proofs of 
 the public confidence. Under the latter the government is 
 more dependent on the legislature to which it owes its 
 existence \ and therefore there is less possibility of making 
 each power limit and restrain the other c . 
 
 jurisdiction. Jurisdiction is also exercised in the name of the people, 
 but the judges, who require special qualities and training, 
 are usually nominated either by the government, as in the 
 United States and republican France, or by the legislature, 
 as in Switzerland. But a direct share in jurisdiction is 
 given to the people by the jury system, as the jurors are 
 selected by lot from among the whole body of citizens. 
 
 Local admi- In every representative democracy the communal con- 
 stitution is of especial importance, and forms the solid 
 foundation of the whole organisation. In the communes 
 the burghers are trained in public affairs, in self-government, 
 and civil freedom. In them, at least in the smaller and 
 rural communes, it is still possible for all the citizens to 
 meet in the communal assembly, though in the towns this 
 is also formed by representation. The republics of Switzer- 
 land and North America can both trace their foundation 
 
 c [The important difference between these two ways of electing the 
 head of the executive government is well illustrated in the French Con- 
 stitution of 1848. M. Grevy proposed that the President should be 
 elected by the National Assembly, but it was decided that he should 
 be chosen by universal suffrage. The result was to create two equal 
 powers, the President and the Assembly, without any means of settling 
 a dispute between them. This state of things enabled Napoleon III to 
 establish the Second Empire.] 
 
Chap. XXII.] REPRESENTATIVE DEMOCRACY. 479 
 
 historically to a free communal constitution ; and if this is 
 not true of France, it only furnishes another proof that 
 the French have no natural tendency to a republican 
 government. 
 
 Leaving on one side the very slight direct share of the 
 people in their own sovereignty, we see that in representa- 
 tive democracy the rule is that the people governs through its 
 officials, while it legislates and controls the administration 
 through its representatives. On this point the modern con- 
 stitution shows a marked resemblance to those states which 
 draw a distinction between the rulers and the ruled. 
 
CHAPTER XXIII. 
 
 IV. CONSIDERATION OF REPRESENTATIVE DEMOCRACY. 
 
 MONTESQUIEU declared the principle of democracy to be 
 virtue. But virtue, as a political principle, presupposes, not 
 the equality of all, but a respect for the moral worth of the 
 rulers, which is not to be found in pure democracy. All 
 that we can say is that a certain measure of virtue in the 
 mass of the people is an indispensable practical necessity 
 for a good democracy, and that the want of it must involve 
 speedy ruin. It may rather be maintained that virtue has 
 been made the political principle of representative demo- 
 cracy, which is not only a more moderate but also a nobler 
 form of democracy, because in the system of election it 
 borrows some of the advantages of aristocracy. 
 Difficulty of Its principle is that the best men of the nation govern in 
 bes^re^-e- * the name and by the commission of the nation. But the 
 ves ' great difficulty lies in organising the elections so as to 
 secure that the best men both in intellect and character 
 shall be chosen. 
 
 The democratic tendencies of the present day are in 
 favour of regulating elections simply by the number of 
 electors. Democracy, placing, as it does, great value upon 
 equality, readily adopts mathematical rules for its institu- 
 tions ; it counts the citizens, and assigns equal rights to an 
 equal number. 
 
 Danger of But this system is better suited to direct democracy, 
 quantity 2 which extends the exercise of power to all citizens alike, 
 quality. tnan to representative democracy, which distinguishes citi- 
 zens according to their worth, and only entrusts the ad- 
 
REPRESENTATIVE DEMOCRACY. 481 
 
 ministration of public affairs to the better among them. 
 Thus the latter form regards the quality of the elected, and 
 it is unnatural that it should regulate the electoral divisions 
 simply by quantity. Moreover the defects of the system 
 are far more harmful in the representative state. The 
 popular assembly of a direct democracy is not merely a 
 mass of individuals with equal rights ; it is readily in- 
 fluenced by the magistrates, by the great orators, and the 
 most respected citizens ; the decision of the majority will 
 probably correspond to the true character of the whole 
 nation. But in a representative democracy the nation is 
 not thus united ; on the contrary, it is divided into a 
 number of scattered units, which may be equal in number, 
 but which in regard to quality stand in a wholly different 
 relation to the whole, and are therefore very unequal parts 
 of the nation. Is it possible to maintain that the rural dis- 
 tricts of Brittany or the manufacturing districts of Lyons at 
 all resemble the electoral divisions of Paris, where one finds 
 mixed together without real union the wealthiest and most 
 educated members of the community, the numerous grades 
 of simple burghers and artisans, and a low rabble such as 
 cannot be paralleled elsewhere in France ? This difference 
 in the electoral districts demands logically that a different 
 value shall be placed upon their votes. True representation 
 can only be secured by arranging the elections so that every 
 element and every interest in the nation shall be represented in 
 proportion to its relation to the whole. Number has a cer- 
 tain value, but it is not sufficient by itself. Other qualities, 
 such as property, education, occupation, and mode of life, 
 must also be regarded ; and it is best to do this in con- 
 nexion with organic parts of the nation rather than with 
 merely arbitrary subdivisions. 
 
 We may thus lay down two fundamental principles for Practical 
 representative democracy. 
 
 (i) Whenever the whole body of citizens act together, or 
 when a vote is given by the whole nation, it is enough to 
 reckon merely the number of votes, as in a direct democracy. 
 
 i i 
 
482 THE FORMS OF THE STATE. [Book VI. 
 
 (2) On the other hand, the mere counting of votes is 
 insufficient when parts of the nation are electing repre- 
 sentatives for the whole. The parts must be arranged 
 according to quality, so as to guarantee the election of 
 the best men, and to give due proportion to the intel- 
 lectual, moral, and material elements of the nation. 
 Advantages The peculiarity of representative democracy is that it 
 van\age ad of ascribes the right of sovereignty to the majority, but 
 tiTede- ta ~ entrusts its exercise to the minority. To secure that the 
 mocracy. minority shall rule according to the wishes of the majority, 
 the latter reserves to itself the choice of those who are to 
 act in its name, and new elections are held at short 
 intervals of time. 
 
 This constitution recognises that the majority has neither 
 the leisure nor the ability actually to exercise the self- 
 government which it claims as its natural right. But it 
 credits the majority with sufficient intelligence and interest 
 in the State to take part in the elections, and to find the 
 ablest men for its representatives. 
 
 It demands less from the citizens than direct democracy, 
 but more from the representatives. It relies upon the self- 
 confidence of free and equal citizens, but at the same time 
 it trusts that they will be modest enough to elect their best 
 men, and to submit willingly to the rule of their representa- 
 tives as long as these retain the confidence of the majority. 
 weakness of The frequent elections make the rulers dependent upon 
 the ruled, and yet the latter have to obey during the in- 
 terval. The freedom of the subjects is more securely 
 founded than the authority of the government. The chief 
 magistrates are regarded rather as the servants than as the 
 heads of the republic. Although, according to Guizot, a 
 state can only be ruled from above and not from below, 
 representative democracy tries to maintain as much as 
 possible the appearance of being ruled from below. Thus 
 the government comes to resemble a mere administration , 
 and the State is like a commune on a grand scale or a great 
 economic institution ( Wirthschaft}. 
 
Chap. XXIII.] REPRESENTATIVE DEMOCRACY. 483 
 
 The weakness of authority shows itself least in the legis- 
 lative bodies; in fact there is a danger that the represen- 
 tatives may identify themselves altogether with the nation 
 and may be carried away by the illusions of omnipotence. 
 The government, on the other hand, has great difficulty 
 in making its authority really strong and vigorous. The 
 frequency of elections makes its position insecure and 
 dependent upon the changeable opinions of the people. It 
 is only powerful as long as it is supported by the majority, 
 and it can only carry out extensive and far-reaching plans, 
 when these are in accordance with the instincts or tra- 
 ditions of the nation, and thus contain a security for their 
 permanence. 
 
 The organs of government have an unassuming and civic Want of 
 appearance. There is none of the pomp and majesty with ?pSentra- 
 which monarchy and aristocracy are surrounded ; the soil is tl( 
 too natural for the artificial forms of court diplomacy ; de- 
 mocracy prefers to be represented by simple charges d'affaires 
 or consuls. A great standing army would be a constant 
 menace to its security and its freedom, and it has to main- 
 tain a large militia and Landwehr. The concentration of 
 all forces is less developed than the independent decision 
 and free movement of every part. 
 
 The institutions for the public service are usually good, Excellence 
 and sometimes excellent. In a democracy one expects to Institutions. 
 find numerous establishments for useful and charitable 
 purposes, good roads and means of communication, numer- 
 ous national schools, cheerful festivals, etc., and moreover 
 one is less plagued with bureaucracy and red-tape. 
 
 On the other hand, there is more difficulty than in other Neglect of 
 constitutions to induce the State to attend to the loftier cu 
 interests of art and science. A democratic nation must 
 have reached a very high stage of civilisation when it seeks 
 to satisfy needs of which the ordinary intelligence cannot 
 appreciate the value or the importance to the national 
 welfare. 
 
 The manly consciousness of freedom, which creates and Elevation 
 I i 2 
 
484 THE FORMS OF THE STATE. 
 
 of public finds expression in the constitution, elevates the middle 
 classes who form its chief support; while the direct or 
 indirect contact with public affairs developes the intelli- 
 gence and strengthens the character of the citizens. There 
 is a wide foundation and free play for patriotism, and in 
 times of crisis the citizens are willing to make great sacri- 
 fices for their country. To aristocratic dispositions the 
 constitution offers less opportunity for development, and 
 the people often display mistrust or hostility towards them. 
 But even they can earn respect, if they will refrain from 
 wounding the feeling of equality by haughty pretensions, 
 and if they enter into rivalry with the best of the democrats 
 in zeal and devotion for the public good. 
 
 Note. Robert v. Mohl {Encydopadie, p. 346) has contested the 
 assertion made above, that in a representative democracy the principle 
 of number ought not to be absolutely decisive. He says : ' However 
 true it may be in general that the right of taking part in an election 
 ought not to be regarded as a personal right of the individual, but 
 rather as a delegated function or office, yet this does not apply to 
 the exercise of the sovereignty of the people by representation. The 
 sovereignty of the people is based upon the innate right of the indi- 
 vidual to a share in the government.' I allow that this is the view of 
 the modern democratic theory, especially as it was formulated by 
 Rousseau. But the result is that it has never emerged from the con- 
 fusion of personal with public rights, and its so-called social state is 
 only the patrimonial state reversed. The error is obvious to every one 
 who has grasped the distinction between the unity of the nation and the 
 aggregate of the citizens. An elector derives his right to vote, not 
 from nature, but from the State. Every system of election is an insti- 
 tution of the State for public ends. [On the subject of this chapter, see 
 Mill, Representative Government^ 
 
CHAPTER XXIV. 
 
 COMPOSITE FORMS OF STATE. 
 
 HITHERTO we have considered only simple States. But Various 
 States are also composite^ when they consist of parts which composite 
 are also States or are organised like States. In them the States - 
 differences between the simple forms are repeated, and so 
 far there is nothing specially notable about them. For 
 example, both the collective and the separate States, or the 
 chief State and its dependencies, may be organised as 
 monarchies or as representative democracies. 
 
 But it may happen that the collective and the separate 
 States have different constitutions. The German Con- 
 federation of 1815 remained an oligarchy of sovereign 
 princes, without popular representation, while constitutional 
 monarchy was gradually introduced in the individual States 
 composing it. Some of the Swiss Cantons are still direct 
 democracies, whereas the Federation is a representative 
 democracy. England possesses a constitutional monarchy, 
 but the English dependencies in Asia are absolutely ruled, 
 and some of the colonies elsewhere are half-sovereign 
 republics under British suzerainty and protection. 
 
 Where there are great differences in nationality, civili- 
 zation, and historical conditions, a difference of constitution 
 is natural and justifiable; but where these conditions are 
 the same, as in the German Confederation, such a differ- 
 ence is contrary both to nature and harmony. 
 
486 THE FORMS OF THE STATE. [Book VI. 
 
 In all composite States we meet with a new distinction 
 (Gegensatz\ viz. that between the power of the collective or 
 chief State, and the independence of the separate States or 
 dependencies. 
 
 With regard to this point we may make the following 
 subdivisions : 
 
 i. Theabso- i. A chief State ruling absolutely over subject depen- 
 dencies. To this class belong many possessions of the 
 
 one state 
 
 over others. urO p ean powers, especially in Asia and Africa. The chief 
 State alone has a free organisation, the dependencies are 
 unfree and subject to foreign rule. The opposition between 
 the States is very marked, and all the energy of the ruling 
 State is needed to avoid a conflict 1 . 
 
 2. Thesuze- 2. The suzerainty of one State over vassal States, or the 
 protectorate protectorate of a strong State over less powerful dependen- 
 over n others! cies. Here a certain amount of independence is possible 
 
 for the vassal or protected States. The Holy Roman 
 Empire is a mediaeval, and the Turkish Empire a modern 
 example of a body politic composed of vassal States. In 
 modern times the protectorate is preferred to suzerainty, 
 although the former has no meaning except when there is 
 a great disproportion of power, and can never commend 
 itself to a free nation. Examples of it may be seen in 
 Napoleon's protectorate over the Confederation of the 
 Rhine, in that of England over the Ionian Islands % and 
 that of the European powers over Moldavia and Wallachia*. 
 
 3 . The rule 3. Closely related with the above, but modified and 
 mother. ennobled by filial loyalty, are the relations between the 
 
 country over ., , . , 1-1 i 
 
 colonies. mother-country and its colonies, which are not yet inde- 
 pendent, but have almost developed into complete States. 
 
 1 See Mill, Representative Government, ch. 17. 
 
 a [This protectorate was voluntarily abandoned by England in 1863 
 on the accession of Prince George of Denmark to the throne of Greece 
 as George I.] 
 
 b [This protectorate was established in 1856 by the Treaty of Paris. 
 In 1858 the six powers concluded a Convention with the Porte to settle 
 the government of the two provinces. In the next year the provinces 
 effected their own union by electing the same prince, and have since 
 become the state of Roumania.] 
 
Chap. XXIV.] COMPOSITE FORMS OF STATE. 487 
 
 Even after the internal administration of the colony has 
 become substantially independent, it continues to need the 
 protection of the mother-country in its external relations, 
 and is therefore willing to acknowledge a relative superi- 
 ority. The first example of this was seen in the relations 
 of Canada with England. 
 
 4. In a Confederation (Statenbunf) or Personal Union : 
 
 the connected States have usually their full dignity and inde- Personal 
 pendence, although these may be restricted in exceptional 
 cases when common interests require it. The separate 
 States have a complete organisation, but the combination is 
 undeveloped and has no personality of its own except in 
 special, and mostly external, relations. It is rather a con- 
 glomeration of States than a real State, as it wants the 
 necessary organs for legislation, government, and jurisdic- 
 tion. It stands halfway between a permanent international 
 alliance and a constituted State, and is therefore an incom- 
 plete and transitional form. 
 
 In this form there may be a common people, but there is 
 no real united nation, and the collective life and power are 
 developed with great difficulty. This last defect is less con- 
 spicuous in a Personal Union, which at least possesses a 
 single head in the common monarch, than in a Confedera- 
 tion, which has no united organ whatever. Both forms are 
 completely unfitted for action. The German Confeder- 
 ation of 1815 is the best example of such a system in 
 modern times, and the most eloquent witness to its 
 defects. 
 
 5. A Federation (Bundesstat), Federal Empire (Bundes- s- Fede- 
 retch) and Real Union 3 , have this in common, that both the Federal 
 collective (Gesammtstat) and the particular States (Einzel- a nd P Reai 
 staten) have a complete organisation. In a Federation the Umon - 
 particular States are more independent, because each has a 
 government exclusively belonging to itself; whereas, in a 
 
 Real Union, the head of the collective State is also a 
 
 2 See above, Book IV. ch. iii. p. 271. 
 
 3 See above, Book IV. ch. iii. p. 272. 
 
488 THE FORMS OF THE STATE. [Book VI. 
 
 territorial prince in his own territories (Kronlander), and 
 these are therefore less sovereign c . 
 
 In a Federation and a Federal Empire there is an 
 organised nation, and at the same time the peoples of the 
 particular States also possess organic unity. Thus we speak 
 of Americans, and also of Pennsylvanians and Virginians ; 
 of a Swiss nation, and of Bernese and Genevese ; of Germans, 
 and of Prussians, Saxons, Bavarians, etc. The collective 
 State is as free in its movements and as well provided with 
 organs as the simple State. But the separate States are 
 not at all vassals : within their sphere they are as indepen- 
 dent as simple States 4 . 
 Necessary The co-existence of two kinds of States on the same 
 
 conditions of . , , x ..... 
 
 composite territory is rendered possible by (i) a precise distinction 
 between the powers of each, and by making provision for 
 the peaceable settlement of disputes ; and (2) by keeping 
 the governments and the representative bodies as separate 
 and as independent as possible. This separation of persons 
 and functions is most complete in the United States ; the 
 distinction of powers is very carefully regulated in the Swiss 
 constitution 5 . In the German Empire the organs of the 
 
 c [Bluntschli seems here to confuse independence in relation to the 
 head of the collective State, with independence in relation to the 
 collective State itself.] 
 
 4 G. Waitz, Grundziige der Politik, p. 44 : ' Both powers, that of the 
 Confederation and that of the separate States, must be independent 
 (sovereign) in their own sphere : neither must receive delegated power 
 from the other.' Since 1871 numerous publications have appeared 
 about the nature of Federations in general, and especially about the 
 legal constitution of the German Empire, but as yet no satisfactory 
 solution of the difficult problem has been offered. The view in the 
 text, which was originated by De Tocqueville and developed by Waitz, 
 is opposed to the essence of sovereignty as the highest power in the 
 State and therefore indivisible both in respect of sphere and objects. 
 See Seydel, Zeitschrift fur Statswissenschaft, xxviii. 185 ff. Laband, 
 Statsrecht, i. 70 (also in Marquardsen, Handbuch des b'ffentlichen Rechts, 
 Part II, p. 15 ff.). Jellinek, Lehre von den Statenverbindungen, pp. 
 i6ff. and 2530. 
 
 * See Riittimann (Das nordamerikanische Bundesstaatsrecht ver- 
 ghchen m. den fiolitischen Einrichtungen der Schweiz, 2 Thl., Zurich) 
 on the means which the Swiss Federation has at its disposal to enforce 
 the federal laws. 
 
Chap. XXIV.] COMPOSITE FORMS OF STATE. 489 
 
 Federal Government are closely connected with those of the 
 separate States, although the Prussian king, as Emperor, 
 assumes the position of a single head of the Federation, and 
 although the Diet is completely distinct from the Chambers 
 of the separate States. The respective powers of the 
 Federation and its members are not at all clearly dis- 
 tinguished, in fact they have been purposely left indeter- 
 minate. But there is ample security for the independence 
 of the separate governments, and for the prevention or 
 speedy settlement of disputes, in the regulations, that an 
 imperial law always overrides a provincial law, and that the 
 consent of the Federal Council is necessary for every imperial 
 law. 
 
 It is usual to consider that the collective State busies 
 itself with external affairs as a rule, and with a few internal 
 matters of common importance as an exception ; while the 
 independence of the separate States applies to internal 
 administration, and only very exceptionally to external 
 relations. 
 
BOOK VII. 
 
 SOVEREIGNTY AND ITS ORGANS. 
 PUBLIC SERVICE AND PUBLIC OFFICES. 
 
CHAPTER I. 
 
 THE CONCEPTION OF SOVEREIGNTY. 
 
 THE State is the embodiment and personification of the 
 national power. This power, considered in its highest 
 dignity and greatest force, is called Sovereignty. 
 
 The name Sovereignty arose first in France, and the con- The term 
 ception was first developed by French science. Bodin made reignty.' 
 it a fundamental conception of Public Law. Since then the 
 word and the notion have exercised great influence on the 
 development of modern constitutions and on the whole 
 politics of modern times. 
 
 In the middle ages the expression Sovereignty (suprema 
 potestas, supremitas] was used in a still wider sense. Every 
 authority which gave a final decision, so that there was no 
 appeal to a higher authority, was called sovereign. The 
 highest courts of justice were called cours souveraines. Thus 
 a State contained a great number of sovereign offices and 
 corporations. Gradually, however, the name ceased to be 
 given to mere branches of administration, and came to be 
 limited to the one highest ruling power in the State, and the 
 conception was applied only to the concentrated power of 
 the State. 
 
 From the sixteenth century the notion was entirely domi- Conception 
 nated by the centralising tendencies of French politics and reignty in 
 the efforts of the French kings to obtain absolute power, sovereignty 
 
494 SOVEREIGNTY AND ITS ORGANS. [Book VII. 
 
 as absolute Bodin declared sovereignty to be the absolute and perpetual 
 power of a State (puissance absolue et perpetuelle (Tune 
 re'publique} : and this sense prevailed. Louis XIV and the 
 Jacobins of the Convention of 1793 alike regarded them- 
 selves as omnipotent 1 . Both were wrong. Modern re- 
 presentative government knows nothing of absolute power, 
 and there is no such thing upon earth as absolute inde- 
 pendence. Neither political freedom, nor the right of the 
 other organs and elements of the State, are compatible with 
 such unlimited sovereignty, and wherever men have 
 attempted to exercise it, their presumption has been con- 
 demned by history. Even the State as a whole is not 
 almighty, for it is limited externally by the rights of other 
 States, and internally by its own nature and by the rights of 
 its individual members 2 . 
 
 German The German language has no completely equivalent 
 
 sovereignty expression. The word Obergewalt (superior power), or, as 
 the old Swiss expression ran, * die hochste und grosste 
 Geivalt* '(the highest and greatest power), signifies authority 
 only on its inner side, and not independence externally. 
 The word Statshoheit signifies the dignity (majestas) rather 
 than the power of the State. Statsgewalt implies power 
 rather than dignity. We are therefore compelled, in order 
 to express what is implied in Sovereignty, to use both words, 
 Statshoheit und Statsgewalt. At the same time the German 
 expressions have this advantage that they are less liable 
 than the French to be misunderstood as if they implied 
 absolute power. 
 
 1 Thiers, Hist, de la Revol. franf. ii. p. 200, says that in the opinion 
 of the Jacobins, * The nation can never renounce the power of doing 
 and willing at all times that which it pleases : this power constitutes its 
 omnipotence (sa toute-puissance], and this is inalienable. Thus the 
 nation could not bind itself to Louis XIV.' The Abbe Sieyes recognised 
 the error in this theory. Cp. Bluntschli, Gesch. d. Statsw. p. 326. 
 
 2 Hanoverian Declaration of 1814, in Hormayr, Lebensbilder, i. 
 p. in : ' The rights of sovereignty do not imply any idea of despotism. 
 The King of Great Britain is undeniably just as much sovereign as any 
 prince in Europe, and the liberties of his people establish his throne, 
 instead of overthrowing it.' 
 
 3 Blumer, Rechtsgesch. der Schweizer Demokratien, ii. 140, 141. 
 
Chap. I.] THE CONCEPTION OF SOVEREIGNTY. 495 
 
 Sovereignty implies : Charactem- 
 
 1. Independence of the authority of any other State. Yet Sovereignty. 
 this independence must be understood as only relative. 
 International law, which binds all States together, no more 
 contradicts the Sovereignty of States than constitutional 
 
 law, which limits the exercise of public authority within. 
 Even the separate States (Lander staten) in a composite 
 State may be regarded as sovereign, although dependent in 
 essential matters, e. g. foreign policy and control of the army. 
 
 2. Supreme public dignity what the Romans called 
 majestas. 
 
 3. Plenitude of public power, as opposed to mere par- 
 ticular powers. Sovereignty is not a sum of particular 
 isolated rights, but is a general or common right : ' it is a 
 ' central conception,' and is as important in Public as that 
 of property is in Private Law. 
 
 4. Further, it is the highest in the State. Thus there can 
 be no political power above it. The French Seigneurs of 
 the middle ages ceased to be sovereign when they were 
 compelled to submit in all essential matters to the king as 
 their feudal lord. The German Electors were able to 
 maintain sovereignty in their own dominions from the four- 
 teenth century *, because they exercised supreme authority 
 in them as their proper right 4 . 
 
 5. Unity, a necessary condition in every organism 5 . The 
 division of sovereignty paralyses and dissolves a State, and is 
 therefore incompatible with its healthy existence. 
 
 [The superior authority of the Electors, as compared with that of 
 the other German princes, was based upon the Golden Bull, issued by 
 Charles IV in 1356.] 
 
 4 The draft of the Treaty of Westphalia (1648) in saying 'que tous 
 les princes et Estats seront maintenus dans tous les autres droits de 
 souverainetl, qui leur appartiennent,' used an expression which was new 
 to Germany, souverainete instead of Landtshokeit y evidently with the 
 intention of relaxing the bonds of the Empire. But as a matter of fact 
 most of the German princes were already almost ' sovereign.' 
 
 5 Imman. Herrm. Fichte, Beitrdge zur Statslehre, 1848, goes too far 
 in declaring that sovereignty is only the 'unity of the government' 
 (Einheit der Regierung}. Complete power and majesty form the 
 essence of sovereignty. 
 
496 SOVEREIGNTY AND ITS ORGANS. 
 
 Notes. I. Rousseau, whose theories were translated into fact by the 
 French Revolution, based Sovereignty on the ( general will' (la volonte 
 generate}, and thus made the mistake of substituting suprema vohmtas 
 for suprema potestas. He then argued that since 'power may be trans- 
 ferred but not will' (Contr. Soc. ii. i), Sovereignty is inalienable a 
 conclusion belied by history. He understands Law [Bluntschli says 
 das Kecht, but Rousseau, ii. 6, says la toi, holding that 'dans 1'etat civil 
 tons les droits sont fixes par la loi '] as the product and not as the 
 limitation of arbitrary will. In 'Will' he forgets 'Ought'; and this 
 original error is the source of many others. The Will is a manifestation 
 and expression of the human spirit ; but not like Sovereignty a legal 
 institution in the State (eine Rechtsinstitution des States]. Will may 
 animate the exercise of Law and effect changes in it, but is not of itself 
 Law (istfiir sich kein Reckf]. The Will of the Sovereign presupposes 
 Sovereignty, not vice versd. 
 
 2. It is illogical to consider Sovereignty as the source of the State 
 and of Law, and to put the Sovereign above the State. The power and 
 majesty of the State presuppose the States. Thus Sovereignty is a con 1 
 ception of Public Law, and not superior to it (ilberstatsrechtlicK]. 
 
 3. Const. Franz (Vorschule d. St. p. 32) declares that after power 
 1 the self-consciousness of the State ' is the chief attribute of Sovereignty. 
 But Consciousness, though necessary for the exercise of a Right and for 
 the administration of Law, is not an attribute of Right or Law itself. 
 
CHAPTER II. 
 
 SOVEREIGNTY OF THE PEOPLE OR OF THE STATE, 
 AND SOVEREIGNTY OF THE RULER. 
 
 To whom belongs Sovereignty ? Political parties are in- 
 clined to answer this question in different ways. Even the 
 scientific student has many difficulties and prejudices to 
 remove. 
 
 An opinion, widely diffused since Rousseau and the French i. Sove- 
 Revolution, assigns sovereignty to the people. Yes ; but tSeopie as 
 who are the people ? According to some, simply the sum Individuals. 
 of individuals united into the State : that is to say, the J^rchy. 
 State is resolved into its atoms, and supreme power is 
 ascribed to the unorganised mass, or to the majority of these 
 individuals. This extreme radical opinion contradicts the 
 very existence of the State, which is the basis of sovereignty. 
 It is not compatible with any constitution, not even with the 
 absolute democracy which k professes to found, for even 
 there it is the ordered national assembly (Lands gemeinde\ 
 not the crowd of atoms, which exercises the authority of the 
 State. 
 
 Others understand the equal citizens collectively voting 2. Sovc- 
 in one or more assemblies, i. e. they think of the sovereignty t^pe^pie 
 of the demos in Democracy. The principle of the sovereignty ns7n C their 
 of the people thus understood, and limited to this form xhfs^niy 5 " 
 of government, has a meaning and a truth : it is exactly the f^j?de^ n 
 same as Democracy. But in representative Democracy the m <x*acy 
 principle cannot be exactly applied, because, as a rule, 
 supreme power is exercised, not directly by the citizens, but 
 
 Kk 
 
498 SOVEREIGNTY AND ITS ORGANS. [Book VII. 
 
 indirectly by their representatives. It is quite incompatible 
 with all other forms of government ; for it would imply that 
 the head of the State is on a level with the humblest citizen, 
 and it would subject the rulers, as a minority, to the majority 
 of subjects. This is to turn the body politic upside down, 
 and to put the feet in the place of the head. 
 3 . Yet these Sometimes the two preceding opinions pass into one 
 
 views have . , . 1111 
 
 been put another. The first is anarchical, the second absolutely 
 Universally democratical ; and yet their defenders commonly maintain 
 that they are universally valid. But this is just what is 
 dangerous in these theories : they imply and demand the over- 
 throw of all other constitutions except direct democracy. 
 
 Parties completely opposed 1 have maintained these 
 opinions, but they have always been parties which were dis- 
 contented with the existing constitution or government, 
 and were seeking to overthrow it. In the hands of the 
 French Revolution the sovereignty of the people became a 
 
 1 We allude here to the theory of the General of the Jesuits, Lainez, 
 and to the Jesuits Bellarmin and Mariana, who took ' the sovereignty 
 of the people' under their protection, in order to maintain the supremacy 
 of the Church over the State and of the Pope over Kings ; Kings de- 
 riving their authority from the people, the Pope alone from God. Cp. 
 Ranke, Hist, polit. Zeitschrift, ii. p. 606 ff. (On the rise of the doctrine 
 of the sovereignty of the people and its development in the sixteenth 
 and seventeenth centuries, by the Jesuits on the one hand, and the 
 philosophic Jurists on the other, see the works of Gierke, Johannes 
 Althusius u. die Entwicklung der naturrechtlichen Statstheorien (1880), 
 p. 123 ff . : Genossenschaftsrecht, iii. 568 ff.). But the influence of 
 Rousseau was of far more importance in spreading this doctrine. Ac- 
 cording to him, the sovereign is the multitude of individuals united by 
 the social contract : each is at the same time member of the sovereign 
 and subject to the sovereign. Sovereignty is nothing but the general 
 will, and that is inalienable. Consequently majorities can, if they 
 choose, refuse obedience to the authorities, overthrow them, and change 
 the constitution. In doing so they -only .exercise an act of sovereignty 
 (acte de souverainetl}, and before their will the derived authority of the 
 representative body itself disappears. Finally, according to Rousseau, 
 there can be no fundamental law for the body of the people : all laws 
 are only manifestations of their will, and cease to have force when their 
 will changes. [This analysis of Rousseau appears to be based chiefly 
 on Contr. Soc. i. 7 ; ii. i; iii. 10, 15-18.] (Cp. on Rousseau's theory 
 Gierke, Joh. Althusius, p. 201 ff.) [On the Jesuit theories of < the 
 sovereignty of the people ' cp. also Janet, Hist, de la Science folitiquc, 
 Liv. iii. ch. 4.] 
 
Chap. II.] SOVEREIGNTY OF THE PEOPLE. 499 
 
 J-f^ 
 terrible weapon of destruction. The National Assembly, 
 
 in their declaration of war (April 20, 1792), officially pro- 
 claimed Rousseau's theory : * Without doubt the French 
 nation has distinctly proclaimed that sovereignty belongs 
 only to the people, who, limited in the exercise of their 
 supreme will by the rights of posterity, cannot delegate a 
 power which is irrevocable ; it has recognised that no custom, 
 no convention can submit a society of men to an authority 
 which they have not the right to resume. Every nation has 
 alone the power of making its laws, and the inalienable right 
 of changing them. This right belongs to none, or it belongs 
 to all a .' After the destruction of the monarchy, the Con- 
 vention revealed the further consequences of this principle. 
 
 But even in our own days we have heard this same prin- 
 ciple proclaimed again at the Hotel de Ville of Paris. By a 
 similar sovereign act of the revolted Parisians in Feb. 1848, 
 constitutional monarchy was abolished, a Republic pro- 
 claimed, and the dictatorship given to a provisional govern- 
 ment. An official proclamation of Lamartine's contains 
 these words : 4 Every Frenchman who has attained the age 
 of manhood is a citizen, every citizen is an elector, every 
 elector is sovereign. The right is equal and absolute for all. 
 No citizen can say to another, " I am more sovereign than 
 thou." Consider your power, prepare to exercise it, and be 
 worthy of entering on the possession of your sovereignty 2 .' 
 
 Some French statesmen, with good intentions but without 4. The Sove- 
 much success, have attempted to oppose to this destructive Reason or 
 conception of sovereignty of the people the idea of a sove- 
 reignty of ' reason ' or of ' justice V They attempt in this 
 
 [Thiers, Rev. Fr. ii. note 10. This ref. is given by the Fr. transl. 
 
 2 Lamartine, Histoire de la revolution de 1848, ii. p. 449. 
 
 3 E.g. Royer-Collard, in his speech of May 27, 1820: ' There are 
 two elements in society, the one material, i. e. the individual with his 
 force and will ' but are these material ? and is not this the old error of 
 deriving Public Law from the individual will ? ' the other moral, i. e. 
 Law, which results from legitimate interests. Do you choose to derive 
 society from the material element ? The majority of individuals, the 
 majority of wills, is then the sovereign. This is the sovereignty of the 
 people. If this blind and violent sovereignty, voluntarily or involun- 
 
 K k 2 
 
500 SOVEREIGNTY AND ITS ORGANS. [Bookvil. 
 
 way to restrain the bad uses which the people might make 
 of its sovereignty. But they forget that right can only be- 
 long to a person, and that political supremacy can only be 
 ascribed to a political personality, and must be exercised by 
 them in accordance with the principles of reason and justice. 
 The error which recognises the only fundamental form of 
 State in absolute democracy is here opposed by the error of 
 ideocracy. The intention is to guide the majority by the 
 rule of ideas, but personality is always stronger than fiction. 
 
 5. of the According to another opinion, the sovereign is the people 
 unity. (German, Nation), thought of as a unity, but not yet suffici- 
 ently organised, though capable of organisation : the people, 
 with their language, feelings, social distinctions, is supposed 
 to have the right of changing the State as they will. 
 
 We have already recognised (Bk. II. ch. ii.) in the people 
 (Nation) the material for a nation ( VolK), and we must there- 
 fore admit that it is the natural condition of the formation 
 of sovereignty, but it is only the possibility, and not the 
 realisation. The sovereignty of the people in this sense 
 ( Volkssouveranitat, or, according to the more proper German 
 use, Nationalsouverdnitdf) is something undeveloped, imma- 
 ture and antecedent to the State. 
 
 6. Sove- We can and we must understand the nation or people 
 the Nation ( Volft) in a political sense as the organised totality with head 
 
 or the State. , . .... . . . . _, 
 
 and members, the living personality of the State. 
 
 So far as the State appears as a person, so far it has inde- 
 pendence, honour, power, supreme authority, unity ; in one 
 word, sovereignty. The State as a person is sovereign, and 
 therefore we speak of sovereignty of the State (Statssouverani- 
 tdt\ This is not something before, nor outside, nor above 
 
 tarily, transfers itself to the hands of one or of more without changing 
 its character, it becomes a wiser or more moderate force, but it still 
 remains force. This is the source of absolute power and of privilege. 
 Do you prefer, on the other hand, to derive society from the moral 
 element, i. e. from Right (le droif}1 Justice is then sovereign, because 
 justice is the rule of right. The purpose of free constitutions is to 
 dethrone force and to make justice reign.' [Aristotle speaks of the 
 ' sovereignty of law ' (TOVS v6povs e?*/at rcvpiovs fceifj-tvovs opOus, Pol. iii. 
 n. 19. 1282 b, 2).] 
 
Chap. II.] SOVEREIGNTY OF THE PEOPLE. 501 
 
 the State ; it is the power and majesty of the State itself. It 
 is the right of the whole, and as certainly as the whole is 
 stronger than any of its parts, so certainly the sovereignty of 
 the whole State is superior to the sovereignty of any member 
 of the State. 
 
 If party disputes had not introduced confusion, this 
 sovereignty of the State might conveniently be called 
 sovereignty of the people, if we understand by ' people ' not 
 a mere multitude of separate individuals, but the politically 
 organised whole, in which the head occupies the highest 
 position, and every member has its suitable place. In this 
 sense French publicists have spoken of la souverainete de la 
 nation 4 , in accordance with the usage of the French language, 
 which, as we have explained, is the opposite of the German 
 (Bk. II. ch. ii). To avoid misunderstandings, however, we 
 have preferred the unambiguous expression, ' Sovereignty of 
 the State.' 
 
 This sovereignty of the State may be looked at from with- 
 out and from within : from without, as the independence of 
 a particular State in relation to others, so far also in relation 
 to the Church : from within, as the legislative power of the 
 body politic. 
 
 In this sense sovereignty is ascribed in England to the 
 Parliament, at whose head stands the King *, and which re- 
 
 * Stiive, Sendschreiben of 1848 : ' No one will deny the sovereignty 
 of the people, i. e. the nation, if by nation is understood the whole 
 nation in its constitutional form, including both prince and people. . If 
 a part of the whole claims sovereignty, and says " I am the State," it 
 matters little whether that part is king, parliament or multitude; the 
 principle is false, and a false principle has always dangerous conse- 
 quences.' Sismondi (tudes, i. p. 88) makes an equally sharp dis- 
 tinction between ' souverainete du peuple,' which he rejects, and 
 ' souverainete de la nation,' which he admits. 
 
 ' & [In treating the king as a part of parliament Bluntschli has the 
 support of English constitutional lawyers. Cp. Blackstone, Commen- 
 taries, Book II, ch. ii. : ' The constituent parts of a parliament are . . . 
 the king's majesty, sitting there in his royal political capacity, and the 
 three estates of the realm ; the lords spiritual, the lords temporal, who 
 sit together with the king in one house, and the commons, who sit by 
 themselves in another;' Dicey, Law of the Constitution, 3rd ed. p. 37 : 
 ' Parliament means in the mouth of a lawyer (though the word has 
 
502 SOVEREIGNTY AND ITS ORGANS. [Book VI I. 
 
 presents the whole nation 5 . This is not a peculiarity of the 
 English constitution, but a fundamental principle of modern 
 representative institutions. The prince is regarded as the 
 head, but, on that very account, as also a member of the 
 nation ; but the highest sovereign power, that of legislation, 
 is entrusted not to the head alone, but to the head along 
 with the representative body, that is to say, to the whole 
 body of the State. The patrimonial view, which regards the 
 State as a property of the prince, and therefore ascribes 
 sovereignty to the prince alone, and the absolutist doctrine, 
 which identifies the State with the prince, both fail to recog- 
 nise that all the power of the prince is essentially only the 
 concentrated power of the nation, and that, though princes 
 and dynasties fall, the nation and the State retain their legal 
 existence (als Rechtswesen bleibt) 6 . 
 
 often a different sense in ordinary conversation), the King, the House of 
 Lords, and the House of Commons.' But, historically, as well as ' in 
 ordinary conversation,' parliament is distinct from the king, and means 
 the assembly of estates without whose counsel and consent the king 
 cannot enact a law. It is an old and frequently corrected error that the 
 king, the lords and the commons constitute 'the three estates of the 
 realm.' The three estates of the realm are the clergy, the lords and the 
 commons, and so far as there are three estates in parliament, they are 
 (as Blackstone says) the lords spiritual, the lords temporal, and the 
 commons. The clergy, as a whole, were invited to be an estate of 
 parliament in the I3th century, but refused to assume the position. 
 (Cp. Anson, Law and Custom of the Constitution, Part I, ch. iv. 2. 
 p. 45, where parliament is defined as 'an assemblage of the three estates 
 of the realm, which one of the estates persistently declines to attend.') 
 An assembly of the estates is not a parliament, unless summoned by the 
 king : without such a summons it is only a ' convention.'] 
 
 5 This idea is expressed in a speech of King Henry VIII of England 
 in Parliament : ' Likewise the judges have informed us that we at no 
 time stand so high in our estate royal as in the time of Parliament, 
 when we as head and you as members are conjoined and knit together 
 into one body politic ; so that whatsoever is done or offered against the 
 meanest member of the House is judged as done against our own person 
 and the whole court of Parliament.' (Quoted by Lord John Russell, 
 The English Government and Constitution, chap. iii. p. 19, edit. 1865.) 
 
 6 Zopfl (Grundsdtze des gemeinen deutschen Statsrechts, 54-56) 
 rejects this < sovereignty of the State ' and that not merely as applied 
 to the German States maintaining that monarchies recognise only the 
 sovereignty of the prince, and republics only the sovereignty of the 
 people. But how, then, are we to explain the Public Law of Rome, 
 which proclaimed the majestas populi Romani under the Empire as 
 
Chap. II.] SOVEREIGNTY OF THE PEOPLE. 503 
 
 Besides the sovereignty of the entire nation, there is 7-.Sove- 
 another within the State, the sovereignty of the highest tEfsSe 
 member, the chief, the rulers, or, since it is most clearly 
 seen in monarchy, the sovereignty of the prince. The head 
 of the nation has the highest power and position compared 
 with all the other members of the political organism, and 
 with the individual citizens. Thus in English Public Law 
 the king is called ' sovereign ' in a particular sense, and thus 
 in every monarchical State sovereignty is ascribed to the 
 monarch. 
 
 The sovereignty of the State and the sovereignty of the 
 prince are not in contradiction. There does not result a 
 division of sovereignty, as if the one half belonged to the 
 people and the other to the prince : there are not two 
 jealous powers striving for supremacy. Both imply unity 
 and plenitude of power ; but it is clear that the whole, in- 
 cluding the head, is superior to the head alone. The whole 
 nation or State makes the law, but within legal limits the 
 head moves with complete freedom in the exercise of the 
 supreme power assigned to him. The sovereignty of the 
 
 well as under the Republic, and always regarded lex as voluntas populi 
 Romani ; while, on the other hand, under the Republic, a regium im 
 perium was ascribed to the Consuls, and the Senate possessed the 
 supreme administrative power and the right of taxation (which is 
 certainly an attribute of governmental sovereignty) ? How, too, are we 
 to explain the English Public Law, which harmonises the sovereignty 
 of Parliament and of the nation with the sovereignty of the king ? As 
 a matter of International Law, even the German States apart from 
 their princes count as sovereign persons ; but if they are persons in 
 relation to other States, must they not also be persons in relation ta 
 their own individual members and to their princes ? The laws in 
 Germany are the laws of the State : and the national or state-debts are 
 distinguished from the debts of the princes, that is to say, in spite of all 
 survivals of the patrimonial or absolute power of the prince, the Public 
 Law of Germany recognises, along with that of almost all civilised 
 countries, that the nation is something other and higher than the sum 
 total of subjects, and that the State has an existence, a majesty and 
 a power which is not exhausted by the majesty and power of the 
 princes. I concede to Zopfl, that the exclusive admission of the sove- 
 reignty of the prince does not logically imply that his sovereignty is un- 
 limited ; but recent history has incontestably shown that this exclusive 
 principle has, in Germany as well as in the Latin countries, been a 
 dangerous support of absolutism and contempt of national rights. 
 
504 SOVEREIGNTY AND ITS ORGANS. [Bookvn. 
 
 State is especially that of the law ; of the prince, that of the 
 government or administration. The latter operates where 
 the former is inoperative. A conflict between them is rare 
 in fact and impossible in principle ; for it would imply a 
 conflict of the head alone with the head in combination 
 with the rest of the State, and thus a conflict of the same 
 person with himself . 
 
 There can be no true peace between the democratic sove- 
 reignty of the people and the sovereignty of the prince ; but 
 between the sovereignty. of the State and the sovereignty of 
 the prince there is the same harmony as between the whole 
 man and his head. 
 
 e [A similar question was involved in the trial of Strafford. By the 
 Statute of Edward III treason was defined as certain offences against 
 the ' King.' Strafford had undoubtedly acted with the approval of the 
 King, and the lawyers were compelled to develope the theory that the 
 ' King' was an expression for the 'State,' and that offences against the 
 latter were consequently treason.] 
 
 Note. The phrase ' sovereignty of the people ' is sometimes used to 
 express, not the supremacy of the majority, but only the idea that a 
 form of State or a manner of government, which is incompatible with 
 the existence and welfare of the majority of the people, cannot be main- 
 tained, or, that the form of the State and the government are there for 
 the people an idea which is true, but badly expressed. 
 
 Again, if by * sovereignty of the people ' it is meant that the authority 
 of the State is derived originally from the will of the majority, we must 
 indeed admit that many democratic constitutions, and even some 
 monarchical (e. g. the Roman Empire, the French Empire), are based, 
 in theory or principle at least, on the voluntary act of the majority of 
 the people. In the same way the constitutions of several Swiss Cantons 
 declare, not that the people ( VolK) is sovereign, but that < the sovereignty 
 resides in the people as a whole (auf der Gesammtheit des Volks beruhe), 
 and is exercised by the Great Council,' (e. g. the Ziirich Constitution of 
 1831, i). But even this principle would not be applicable to all 
 States, and the term ' sovereignty,' which expresses a permanent right, 
 is inappropriate when applied to particular and transitory acts. 
 
 Finally, if the phrase * sovereignty of the people ' be understood, as 
 has often happened in practice, to imply that the people, as distinct 
 from the government, or even any powerful and excited multitude, is 
 justified in arbitrarily overthrowing the government or destroying the 
 
Chap. II.] SOVEREIGNTY OF THE PEOPLE. 505 
 
 constitution, this is an idea which is altogether to be condemned, and 
 which is irreconcileable even with democratic principles. 
 
 [In England, the question of sovereignty has in recent times been 
 chiefly discussed in connection with the famous definition of Austin, 
 Jurisprudence, Lect. vi : ' If a determinate human superior, not in a 
 habit of obedience to a like superior, receive habitual obedience from 
 the bulk of a given society, that determinate superior is Sovereign in 
 that society, and the society, including the superior, is a society political 
 and independent.' This abstract analysis of the conception of sove- 
 reignty, which is quite unhistorical and difficult to apply in practice, is 
 criticised by Maine, Early Hist, of Institutions, Lect. xii, xiii. See 
 also F. Harrison on The English School of Jurisprudence , in Fortnightly 
 Review, vol. 30 (1878): Clark's Practical Jurisprudence, a Comment 
 on Austin, Part i. ch. xiv : Holland's Jurisprudence, ch. iv : T, H. 
 Green, Works, vol. ii. pp. 399 ff.] 
 
CHAPTER III. 
 
 I. ANALYSIS OF THE SOVEREIGNTY OF THE STATE. 
 
 1. Majesty. THE organised nation has a right to have its dignity and 
 
 greatness, or, as the Romans called it, its majesty l , recog- 
 nised and respected. At Rome, every serious injury to 
 the honour, power, even to the order of the State, was 
 considered as a crimen laesae majestatis. 
 
 2 . indepen- The independence of the State from foreign States. If a 
 
 State is compelled to recognise the political superiority of 
 another, it loses its sovereignty, and becomes subjected to 
 the sovereignty of the latter 2 . 
 
 Not every subjection of a State destroys its sovereignty 
 completely, since the dependence may not be absolute. In 
 composite States, Confederations (Statenbiinde), Federal 
 States (Bundcsstaten)) and Federal Empires (Bundesreiche), 
 the particular States, although in certain respects subordi- 
 nated to the whole, have yet a relative sovereignty limited 
 in extent but not in content. Thus in Switzerland, can- 
 tonal sovereignty is distinguished from federal sovereignty ; 
 similarly, in North America and in the German Empire, 
 there is a difference between the sovereignty of the Union 
 or Empire, and that of the federated States. 
 
 1 Cicero, de Oratore, ii. 39 : ' Si majestas est amplitude ac dignitas 
 civitatis, is earn minuit, qui exercitum hostibus populi Romani tradidit.' 
 Partit. orat., c. 30 : ' Minuit is, qui per vim multitudinis rem ad 
 seditionem vocavit.' Auctor ad Herennium, ii. 12: ' Minuit qui ea 
 tollit ex quibus civitatis amplitude constat, qui amplitudinem civitatis 
 detrimento adficit.' Comp. Heineccius, Antiquit. rom. iv. xviii. 3, 46. 
 
 * In treaties of peace with conquered states, the Romans used the 
 formula * Majestatem populi Romani comiter conservato,' or ' imperium 
 majestatemque populi Romani conservato sine dolo malo' (Cic. pro 
 Balbo, c. 1 6 ; Liv. xxxviii. ii). 
 
SOVEREIGNTY OF THE STATE. 507 
 
 We can only speak of a relative sovereignty in the par- 
 ticular State so long as this has a political organisation of 
 its own, that is to say, has all essential organs, legislative, 
 administrative, &c., in itself, and has not been reduced into 
 a mere province of the greater whole. The point of tran- 
 sition is sometimes difficult to mark precisely. 
 
 Externally, the sovereignty of the State is now-a-days 
 commonly represented by the chief or head, not by the 
 legislative body ; but this is more on grounds of convenience 
 than of principle. 
 
 Internally, sovereignty is manifested, in the first place, in 3- Power of 
 
 .'...*? i choosing and 
 
 the right of the people to determine as they choose the altering the 
 forms of their political existence, and if necessary to alter government. 
 them. This is called the constituent power of the nation s . 
 This right cannot be conceded to a part of the people, to 
 the mere majority, but it undoubtedly belongs to the organ- 
 ised nation as a whole. The individual subject may not 
 resist the commands of the nation, even if his political 
 rights are thereby injured; for unless the individual sub- 
 mitted in matters of Public Law, the State could not main- 
 tain its unity, coherence, and order. 
 
 Yet it is not a matter of indifference, either from the Reform, 
 moral or the constitutional point of view, whether the alter- 
 ation takes place in the way of reform or of revolution. 
 Reform implies (i)that the change is introduced in accord- 
 ance with the constitution, e. g. by a representative body : 
 the change must be constitutional in form. (2) The change 
 must conform to the spirit of the constitution : ancient in- 
 
 3 Washington's Farewell Address of 1 796 : ' The basis of our political 
 systems is the right of the people to make and alter their Constitutions 
 of Government. But the Constitution which at any time exists, till 
 changed by an explicit and authentic act of the whole People, is 
 sacredly obligatory upon all. The very idea of the power and right of 
 the People to establish Government, presupposes the duty of every 
 individual to obey the established Government. All obstructions to the 
 execution of the Laws, all combinations and associations under whatever 
 plausible character, with the real design to direct, control, counteract or 
 awe the regular deliberation and action of the constituted authorities, 
 are destructive of this fundamental principle, and of fatal tendency.' 
 [The speeches are given in vol. ii. of Sparks' Life of Washington^ 
 
508 SOVEREIGNTY AND ITS ORGANS. [Bookvn. 
 
 stitutions, if they are put aside, must be really antiquated, 
 and new institutions must have the way prepared for them 
 in new conditions. 
 
 Revolution. If either the form or the spirit of the constitution is vio- 
 lated, a change is no longer reform but revolution. 
 
 The right of reform is a necessary expression of the vital- 
 ity of a State. If this right is resisted, the development 
 of the nation is denied, and occasion is given for revo- 
 lution. 
 
 is there a There is a radical doctrine of 'the right of revolution/ 
 volution '? e but this is opposed to the very conception of Public Law. 
 Revolution is either a forcible breach of the established 
 constitution or a violation of its principles. Thus, as a 
 rule, revolutions are not matters of right, although they are 
 mighty natural phenomena, which alter Public Law. Where 
 the powers which are passionately stirred in the people 
 are unchained, and produce a revolutionary eruption, the 
 regular operation of constitutional law is disturbed. In the 
 presence of revolution law is impotent. It is indeed a great 
 task of practical politics to bring back revolutionary move- 
 ments as soon as possible into the regular channels of con- 
 stitutional reform. 
 
 There can be no right of revolution, unless exceptionally : 
 it can only be justified by that necessity which compels a 
 nation to save its existence or to secure its growth where 
 the ways of reform are closed. The constitution is only 
 the external organisation of the people, and if by means of 
 it the State itself is in danger of perishing, or if vital in- 
 terests of the public weal are threatened, ' necessity knows 
 no law V 
 
 4 Niebuhr, who was so strong a conservative that the French Revolu- 
 tion of July, 1830, broke his heart, expresses himself as follows (Gesch. 
 des Zeitaliers der RevoL i. p. 211): 'To deny the maxim "necessity 
 knows no law " is to authorise the worst atrocities. When a nation is 
 trodden under foot and cruelly illtreated without hope of amelioration, 
 like Greece under Turkey, a tyrant without respect for the rights of 
 men or the honour of women, then it is a case of extreme necessity, and 
 no act can be more rightful than revolt against the oppressors. He 
 who denies this must be a miserable wretch/ 
 
Chap. III.] SOVEREIGNTY OF THE STATE. 509 
 
 The legislative power is the normal manifestation of the 4. Legisla- 
 tion, 
 sovereignty of the State. 
 
 All public powers depend in principle* upon it : thus the 5- Depend- 
 
 .,.,.. n i ence on it 
 
 constitution and legislation limit and arrange all other ex- O f ail other 
 pressions of sovereignty. In constitution-making and legis- state, 
 lation the sovereignty of the State is in active exercise : 
 otherwise, as a rule, it is in repose. In monarchy especially 
 the daily and changing activity of the other powers is con- 
 centrated in the sovereignty of the monarch. The nation, 
 as a whole, remains at rest, while its head acts either directly 
 or indirectly by means of magistrates and officials. 
 
 If, however, the organ which has to care for this regular 
 activity becomes incapable of exercising it ; if, for instance, 
 there is a vacancy on the throne, and no successor is de- 
 signated by the constitution, the sovereignty of the State 
 becomes itself operative in order to supply the defect. 
 
 From a higher point of view man is never irresponsible. 6. irresponsi- 
 Nations themselves are not only responsible to the eternal 
 judgment of God, but to the facts of History 5 . Yet it is 
 impossible to establish within the State a tribunal before 
 which the nation itself, as a whole, or its representative as 
 entrusted with supreme power, can be brought to account; 
 for in that case the State itself would be subject to this 
 tribunal, and thus the whole to the part, the body to the 
 particular member. 
 
 If a State were responsible for the exercise of its sove- 
 reignty to another State, its sovereignty would thereby be 
 limited. 
 
 The development of International Law, or the institution 
 of a universal State, might organise the legal (rechtlicti) re- 
 sponsibility of nations. At present this is only an ideal, 
 which the future may perhaps realise. 
 
 5 Robespierre declared the contrary in the Jacobin Club (Feb. 1793): 
 ' J'ai soutenu au milieu des persecutions et sans appui, que le peuple 
 n'a jamais tort ; j'ai ose affirmer cette verite dans un temps ou elle 
 n'etait point encore reconnue ; le cours de la revolution 1'a developpee/ 
 France has had to pay a heavy penalty for the consequences of his 
 errors, and history has severely condemned them. 
 
510 SOVEREIGNTY AND ITS ORGANS. 
 
 7 . Responsi- All particular powers are responsible to the organs of the 
 ofaH other sovereignty of the State. Ministers and the highest officials 
 SSTItate. must g ive account of their administration. 
 
 Note. Constituent Assemblies in recent times have usually followed 
 the precedent of the French National Assembly of 1789 in accepting as 
 the principle of their action, not the sovereignty of the State, but the 
 sovereignty of * the people,' in the sense of Rousseau. But Rousseau 
 himself goes much farther. He denies complete sovereignty to any 
 representative assembly, and considers the mass of the people justified 
 at any moment in arbitrarily and directly imposing their will upon it 
 \Contr* Soc. iii. 15]. The consequences of this doctrine have often 
 appeared on the political horizon like threatening comets, terrifying 
 even those ' sovereign ' bodies which had set on fire the chaotic masses 
 round about them. 
 
CHAPTER IV. 
 
 II. SOVEREIGNTY OF THE PRINCE. 
 
 THE sovereignty of the chief of the State is in modern The Sove ; 
 
 J reignty of 
 
 times only recognised in monarchy. The president of a the chief of 
 
 . - . . ... the State not 
 
 republic, although he certainly exercises sovereign rights, has recognised 
 
 i i i_ . , j . in modern 
 
 no personal claim to be considered sovereign. Republics, 
 
 In the old Roman Republic ' majesty ' was ascribed to the 
 consuls, who had divided among them the kingly power, 
 and afterwards to the senate also. Modern republics are 
 more jealous of sovereignty, and consider the chiefs of the 
 government as mere mandatories of the people, whose 
 sovereign rights cannot be transferred to them l . 
 
 It is sometimes held that the sovereignty of the prince is but in ail 
 to be found only in hereditary and not in elective monarchies; derive a?' 
 but this is to confuse the essence of princely power with the ^di 
 question of its origin. An elected prince possesses sove- 
 reignty in his own right, not less than a hereditary. Thus 
 the old Roman emperors and the Roman-German emperors 
 of the middle ages were undoubtedly sovereigns. The 
 English king, George I ", was so, not less than his successors, 
 although with him begun a new dynasty. 
 
 1 Rousseau (Contr. Soc. ii. 2) rejects the sovereignty of the prince on 
 the ground that the ' general will' (ta volonte general^} can only belong 
 to the whole people. A section of the people can only have a par- 
 ticular will, and consequently can at the most make decrees. Only 
 the whole people can make laws. But it is an error to see sovereignty 
 only in legislation and not also in government. 
 
 [Bluntschli says * William of Orange' a better instance of an 
 elected king; but he founded no dynasty.] 
 
512 SOVEREIGNTY AND ITS ORGANS. 
 
 it may be On the other hand, we can scientifically distinguish an 
 original from a derived sovereignty of the prince, a distinction 
 that has no application to the sovereignty of the State, which 
 
 (i) Original, is always original. The first is that which is originally in- 
 herent in a prince, in virtue of rights to which he is born, or 
 which he has seized. To this class belong the sovereignty 
 of hereditary princes, that of a conqueror, and that of a 
 prince who sets the crown on his own head, like Charles the 
 Great, or Frederick I of Prussia ; and likewise that of the 
 elective German emperors, who derived their sovereignty, 
 not from the electors, but from God. 
 
 or ( 2 ) DC- The second is held to be transferred or derived from the 
 people or the electors. Thus the imperial power was given 
 by the Roman people 2 . Modern elective monarchies are 
 of the same sort. 
 
 We shall analyse the sovereignty of the prince after we 
 have considered the different functions of that of the State. 
 
 2 Cp. above, Bk. vi. chap. x. p. 371. 
 
CHAPTER V. 
 
 THE DIVISION OF POWERS. 
 I. THE PRIMARY ASSEMBLIES OF ANTIQUITY. 
 
 THE modern State has attained a far higher degree of 
 perfection than the ancient in the development of the 
 legislative body. Even in ancient times the fundamental Direct 
 idea had been grasped that the whole nation participates in assemblies -. 
 legislation, and that the people is represented in the legis- 
 lative body ; but the citizens themselves were assembled 
 together, and thus exercised this function directly. 
 
 The Greek popular assemblies were of a comparatively 
 primitive kind. A confused crowd of citizens came together 
 in the Pnyx, or in the theatre, at Athens : they were counted 
 by heads, and every one had the right of speaking. The 
 Roman Comitia, on the other hand, were organically divided 
 into classes, and acted only under the leadership . of the 
 higher magistrates *. 
 
 This system has essential faults which have been remedied inferior to 
 
 , , . representa- 
 
 by the modern method of representation : tive. 
 
 (i) A direct assemblage of the whole citizens is impossible 
 in every State whose territory is larger than that of a parish 
 or a township. The assembly of the people in larger States 
 becomes a sham, as happened at Rome in the last centuries 
 
 1 For this reason the Romans regarded the comitia centuriata as 
 higher than the comitia tributa. Cic. de Leg. iii. 19 : ' Descriptus 
 populus censu, ordinibus, aetatibus plus adhibet ad suffragium consilii, 
 quam fuse in tribus convocatus.' 
 
 Ll 
 
514 SOVEREIGNTY AND ITS ORGANS. 
 
 of the Republic. The populace, or the mob of the capital, 
 obtains a disproportionate influence. 
 
 (2) An assembly so large and so mixed is a very helpless 
 body, able at the most to announce the general opinion, to 
 express its approval or its disapproval of a proposition already 
 known, but altogether incapable of deliberating seriously on 
 a projected law, or of solving the more complicated problems 
 of politics. 
 
 Only in quite small States, and in very simple conditions, 
 can legislation be entrusted to a popular assembly. 
 
CHAPTER VI. 
 
 II. ANCIENT DISTINCTION OF POLITICAL FUNCTIONS. 
 
 THE essential unity of sovereignty does not prevent the 
 State having different functions to fulfil. 
 
 According to Aristotle (Pol. iv. c. 14) these are three : Aristotle's 
 
 (1) The deliberative (r6 /3oi>Aevd/iez>oi> irep\ T&V KOWCOV). 
 
 (2) The magisterial (TO ircpl ras ap%ds). 
 
 (3) The judicial (TO dKafov). 
 
 He makes the first concerned with the great political 
 questions of general politics, decisions about war or peace, 
 conclusion of treaties, making of laws, punishment of death, 
 exile and confiscation, and the control of finance. Thus 
 very different sorts of things are brought together external 
 politics, legislation, supreme criminal jurisdiction and control 
 of administration ; but all these are distinguished by their 
 great political significance for the whole State, and for the 
 security of the citizens. Aristotle calls all this deliberation, 
 not legislation, perhaps because legislation proper was not 
 exercised by the popular assemblies till later, and only in- 
 directly, whilst their deliberations had a great influence in 
 the most important matters a . 
 
 The second class of functions corresponds in some 
 measure to what modern constitutions call executive power, 
 
 a [No^tot are, indeed, named as one of the subjects with which TO 0ov- 
 \v6(jivov is concerned (Pol. iv. 14. 3, 1298 a. 5). But it is clear that 
 Aristotle, like the Greeks generally, thinks of a State as starting with a 
 sufficient code of laws, framed for it by a vopoOiTrjs, and requiring as 
 little alteration as possible (e.g. Pol. ii. 8. 16-25, I268b. 22 seq., 
 n. 15, 1273 b. 21 : iii. 13. 23, 1284^ 17), the individual ruler or 
 assembly being concerned only with particular details, to which the 
 law cannot apply because it is general (/eafloAov) in its character (N. 
 Eth. v. 10 : Pol. iii. 15. 3 seq., 1286 a. 8). Cp. N. Eth. vi. 8, where 
 distinguished from &ov\VTiKTj.~\ 
 
 Ll 2 
 
516 SOVEREIGNTY AND ITS ORGANS. [Book VII. 
 
 but it is more correctly described by reference to the ruling 
 offices. 
 
 The third class corresponds to our judicial power. 
 Different Although the different functions are objectively dis- 
 
 oS'exer- tinguished [i.e. in respect of their character], they are often 
 same persons subjectively combined [i.e. in respect of the persons who 
 and'Rome. exercise them]. We have already remarked that the 
 Athenian ecclesia deliberated about laws, executed important 
 matters of administration, and exercised judicial functions. 
 The archons were administrative officials, and yet they had 
 judicial powers. The Roman State was more developed 
 and differentiated. The legislative functions of the comitia 
 were more sharply distinguished from the functions of the 
 senate and the magistrates. Yet the comitia treated of 
 important questions of foreign policy, and in early times 
 decided on appeals against sentence of death. The senate 
 did not only exercise administrative functions ; its resolu- 
 tions came to have the character of laws. Finally, the 
 magistrates as a rule combined administrative and judicial 
 functions. He who possessed the imperium possessed in 
 the same measure jurisdictio l : he had, besides, priestly 
 functions (the auspices), and by his edicts he exercised a 
 sort of legislative power. Nevertheless, there is observable 
 in the institutions of the Republic a conscious effort to 
 differentiate the functions of government. 
 
 Distinction A new distinction arose in the Eastern Roman Empire. 
 
 cllTund The emperors, indeed, retained in their hands all public 
 
 JJfficeTm the powers over the whole empire, but in the subordinate grades 
 
 Empire ine ^ provincial government civil and military offices were 
 
 carefully distinguished *. This separation which had not 
 
 been effected earlier in the interest of the subjects, who 
 
 1 Cicero, de Leg. iii. 3: 'Omnes magistrates auspicium judiciumque 
 habento.' Ulpianus in L. 2. D, de in jus voc. : ' Magistrates, qui im- 
 perium habent, qui coercere aliquem possunt, et jubere in carcerem 
 duci.' Ulpianus, L. i. pr. D, si quis jus dicenti : ' Omnibus magistrati- 
 bus . . . secundum jus potestatis suae concessum est, jurisdictionem 
 suam defendere poenali judicio.' 
 
 *> [Cp. Gibbon's Decline and Fall, ch. xvii.] 
 
Chap. VI.] ANCIENT DISTINCTION OF FUNCTIONS. 517 
 
 were oppressed by the excessive power of the magistrates, 
 was now carried out in order to secure the throne. This 
 involved, however, a step in political progress which has 
 been accepted in the modern State. 
 
 In the middle ages the power of the State was on all sides in the 
 
 , . . , r , Middle Ages 
 
 checked and limited, but internally it united in itself the little differ- 
 most various functions ; not only the king but every count en 
 had at the same time civil and military, administrative and 
 judicial power, and the assemblies (Dinge) were at the same 
 time legislative and judicial. 
 
 Bodin was the first to point out that the prince at least Bodin urges 
 ought not to administer justice in person, but should leave tioVof the 
 such matters to independent judges. Bodin shows that tionT* J 
 there are many reasons in favour of the old usage : thus it 
 made a good impression that the king should exercise justice 
 in the sight of all people, but he sees that there are stronger 
 reasons for the monarch withholding himself from personally 
 exercising the office of judge. To be at once legislator and 
 judge is to mingle together justice and the prerogative of 
 mercy, adherence to the law, and arbitrary departure from 
 it : if justice is not well administered, the litigating parties 
 are not free enough, they are crushed by the authority of 
 the sovereign. The horrors of punishment are frightfully 
 increased, and if the prince has a cruel disposition, the 
 judgment-seat swims in the blood of citizens, and the hatred 
 of the people is roused against their chief. It is worst of all 
 when the prince decides in his own affairs, and with regard 
 to crimes against himself. It is better that he should reserve 
 only the prerogative of mercy 2 . 
 
 Bodin could indeed point to precedents in French History. 
 Certain parliaments of peers had pronounced against the 
 presence of the king in trials. Most States gradually adopted 
 the new principle. Kings began to leave to tribunals the 
 ordinary administration of justice, and to reserve to them- 
 selves only the confirmation of sentences, especially sentences 
 of death. 
 
 2 Bluntschli, Gesch. des allg. Statsr. p. 42. Cp. as to Puffendorf, p. 1 24. 
 
CHAPTER VII. 
 
 III. THE MODERN PRINCIPLE OF DIVISION OF POWERS. 
 
 THE idea that the objective difference of political func- 
 tions requires a corresponding subjective separation in the 
 organs to which these functions belong, has been produced 
 by the course of modern politics. 
 
 Montes- Montesquieu was the first to enounce the modern prin- 
 
 ciple with emphasis and effect. He demands in the name 
 of civic freedom and security that different public functions 
 should be exercised by different persons. l If legislative and 
 executive powers are united in the same person, or even in 
 the same body of magistrates, there is no liberty, because 
 people are afraid that the monarch or the senate may make 
 tyrannical laws in order to administer them tyrannically. 
 There is no liberty, again, if the judicial power is not sepa- 
 rated from the legislative and executive : if it is joined to 
 the legislative power, the life and death of the citizens may 
 be arbitrarily disposed of, for the judge will be legislator : 
 if it is joined to the executive power, the judge may have the 
 force of an oppressor V 
 
 The higher Excessive power united in one hand certainly endangers 
 
 the a mOTedi? personal freedom. If the different branches of power are 
 
 functions, separated, they are all mutually limited. Nevertheless, the 
 
 decisive reason for such specialisation is not the practical 
 
 security of civil liberty, but the organic reason that every 
 
 1 Esprit des Lois, xi. 6. [' De la constitution d'Angleterre.'] Bluntschli, 
 Gesch. des allg. Statsr. p. 267. 
 
THE DIVISION OF POWERS. 519 
 
 function will be better fulfilled if its organ is specially 
 directed to this particular end, than if quite different func- 
 tions are assigned to the same organ. The statesman only 
 follows the example of nature : the eye is adapted for sight, 
 the ear for hearing, the mouth for speaking, the hand for 
 seizing. The body politic should in the same way have a 
 separate organ for each function. 
 
 The favourite expression ( separation (Trennung) of Distinction, 
 powers ' leads to false applications of a true principle. A tionf ep ' 
 complete separation or sundering of powers would be a 
 dissolution of the unity of the State. Just as in the body 
 natural all the several limbs are connected together, so in 
 the body politic the connection of the organs is not less 
 important than their difference. In the State there must 
 be a unity of power, and so the powers, though distin- 
 guished according to their functions, must not be absolutely 
 separated. 
 
 Montesquieu makes the three-fold distinction (\}pouvoir The three. 
 
 ,/ / \ / ,T i \ T fold division, 
 
 ij, (2) executif, ($) juaiaatre. 
 
 The same division is adopted by English political theor- 
 ists. This threefold division has been carried out with 
 rigour, but not without exaggeration, in the United States 
 of North America a , and has been sanctioned by a whole 
 series of modern European constitutions. 
 
 To these three powers some have added, primarily in the Additions 
 interests of the unity of the State : 
 
 (4) A moderating power (pouvoir moderateur, royal\ 
 This idea of Benjamin Constant's has been adopted in the 
 Portuguese constitution of Don Pedro. 
 
 Others have added to the executive power : 
 
 (5) The administrative (pouvoir administratif). 
 
 (6) The inspective (potestas inspectiva). 
 
 (7) The representative (pouvoir representatif). 
 
 There is a mistaken view that these different powers are 
 
 [For the way in which the actual constitution of the United States 
 followed the then current theory of the English Constitution, cp. Bage- 
 hot's English Constitution, pp. 27, 227 (edit. 1872).] 
 
520 SOVEREIGNTY AND ITS ORGANS. [Book vil. 
 
 These diffe- equal. This contradicts the organic nature of the State. 
 
 t^iaf. rs> The members of an organism have each their own power, 
 but in subordination to one another; otherwise the con- 
 nection and the unity of the whole would not be maintained. 
 And so in the State : if the highest powers were really 
 equal, and not merely in outward form, as in the United 
 States of North America, the State would be torn in pieces. 
 1 The head cannot be separated from the body and made 
 equal to it, without killing the man.' (Bluntschli, Studien, 
 p. 146.) 
 
 Not the pro- Another error, which is almost childish, is that which 
 
 positions of a . 
 
 syllogism, treats the organism of the State as a logical syllogism : the 
 legislative power determining the rule or major premise, the 
 judicial power subsuming a particular case under it (minor 
 premise), while the executive carries out the conclusion 2 . 
 All the functions of the different powers would thus be 
 united in every judicial decision, and government would be 
 only the policeman to execute this judgment. 
 
 A. The It is first of all necessary to distinguish the legislative 
 
 legislative \ 
 
 power. power from all others. All other functions belong to parti- 
 cular organs, but legislation to the whole body politic. The 
 legislative power determines the laws and institutions of 
 the State themselves (Stats- und Rechtsordnung]. All other 
 powers, on the other hand, are exercised within the existing 
 laws and institutions, in particular, concrete and changing 
 cases. Legislation arranges the permanent relations of the 
 whole; the other powers are, as a rule, exercised only in 
 particular directions, and do not affect the whole nation. 
 These other powers cannot be divided until the rights of 
 the legislative body have been determined. 
 
 The legislative power does not only fix general rules of 
 
 a Montesquieu, xi. 6, puts the matter differently. He calls the 
 judicial power also ' la puissance executrice des choses qui dependent 
 du droit civil? and thus distinguishes it objectively from the executive 
 power proper, ' puissance executrice des choses, qui dependent du droit 
 des gens? This strange view has been followed among others by Kant 
 (Rechtslehre, 45), and Spittler (Vorlesungen iiber Politik, 15). On 
 the other side cp. Stahl, Lehre vom Stat, ii. 57. 
 
Chap. VII.] THE DIVISION OF POWERS. 521 
 
 Right (Rechtsregeln) laws (Gesetze) in the narrower sense. 
 It has also to found and alter the institutions of the State. 
 If it concerns itself with general economic arrangements in 
 the budget (lois d^impot^^ if it approves not principles but 
 demands, if it takes account of the actual circumstances of 
 the country, it is because these acts, although not laws in 
 the proper sense, relate to the whole of the State. 
 
 Rousseau explains the relation of legislation to adminis- y i ews of 
 tration by the psychological distinction of will and power, and Stein 
 Legislation is the expression of the general will, administra- cr 
 tion consists in particular actions of the government. ' La 
 loi veut, le roi fait V Lorenz von Stein recognises the same 
 distinction. But an insight into the necessity of laws and 
 institutions is not less important for legislation than the will 
 to establish them : and, on the other hand, the actions of 
 government, which chooses the end and the means of its 
 policy, are as certainly acts of will. Thus it is better to 
 make the distinction one of general and particular will, of 
 established order and occasional action. 
 
 As the whole is more than any of its parts or members, so 
 the legislative power is superior to all the other particular 
 powers. 
 
 These may be divided, in the modern State, into four B. The other 
 groups of essentially different character. The two most ItateT 
 important and highest are, I, Government or Administra- 
 tion ; II, the Judicial power. 
 
 I. Government or Administration (Regierungsgeivalt\ I. Govern- 
 
 rri i i T-I / 77 7 7 . i ment or Ad- 
 
 1 he usual expression, ' Executive (voliziehende) power, is ministration, 
 unfortunate, and is the source of a number of errors, mis- The terin , 
 
 / . ' Executive 
 
 understandings in theory, and mistakes in practice. It criticised, 
 neither expresses the essential character of government, nor 
 its relation to legislation and the judicial power. 
 
 A person can execute a decision of his own, or the com- 
 mand or mandate of another. But in any case the execu- 
 tion is only secondary, the decision or mandate is primary. 
 
 b [See references in footnote i, Bk. vi. chap. xv. pp. 426, 427 above.] 
 
522 SOVEREIGNTY AND ITS ORGANS. [Book VI I. 
 
 But the functions of government are in their nature primary : 
 it decides and resolves, it expresses its will, orders or forbids, 
 and in most cases its orders are carried out without exe- 
 cutive compulsion* If that is necessary, it is undoubtedly 
 the business of the government ; but as it is secondary, it 
 is ordinarily entrusted to subordinate officials, such as the 
 police. 
 
 Even if the will of others is in question, the expression 
 * executive ' is inaccurate. It is not true that the government 
 has only to execute in particular cases what the legislature 
 has established in general. As a rule a law is not executed 
 (carried out), but observed and applied. The promulgation 
 of a law is not the same as its execution. The rules which 
 the legislator sanctions, the principles which he expresses, 
 are respected by the government as the legal and constitu- 
 tional limits of its conduct, but within these limits it decides 
 freely : treats with other States, appoints commissions of 
 enquiry, adopts measures necessary for the maintenance of 
 order, furthers what tends to the public weal, nominates 
 functionaries, controls the army. The expression ' execu- 
 tive ' is still less applicable to the administrative government 
 in its relations to the courts of justice. The execution of a 
 judgment is essentially an act of the judicial power itself, 
 whose business it is to administer justice, and to restore 
 rights which have been disturbed, and which does not call 
 in the stronger power of government, except when its own 
 is insufficient. The relation of the two powers is not that 
 of servant to master. 
 The essence The essence of government consists rather in the power 
 
 of Govern- f .. . . . 
 
 ment. of commanding in particular matters what is just and useful, 
 
 and in the power of protecting the country and the nation 
 from particular attacks and dangers, of representing it, and 
 guarding against common evils. It consists especially in 
 what the Greeks call upx*} 3 , the Romans imperium^ the 
 Germans of the middle ages Mundschaft and Vogtei (tutelle 
 
 3 Arist. Pol. iv. 15. 4, 1299 a. 27 : TO yap kiriraTTfi 
 tffriv. He finds the essence of authority in command. 
 
Chap. VII.] THE DIVISION OF POWERS. 523 
 
 and baillage]. Of all other powers government is the 
 ruling, and, without doubt, the highest, being related to the 
 others as the head to the limbs of the body. It includes 
 what is called the representative power. 
 
 It is called political government (politische Regierung) in 
 the general conduct of the State, administration ( Venval- 
 tung) in reference to details. 
 
 II. The judicial (richterlicke) power is often regarded as n. The 
 the power which judges (urtheilen) a confusion which is power, 
 favoured by the French [and English] expressions (pouvoir 
 judiciaire). But the essence of judicial power consists not 
 in judging (urtheileri), but in laying down the law (richten\ 
 or, according to the Roman expression,, not in judicio, but in 
 jure. c Judging/ in the sense of recognising and declaring 
 the justice in particular cases, is not necessarily a function 
 of government, nor the exercise of a public power. In 
 Rome it was commonly entrusted to private persons as 
 judices, in mediaeval Germany to the assessors (Schoffen\ not 
 the judges (Richter). In modern times it is often en- 
 trusted to popular juries. Maintaining the law, on the 
 other hand, and protecting the rights of individuals and 
 of the community, has always been considered as a magis- 
 terial function. 
 
 An essential distinction between judicial power and govern- 
 ment is that the former does not, like the latter, exercise 
 rule, but only protects and applies laws already recognised. 
 The functions of government may be compared to the intel- 
 lectual powers of man, the functions of the judicial powers 
 to his conscience. 
 
 The separation (Ausscheidung) of the judicial power from 
 that of government in the modern State is a very important 
 political advance. In ancient times and in the middle ages 
 the same magistrates exercised both functions. The purity 
 of justice, the liberty of the citizens, have gained by the 
 change, and government has not lost in security *. Experience 
 
 * Compare the words of Washington, in his wonderful Farewell 
 Speech (1796) : 'It is important, likewise, that the habits of thinking 
 
524 SOVEREIGNTY AND ITS ORGANS. [Book VII. 
 
 proves that distinguished statesmen, and government officials, 
 are very seldom likewise good judges, and vice versh. The 
 judicial power, though independent of the government, is 
 yet subordinate to it, in some such way as the heart is to the 
 head. 
 
 other The functions of sovereignty may appear to be exhausted 
 
 by this three-fold distinction, and we can easily under- 
 stand how recent constitutions have commonly limited them- 
 selves to these. But on closer examination, we find that 
 there are two other groups of organs and functions, both of 
 which are indeed subordinate to that of government, but 
 may still be distinguished from it, having much less the 
 character of authority and command, which in government 
 is essential. These are : 
 
 in. and iv. III. The superintendence and care of the intellectual 
 
 Superintend- . -..,.. / , 
 
 enceofin- elements of civilisation (Statscultur). 
 
 material ai IV. The administration and care of material interests 
 interests. (Statswirthsckaft] [Political Economy in the original sense]. 
 In these two groups there is no question of governing. 
 The great factors of civilisation, religion, science, art, do not 
 belong to the organism of the State. Thus the relation of 
 the State, even to the external institutions of religion, science 
 and art, to the Church and the school, is fundamentally dif- 
 ferent from the relation between government and subjects in 
 its own proper sphere. Such matters cannot be subjected 
 to the dominion of the State : its functions are therefore 
 
 in a free country should inspire caution in those entrusted with its 
 administration to confine themselves within their respective constitu- 
 tional spheres ; avoiding in the exercise of the powers of one depart- 
 ment to encroach upon another. The spirit of encroachment tends to 
 consolidate the powers of all the departments in one, and thus -to 
 create, whatever the form of government, a real despotism. A just 
 estimate of that love of power and proneness to abuse it, which pre- 
 dominates in the human heart, is sufficient to satisfy us of the truth of 
 this position. The necessity of reciprocal checks in the exercise of 
 political power, by dividing and distributing it into different depositories, 
 and constituting each the guardian of the public weal against invasions 
 by the others, has been evinced by experiments ancient and modern, 
 some of them in our country and under our own eyes. To preserve 
 them must be as necessary as to institute them.' 
 
Chap. VII.] THE DIVISION OF POWERS. 525 
 
 limited to superintendence and fostering care (Aufsicht und 
 Pflege). 
 
 The same applies to the fourth head, Public Economy. 
 In the administration of the income and expenditure of the 
 State, in the maintenance of the economic welfare of the 
 citizens, in the support of commerce, in the management of 
 public works, in the control of local government, there is no 
 exercise of imperium in the strict sense. Economic admin- 
 istration must be based, not so much on the authority of the 
 State, as on technical knowledge and experience. In no 
 other matters does the action of the State approach so nearly 
 to that of the private person. The property of the State may 
 be bought and sold like that of a private person. The material 
 welfare of the community is the broad basis on which the 
 State rests, and thus, although it is a necessary condition of 
 political existence, occupies the lowest place, while govern- 
 ment occupies the highest. 
 
 This distinction in the functions of the State has only in 
 recent times come to be gradually recognised. We still suffer 
 from the evils of a confusion of commanding and fostering. 
 Sometimes things are commanded or forbidden, which should 
 only be managed or controlled ; sometimes there is a timid 
 assistance or control, where there ought to be energetic and 
 authoritative action. But matters are better than they were 
 a hundred, or even fifty, years ago. Many institutions have 
 been already separated from the direct administration of 
 government, and are managed, without the employment of 
 force, in a spirit of scientific and technical care, and in the 
 interests at once of the welfare and the freedom of the com- 
 munity. 
 
sense. 
 
 CHAPTER VIII. 
 
 PUBLIC SERVICE AND PUBLIC FUNCTIONS^". 
 
 Public Ser- i. IN a wide sense every service exacted by the State, or 
 wideband a rendered voluntarily to the State, can be called ' public ser- 
 wer vice.' This would include the service of soldiers, juries, 
 deputies, and electors, whether secondary or primary. Not 
 all these services, however, are public services in the proper 
 sense, which implies a special charge or commission given 
 by the State. The functionaries of parishes, of the church, 
 and of other corporations, are not servants of the State ; their 
 service is public, but it is not laid upon them by the State, 
 and is not immediately related to the State 1 . 
 
 The head of the State is not a public servant, in so far as 
 he is himself sovereign, and the source of all public services : 
 yet Frederick the Great was right in calling the king ' the 
 first servant of the State,' because even his office is dependent 
 upon the constitution, and exists altogether for the service 
 of the State. 
 
 Not ail 2. Not all public services in the narrower sense are public 
 
 functions ; not all public servants are State officials. A State 
 ffi office is a particular organ in the body politic, with special 
 functions of its own. 
 
 A public function is limited to particular objects. The 
 
 la Cp. with this chapter esp. Schulze, Lehrbuch des deutschen Stats- 
 rechts, i. 309 ff. : Laband, Statsrecht des deutschen Reichs, i. 382 ff. : 
 Loning, Lehrbuch des Vertvaltungsrechts, 115 ff. 
 
 1 Particular public functions may be entrusted to them, but their 
 proper character is not thereby altered. Cp. Welcker's Statslexicon, 
 s. v. Statsdiener. 
 
PUBLIC SERVICE AND PUBLIC FUNCTIONS. 52? 
 
 office is filled by the person of the official. State officials or 
 functionaries, in a wider sense, are those public servants 
 who, although recognising and respecting their subordination 
 to the head of the State, yet exercise their offices according 
 to their own judgment ; in a narrower sense they are those 
 only who have entrusted to them a power of command (im- 
 perium Gt jurisdtctw), as distinct from those who have no 
 authority of this sort. These last we might describe by the 
 good old term of public curators (offentliche Pfleger). Such 
 are professors and teachers in State schools, directors and 
 physicians in public hospitals, government engineers, and 
 many financial officials, such as treasurers and administrators 
 of crown lands 2 . 
 
 State functionaries proper are those employed either in ad. Difference 
 ministrative or judicial matters. The former exercise the admSSra- 
 imperium ; within their sphere they order at their own dis- jidldaf 
 cretion what they consider for the public interest, but they ariesJ lon ~ 
 depend upon their superiors, and must submit to their in- 
 junctions. Judicial functionaries, on the other hand, cannot 
 exercise their own discretion as to what public interest de- 
 mands : they must lay down the law as it exists, and apply 
 it according to fixed rules (jurisdictio] ; but in doing so they 
 must act according to their own conscience, and are not 
 bound by any special injunctions of the government. In 
 ordinary circumstances the former class of functionaries may 
 be expected to display a liberal, the latter a conservative 
 tendency. 
 
 3. From both kinds of State functionaries we must dis- Official 
 
 i , r i n , rr . , . assistants. 
 
 tinguish the employes of the State, and official assistants. 
 These are certainly public servants, but they have no special 
 office, no authority or independent sphere : they are merely 
 assistants of the officials under whom they are placed. Such 
 are clerks, inspectors, revenue collectors, etc. They are 
 
 2 Schmitthenner, Statsrecht, p. 503. He uses the expression ' technical 
 officials' (in opposition to 'government officials'), and includes the 
 judges among them. The name would apply better to our second 
 class above. 
 
528 SOVEREIGNTY AND ITS ORGANS. [Book VII. 
 
 public servants, because their activity is employed as an 
 organic part of the life of the State, and in so far as their 
 work is of an intellectual, though not of the highest kind. 
 If even this last element is wanting, and merely mechanical 
 service is the chief thing 3 , they are no longer to be called 
 public servants, although they are used by the State. One 
 might call them ' private servants, or domestics of the 
 State ' (Statsbediente] : such are lacqueys, porters, beadles, 
 policemen, sergeants-at-arms, etc. Their condition is regu- 
 lated by private law, rather than by the essential conditions 
 of public service. 
 
 Distinction 4. The distinction between civil and military functions, 
 
 ci^iTand which was first clearly made by the Emperor Constantine 
 
 o n ffice a sT the Great 4 , is of significance in the modern State. The 
 
 officers of the army alone can be considered public servants, 
 
 as they alone have the command : the other soldiers are only 
 
 fulfilling a general civic duty, or have voluntarily enlisted 
 
 under the form of private contract. Military officers are 
 
 chiefly distinguished from civil by the stricter discipline 
 
 and the military obedience, but partly also by the fact 
 
 that they possess authority only indirectly, because their 
 
 functions are executive, and therefore secondary by nature. 
 
 Distinction 5- A distinction is made between collegiate and individual 
 
 collegiate offices 5 . The former, composed of several persons who de- 
 
 vkhii^" liberate together and of whom the majority decides, are 
 
 offices. better adapted for advice, the latter for action. Sometimes 
 
 collegiate deliberation and individual decision may be united : 
 
 thus a minister decides after having taken the advice of his 
 
 colleagues. 
 
 Distinction Further, offices are distinguished as higher and lower, and 
 
 3 Schmitthenner, Statsrecht, p. 503, rightly calls attention to this 
 distinction. But in calling the employes of the State * subaltern ' 
 functionaries, he uses an unsuitable term, because it only expresses 
 subordination, which is equally to be found among the real officials. 
 ' State-officials ' (Statsbeamte] and * official assistants ' (Amfsgehulferi) 
 would express the distinction better. 
 
 4 Cp. above, Bk. vii. chap. vi. p. 516. Gibbon's Decline and Fall, 
 chap. xvii. 
 
 9 Cp. Pozl, Deutsches Statsworterbtich, art. * Amt.' 
 
Chap.VHI.] PUBLIC SER VICE AND PUBLIC FUNCTIONS. 529 
 according to the locality of their operation. There are according 
 
 v / -r \ -i ff . . to locality. 
 
 central offices (Landesamter}, intermediate offices relating 
 to provinces, departments, districts, etc. ; and, lowest of 
 all, local or parochial (communal) offices. Sometimes, too, 
 there are concurrent offices, where several functionaries 
 exercise the same powers in the same district, but each by 
 himself, e. g. the magistracies of ancient Rome, the English 
 Justices of the Peace. 
 
 6. Office generally implies : what office 
 
 / \ i i i r it' implies : 
 
 (a) A certain kind and extent of public powers and duties. 
 This is called its competency. 
 
 (b) A local seat as the proper centre and residence of its 
 action. Even officials who move about have a fixed official 
 place. 
 
 (c) A territorial sphere of operation. 
 
 7. The relations between the State and its servants are Relation 
 not a matter of private law, but essentially political in stat^and its 
 character. The service of the State is not a commission se 
 
 or mandate, still less merely hired service. The rules of 
 private contract do not explain either the appointment, or 
 the powers, or the dismissal of a public servant. 
 
 The State nominates to an office by an act of will, the 
 decree of nomination 6 . This act has been called a special 
 law, an expression which it is better to avoid, since, as a 
 rule, the act of nomination is not made by the legislative 
 
 6 Conner, Der Statsdienst am dem Gesichtspunkt des Rechts, Lands- 
 hut, 1808 ; Zacharia, D. St. ii. 25 ff. Schmitthenner (Statsrecht, 
 p. 509), while rejecting the ' legistic' conception of many modern jurists 
 who, strangely enough, wish to apply the principles of Roman private 
 law where the Romans themselves never dreamed of applying them, 
 holds nevertheless that public services are based on contract, though it 
 is not obligatory. This contract ' is the causa praecedens of the instal- 
 lation, just as a feudal contract preceded the investiture in a fief.' But 
 this is an error. Antecedent contracts of the sort are only exceptions. 
 The question, whether one will take an office or not, and the answer to 
 it, do not constitute a contract. The contract must be a feigned one, 
 and for that there is no reason. Where, exceptionally, there is a con- 
 tract, it affects only the private and not the public rights of the parties : 
 and thus we have here nothing to do with it. Acceptance and refusal 
 of a nomination are certainly voluntary acts : but that does not affect 
 the authoritative character of the decree. But cp. Lb'ning, ib. p. 119. 
 
 M m 
 
530 SOVEREIGNTY AND ITS ORGANS. 
 
 body, but in monarchies by the king ; in republics, some- 
 times by the government, sometimes by popular election. 
 This decree is essentially a unilateral act of authority, even 
 in the exceptional case where it is preceded by an actual 
 contract, as e. g. in acquiring the services of a foreigner. 
 Such a contract could never serve as the basis of a civil 
 action to force the actual appointment, although it may 
 entitle to a demand for damages, as in a private contract, 
 if the nomination of the State is not carried out. 
 
 The functions of public service are determined by the 
 State, and have a public and organic character. The office 
 exists only for the State, and not for the individual who 
 holds it. It cannot therefore become the property of a 
 private person, nor as such become an object of private 
 trafficking. Where anything of the sort happens, as in the 
 middle ages, and in France even in later times, the State 
 has not escaped from the limits of private law, and has not 
 yet attained a full consciousness of its political existence. 
 Salary. 8. The salary attached to an office belongs to private law, 
 
 for the salary is essentially intended to assure the material 
 existence of the official and his family. Claims to salary may 
 quite well be decided on by a civil judge. 
 
 But this element does not affect the essence of public 
 office. At all times there have been unpaid honorary 
 officials, who have the same significance in the body politic 
 as salaried professional officials. The English Justices of 
 the Peace are just as much State officials as the salaried 
 Prussian Landrdthe (prefects). 
 
CHAPTER IX, 
 
 APPOINTMENT OF OFFICIALS. 
 
 1. HEREDITARY offices, which were introduced everywhere Hereditary 
 in Europe in the middle ages, are as universally rejected by 
 
 the spirit of modern politics. Mediaeval history shows that 
 hereditary offices become seigniories, and thus destroy the 
 unity and order of the State. Besides, heredity is no 
 guarantee of personal capacity. 
 
 There may in modern States be hereditary offices excep- 
 tionally, commonly where they are purely positions of 
 honour without power, e.g. the offices about the court, 
 which have come down from the middle ages. 
 
 2. Of more importance is the distinction between pro- Distinction 
 fessional and honorary offices. The former occupy the professfona 
 whole activity of a man, and form his vocation : they offi d c e n rary 
 frequently require technical knowledge, and consequently 
 preparatory education and apprenticeship or probation. 
 
 Such offices have therefore a claim to a salary. 
 
 The latter, on the other hand, require only occasional 
 duties, and may therefore be exercised by those who have 
 a private vocation, as landowners, merchants, etc., and 
 support themselves by this calling or by their private 
 fortunes. Serving on juries, or taking part in represen- 
 tative assemblies, are duties which may be fulfilled in this 
 way. Obviously it is only the well-to-do classes of society 
 who can exercise such offices. The mass of the people 
 lacks education, or leisure, or both. 
 
 In the modern State professional offices are the more 
 important, but in many cases the advantages of both sorts 
 M m 2 
 
532 SOVEREIGNTY AND ITS ORGANS. [Book VI I. 
 
 may be combined. Representative government and self- 
 government afford ways in which the direction of a pro- 
 fessional official may be combined with the assistance of 
 representative honorary officials. Thus in Prussia the 
 Landrath (prefect) is combined with the members of the 
 departmental committee (Kreisausschuss) ; in Baden the 
 prefect of the district (BezirksamtY with his district coun- 
 sellors, the professional judge with jurymen and assessors. 
 Officials in 3. The German States, although in many respects less 
 politically advanced than England and France, are ahead in 
 the admirable organisation of professional offices. A ca- 
 pable and trustworthy class of officials is assured by the 
 German system, according to which : 
 
 (a) Offices are open to all who have the qualifications. 
 Numerous exhibitions or bursaries (Stipendieri) assist the 
 poorer students, but the great number belong, as a matter 
 of fact, to the more highly educated families, and bring 
 with them from home a traditional culture, which in its turn 
 helps to elevate the general level. 
 
 (<) As a rule, the candidates for public service must have 
 a classical education at the Gymnasium and at the Uni- 
 versity. For certain technical offices, e. g. of engineers, 
 architects, etc., the education of the Realschule and the 
 Polytechnic schools is required instead. At the end of the 
 course of study there is a government examination. The 
 scientific spirit of the German universities refuses to limit 
 study to mere practical preparation for a profession, and 
 thus the defects of the Chinese system are avoided. The 
 necessity of examination prevents the influences of party 
 favour and court intrigue. 
 
 Yet the system must not be applied in a pedantic way. 
 Exceptions must be made for foreigners or other persons 
 whose talents would be useful to the State, but who have 
 not followed the ordinary course of study. Again, there 
 are appointments which cannot be made by examination, 
 
 [For the meaning of the terms Kreis, Bezirk> &c., cp. Book III. 
 ch. 6, above, p. 247.] 
 
Chap. IX.] APPOINTMENT OF OFFICIALS. 533 
 
 such as ministers and counsellors, or professors at the uni- 
 versities, where high political or scientific capabilities are 
 required. 
 
 (c) After the theoretical examination follows the novitiate 
 (Referendar- oder Practicantendienst\ that is to say, the prac- 
 tical exercise as assistants to officials or lawyers. At the 
 close of this novitiate there is commonly a second examina- 
 
 ' tion before the candidate himself receives an office l . 
 
 (d) The State itself appoints, according to its require- 
 ments, those who have fulfilled these conditions. 
 
 Promotion is made gradually according to period of ser- 
 vice and proof of capacity. Advance in title and rank and 
 payment, in regular order, is the rule, but the system must 
 not be applied in a rigid mathematical way. Seniority must 
 not override the more important consideration of capacity, 
 as it is apt to do where the system has degenerated into a 
 bureaucracy. 
 
 (e) The salary paid by the State assures to the official a 
 means of support corresponding to his position. Certainly 
 most German officials are very scantily paid, if we compare 
 their earnings with those of trade ; but, on the other hand, 
 they are protected against the uncertainties of commercial 
 enterprise. If a certain number of honorary offices were 
 substituted for the too numerous professional offices, the 
 salaries of the latter could be improved. 
 
 (/) The German official has pragmatic rights, i.e. he has 
 a legal claim to a fixed salary and to a retiring pension in 
 case of age or illness. 
 
 By this system the German officials may feel that they 
 have an assured and honourable position ; they form a 
 veritable professional order with the consciousness of their 
 solidarity, and they have the importance of a political 
 power. The head of the State and the representatives of 
 
 1 R. v. Mohl, in Mittermaier's Zeitschrift fur Rechtswissenschaft des 
 Auslandes, xvi. p. 431 ff. d. Laboulaye, De r enseignement et du 
 noviciat administratif en Allemagne, in Wolowsky, Revue, xviii. 
 Bluntschli, Deutsche Rechtsschulen, 2nd edit., p. 92 ff. Vivien, t. 
 Adm. i. p. 205. v. Mohl, Politik, Bd. ii. 
 
534 SOVEREIGNTY AND ITS ORGANS. [Book VII. 
 
 the people must reckon with them, and cannot dispense 
 with their co-operation. 
 
 officials in 4. The English system is totally different. Police ad- 
 ministration and jurisdiction in the counties are entrusted 
 to unpaid functionaries chosen from the aristocracy. Minis- 
 ters are not taken from the class of permanent officials, but 
 from the parliamentary parties. A great number of public 
 offices are filled by party influence, without regard to any 
 previous preparation for them, but by the patronage and 
 recommendation of influential members of Parliament. 
 
 But even in England the need of examining candidates 
 is felt more than it was. The higher judicial offices require 
 a long legal education, not indeed at the universities, but 
 at the Inns of Court, and practical experience of the pro- 
 fession. Examinations are now also required for a number 
 of technical offices : incapable persons are rejected, and the 
 influence of parties and patronage is diminished. A change 
 of Ministry affects only about sixty posts, partly eminent 
 political offices, partly offices of the court 2 . 
 ' officials in 5. The system of the United States was originally based 
 
 states 16 on the English, but worked in a republican and democratic 
 spirit. In the presidency of Andrew Jackson was introduced 
 the dangerous practice of complete change [' the spoils 
 system ']. On the election of a new president, that is every 
 four, or at least every eight years, if a different party comes 
 into power, an immense number of posts is vacated and 
 filled by new persons. This leads to a universal office- 
 hunting, and the interests of the State and society are less 
 considered than the wishes of party. Thus the whole 
 official class is kept in an unstable condition and exposed 
 to violent changes, and corruption is difficult to repress. 
 The judges alone have a better guaranteed position, and 
 the habit of selecting them from experienced advocates 
 assures their legal acquirements and abilities. 
 
 officials in 6, In France there is indeed an official class, but its 
 
 France. 
 
 2 R. Gneist, Englisches Verwaltungsrecht, 3rd edit. (1883), 23off. 
 
Chap. IX.] APPOINTMENT OF OFFICIALS. 535 
 
 position is less independent than in Germany. The head 
 of the State, i. e. the Ministry for the time being, has 
 greater power of appointing and dismissing officials, and 
 there is less guarantee for scientific education. Special 
 study at polytechnic, military and normal schools, is indeed 
 required for a great number of technical offices ; university 
 education for the judicial functions. But the rule is not so 
 generally carried out as in Germany. The official is more 
 dependent on the government ; fidelity to party is more 
 regarded than fidelity to his office and the State. 
 
 7. In the republics of antiquity, and partly also in those in Republics 
 of modern times, as in Switzerland and America, the system ments" 
 
 is adopted of appointments for a fixed period of time, gene- STfo?a 
 rally a few years, sometimes with, and sometimes without, period 6 
 the possibility of reappointment. This system does well 
 enough for local offices, which, as a rule, demand no higher 
 education, and rarely use all the powers of a man's life, but 
 it involves great disadvantages when applied to State offices 
 which require a long professional training, such as has be- 
 come necessary in our highly developed conditions. The 
 system involves frequent changes, favours ambition and 
 party intrigue, diminishes the security of functionaries, 
 and prevents the firmness and stability of political action. 
 The advantage of the easy dismissal of incapable officials, 
 or of those who have lost the confidence of the public, 
 does not outweigh these disadvantages. This system is less 
 dangerous in an aristocracy, which is naturally inclined to 
 stability and moderation, than in a democracy which loves 
 change and for that very reason is inclined to the system of 
 short tenures. There is further the danger of the State 
 losing the service of the most capable men, either through 
 the caprice of the people or because they themselves prefer 
 a less uncertain career. 
 
 8. The individual should be free to accept or refuse an Liberty of 
 office to which he is appointed, not because the service of 
 
 the State is to be based on contract, but because direct 
 compulsion cannot properly be applied to intellectual ser- 
 
536 SOVEREIGNTY AND ITS ORGANS. 
 
 vice and indirect compulsion is difficult and imperfect in its 
 effects. Individual freedom is the normal source of all use- 
 ful activity. No citizen can be compelled to make greater 
 sacrifices to the State than another. This principle is re- 
 cognised in almost all modern States, republics as well as 
 monarchies 8 . 
 
 Local offices are an exception : their greater number, and 
 the small claims which they make on the individual, make 
 them appear a universal duty of the citizen 4 . 
 
 when an 9. The question has been debated When an appoint- 
 
 begins. tm lt ment begins ? If we remember that the appointment is a 
 unilateral act of the State, we can answer without hesitation : 
 At the moment when this act is made public, is registered 
 or signed : the notification of this to the person nominated, 
 and his subsequent investiture, are only the consequences 
 of a perfect nomination 5 . 
 
 3 The rule holds even in Switzerland and Norway. Cp. Story, Com- 
 mentaries on Const. U. S. A. iii. 37, 120. For Germany, cp. Zacharia, 
 I). St. 136. 
 
 4 E. g. where a city has become a State, as in the case of the Free 
 Cities of the Empire, or where, as in Canton Appenzell, the constitution 
 is as simple as that of a commune or township. 
 
 5 Compare on this point the dispute between President Jefferson and 
 the Supreme Court of Justice in the United States (Story, iii. 37, 120). 
 The former maintained that the nomination gave no rights to the 
 official until he had received the decree which nominated him. The 
 latter held that the mere nomination had effect, so that the nominating 
 government had no longer the right of annulling it. 
 
 Zacharia, D. St. 136, limits the effects of the nomination to the 
 consequences in private law. This limitation however is neither neces- 
 sary nor correct. The nomination has effects, not as a private contract 
 but a? a public act of the State: and, though the actual exercise of 
 official powers may not commence till after investiture, the right to 
 exercise them pre-exists. 
 
CHAPTER X. 
 
 RIGHTS AND DUTIES OF PUBLIC OFFICIALS. 
 
 1. FIRST of all, the official has the right of exercising the Exercise of 
 functions of his office. This is called his competence, and 
 
 is entirely a matter of public interest. It is at the same 
 time his duty to exercise his functions as required, and to 
 do so or not is not dependent on his individual will. The 
 State may change, increase, or diminish the powers of an 
 office. 
 
 2. An official has certainly a right to the title and rank Title and 
 belonging to his office, but this right depends on political rd 
 reasons, and may be modified by legislation. On the other 
 hand, rank and title may remain as the private right of an 
 ex-official. 
 
 3. The right of being indemnified for expenses incurred indemnity 
 and injury suffered in the interests of the State is a matter 
 
 of private law, and belongs equally to paid and unpaid 
 officials. 
 
 4. There is no similar right to payment for the services Salary, 
 themselves. It depends on the will of the State whether 
 
 an office shall be paid or unpaid. A paid official has a 
 right at private law to his salary. 
 
 A distinction may be made, as in many German States, 
 between two elements in the payment of officials: (i) 
 payment of rank (Standesgehalt\ (2) payment of service 
 (Dienstgehalt). It is the duty and interest of the State to 
 maintain, in a suitable way, those officials whose whole 
 
538 SOVEREIGNTY AND ITS ORGANS. [Book vil. 
 
 professional activity it employs; but there is further the 
 expense which is involved in or connected with the actual 
 exercise of the office (Dienstaufwand und Representations- 
 kosten)*. This distinction is of importance in the case of 
 officials retiring from active service. They retain a claim to 
 the former kind of payment, though none with respect to 
 the latter. The former is in greater degree a matter of 
 private right, the latter is bound up with the exercise of 
 public functions. Where perquisites and fees are attached 
 to particular offices they are to be considered of the latter 
 character, even where they are reckoned along with the 
 regular maintenance of the officials. The State has the 
 right of altering such fees : it is only a matter of equity if a 
 fixed salary is raised in order to compensate a diminution 
 of fees : there is no legal claim to compensation. 
 Pension. 5. The right to a retiring pension arises from the fact 
 
 that the official has a claim to his salary at private law if he 
 is compelled to give up his office through no fault of his 
 own. The pension should be proportioned to the salary of 
 maintenance (Standcsgehatf) : or, if there is no distinction 
 of this sort formally recognised, the expenses of actual 
 tenure of office must be deducted in fixing the pension. 
 It is expedient that the amount and conditions of pensions 
 should be definitely fixed by law, in order to avoid anything 
 arbitrary in the awarding of them. A general system of 
 pensions constitutes a heavy burden on the treasury, but 
 such a burden cannot well be avoided where the State 
 requires professional officials. The income of a government 
 official is in most cases very small, compared with the earn- 
 ings of commerce and industry, and commonly requires 
 higher intellectual qualifications and more education. It 
 is therefore a duty of the State to assure those who devote 
 their lives to it against want. The public is compensated 
 for the expense by better service, and the temptations to 
 corruption are avoided. 
 
 1 Conner, ibid. 144. ' Beilage ' ix. to the Bavarian Constitution, 
 it-19' 
 
Chap. X.] RIGHTS AND DUTIES OF PUBLIC OFFICIALS. 539 
 
 The widows and orphans of State servants have no legal 
 claim to a pension. The salary is not hereditary. Many 
 States have the good arrangement of a public pension-fund, 
 chiefly maintained by deductions from official salaries. 
 
 6. The duties of officials mostly follow from their rights : Duties of 
 they owe, further, obedience to their superiors, fidelity to 
 the head of the State and to the nation, and, if occasion 
 requires, secrecy. The oath of office, which is com- 
 monly demanded, does not create this obligation, but 
 only strengthens it. It is not the condition of the 
 official's duties, nor does it modify their extent. 
 
 The kind of obedience varies according to the nature of Obedience, 
 the particular function. It is different for administrative 
 and for judicial functionaries. The latter must obviously 
 occupy, on the whole, an independent position, but even the 
 former are not bound to an absolute or servile obedience. 
 Limits are imposed by both law and morality : in particular 
 cases the extent of the obligation to obedience may raise 
 very difficult questions. 
 
 (a\ An official may examine if the order he receives is 
 regular in form, i. e. if it is one which his superior is by his 
 office entitled to give, and not due to some caprice, and if 
 it is within the sphere of his own office to execute : he may 
 further refuse to carry out an order which is not signed, if a 
 signature is required. He is a public functionary, and not 
 a private servant, and is therefore competent to examine the 
 form of orders as a test of their legality. 
 
 If the question of competency is doubtful, and the superior 
 affirms his right to give the order, the inferior must obey. 
 His sole right, and at the same time his duty, is to put his 
 scruples before his superior, and to await a repetition of the 
 order. 
 
 (b] In no case can an official be bound to render obedience 
 which would violate the higher principles of religion and 
 morality, or make him accomplice in a crime. Such acts 
 can never be the duty of his office. The servant of the 
 State cannot be required to do what a man would refuse 
 
540 SOVEREIGNTY AND ITS ORGANS. [Book VII. 
 
 from humanity, a believer from religion, or a citizen from 
 regard to the criminal law of the land a . 
 
 (c) The subordinate official cannot refuse to obey an 
 order, the object of which appears to him illegal or unjust. 
 He can only make representations on the subject to his 
 superior. He ought to presume that his superior does not 
 wish to violate the law, and that he has not considered the 
 matter sufficiently, and may be led to alter his decision by 
 respectful and frank expression of opinion. An official 
 should not fail to save his superiors and the State from 
 mistakes, but if the superior abides by his orders obedience 
 is due, and the superior must bear the responsibility. To 
 authorise resistance in such cases would be to destroy the 
 unity of the State, to paralyse its power, and would lead to 
 far worse consequences than single violations of the law 2 . 
 The same is to be said of unconstitutional commands. The 
 subordinate must not, by resisting, himself violate constitu- 
 tional obedience. 
 
 a [There is surely a confusion here between the moral duty of the in- 
 dividual and his legal duty as an official. As ' a counsel of perfection,' 
 it is the duty of a government to respect morality, but it cannot be the 
 right of an official to resist on other than legal and constitutional 
 grounds. An official certainly cannot be required to break ' the law of 
 the land' criminal or civil but if he receives an order, which he 
 regards as contrary to (his) religion or morality, he cannot claim, on 
 that ground alone, to set it aside and yet retain the position of an 
 official. The next paragraphs [c] and (7) put the case accurately, but 
 they appear to contradict what Bluntschli says here.] 
 
 2 Several constitutions formally express this principle, e. g. the 
 Hanoverian Constitution of 1883, 161 : ' An order issued in proper 
 form by a superior official imposes no responsibility on the inferior who 
 receives it, but on the superior who issues it.' So in the Constitution 
 of Meiningen, 104, and of Altenburg, 37 : * The responsibility for 
 every illegal act belongs to him who orders it. The orders of a higher 
 official are only an excuse if they are in proper form, and have been 
 issued by a competent authority, who then becomes responsible for 
 them.' Gonner, ib. 79, appears to understand the gloria obsequii in 
 the same way, but he uses an unfortunate expression when he speaks of 
 the official as a ' machine ' ; for he recognises the duty of remonstrance 
 against unjust commands, and limits the duty of obedience both in 
 form and object, p. 208. Besides, the expression ' machine ' has a 
 monkish flavour. Cp. on this contested point Schulze, Deutsches 
 Statsrecht, i. 325 ff. ; Laband, i. 427 ff. ; Loning, Verivaltungsrecht, 
 
 p. 122 ff. 
 
Chap. X.] RIGHTS AND DUTIES OF PUBLIC OFFICIALS. 541 
 
 7. The spirit of fidelity (Treue) goes further than the Fidelity, 
 duty of obedience. The latter is fulfilled when the official 
 carries out the order given him strictly in form and sub- 
 stance. The former binds him in the whole of his conduct. 
 Fidelity or loyalty is not, indeed, as in the feudal system, 
 the main principle of society : the duties of officials are now 
 determined by legislation. It is not so much a personal 
 allegiance to his prince as the requirements of the State 
 which influence his action. Nevertheless, fidelity still forms 
 the basis of the harmony and moral cohesion of the public 
 service. 
 
 An official who, in important though isolated points, holds, 
 and on occasion expresses, political convictions different 
 from those of his superiors, does not thereby violate the 
 duty of fidelity. But if on permanent and fundamental 
 principles he finds himself in opposition to the government, 
 and hostile to it ; if, e.g. in a monarchy, he is a declared 
 republican, and works for the establishment of a republic, 
 or vice versa, he breaks the bond of fidelity, and ceases to 
 be a harmonious member of the whole. It is the same with 
 a functionary who takes part in systematic and continuous 
 opposition intended to overthrow or impede the govern- 
 ment. This is a breach of fidelity which no government 
 can tolerate without falling into anarchy 3 . Systematic hos- 
 tility to the ministry, although there is no particular act of 
 disobedience, is likewise a breach of fidelity. An official 
 
 3 Washington (quoted in Guizot's Pref. to his Life, i. p. xxiii) : ' As 
 long as I shall have the honour to govern the public affairs, I will 
 never knowingly place in any important office any man whose political 
 maxims are contrary to the general measures of the government. This 
 would be in my opinion a kind of political suicide/ [Letter to Timothy 
 Pickering, Writings, vol. xi. p. 74, quoted in Guizot's Essay, Eng. 
 trans, p. 84.] How strongly German statesmen have felt the evils 
 which accrue to the State from unfaithful officials, may be seen from 
 the following passionate utterances of Stein (Pertz's Life of him, ii. 
 p. 501) : 'We cannot overcome the insolence and turbulence in the dis- 
 position of most of the public officials except by rigorous measures, 
 prompt removal, imprisonment or banishment of those who in this way 
 spread dangerous opinions, or undermine the authority of the govern- 
 ment/ 
 
542 SOVEREIGNTY AND ITS ORGANS. [Book VII. 
 
 may have absolutely divergent, and even hostile convictions, 
 without ceasing to be faithful in his office. But he must 
 not in his official position express such sentiments. If he 
 believes himself conscientiously bound to declare his hos- 
 tility in word and deed, he ought to resign his office. It is 
 obvious that judges are in a more independent position. 
 Their office is not political in character, and not dependent 
 on the will of the government. 
 
 A further consequence of official fidelity is that no official 
 accept service under a foreign State, or decorations, pen- 
 sions, or other distinctions of the sort without permission of 
 his own government. 
 
 Secrecy. 8. Official secrecy is not to be understood in an absolute 
 
 sense, but only so far as specially ordered, or in matters 
 where the revelation of information, officially obtained, 
 would injure the State or individuals. Two extremes 
 have to be avoided, a pedantic maintenance of mystery, 
 or a mischievous concealment of unconstitutional and 
 illegal action on the one side; indiscreet gossiping on 
 the other. 
 
 Punishment 9. The State can reprimand or punish functionaries who 
 pHne. 1SC neglect or violate their duties. Crimes, which can be 
 prosecuted and punished before the ordinary courts, are 
 to be distinguished from neglect of duties, which renders 
 a person liable to official discipline. The former are judged 
 by the ordinary law of the land, the latter more specially 
 from the point of view of the public interest. This dis- 
 tinction is the same as that between Justice (Gerichf) and 
 Police (Polizei). The former^ as we have said, are pro- 
 ceeded against at criminal law, but the State has in some 
 cases modified this in its own interest : (i) according to the 
 French practice *, the criminal prosecution of an official for 
 an official crime can only take place with the authorisation 
 of the government, or an authority specially empowered, or 
 
 6 [Art. 75 of the Constitution of the year VIII, abolished by decree 
 of Sept. 19, 1870 (Fr. trans.).] 
 
Chap. X.] RIGHTS AND DUTIES OF PUBLIC OFFICIALS. 543 
 
 (2) there are special courts to try officials 4 . The English 
 practice rejects both these exceptional rules, but protects 
 its aristocratic officials by other means against frivolous 
 attacks 5 . 
 
 Official discipline goes further, and applies in cases 
 where the ordinary law could find no sufficient ground for 
 a charge, and even in cases where it would have acquitted 
 the accused. It extends to all the faults and negligences 
 of the functionary, even to his private life, so far as that 
 may injure the honour and confidence which his office 
 should receive 6 . 
 
 Disciplinary punishments are either slight, such as warn- 
 ing, reprimand, and limited fine ; or they are severe, such 
 as suspension from office, removal to another place, com- 
 pulsory retirement, or dismissal. The infliction of the 
 slighter punishments is one of the ordinary powers of 
 the superior officials, and requires no special legal proceed- 
 ing. The severer, on the other hand, require a legal 
 proceeding in order to protect the rights of officials against 
 
 4 According to the Imperial Law, Uber die Einfiihrung des Gerichts- 
 verfassungsgesetzes, n, those laws of the various particular States 
 (Landesgesetze} remain in force which make the civil or criminal prose- 
 cution of an official, on account of any act committed directly or 
 indirectly in the exercise of his office, depend on a previous decision 
 (Vorentsckeidtmg}. Such previous decision can, however, only deter- 
 mine whether the official has exceeded the powers of his office or has 
 omitted a duty incumbent upon him. In those German States in which 
 there is a Supreme Court of Administration this decision is pronounced 
 by such court, in the other States by the Imperial Court. Federal laws 
 of this sort exist in Prussia, Bavaria, Baden, Hesse, &c. (cp. Loning, 
 Verwaltungsrecht ', p. 126). In France the requirement of a previous 
 decision has been abolished by the decree of Sept. 19, 1870. On the 
 nature of discipline as distinct from punishment of officials very different 
 views are held. Cp. Loning, op. cit. p. 127 ff. 
 
 5 Fischel, Verfassung Englands, p. 351 ; Homersham Cox, English 
 Institutions [? pp. 442, 457, edit. 1863. The Attorney-General can 
 stay proceedings.] The history of the Negro revolt in Jamaica shows 
 how difficult it is even in England to carry on a successful prosecution 
 against powerful officials, even for frightful misuse of authority. Cp. 
 Gneist, Engl. Verwaltungsrecht, p. 376 ff. [On the contrast between 
 the French and English practice see Dicey, Law of the Constitution 
 (ed. 3), ch. xii : ' The rule of law contrasted with droit administratif!'] 
 
 6 Reichsbeamtengesetz of 1873, 70. 
 
544 SOVEREIGNTY AND ITS ORGANS. 
 
 an arbitrary use of power. In many States the punishment 
 of dismissal can only be inflicted by the ordinary law courts ; 
 but ordinary justice is apt to judge the fault as if it were 
 only that of a private citizen, to take too much account of 
 the man, and too little of the official. This system places 
 the interest of the official for the time being above the 
 permanent interest of the office and of the State, the rights 
 of the individual above the rights of the community. A 
 court of justice which has to decide on a matter of such 
 public importance must be composed in such a way as to 
 be able to appreciate the interests involved. Failing such 
 a court, the right of dismissal must remain in the hands of 
 the higher government officials 7 . 
 
 7 Reichsbeamtengesetz of 1873, 76. 
 
CHAPTER XI. 
 
 TERMINATION OF PUBLIC SERVICE. 
 
 OFFICE does not exist for the sake of the official, so that i. Suppres- 
 if an office comes to be suppressed, the official can no office, 
 longer remain such. Public interest alone must settle the 
 nature and continuance of an office, but the suppression of 
 an office does not put an end to the claims of the official to 
 his maintenance, which continue as long as they would 
 have done if the office had not been abolished. 
 
 Since the acceptance or refusal of office is usually a 
 matter of free choice, so also is resignation ; but the two 
 are not quite on the same level. The freedom of under- 
 taking an obligation does not imply the freedom of shaking 
 it off. In a case where the ability and good-will of the 
 individual are so important as in public offices, compulsory 
 continuance of service is inexpedient 3 . On the other hand, 
 where acceptance of office is a compulsory civic duty, its 
 continuance, at least for a definite period, is likewise com- 
 pulsory 2 . 
 
 Resignation does not of itself bring the duties of an 2. Resigna- 
 tion. 
 
 1 Prussian Landrecht^ ii. 10. 95 : 'The resignation of an official 
 shall only be refused if the general welfare should seriously suffer by 
 its being accepted.' Bavarian Edict of 1818, 22: 'Any one in the 
 service of the State may resign when he pleases without assigning any 
 reason : but in such a case he loses all his salary as well as the title 
 and insignia of office.' 
 
 2 Thus in England the sheriff (scire-gerefa] who has held the office 
 for a year is free from the obligation of taking it for the next three 
 years. Blackstone's Commentaries , i. 9. I. 
 
 N n 
 
546 SOVEREIGNTY AND ITS ORGANS. [Book VII. 
 
 office to an end. An arbitrary abandonment of office 
 would be desertion. Resignation is only a means of mov- 
 ing the State to withdraw the office it has given. Official 
 duties are not at an end before the State has accepted the 
 resignation, and the time when they terminate may be fixed 
 by the authorities according to public convenience. 
 
 Termination of office in consequence of simple resigna- 
 tion puts an end to the private as well as the political rights 
 attached to it. 
 
 3 . Retire- It is otherwise if a public servant has the right of de- 
 
 manding to be placed on the retired list (Quiesrirung, 
 Inruhestandsetzung). This puts an end to the public 
 powers of the official, but leaves him his rank, title, and 
 a claim to payment. The amount of pension is commonly 
 regulated according to age or length of service. The right 
 to a retiring pension is based partly on advanced age (in 
 Bavaria 70, in Prussia, Wiirtemberg, Saxony, Belgium, 65 
 years) combined with long service (30 to 40 years), partly 
 on incapacity arising e. g. from ill health. The latter only 
 constitutes a legal claim to a pension if it has been brought 
 on by the service itself, for in such a case the State is 
 bound to compensate the injuries incurred in the exercise 
 of public duties 3 . 
 
 4 . Dismissal. Involuntary dismissal is differently regulated in different 
 
 countries. In the time of the old German Empire [the 
 Holy Roman Empire], through the influence of jurists, the 
 private rights of the officials were brought into great 
 prominence. Office was considered as a right bestowed 
 usually for life, and not to be withdrawn, except for viola- 
 tion of duty, by a judicial decision 4 . There were indeed 
 
 3 Zacharia, D. St. 142, collects some rules on this point in German 
 States. Cp. Loning, Venvaltungsrecht, p. 134 f. As to Belgium, cp. 
 the Law of July 31, 1844. 
 
 4 This is formally expressed in the electoral capitulation (Wahl- 
 capitulation] of 1792 as to the members of the aulic council of the 
 Empire (Reichshofrath\ 10 : ' No councillor can be dismissed except 
 after judicial examination of the case, and by a sentence based thereon.' 
 Cp. also the decision of the Deputation of the Empire {Reichsdeputa- 
 tions-Hauptschluss} of 1803, 91. 
 
Chap. XI.] TERMINATION OF PUBLIC SERVICE. 547 
 
 some protests that an honourable dismissal might be justi- 
 fied from grounds of public interest, but towards the end of 
 the last century the first opinion was more and more widely 
 diffused ; and in many modern constitutions this principle 
 was proclaimed as an advance in liberty and an important 
 guarantee against arbitrary government, not only in Ger- 
 many 4a , but more recently even in Switzerland, where most 
 offices are only bestowed for limited periods. 
 
 In England, on the other hand, party struggles have long 
 kept the political consciousness awake to the fact that office 
 is given chiefly for the sake of the State, and not of the in- 
 dividual : so much so that the principle became established 
 that the head of the State had full right of taking away as of 
 bestowing office. An exception was introduced in the case 
 of the judges,, in order to ensure their independence. Under 
 William III it was decided that the common law judges 
 should not be appointed as before, i durante bene plaritoj 
 but ( quam diu bene gesserintj the King and Parliament 
 remaining the sole judges of good conduct 5 . The United 
 States of North America adopted similar principles 6 . In 
 France administrative officials have always remained liable 
 to dismissal at will, though from the fifteenth century judges 
 have been irremoveable. As a matter of fact, however, 
 even in France, officials enjoy a tolerably secure position, 
 except in revolutionary times 7 . 
 
 The German system exaggerates the importance of private 
 rights, but if these are not made to override the welfare of 
 the State, it has advantages over the arbitrary practice of 
 other constitutional States. It assures the private interest 
 
 4 1 Bavaria is the only German country in which the ordinary Criminal 
 courts alone can dismiss administrative officials : in the other states 
 dismissal is regarded as a disciplinary punishment. So too in the 
 Empire. Cp. Reichsbeamtengesetz of 1873, 84, 86. 
 
 5 Statute 13 Will. III. cap. 3. Until the time of George III the 
 office of judge was terminated by the death of the king. Cp. Gneist, 
 EngL Verwaltungsrecht, p. 236 ff. 
 
 6 Cp. Story, iii. 38. 228. 
 
 7 Vivien, Etud. Administr. i. 260 f. 
 
 N n 2 
 
548 SOVEREIGNTY AND ITS ORGANS. [Book vil. 
 
 of the functionary, and secures the State against party 
 agitation and caprice. 
 
 In any case it is a fundamental principle that the office 
 exists for the State, and therefore the State can in the public 
 interest dismiss and replace an official. These two rights 
 naturally belong to the same person, i. e. in case of doubt, 
 to the head of the State 8 . This must be recognised even 
 in those States in which only the law courts have the power 
 of dismissal, so far as deprivation of office has merely politi- 
 cal (and not also personal) consequences 9 . 
 
 These rules admit of two restrictions, (i) in behalf of the 
 independence of the judges, (2) in the interest of the func- 
 tionaries themselves. In modern times the principle is 
 commonly recognised that judges can neither be dismissed 
 nor transferred against their will, and cannot be put on the 
 retired list without retaining their full salary. In England 
 judges can only be removed by a decision of Parliament, in 
 Germany by a judicial sentence 10 . 
 
 With regard to the second restriction, different cases must 
 be distinguished. The reasons for removing an official may 
 be 
 
 (a) A crime, which shows his moral unfitness for the 
 office. 
 
 (fr) Proved moral incapacity (negligence, cowardice, &c.) 
 without crime. 
 
 8 The President of the United States of North America had, by the 
 Law of 1789, the sole right of removing officials, who could not be 
 appointed without the concurrence of the Senate (Story, iii. 37. 119). 
 This was illogical, but was not altered till 1867. 
 
 * Zacharia, 144. There are however some States which do not 
 recognise this principle, and even go so far as to make office for a 
 certain time irrevocable on public grounds. 
 
 10 Bavarian Constitution, viii. 3 : ' Judges cannot be removed 
 with loss of salary except by a judicial sentence.' Belgian Constitution, 
 Art. 100 : 'Judges are appointed for life. No judge can be deprived 
 of his place or suspended except by a judicial sentence. A judge 
 cannot be transferred except by a new nomination and with his con- 
 sent.' Spanish Const. Art. 10 : Portuguese Const. Art. 120-123: 
 Austrian Fundamental Law (Statsgrundgesetz] of Dec. 21, 1867, 
 Art. 6 : Prussian Const. 87 : Rechtsgesetz uber die Gerichisverfas- 
 sung, 8. 
 
Chap. XL] TERMINATION OF PUBLIC SERVICE. 549 
 
 (c) Intellectual incapacity, e. g. loss of memory, insanity, 
 &c. 
 
 (d) External circumstances which injure an official's 
 activity or deprive him of public confidence, a case which 
 may occur, in times of agitation or through foreign compli- 
 cations, to an official who has fulfilled his duty, nay, even 
 just because he has done so. Thus the minister Stein was 
 dismissed to please Napoleon I. 
 
 In all these cases the State must possess the means of 
 protecting itself against injury by removing officials. It is 
 only in the first of these (a) that the law courts are adapted 
 to decide the matter according to their ordinary procedure. 
 A judicial removal brings with it loss of title, rank, salary, 
 and claim to pension. 
 
 The second case (<) is more a matter for official discipline 
 than for the ordinary courts, but the official must always have 
 the opportunity of defending himself. According to the 
 greater or less degree of his fault, there will follow dis- 
 missal, with loss of all claim to salary, but without any injury 
 to his remaining political rights, or he will merely be placed 
 on the retired list with a suitable pension. In the latter 
 case the government can obviously act more freely, because 
 the private rights of the official are not affected. 
 
 The third case (c) justifies compulsory retirement as a rule, 
 but not dismissal, the official not being himself to blame. 
 
 The fourth case (d] may be met either by compulsory 
 retirement or by transference to a different post of the same 
 character, dignity, and emolument. 
 
 These two last cases should be referred to the highest 
 authorities in the government, and when the appointment is 
 made by the chief of the State, his assent or command 
 should be required for removal. 
 
 A purely arbitrary removal without reason assigned, and 
 without opportunity of defence, is still practised in several 
 States, but is not in accordance with a well ordered system. 
 
 Temporary suspension may be inflicted either as a penalty s : Suspen 
 or as a measure of prudence. In the former case it may be 
 
550 SOVEREIGNTY AND ITS ORGANS. 
 
 inflicted either by the law courts, or as a measure of disci- 
 pline by a competent authority. It usually implies loss or 
 reduction of salary for the time it lasts. 
 
 As a provisional measure it may be provided by the law 
 beforehand in certain cases, e.g. because of a criminal 
 charge, but it may also be adopted by the authorities as a 
 means of withdrawing an unpopular official from the storm 
 he has excited. Suspension should not involve loss of 
 private rights, except when it is a punishment : the official 
 should retain that part of his emolument which has a private 
 character, especially his maintenance (Standesgehalt\ If 
 he is suspended on account of a criminal charge he shall 
 retain these private rights, though the court may order the 
 retention of his salary, as a guarantee for the fine and 
 damages to which he may be made liable, but not until he 
 is condemned is his claim for future payment at an end 11 . 
 
 11 Cp. Zacharia, 145 against Heffter. 
 
 THE END. 
 
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