ELEMENTS OF POLITICAL SCIENCE ELEMENTS OF f fp POLITICAL SCIENCE BY STEPHEN LEACOCK, B.A., PH.D. LITT.D., LL.D., F.R.S.C. HEAD OF THK DEPARTMENT OF ECONOMICS AND POLITICAL SCIENCE, MCQIL.L UN1VKESITY, MONTREAL NEW AND ENLARGED EDITION HOUGHTON MIFFLIN COMPANY BOSTON NEW YORK CHICAGO SAN FBANCISCO e nitorrsibc prr^tf CambribQC Revised, February 1921 COPYRIGHT, 1921, BY STEPHEN LEACOCK Copyright, 1906 and 1913, by Stephen Leacock ALL RIGHTS RESERVED tTht atofrtfot DreM CAMBRIDGE MASSACHUSETTS U S A at. 2.53 '^~ PREFACE IT was the aim of the original edition of this book to pre- sent a survey of the fundamental principles of political science. The chief object of the book was to discuss the theory of government and not to present a mere com- pendium of current facts and statistics in regard to the governments of to-day. Such contemporary informa- tion can always be obtained in any of the valuable and accurate annual publications, such as the Statesman's Year-Book, which are in general circulation. In presenting, therefore, a revision of the book the author has thought it neither necessary nor desirable to disturb the general plan and outline of the work. But it is obvious that the great changes that have come into the world during the last decade, principally through the Great War, have not only altered the whole political environment, but have profoundly affected the outlook of the theorist. The disasters brought upon Europe through the abuse of autocratic power have cast suspi- cion upon any form of monarchy and hereditary author- ity that does not respond to popular control. On the other hand, there stands as a warning the complete col- lapse of civilization in Russia. The bloodshed and terror wrought by the Bolsheviki regime remind us that, after all, law and order, stability and general security are the first requisites of society, not easily acquired, and, when lost in the tumult of dissolution, not easy to regain. Even democracy, it seems, must limit its ambitions, or at least must limit the pace at which it may hope to realize them. The war, therefore, has thrown into a new vi PREFACE light the whole theory of popular government. Prob- lems that we had judged already solved clamor anew for a solution. The errors and difficulties of the past are revealed again in the perplexities of the present. The student of to-day may turn back to his Rousseau or his Montesquieu or even reopen his Aristotle with an inter- est that is no longer historical curiosity, but an eager inquiry into the vital issues of the twentieth century. The time is ripe, therefore, for a reconsideration of the principles of government; and this not only by the political philosopher, but by the citizen and the man of affairs. The world is shaping itself anew and we must take anxious thought for the form of it. We see moving about us new and conflicting forces. On the one hand, the war has led many to place a new value upon national kinship. To them it appears as if in this imperfect world, our soundest reliance must be placed upon the nation as the political unit; that for a long time to come the burden of armament, the necessity of constant pre- paredness for war, will be the price that we must pay for security within and safety from without. To others the lesson of the hour is of a contrary teaching: the civilized world must become international or perish. Armament and preparedness and mistrust mean war; and war under the condition of our scientific and technical environment can only mean a mutual annihilation and a universal disaster. This being so, the author of this book need offer no apology for laying especial emphasis upon such topics as the League of Nations, and the whole discussion of nationalism and internationalism as factors in political evolution. Equally evident is the importance of the discussion of the newer forms of democracy (direct government by popular vote, etc.) that are appearing PREFACE vii everywhere as an attempt to meet the particular prob- lems of to-day. The author hopes that the discussion of general principles given in such a work as the present may be of some little use as an aid to the clearness of thought and breadth of judgment upon which so much is destined to depend. STEPHEN LEACOCK University, Montreal June, 1921 CONTENTS PART I. THE NATURE OP THE STATE I. POLITICAL SCIENCE, THE THEORY OF THE STATE 1. Definition and scope of political science 8 ^ a golofioTi to other sciences 6 3. Meaning of the state; its essential attributes ... 12 4. The distinction between state, society, government, and nation . 15 5. The state and a common faith 18 6. The ideal state . . h( * *:.-,; 18 II. ORIGIN OF THE STATE; FALLACIOUS THEORIES 1. Theory of the social contract 21 2. Application made of the theory by Hobbes, Locke, and Rousseau . . . / .25 8. Criticism of the theory 29 4. The theory of divine origin 82 6. The theory of force . f\-. ';'+. 84 III. THE TRUE ORIGIN OF THE STATE 1. The historical or evolutionary view of the state . . 88 2. The patriarchal and matriarchal theories ... 89 8. Course of development: the Aristotelian cycle . . 43 4. Military and economic factors 44 5. Some general features of political evolution ... 45 IV. THE SOVEREIGNTY OF THE STATE 1. Analysis of the conception of sovereignty; meaning of law and right 49 2. The location of sovereignty in existing governments . 53 8. Criticism of the doctrine of sovereignty; Sir Henry Maine's objections . 55 4. Theory of political sovereignty 60 5. Criticism 63 6. Dual or divided sovereignty 65 7. Recent criticism of the doctrine of sovereignty . . 66 V. THE LIBERTY OF THE INDIVIDUAL 1. Formulation of the idea of civil liberty; its dependence on a coercive sovereign power ...... 69 x CONTENTS 2. Special senses sometimes attached to the term "lib- erty" 78 S. Organic theory of the state 76 4. Criticism 78 5. Elaborate analogies of Spencer, Schaffle, etc.; the per- sonality of the state 80 6. Criticism 83 VI. RELATION OF STATES TO ONE ANOTHER 1. External aspect of the state; regulation of its conduct towards other states 86 2. Evolution of international relations: first, second, and third periods 88 3. Scope and content of international law .... 95 4. Propriety of the term 97 5. International arbitration 100 6. The League of Nations 105 VII. THE FORM OF THE STATE 1. The classification of states according to their form; Aristotle's divisions . . 112 2. Later classifications; Montesquieu, Rousseau, Blunt- schli, etc. . 117 3. Practical classification of existing states .... 120 4. The constitution; written and unwritten constitutions 122 5. Origin of written constitutions 124 6. The distinction between states with written and those with unwritten constitutions an illusory basis of di- vision 129 7. Scope of the constitution 132 8. Amendment 134 PART II. THE STRUCTURE OF THE GOVERNMENT I. THE SEPARATION OF POWERS 1. Nature of executive, legislative, and judicial power . 141 2. Theory of the separation of powers 143 8. Influence of this theory in America and France . .145 4. Extent of its application in existing governments . . 147 5. Continental administrative law 150 6. General criticism of the theory of the separation of powers 151 II. THE LEGISLATURE 1. The legislature; general requisites, procedure, etc. . . 158 2. The bicameral system; reasons for its adoption . . 158 CONTENTS 8. Composition of upper houses ...".... 161 4. Distribution of power between the two houses . . . 167 5. Direct legislation; the initiative and the referendum . 173 III. THE EXECUTIVE 1. Concentration of authority the first requisite of the executive 183 2. Methods of appointment; hereditary executives . . 186 8. Elective executives 189 4. Presidential and parliamentary government . . . 192 5. Subordinate officials of the executive; the civil service 198 IV. THE JUDICIARY AND THE ELECTORATE 1. The judicial office and its tenure 208 2. The relation of the courts to the executive and to the legislature . . . . ' 211 3. Administrative law and administrative courts . . 216 4. The electorate: evolution of universal suffrage hi lead- ing countries . . . . * 218 5. Representation of minorities 226 V. FEDERAL GOVERNMENT 1. Importance of the federal principle; its historical de- velopment . . . .' "" 232 2. The different kinds of federations 235 8. Sovereignty in a federal state 238 4. Utility of the federal principle in effecting a compro- mise 241 5. Distribution of power in federal states .... 242 6. Conclusions 250 VI. CCLONIAL GOVERNMENT 1. The acquisition of dependencies ...... 255 2. Colonies of the ancient world 258 8. Colonial expansion after the discovery of the sea route to the East Indies and the discovery of America; Spanish colonial system 259 4. Colonial policy of England and France in the seven- teenth and eighteenth centuries 261 5. The American Revolution 264 6. Alteration of British colonial policy in the nineteenth century; establishment of self-government . . . 267 7. Present British system of colonial administration . 271 8. Imperial federation 279 9. Recent colonial expansion of European states . . 281 10. The dependencies of the United States . . . .284 xii CONTENTS VII. LOCAL GOVERNMENT 1. Local and central government distinguished . . 288 2. Areas of local government; the United States, France, England 291 3. Composition and powers of local governing bodies; the United States 296 4. England 304 5. France 807 6. Prussia 810 7. Local taxation; the property tax of the United States 311 8. Systems of local taxation in other countries . . .316 9. Reform of the American system 322 VIII. PARTY GOVERNMENT 1. Conflict of opinion on the merits of party govern- merit 326 2. Origin and development of the party system in Eng- land 330 3. Origin and growth of political parties in the United States . 332 4. The organization of American political parties . . 335 5. Reform of the system 839 6. Party machinery in Great Britain 843 7. The party groups of Continental Europe . . . 343 PART m. THE PROVINCE OF GOVERNMENT T. INDIVIDUALISM 1. The individualistic theory of the functions of gov- ernment 353 2. Individualism as based on a theory of justice . . 355 8. Based on a theory of profitability: the doctrine of laissez-faire 858 4. Based on a biological analogy : the survival of the fittest 361 5. Conflicting forces . . . . 363 II. SOCIALISM 1. The socialistic theory: its destructive criticism . . 866 2. The constructive programme of socialism . . . 870 3. The German Social Democrats 874 4. Socialism in England and America ..... 378 III. THE MODERN STATE 1. The new environment * 881 2. Theory of protection to industry . . ."""*. . 384 CONTENTS xiii 8. Modern protective tariffs ....... 888 4. Interference with competitive prices; trust and rail- road legislation 389 5. Government interference on behalf of the working class; factory laws, state insurance, and pensions . . . 397 6. Municipal control 401 INDEX . 403 ELEMENTS OF POLITICAL SCIENCE PART I THE NATURE OF THE STATE ELEMENTS OF POLITICAL SCIENCE CHAPTER I POLITICAL SCIENCE, THE THEORY OF THE STATE 1. Definition and scope of political science 2. Relation to other sciences 3. Meaning of the state ; its essential attributes 4. The distinction between state, society, government, and nation 5. The state and a common faith 6. The ideal state. I. Definition and scope of political science. A treatise on political science must naturally begin with some dis- cussion as to the scope and province of the science itself, and its relation with the other branches of human knowl- edge of a kindred character. This is especially necessary for two reasons. In the first place, the term "political science" has been used with a good deal of latitude, not to say ambiguity, both in colloquial language and in scientific discussion. In the second place, the relation- ship between this and various other departments of knowledge, such as jurisprudence, history, and econom- ics, is an extremely intimate one. It is necessary, there- fore, to endeavor as accurately as may be to define the proper field of political science, and to indicate its con- nection with other branches of learning. An elaborate definition may better be reserved for later consideration. For the present a simple and con- venient starting-point may be found in the statement, inadequate though it is, that political science deals with government. The word " government," used in its widest sense, rests on the fundamental idea of control 4 THE NATURE OF THE STATE and obedience; it implies authority, and a submission to that authority. It thus calls before our minds a phenomenon which may be considered almost coexten- sive with human society as it at present exists, and which reaches back into the past almost as far as the history of human society itself. True it is that as we follow its retreat into the remote periods of history, it recedes with a diminishing outline that tends towards an unseen vanishing-point. But in this it only shares in a characteristic common to all the products of social evolution. Now the phenomenon of government, as we view it in the past and in the present, shows anything but a uni- form appearance. It differs constantly in its form, it differs in its scope and purpose, and differs most no- tably in the varying degrees of its complexity. These divergences in the concrete aspect of government are seen at once by comparing the rude organization by which a primitive pastoral tribe is held in loose cohesion, the city-state of the Greeks, the feudal system of the Middle Ages, and the intricate mechanism of the modern national state. It is out of these variations offered by the different types of human organization in which the common element of government is contained that polit- ical science arises. In all branches of investigation it is the diversities and not the similarities of observed phenomena that afford the primary motive for specula- tion. In the physical world the diversities of form, function, and structure among plants and animals give occasion to the investigations of the botanist and the naturalist. If all plants and animals had been of a uni- form fashion and function their similarity would have been accepted as a matter of course. It is the fact that this similarity does not exist that gives the initial stim- THE THEORY OF THE STATE 5 ulus to man's investigations. Similarly in the domain of human institutions the heterogeneous and complex appearance of the phenomena in question affords the basis of political science. Its field lies in the exami- nation and analysis of the varying forms of humai organization in which the element of social control is embodied. At this point emerges a further analogy between the study of our physical and social environment. In each case the phenomena observed are found to be in a constant state of change and movement. New forms replace the old, the whole representing a graded series of ascending complexity in which higher and higher structures correspond to functions increasingly elabo- rate. In the physical world, life, from being simple and rudimentary, becomes complex and differentiated. New organs are developed and higher functions performed. In the superorganic world the process of social evolu- tion is continuous. IJere too are successive stages of progress in which tha form and character of human institutions undergo an unceasing alteration in accord- ance with the changing environment of social growth. The study of governmental forms must therefore in an eminent degree be a comparative and historical study. It must not content itself with a mere analysis of political institutions as existing at any given point of time; it must take account of the process of change and evolution and the alteration of social and intellectual environment. This is what is meant by the statement that the investigations of political science must be of a dynamic and not a static character. They must be directed towards the proper interpretation of move- ments and tendencies in addition to the analysis of the status and structure of existing institutions. The or- 6 THE NATURE OF THE STATE ganized aspect of the community, the state, must be treated not only as an actuality, but also as a product of the past, and as the basis of the life of the future. 2. Relation to other sciences. Herein appears the connection between history and political science, a connection somewhat difficult to state in precise terms without making one of the two assume a subordinate character. There is, indeed, a natural tendency on the part of the political scientist to view history somewhat in the li^t of mere raw material, and an equally natural ^^fcncy on the part of the historian to view political science somewhat in the light of an emanation, one might almost say an excrescence, of history. It may with fairness be said that the two studies are mutually contributory and complementary. Political science would certainly be impossible without history; history would lose its main significance without at least an unconscious political science. The facts of history not all of them, but such as are significant for the study of institutions constitute a part of the ground- work of political science; not, it is to be noted, the whole groundwork, for political science must also build upon ethical and psychological foundations. Thus one might be tempted to employ the terminology of the logician and say that some of history is part of political science, the circles of their contents overlapping an area enclosed by each. Hence it is that in the sub- divisions of political science offered by some writers "historical political science," or the history of political institutions, is one branch of the main subject. 1 The connection between these allied branches of knowledge has been well indicated by Professor Seeley, who tells us that political science is the fruit of history, and 1 Compare W. W. Willoughby, The Nature of the Slate, chap. i. THE THEORY OF THE STATE 7 history is the root of political science. 1 A recent Ameri- can writer 2 has illustrated the relationship in a still more striking manner by saying that history offers the third dimension of political science. But while commenting on the intimate interdepend- ence of these two branches of learning, their essential difference must not be forgotten. Political science has no concern with history in its purely narrative aspect; it has no interest in the mere cumulation of instances; nor has it any interest in the military, coma^rcial, or economic aspects of history as such; onlyB^o far as these bear upon the evolution of organized social con- trol, only so far as they elucidate the nature of the state, are they of import for the student of political science. The latter must revert to history for much of the material of his study, but always in an eclectic or selective fashion, coordinating his facts with a view to their special significance. Thus, for example, the history of the Puritan colonies of North America is of primary interest to the student of political science as illustrat- ing the growth of democratic self-government, the pro- gressive application of the federal principle of political consolidation, the relations of church and state, and the evolution of written constitutions. The economic life of the colonies is of only secondary and indirect im- portance. The religious controversies of the period as such, the romantic aspects of the history of the time the adventurous intercourse of settlers and savages, the changes of manners, speech, and costume occasioned by the new environment have still less bearing on the 1 J. R. Seeley, Introduction to Political Science. Compare also the following: "The science of politics is the one science that is deposited by the stream of history, like the grains of gold in the sand of a river." (Lord Acton, The Study of History.) W. W. Willoughby, op. tit. 8 THE NATURE OF THE STATE problems of political science. Similarly the domain of the historian has its distinct limitations. Dr. Georg Jellinek accurately circumscribes the province of his- tory as follows: "History presents to us not only facts but the casual connection between the facts. It differs, however, from the theoretical sciences in that it always examines concrete cases of cause and effect, never abstract types and laws. If the historian undertakes this he passes the bounds of his own province and be- comes a philosopher of history or a sociologist. It is true that no historian will be willing entirely to forego this higher aspect of history, but there is no science which offers to its students a complete self-sufficiency." * Political science stands also in close relation to po- litical economy. The purpose of the latter is to investi- gate " man's activity in pursuit of wealth." 2 It deals with the production and distribution of wealth under the influence of forces both material and psychological. Inasmuch as the production and distribution of material wealth is very largely conditioned by the existing form of government and the institutional basis of economic life, the study of political economy is brought into an intimate relation with that of political science. The system of the English school of classical economists, for instance, is presumed to flow from the original postu- lates of private individual property, of unimpeded contract under a social sanction, and a mobility of the strata of society unhindered by non-economic forces. Conversely it is also true that political institutions are 1 Recht des Modernen Staates, vol. I, chap. i. * "Political Economy, or Economics, is a study of mankind in the ordinary business of life; it examines that part of individual and social action which is most closely connected with the attainment and with the use of the material requisites of well-being." (Marshall, Principles ef Economics, vol. i, bk. I, chap, i.) THE THEORY OF THE STATE 9 greatly affected by economic circumstances. The par- ticular form of government existing at any period and place, and the direction and extent of its activity, are largely dependent on the economic life of the community in question. Thus one would naturally expect the po- litical institutions of a migratory pastoral tribe to differ from those of a community deriving its support from a fixed form of agriculture, while each of them would differ in the form and character of its government from a manufacturing population centered in great cities. The state, in a word, is conditioned by its eco- nomic environment. 1 Nor is it only in their fundamental bases that the sciences of economics and politics stand in close relation, for many specific subjects of inquiry belong in a measure to each of them. Such questions as the social control of monopoly, the governmental man- agement of railroads, and the municipal ownership of public utilities present both an economic and a political aspect. To the economist the problem is one of eco- nomic efficiency and equitable distribution; to the stu- dent of political science it is a question of administrative organization. 2 The relation of political science to various other branches may be discussed more briefly. Constitu- tional law, the analysis of the organization of a par- 1 The line of thought here suggested forms the basis of what is called the materialistic theory of history. See below, chap. in. * The ambiguous relation in which the terms "political science " and "political economy" stand to one another is rendered still more con- fusing by the divergent usages of leading American universities. At Harvard " Economics " is a subdivision of the department of "History, Government, and Economics." At Yale, "Economics" constitutes a subdivision of the general group of courses entitled " Philosophy, Edu- cation, History, and the Social Sciences." " Political Science " is treated as forming part of the subdivisions "Philosophy" and "History." At Chicago "Political Economy" and "Political Science" constitute separate departments. 10 THE NATURE OF THE STATE ticular state at a particular time, would seem to be best classed as a subdivision of political science, or at any rate to cover a large field in common with it. Opinion might also differ as to whether international law, 1 dealing with the relation of states with one an- other, should more properly be classed as an included or only a kindred subject. It may at any rate be said that in measure as international relations develop into the fixity of a true international law a code enforced by a recognized authority so does international law become merged in the domain of political science. Last of all may be mentioned the relative position of political science and sociology. Here the former must be con- sidered in the light of an included portion of the more general field. Sociology deals not only with organized communities, but also with communities in which the element of social control is as yet feebly differentiated. It deals not only with the legal and coercive relation- ship of man with his fellows, but also with the evolution and status of customs, manners, religion, and economic life. Most important is it to observe that sociology treats not only of conscious, but also of unconscious social activities. 2 How far such a science can be any- 1 Jellinek considers international law a branch of jurisprudence (Rcchtsunsscnschaft), which is itself a subdivision of political scienae. " Of all the multifarious projects for fixing the boundary which marks off political from the more general social science, that seems most satisfactory which bases the distinction on the existence of a po- litical consciousness. Without stopping to inquire too curiously into the precise connotation of this term, it may safely be laid down that as a rule primitive communities do not, and advanced communities do mani- fest the political consciousness. Hence, the opportunity to leave to so- ciology the entire field of primitive institutions, and to regard as truly political -only those institutions and those theories which are closely associated with such manifestation." (W. A. Dunning, History of Po- litical Theories, Ancient and Mediaeval, Introduction, xvi.) But com- pare with this the following: "Human society truly begins when social consciousness and tradition are so far developed that all social relations exist not only objectively as physical facts of association, but subjec- THE THEORY OF THE STATE 11 thing more than a group of subdivisions, or a name for a sort of general wisdom in regard to man's social en- vironment, gained from specific studies, is perhaps open to question. Certainly in the hands of many of its exponents it seems to lose in intensity what it gains in width. Nevertheless, if one accepts the " science of society " on its own terms, it is proper to consider that it includes political science as one of its subdivisions. On this basis one may proceed to a formal definition of political science, which may best be accepted in the form offered by Paul Janet: "Political Science is that part of social science which treats of the foundations of the State, and of the principles of government." Be- side this may be placed the definition of J. K. Blunt- schli, which draws especial attention to the dynamic nature of the study involved: "Political Science is the science which is concerned with the State, which endeavors to understand and comprehend the State in its conditions, in its essential nature, its various forms and manifestations, its development." l tively also in the thought, feeling, and purpose of the associated indi- viduals." (Giddings, Theory of Sociology, Annals Am. Acad. Pol. and Soc. Science, 1894.) 1 For convenient comparison the following definitions of allied sci- ences may here be noted : (1) SOCIOLOGY. "Sociology, defined as the science of social phe- nomena, includes all of these social sciences (that is, economics, politics, history, etc.) ; but in this general use of the term it is not a distinct sci- ence, but rather the name for a body of knowledge, including several sciences. The more definite rohere of sociology as a science is indi- cated when we recognize that each of the sciences dealing with social phenomena involves a theory ae to the nature of society." (A. Fair- banks, Introduction to Sociology.) "I am tempted to define Sociology as the science of associated humanity, that is, of humanity, so far as it is united and so^far as it is associated." (J. H. W. Stuckenberg, /n- troduction to the Study of Sociology.) All the writers on sociology dis- cuss its claim to existence as a science, though formal definitions are few. Compare Herbert Spencer, Study of Sociology, chap, n; De Greef, Introduction a la Sociologie, part i, chap i; Small and Vincent, Intro* duction to the Study of Society, bk. i, etc. 12 THE NATURE OF THE STATE 3. Meaning of the state; its essential attributes. Po- litical science, then, deals with the state; it is, in short, as it is often termed, 1 the "theory of the state." The word " state " is sufficiently familiar to have been used in the preceding discussion without explanation. It is now necessary to make a nearer analysis of the exact meaning to be attached to the term. An examination of the ordinary senses in which the word is used shows at once a considerable latitude in its employment. Thus when we speak of the different "states" of Christen- dom, or refer to France, Italy, etc., as the leading states of Europe, the word seems roughly to correspond with such terms as "country," "international power," etc. When, on the other hand, we talk of the relations exist- ing between the "church and the state," we have no reference to international affairs; the idea implied is rather that of association or organization. Again, in such uses as The State and the Individual (the title of a well-known work on political science already men- tioned), or in the title of one of Herbert Spencer's books, The Man versus the State, the word is plainly used to imply a contrast between the individual citizen and the collective aspect of the community. Finally, in such phrases as " state aid to the poor," " state con- trol of railroads," etc., what is thought of is not so much the community collectively as the special machin- ery or organized agency through which the community acts. Out of the different elements here embodied we may construct an exact conception of what is meant by the (2) JURISPRUDENCE. Jurisprudence is the "formal science of those relations of mankind which are generally recognized as having legal consequences. ... It may ... be defined provisionally as the formal science of positive law." (T. E. Holland, Elements of Jurisprudence.) 1 See, for example, M'Kechnie, The State and the Individual, Introd. THE THEORY OF THE STATE 13 state in the technical language of political science. It embodies as the factors of which it is composed: I. A territory. 1 II. A population. ^ III. Unity. Let us briefly examine these in turn. Without a definite territory there can be no state. The Jews, being scat- tered abroad and dissociated from the occupation and control of any particular territory, do not constitute a state. Professor Holland, in the definition given in his Elements of Jurisprudence, speaks of a "numerous as- semblage of human beings generally occupying a cer- tain territory." But it seems advisable to insist on the idea of land being necessary. Equally necessary is a population. It goes without saying that an uninhabited portion of the earth, taken in itself, cannot form a state. The third requisite is said to be unity. By this is meant that the territory and population in question must form no part of a wider political unit; nor must the territory contain any portion or portions which, while forming geographically a part of it, are not a part of it politi- cally. The island of Haiti is a geographical unit, but, being divided into the separate republics of Haiti and Santo Domingo, does not present the unity required to constitute a state. In the same way the separate " states " of the American Union are not states in the technical sense of the term, since each forms part of the single political entity known as the United States. The United States as a totality constitutes a state; 1 The requisites are thus stated by Bluntschli. He prefers to add "sovereignty," a factor which seems, however, to result from the com- bination of the last two given above, and the nature of which is con- sidered in a later chapter (part i, chap. rv). 14 THE NATURE OF THE STATE the "state" of Massachusetts does not. The final req- uisite, that of organization, is one that must be care- fully noted. Even granting that we have a territory and population disconnected from the rest of the world, and thus in a sense a unit, we have not yet a state. Imagine, for example, that a "numerous assemblage of human beings," to use Professor Holland's phrase, were deposited upon some uninhabited island not owned or controlled by any existing government. Here we should have land and population and unity, but the inhab- itants, having as yet no cohesion or connection, would not form a state. Imagine, however, that these in- habitants, being persons, we may suppose, accustomed to live under a settled government, should agree to form themselves into an organized body and to vest the control of all of them in the hands of certain among their number. We should then have a state. Or let us imagine a very different state of affairs. Suppose that a certain number of the inhabitants were enabled by their superior physical force or cunning to reduce the others to a condition of submission, so that settled relations of control and obedience were established. In this case too there would be a state. For the organization needed to constitute a state need not be one established by mutual consent or one of an equitable nature. The mere exist- ence of settled obedience to a superior, coercive force is all that is required. Any form of despotism or tyr- anny which fulfills these conditions establishes a polit- ical state just as much as does a government whose authority rests on a general acquiescence. Such, then, is the nature of the state. As formal definitions we may cite the following: (1) "A state is a people organized for law within a definite territory" (Woodrow Wilson). 1 (2) " The body or community > The State. THE THEORY OF THE STATE 15 which thus by permanent law through its organs ad- ministers justice within certain limits of territory is called a state " (Theodore Woolsey). 1 A more elaborate definition, the full bearing of which will appear in our discussion of sovereignty, is given by Professor Holland : "A state is a numerous assemblage of human beings, generally occupying a certain territory, amongst whom the will of the majority or of an ascertainable class of persons is, by the strength of such a majority or class, made to prevail against any of their number who op- pose it." 2 4. The distinction between state, society, govern- ment, and nation. The meaning to be attached to the word " state " will be rendered more precise by dis- tinguishing it from " society," " government," and " nation." The term " society " has no reference to territorial occupation; it refers to man alone and not to his environment. But in dealing with man its signifi- cance is much wider than that of " state." It applies to all human communities, whether organized or un- organized. It suggests not only the political relations by which men are bound together, but the whole range of human relations and collective activities. The study of society involves the study of man's religion, of do- mestic institutions, industrial activities, education, crime, etc. The term "government," on the other hand, is narrower than " state." It refers to the person or group of persons (which in a modern community will be very numerous) in whose hands the organization of the state places for the time being the function of political control. The word is sometimes used to indicate the 1 Political Science. * T. E. Holland, Elements of Jurisprudence, An excellent discussion of the various definitions of "state" appears in J. W. Garner, Intro- duction to Political Science, chap. n. 16 THE NATURE OF THE STATE persons themselves, sometimes abstractly to indicate the kind and composition of the controlling group. The ordinary citizens of a community are a part of the state, but are not part of the government. The term has, moreover, no reference to territory. The distinction will appear more evident in our subsequent discussion of sovereignty. 1 In the next place, it is to be observed that "nation" and "state" are two distinct conceptions. The term "nation," though often loosely used, is properly to be thought of as having a racial or ethnographical signifi- cance. It indicates a body of people the Germans, the French, the Hungarians, etc. united by common descent and a common language. But such divisions by no means coincide with the political divisions of the civilized world into states. Austria-Hungary) as it ex- isted in 1914, constituted a single state, but its popula- tion was made up of members of a great many different races. The political division of the civilized world into states freely intersects with the division into races, al- though sometimes the political units as in the case of modern France are almost coincident with the ethno- graphic. The relation between political organization and nationality has been a changing one. In the classi- cal world, in the city-states of ancient Greece and Italy, kinship among the citizens was considered an elemental factor in the composition of the state. In ancient Athens and Sparta persons of alien race were not considered as members of the political community. Hence hi the 1 Professor Burgess in his Political Science and Constitutional Law adopts a different basis of distinction: "state" and "government" are each made to refer to the organs of social control and not to the terri- tory or population ; the latter term designates the ordinary mechanism of administration, the former the supreme body having absolute legal power. See Political Science and Constitutional Law, vol. i. THE THEORY OF THE STATE 17 political thought of classical Greece the conception of the state is limited to a small area occupied by persons of the same race. In the Roman world, the original conception of a city-state with a common nationality was transformed by the process of absorption and con- quest into the larger conception of a world-wide state and universal sovereignty. Nationality is here lost from sight. The foreign nations occupying the sub- jugated provinces were recognized by virtue of the Emperor Caracalla's act of general enfranchisement (A.D. 212) as citizens of the universal empire. Such a conception, as will be seen in a later chapter, long survived as the basis of European policy, though exist- ing only in the shadowy form of the titular Holy Roman Empire. In actual fact, however, it was displaced by other political conceptions. Feudalism brought with ife the notion of territorial sovereignty and dynastic su- premacy. A state became coincident with the domain owned, if one may use the term, by a particular house and its descendants, and quite irrespective of the na- tionalities of the subject peoples. States were formed out of communities of varying nationalities by inherit- ance, by cession, by marriage of their sovereigns. Wit- ness, for example, the sovereignty of Henry II over Anjou, Aquitaine, etc.; the claim of Edward III to the crown of France; and at a later date, the empire of Charles V, who inherited Burgundy, Spain, part of Italy, and va- rious Austrian territories. To a large extent this politi- cal fusion has fortunately been accompanied by a fusion of languages, as in the amalgamation of modern France. It was in the nineteenth century that the claim of nationality as the paramount basis of state organization strongly asserted itself. The great political upheaval consequent upon the American and French revolutions 18 THE NATURE OF THE STATE led to an intense national movement in most parts of Europe. Under its influence modern Italy has been converted (1815-70) into a national state. Germany also assumed a definite national form in the modern German Empire (1871), whose boundaries, however, were not identical with those occupied by the German people. In the reconstruction of the political map of Europe in 1919 the recognition of racial and national claims is seen in the creation of Czecho-Slovakia, Jugo- slavia, and Poland as independent states. Common nationality is, therefore, though not an actual requisite in the composition of the state as it now exists, a potent factor in its formation. 5. The state and a common faith. At various periods in the world's history we find the idea that the existence of a common religious faith among the members of the state is essential to its existence. Such was the domi- nant element in the composition of the ancient Jewish theocracy. In the period following the reformation in Europe heretical belief was considered by both Prot- estant and Catholic monarchies an offense against the state and was punished as such. In the Puritan colonies of Massachusetts and New Haven only the members of the church were at first admitted to the exercise of political rights. With the growth of the doctrine of re- ligious toleration such a view of the state has passed away. The civil authority and the civil bond among the citizens is dissociated from their religion. In many countries, however, established churches supported by the state remain as historic survivals of the earlier point of view. 6. The ideal state. In all of the foregoing analysis we have treated of the state as it actually exists, not the state as it might be if viewed in its perfect form. THE THEORY OF THE STATE 19 This is the distinction made by the German writers l between the conception and the idea of the state. The conception of the state at any particular historical period is found in the common attributes of the states actually existent. The idea, on the other hand, is the ideal of perfect form of which any actual state is only an approximate realization. This ideal has varied from age to age. To the Greeks the ideal was to be sought in the perfected form of the city-state. In our own day the national state has served as the embodiment of perfect political organization. But a wider ideal is con- ceivable in the form of the world-state or state universal. The realization of such a political organization, as has been said, was long the haunting ideal of European policy. We see it reflected in the claims of the Roman Emperor, in the less substantial claims of the Eastern Emperor at Constantinople, after the fall of Rome in the resuscitation of the empire by Charles the Great (A.D. 800), and in the vague sovereignty of the Holy Roman Emperor from that date until the abolition of the titular dignity (1806) through the power of Na- poleon. The same ideal hovers before us as offering the goal of the political organization of the future. The de- velopment of international relations that could lead to such an end will be discussed in a later chapter. READINGS SUGGESTED Pollock, Sir Frederick, History of the Science of Politics, chap. I (revised edition, 1916). Bluntschli, J. K, The Theory of the State (translation of 6th edition, 1885), Introd. chaps, i, n, in, and bk. I, chap. I. 1 See J. E. Bluntschli, Theory of the State, bk. i, chap. I. 20 THE NATURE OF THE STATE FURTHER AUTHORITIES Jellinek, G., Das Recht des Modernen Staates, vol. I (1900). Willoughby, W. W., The Nature of the State (1896). Seeley, Sir J. R., Introduction to Political Science (1896). M'Kechnie, W. S., The State and the Individual (1896). Pollock, Sir Frederick, A First Book of Jurisprudence (1896). Holland, T. E., Elements of Jurisprudence (1888). Bosanquet, B., The Philosophical Theory of the State (1899). Wilson, W., The State (revised edition, 1900). Woolsey, T., Political Science, vol. I (1878). Garner, J. W., Introduction to Political Science (1910). Rose, J. H., Nationality as a Factor in Modern History (1916). Dominion, L., Frontiers of Language and Nationality in Europe (1917). CHAPTER H ORIGIN OF THE STATE; FALLACIOUS THEORIES 1. Theory of the social contract 2. Application made of the theory by Hobbes, Locke, and Rousseau 3. Criticism of the theory 4. The theory of divine origin 5. The theory of force. I. Theory of the social contract. After a preliminary investigation of the proper province of political science, the topic which of necessity takes the first place in our inquiry is that of the origin of the state. How has it come about that men are everywhere found living under some form of authoritative control? What is the origin of government and law? Speculation as to the begin- nings of government is not merely a matter of historical curiosity, for it is ultimately associated with the more important question of the justification of government the right of the state to be. The present subject thus brings before us both an historical and an ethical in- quiry the investigation of the facts as to the actual beginnings of political forms and the discussion of the bearing of these facts on the question of the rightfulness or wrongness of the existence of government. To examine and reject a fallacious hypothesis is often a means of arriving at the truth. In the present in- stance a presentation of some of the mistaken theories proposed as to the origin of the state may aid us in moving towards a correct one. The different opinions which we shall briefly review have had such great influence in the formation of existing political insti- tutions that a proper understanding of them is neces- sary in order to appreciate the forces operative in the 22 THE NATURE OF THE STATE growth and structure of modern governments. The purpose of the ensuing discussion is not, therefore, the merely sophistical task of demolishing hypotheses of straw. The rejection of what is false in the speculative theories of the past will aid in establishing more valid conclusions on the residual basis of what is true. Foremost in historical importance of all the different views concerning the origin of the state, is the theory of the social contract. As old as political speculation itself, and preeminent in its influence, it stands written large upon the history of human thought. Postponing for the moment the treatment of the beginnings and growth of the theory, let us first examine in broad outline the general content of the doctrine of the social contract. It professes to offer an explanation of the origin and justification of government. To do this it starts from the fundamental assumption that the past history of mankind may be divided into two periods, the first of which is antecedent to the institution of government, the latter subsequent to it. During the first of these periods, man is found in the ".state of nature/' uncontrolled by any laws of human imposition, and subject only to such regulations as are supposed to be prescribed to him by nature itself. This code of regulations, or rather, since it is nowhere written down, the spirit by which such a code might be presumed to be inspired, is spoken of as the law of nature, or natural law. This primitive stage of natural society man is presently compelled to desert. Whether it be that this state is too idyllic to last, or whether it becomes in the Bourse of time and by reason of mutual rapacity too inconvenient to be tolerated, is a point of dispute among the exponents of the theory themselves. In either case man is led to substitute for it a union with ORIGIN OF THE STATE 23 his fellow-men in which, abandoning the isolation of the "natural" individual, all are joined into one civil society or body politic. Each now stands in a vastly different relation to his fellow-men. Submitting him- self to the joint control of all, he receives in return the benefit of the joint interest of all in his protection. To safeguard the security of all members of the body politic (or state), a code of law is enforced by all against the possible rapacity of each. Thus, while each loses the "natural liberty" that he enjoyed in the ante- cedent state of nature, he gains in return the security to which he is naturally entitled, and which is now guaranteed to him by the covenant of all his fellows. Human law is substituted for a natural law, and the individual in submitting to social duties finds himself clothed with social rights. The process, or at any rate the result of it, has very much the appearance of a contract or bargain dictated by the individual's own interest, an exchange of obligations in return for privi- leges. Whether the bargain is to be looked upon as one that actually happened at a given time and place for each politically constituted society, or whether it merely expresses the result or outcome of a more grad- ual social process, is a matter that has been persistently left in a half-light. We cannot, therefore, make any general statement as to whether those who have de- fended the idea of the social contract have viewed it as an historical fact, or only as an interpretation of the nature of the social bond. Such is in general the doctrine of the social contract. A glance at the growth and history of the doctrine itself may serve to bring out more saliently the nature of the argument involved. The origin of the theory is to be found in the philosophy of the Greeks. It is asso- 24 THE NATURE OF THE STATE dated more particularly with the speculative thought of the period during which the Greek city-state the organized form under which Athens and Sparta reached their greatest development was falling into deca- dence. In the writings of Plato and Aristotle we find but scant sanction for it. The political thought of both of them was inspired by the ideal of the city-state, whose importance was to them greater than, and antecedent to, that of the individual citizen. The latter, indeed, only existed in and through the state. The social bond with his fellows was an essential part of man's nature. " Man," runs the well-known Aristotelian dogma, " is a political animal." Society, therefore, being the pri- mary consideration, and the individual existence be- ing possible only by means of it, the conception of an individual dealing in obligations and privileges, as a subject of contract with society at large, was altogether foreign to the Platonic and Aristotelian system. With the Greeks of the fourth and succeeding cen- turies, however, the political environment had alto- gether changed. The subversion of the city-state by the Macedonian and Roman conquests led the Greek philosophers to turn aside from political speculation, and to look upon the political aspect of the individual as merely one of the accidents of his being. In the writings of the Epicurean school we find the idea that laws and duties imposed on the individual by any gov- ernment, whether foreign or autonomous, are things which he accepts for his own well-being, entering thus into a kind of compact or understanding with the pow- ers that be. On this foundation grew up the theory of the social contract. The system of the Roman law, one of the greatest contributions of which to institutional development has been to bring into a clear light the ORIGIN OF THE STATE 25 conception of obligation by contract, supplied a further material with which to construct the completed the- ory. 1 Christianity, indeed, inculcating in its early teach- ings the doctrine that all civil society had been the out- come of human sin, and that it was the duty of the Christian to submit to the rule of temporal powers as a part of his abnegation of self, seemed at first to run counter to the supposedly equitable bargain of a social contract. Nevertheless, in the polemics of the Middle Ages, during which the rival claims of the Empire and the Papacy supplied the basis of political controversy, a sort of meeting-point appears between the doctrine of a social contract and the early Christian conception of the nature of civil society. The advocates of the papal claim held that kings and princes in general, and hence the emperor among them, held their offices (under God's sanction) by reason of a covenant with the peo- ple, even as the elders of Israel covenanted with King David. 2 This view, connected presently with the earlier Greek philosophy, gave rise to a special form of con- tract theory in the idea of a compact made by all the people with one person, a contract between a king and his subjects. To this special form of the general doc- trine the name of " governmental compact " * has often been given. 2. Application made of the theory by Hobbes, Locke, and Rousseau. It was in the seventeenth and eight- eenth centuries, in consequence of the religious and civil upheavals by which the political institutions of Europe were moulded anew, that the theory of contract obtained its greatest prominence. Hobbes and Locke 1 See in thia connection David G. Ritchie, Darwin and Hegel, with Pther Philosophical Studies (1893). 2 Samuel, v, 3. See W. W. Willoughby, The Nature of the State (1896), chap. rr. 26 THE NATURE OF THE STATE in England and Jean Jacques Rousseau in France be- came its chief exponents. A review of the contract theory as laid down by each will serve to show it in its completed form. Thomas Hobbes, sometime tutor to Charles II, and prominent among the writers of the seventeenth century for his works on moral and political philosophy, offers in his Leviathan (1651) a striking ex- position of the contract theory. The foundation of his theory lies in his estimate of man's essential nature. Man, according to Hobbes, is an altogether selfish and self-seeking animal. The sole motive for his actions proves on analysis to be the wish to satisfy his own appetites and desires; even such a quality as benevo- lence is seen on examination to result from man's "love of power and delight in the exercise of it." Compassion is only "grief at the calamities of others from the imag- ination that the like calamity may befall ourselves." Man is therefore by nature anything but a social animal; indeed he finds "nothing but grief in the company of his fellows," all being equally rapacious and self-seeking. The state of nature is consequently a state of war, the war of each against all; it is a state of "continual fear and danger of violent death; and the life of man soli- tary, poor, nasty, brutish, and short." From this con- dition man is driven by evident necessity to join himself with his fellows under some common authority, uni- versal submission to any form of control, however despotic, being preferable to the mutual warfare of the state of nature. In the contract which men thus make among themselves all agree to submit to a single au- thority, which Hobbes interprets to be that of a king or absolute sovereign. But the latter, from the nature of the case, though benefited by the contract, is not a party to it. Such a contract thus differs from the gov- ORIGIN OF THE STATE 27 emmental compact referred to above in that the king, being no party to it, cannot break it. It becomes irrev- ocably binding on all the community as a perpetual social bond. In this way the theory is used by Hobbes as a defense of absolute monarchy, the philosopher appearing as the theoretical apologist of the Stuart despotism. Very different is the presentation of the contract by Hobbes's illustrious contemporary John Locke. With the latter the state of nature is not one of universal war; it is, however, inconvenient and unsatisfactory. There is, in the first place, the standing " want of an established, settled, known law, the ' law of nature ' being obscured, since men are biased by their interest as well as ignorant for want of study of it." Nor is there " a known and indifferent judge," nor, finally, an active power to punish those who contravene the law of nature. For these reasons men are led to abandon the " freedom " of the state of nature, and submit to the restraint of civil society. In the contract which they make, however, the monarch to whom they agree to submit is himself a party. The contract as presented by Locke does not precisely correspond to the govern- mental compact, since it not only establishes the author- ity of the monarch, but also joins the members of the community by mutual covenant into a body politic. 1 It differs, on the other hand, from the contract of Hobbes in that the monarch is a party to it, and holds his office only by virtue of his compliance with the terms of the contract. Should the king break these, the 1 The late Professor Ritchie claimed that the customary contrast between Locke and Rousseau is erroneous, the essence of Locke's so- cial contract being the incorporation of society and not the appoint- ment of a king. See essay, "The Social Contract Theory," Political Science Quarterly, 1891. 28 THE NATURE OF THE STATE contract is dissolved. In this form the theory is made the basis of a system of limited monarchy, and Locke stands as the apologist of the English revolution of 1688. The charge of " having endeavoured to subvert the constitution of the Kingdom by breaking the orig- inal contract between King and people," which was the indictment of the Convention Parliament against King James II, shows the basis of Locke's later defense of the revolution which was embodied in his Treatise on Government (1690). Strongly contrasted with each of these is the stand- point of the great French writer of the eighteenth cen- tury, Jean Jacques Rousseau. Rousseau's book, the Contrat Social (1762), may be taken as the exposition of the theory dominant in the eighteenth century. With Rousseau the state of nature appears as an era of almost idyllic felicity. 1 The simple savage endowed with a health and vigor as yet unimpaired by the enervating influences of civilization suffices easily for his own re- stricted felicity. To this hypothetical state of nature Rousseau appeals for the solution of the problems of civilized life in regard to education, morals, etc. As the numbers of the race increase, this primitive condition becomes no longer advantageous. The obstacles which injure man's preservation in the state of nature grow more powerful than the forces which each individual can employ to maintain himself in this condition. Man is thus driven to relinquish his " natural liberty," that rather illusory " unlimited right to everything he is able to obtain," and by a union with his fellows to substitute civil for natural liberty. To do this he is driven to find a " form of association which may defend 1 Rousseau's views on the state of nature are found in detail in bis Discours sur ORIGIN OF THE STATE 29 and protect with all the force of the community the person and property of each associate and by which each, being united to all, yet only obeys himself and remains as free as before." This is the social contract, a covenant of each with all. The king or monarch (or governing body of any kind) is not a party to the bar- gain, nor is the tenure of office of the ruler or rulers one of the terms of the contract. The king is merely a com- missioned officer who holds his position at the dictates of that general will (volonte g6nSrale) which emerges as the sovereign power in consequence of the contract. Any king is, of course, deposable if the general will de- mands it. With Rousseau the doctrine of the social contract, which in the hands of Hobbes was made a weapon of defense for absolutism, and with Locke a shield for constitutional limited monarchy, becomes the basis of popular sovereignty. 3. Criticism of the theory. From the exposition of the theory, let us turn to the question of its criticism. Attacked even in the eighteenth century by David Hume, 1 it has undergone a series of assaults at the hands of the publicists of the nineteenth century, as the result of which it may be now looked upon as ex- ploded. Jeremy Bentham says of it, " I bid adieu to the original contract and I left it to those to amuse them- selves with this rattle who could think they needed it." J. K. Bluntschli, a Swiss, one of the most distinguished writers in German on political science in the nineteenth century, pronounces the theory not only unhistorical and illogical, but even "in the highest degree dangerous, since it makes the State and its institutions the product of individual caprice." 2 1 Philosophical Works (Edinburgh, 1854), vol. Ill, essay xn. * Theory of the State (1885), bk. iv, chap. IX. 30 THE NATURE OF THE STATE Of the arguments directed against the social contract, the most evident and the most unanswerable is that the theory has no foundation in history. There is no re- corded instance of a group of savages, previously with- out any political organization or political ideas, deliber- ately meeting together to supply the defect. Nor is it rational to suppose that any such deliberate first crea- tion of the state could have happened; for this presup- poses hi the minds of its founders the conception of social organization before any such phenomenon had existed. They must have known what a government was before they could make one. As against this it is urged that history does furnish us instances of what may be termed the formation of a social contract, not indeed among men hitherto ignorant of government, but among groups of people separated from the state under which they lived, and desirous of forming a new organization by deliberate action. Most famous of these instances is the case of the Puritan emigrants of the Mayflower. The familiar document drawn up and signed by them while still on board ship runs, "We . . . do, by these presents, solemnly and mutually in the presence of God and one another, covenant and com- bine ourselves together into a civil body politic, for our better ordering and preservation." " When Carlyle objects," says Professor Ritchie, " that Jean Jacques could not fix the date of the social contract, it would at least be a plausible retort to say that the date was the llth of November, 1620." * Further examples are found during the same era of American history in the Provi- dence agreement (1636) and the plantation covenant of New Haven (1638). It has even been urged that the written constitutions of the United States and its com- Ritchie, Political Science Quarterly, 1891. ORIGIN OF THE STATE 31 ponent commonwealths are historical instances of social contracts. But in all of these cases we have at best not the institution of a state among a people hitherto de- void of political organization, but the establishment of a particular government by persons already accustomed to the rights and duties of civil society. If the social- contract theory merely meant that in some cases par- ticular governments are established by joint and general action, it would be hard to contradict it. It is, however, possible to abandon the doctrine of the social contract as representing an historical occurrence, and yet to adhere to it as expressing the proper inter- pretation of the relations between the individual and the state. Viewed in this light it is no longer an histor- ical but an analytical conception. It proposes as the justification of the state a voluntary exchange of serv- ices between the individual and the political community. The individual renders obedience and receives protec- tion. It is in this form that we find the contract doctrine maintained by many political philosophers of the early nineteenth century. Such, for instance, is the stand- point of Kant. 1 The contract, he says, is "not to be as- sumed as an historical fact, for as such it is not possible, but it is a rational idea which has its practical reality in that the legislator may so order his laws as if they were the outcome of a social contract. The latter becomes in consequence ' the criterion of the equity of every public law.' " 2 Yet even as an ideal of social relations, the 1 See Kant's treatise On the Common Saying, etc. A good exposition of Kant's views in regard to the nature of the state is given by Professor Paulsen, Immanuel Kant (New York, 1902), pp. 343-61. * It is in this modified form that the doctrine of the social contract becomes the basis of the benefit theory of taxation; the individual is hereby called upon to contribute to the public needs not in accordance with hia "faculty" or ability to contribute, but in accordance with the amount of benefit or protection that he receives. In practice either 32 THE NATURE OF THE STATE contract doctrine has been assailed, one may say almost overwhelmed, with hostile criticism. The individual, it is argued, is joined to the state not by a voluntary conjunction, but by an indissoluble bond. The relation is a compulsory one. Each of us is born into the state; we are part of the state and the state is part of us. Thf state is not a mutual assurance society, membership in which is a matter that the citizen may accept or reject. Nor is the true measure of our social duties to be found in the extent of benefit that we receive from society. Our common experience of the nature of the state in- dicates much that conflicts with the narrow view sug- gested by the quid pro quo of a contract relation. Pa- triotism the sacrifice of the individual's interests to the claims of the community we account one of the highest of virtues. We look to the state as the especial guardian of the poor and the helpless. We call upon it to act not for the present generation alone, but for the welfare of those which are to come. The state, in fine, stands in its ideal aspect for the collective moral effort of the whole community. The line of thought here sug- gested finds its extreme expression in what is called the " organic theory of the state," a doctrine that will be examined in a later chapter. 4. The theory of divine origin. The importance of the social-contract theory has entitled it to a somewhat elaborate discussion. Of the other fallacious doctrines in question, the two principal ones, the theory of the divine origin of the state and the theory of force, may be more briefly mentioned. The theory of the divine origin, known hi familiar form as " the divine right of kings," may now be regarded as entirely extinct in theory would tax the rich more heavily than the poor; but the fun- damental conceptions of the relation of the individual and the state implied in the two theories are essentially opposed. ORIGIN OF THE STATE 33 political theory. It belongs especially to the period of the sixteenth and seventeenth centuries. Originating after the great mediaeval controversy of the Papacy or Empire had subsided, it represents the resistance offered by the constituted monarchical governments, to the growing ideas of popular sovereignty. Its essential meaning is that each and every existing state represents an institution of deliberate divine creation. Under this theory the government or one may say the monarch, since the doctrine was directed towards the defense of the monarchical system represents a direct divine agency against whom no supposed principle of indi- vidual rights can be valid. In a certain sense it is, of course, very generally held that all human institutions represent the controlling power of the Deity. But the theory of divine right goes much farther than this. It assumes the Deity to have vested political power in a special way, and by special intervention, and to have seen fit to deny political supremacy to the mass of the community. Such works as the Patriarcha of Sir Robert Filmer (1681), a parasitic apologist of the later Stuarts, reflect the theory in its extreme form, the pa- ternal power vested at the creation in Adam being here supposed to pass by descent to the kings and princes of Europe. The theory as such needs no longer a serious refutation. It has, however, been pointed out by several critics of this doctrine that it has left deep traces in the underlying political thought of European nations. The idea of kingship as having a peculiar divine sanction the " divinity that doth hedge a king " is by no means an extinct element in the thought of many people both in Great Britain and Continental Europe. 1 1 See in this connection Walter Bagehot, The English Constitution, chap. m. See also J. N. Figgis, The Divine Right of Kings (2d edition, 1014). 84 THE NATURE OF THE STATE 5. The theory of force. Finally, we may mention, among the erroneous doctrines in explanation of the origin and meaning of the state, the theory of force. Here, again, the same theory appears both as an histor- ical interpretation of the rise of the state and as a ra- tional justification of its being. Historically it means that government is the outcome of human aggression; that the beginnings of the state are to be sought in the capture and enslavement of man by man, in the con- quest, and subjugation of the feebler tribes, and, gener- ally speaking, in the self-seeking domination acquired by superior physical force. The progressive growth from tribe to kingdom, and from kingdom to empire, is but a continuation of the same process. Such a point of view is frequent with the fathers of the Church and the theologians of the Middle Ages, by whom the ori- gins of earthly sovereignty are decried in order that its subordination to the supremacy of the spiritual power may be the more evident. Gregory VII wrote (A.D. 1080), " Which of us is ignorant that kings and lords have had their origin in those who, ignorant of God, by arrogance, rapine, perfidy, slaughter, by every crime with the devil agitating as the prince of the world, have contrived to rule over their fellow-men with blind cu pidity and intolerable presumption? " l In modern times we see much the same view ad- vanced for a very different purpose in the earlier po- litical writings of Herbert Spencer. 2 " Government," he says, " is the offspring of evil, bearing about it the marks of its parentage." With the churchmen the tem- poral power was defamed for the benefit of the spiritual authorities; with Spencer and the still more extreme 1 Otto Gierke, Political Theories in the Middle Age*, translated by Professor Maitland (1900). 1 See Social Statics (1869). ORIGIN OF THE STATE 35 writers of the " anarchistic " school, the maintenance of the rights of the individual man is the object pur- sued. We find the theory of force elaborated in detail by Marx, Engels, and the writers of the German social- istic group. Here the doctrine assumes a slightly dif- ferent form. The growth of the state is to be attributed to the process of aggressive exploitation, by means of which a part of the community has succeeded in de- frauding their fellows of the just reward of their labor. Existing governments represent merely the coercive or- ganization which serves to hold the workers in bond- age. 1 The socialist writers have no fault to find with the abstract existence of a state or coercive authority. Their objection is directed against the particular form of the present state, which they ascribe to its iniquitous historical origin. As against the theory of force in gen- eral it can with propriety be advanced that it errs in magnifying what has been only one factor in the evo- lution of society, into the sole controlling force. That government has in part been founded on aggression no one will readily deny. But, as we shall presently see, its institution has owed much to forces of an entirely different character. Even a " population of devils," Kant has said, " would find it to their advantage to establish a coercive state by general consent." The force theory has also played some part in politi- cal thought, not as an historical account of the rise of the state, but as a means of its justification. Stated in its crudest form, such a doctrine is equivalent to the proposition that might is right. " The individual," writes Jellinek, in elucidation of this point of view, " must submit himself to it since he perceives it to 1 The historical process of dispossession is outlined in the Manifesto of the Communist Party, written by Marx and Engels in 1848. 36 THE NATURE OF THE STATE be an unavoidable force (Naturgewalf)." Bluntschli even maintains that the doctrine has " a residuum of truth, since it makes prominent one element which is indispensable to the state, namely force, and has a cer- tain justification as against the opposed theory (that of contract) which bases the state upon the arbitrary will of individuals, and leads logically to political im- potence." * But in plain matter of fact, and apart from the refinements of abstraction, the proposition seems hopelessly illogical. As was long ago pointed out by Rousseau, the right that is conferred by might can reasonably be said to last only as long as the might which confers it. Submission to the state would there- fore only be warranted as long as one was unable to do anything else than submit. The amount of justifica- tion involved in this is less than nothing. The theory of force, as a defense of the governmental authority, assumes quite a different aspect at the hands of Ludwig von Haller. Writing at a time when the great wars of the Revolutionary and Napoleonic era had overwhelmed the sanguine outlook of the eight- eenth century enlightenment in the disillusion of a devastated continent, he represents a natural revulsion from the deification of popular sovereignty towards the principles of monarchical authority. With Haller gov- ernment is based upon " the natural law that the stronger rules." But the principle* involved is one of benevolence, not of repression. The fundamental bond of human relationship and social cohesion is the depend- ence of the weak upon the strong. Obedience is given on the one hand, protection on the other. We see this in the relation of parent and child, husband and wife, master and servant. This is the true relation of the 1 Theory of the State, bk. nr, chap. vin. ORIGIN OF THE STATE 37 prince and the subject. The position is not one created by a voluntary act; it is not a contract; it is a part of the fundamental order of the universe. "We might as well say," Haller contends, " that there is a contract between a man and the sun, that he will allow himself to be warmed by it." This universal law of the sub- mission of the weak to the strong is thus made the basis of a theory of absolute monarchy and unlimited submission. Though clothed in a benevolent form it amounts to the assertion that sovereign power is the disposable property of the prince. As such it needs no refutation. 1 READINGS SUGGESTED Willoughby, W. W., Nature of the State (1896), chaps, in, iv, v, vi. Rousseau, J. J., Social Contract (1762), bk. I, chaps, i-ix. Pollock, Sir Frederick, History of the Science of Politics (1900), chap. in. FURTHER AUTHORITIES Hooker, R., Ecclesiastical Polity (1594). Locke, John, Treatises on Civil Government (1690) Hobbes, T., Leviathan (1651). Ritchie, D. G., Darwin and Hegel (1893). Hume, D., Essays (1741-1742). Graham, W., English Political Philosophy (1899, Hobbes, Locke, Burke, pp. 1-174). Lowell, A. L., Essays on Government (no. rv), 1889. 1 Von Haller's Restoration of Political Science appeared in six vol- umes, 1816-34. The substance of his "patrimonial theory" is dis- cussed by Paul Janet, Histoire de la Science Politiyue, vol. n, and by C. Merriam, Theory of Sovereignty, chap. rv. CHAPTER THE TRUE ORIGIN OF THE STATE 1. The historical or evolutionary view of the state 2. The patri- archal and matriarchal theories 3. Course of development: the Aristotelian cycle 4. Military and economic factors 6. Some general features of political evolution. I. The historical or evolutionary view of the state. The fallacious theories presented in the last chapter may be considered to prepare the way for a more correct estimate of the origin of the state. The view held by the best modern writers may be described as the his- torical or evolutionary theory of the state. By this is meant that the institution of the state is not to be re- ferred back to any single point of time; it is not the outcome of any single movement or plan. The state is not an invention : it is a growth, an evolution, the result of a gradual process running throughout all the known history of man, and receding into the remote and un- known past. " The proposition that the state is a product of history," says Professor Burgess, " means that it is a gradual and continuous development of human society out of a grossly imperfect beginning through crude but improving forms of manifestation towards a perfect and universal organization of man- kind." It is thus altogether erroneous to think of man as having in the course of his evolution attained to a full physical and mental development, and then looking about him to consider the advisability of inventing a government. We might as well imagine man, mentally and physically complete, deciding that the time had come for the invention of language, in order to satisfy THE TRUE ORIGIN OF THE STATE 39 his growing need of communicating with his fellows. Just as language has been evolved from the uncouth gibberings of animals, so has government had its origins in remote and rudimentary beginnings in prehistoric society. Man's capacity for associated action and social relationships of all kinds has proceeded by a gradual development parallel with that of his physical and in- tellectual aptitudes. 2. The patriarchal and matriarchal theories. This general idea or principle of a gradual and progressive evolution seems clear enough. Yet if we attempt to go farther and map out the stages of man's social develop- ment, the most serious difficulties are encountered. The simplest and earliest method of offering an historical ac- count of the genesis of social amalgamation was found in taking the family to represent the primal unit of social history. The control exercised by a father over his children, which presently expands into the control of a patriarch over his descendants, was supposed to repre- sent the origin of human government. It indicated at the same time a justification of the state as proceeding from the purely " natural " institution of the family. First a household, then a patriarchal family, then a tribe of persons of kindred descent, and finally a nation, so runs the social series erected on this basis. This attempt to refer the institution of government to the authority of an original father of a family is known as the patriarchal theory. It has sought to defend itself by reference partly to historical instances, partly to current facts. We find it as early as in the writings of Aristotle, the first book of whose Politics contains a statement of the theory. " The family," says Aristotle " arises first; . . . when several families are united, and the association aims at something mox than the supply 40 THE NATURE OF THE STATE of daily needs, then comes into existence the village. . . . When several villages are united in a single community perfect and large enough to be nearly or quite self- sufficing, the state (7ro\t It is obvious that as a matter of fact the powers which the Brit- ish Parliament can exercise, or would try to exercise, over the self- governing Dominions are of a very limited character. But the legal supremacy of the British Parliament, for whatever that is worth," re- mains still (1920) unimpaired. * "The Congress, whenever two thirds of both Houses shall deem it IDecessary, shall propose amendments to this Constitution, or on the THE SOVEREIGNTY OP THE STATE 55 erning body. But it is clear that theoretically at any rate it exists, and may be looked upon as having a legal supremacy as complete as that of the British Parlia- ment. In like manner in the case of France, neither the President nor the Chamber of Deputies nor the Senate has unlimited legal competence. The powers of all of them are restricted by the "constitutional laws" of the French Republic. But the Senate and the Deputies may be fused together into a joint session or national assembly, in which capacity they may amend the con- stitution and are legally supreme. 3. Criticism of the doctrine of sovereignty; Sir Henry Maine's objections. Such is in the main the conception of sovereignty and law which is particularly associated with the modern English school of jurists, the analytical school, as it is often called. It may be considered on the whole the most satisfactory basis for an analysis of the political state. It has, however, met with severe and searching criticism, and has by no means received a universal acceptance. It is only reasonable, therefore, to present in connection with it some of the chief points of attack. The objections raised against it are directed to show that it is only of a formal and abstract nature, that it is inadequate in that it does not really indicate the ultimate source of political authority, and that it presents an erroneous conception of the nature of law. The first of these objections to the Austinian theory is especially urged in the criticism offered by the Eng- lish jurist Sir Henry Maine in his Oxford lectures on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments which in either case shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by Congress." (Constitution oj the United States, art. v.) 66 THE NATURE OF THE STATE Early History of Institutions. 1 From his seven years' experience in India as legal member of the council, Maine was brought in contact with a civilization of an essentially different character from the environment of English legal institutions which had been the basis of Austin's work. In Eastern countries immemorial custom reigns supreme. The idea of deliberate statu- tory enactment is alien to the Oriental mind, and the most ruthless of Eastern despots finds his power con- trolled by the barriers of ancient usage and religious awe. Maine was, therefore, led to question whether there is " in every independent political community some single person or combination of persons which has the power of compelling the other members of the community to do exactly as it pleases." The presump- tion that every community, except during temporary intervals of disturbance, contains this individual or collegiate sovereign " as certainly as the center of gravity in a mass of matter," seemed to him unwar- ranted by historical or actual fact. Particularly is this the case with communities of the Oriental type. Maine instances the example of Runjeet Singh, the despot of the Punjaub, " the smallest disobedience to whose commands would have been followed by death or mu- tilation." In spite of this ruler's extensive power he never " issued a command which Austin would call a law. . . . The rules which regulated the lives of his subjects were derived from their immemorial usages, and these rules were administered by domestic tribu- nals." The inevitable conclusion seems to be that the conceptions of sovereignty, state, and law adopted in the Austinian jurisprudence are inapplicable to com- munities of this description. But it is not only in 1 See Early History of Institutions, lectures xii and xm. THE SOVEREIGNTY OF THE STATE 57 regard to Oriental society that Maine finds Austin's analysis inadequate. Even in the world of Western civilization it is only true as the result of a process of abstraction which "throws aside all the characteristics and attributes of government and society except one," namely, the possession of force; this explanation of political power by reference solely to a single attribute disregards at the same time " the entire history of the community, . . . the mass of its historic antecedents, which in each community determines how the sover- eign shall exercise, or forbear from exercising, his irre- sistible coercive power." The nature of this objection had, indeed, been in some measure anticipated by Austin himself. In order to cover all those cases of usage in which not the direct command of the sovereign, but dictates of customary procedure obtained sway, he laid down the maxim, " What the sovereign permits he commands." The ap- plication of this doctrine may be best seen in the case of the English common (or customary) law. This is a body of regulations never expressed in the form of statutes issued by the sovereign Parliament, but existing from ancient times, and constantly modified and expanded by the interpretation of the courts. It would be quite wrong, Austin argues, to hold that the existence and continuance of this body of law is any indication of a limitation of the sovereign power of Parliament. For since the latter is admittedly competent to alter or abro- gate the common law as it sees fit, the continued exist- ence thereof is to be viewed as virtually by command of Parliament This argument is undoubtedly true in reference to the legal validity of the common law. The attempt, however, to apply it to such cases as that of the Punjaub despot seems entirely erroneous. For in 68 THE NATURE OF THE STATE this instance the sovereign has no alternative but to "permit" what he cannot alter. Only an exaggeration of terms could convert this into sovereignty. On the same ground any one might " permit " the law of gravitation to continue in force. It may perhaps reasonably be held that Austin's analysis is applicable to modern civilized states, but inapplicable to half -organized or primitive communities. Even in the case of civilized states, it is true that the theory is in a certain sense an abstraction. " It is true," says Sir James Stephen, 1 in speaking of the theory of sovereignty, " like the propositions of mathematics or political economy, in the abstract only. That is to say, the propositions which it states are propositions which are suggested to the imagination by facts, though no facts completely embody and exemplif y them. As there is in nature no such thing as a perfect circle, or a com- pletely rigid body, or a mechanical system in which there is no friction, or a state of society in which men act simply with a view to gain, so there is hi nature no such thing as an absolute sovereign." With these lim- itations the Austinian theory may be looked upon as substantially correct. Its application is to be viewed as limited to communities definitely organized. The analysis of political power which it offers is not meant as an explanation of the ultimate source, the first cause, of authority, 2 but merely intended as a universal ab- 1 Horcs Sabbaticce, second series, chap. i. The author is speaking of the theory as laid down by Hobbes, but the remarks apply equally well to the more modern form of the doctrine. "The question who is the legal sovereign," says Lord Bryce, "stands quite apart from the questions why is he sovereign, and who made him sovereign. The historical facts which have vested power in any given sovereign, as well as the moral grounds on which he is en- titled to obedience, lie outside the questions with which law is con- cerned, and belong to history, to political philosophy, or to ethics; and nothing but confusion is caused by obtruding them into the purely THE SOVEREIGNTY OF THE STATE. 59 stract formula, indicating the method of its operation in the modern world. To accept the doctrine in this sense is of course necessarily to restrict the connotation of the terms state and law. The term state will include only communities possessing the requisite finality of organization, and fixed relations of command and obedience. A law will connote only a command issued, either directly or indirectly (through deliberate refusal to contravene an established usage), by the sovereign organization of the state. What is thus lost in width of connotation will be gained in precision and signifi- cance. Many authors prefer, however, to widen the terms state and law, in order to meet Maine's criticism, and to include the Oriental or other communities whose political cohesion does not correspond to the Austinian analysis. Woodrow Wilson, 1 for instance, presents a conception of law which does not identify it with a definite command, but endeavors to include in it those customary usages which have become of binding force. " Law," he says, " is that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of government." Of these rules deliberate enactment is only one of the contribu- tory sources. They arise in part from long standing custom "shaped by the cooperative action of the whole community, and not by any kingly or legislative com- mand." Among the other sources of law are the rules of conduct dictated by religious belief, and the decisions of those who adjudicate upon the law already existing legal questions of the determination of the sovereign and the defini- tion of his powers." (Sludiea in History and Jurisprudence.) (1901.) 1 The State, chap. xnr. 60 THE NATURE OF THE STATE and thus expand its meaning. The view here adopted by Woodrow Wilson is intended to harmonize the ana- lytical account of law with the criticism offered by Sir Henry Maine. But it is perhaps open to question whether in the case of civilized states the maxim " what the sovereign permits he commands" will not bring the sources of law above mentioned within the sphere of the Austinian formula. 4. Theory of political sovereignty. In addition to the criticism of the Austinian theory of sovereignty thus indicated, exception has been taken to it upon a some- what different ground. The conception of legal au- thority, it is argued, though undeniable as far as it goes, does not go far enough; while indicating the person or body of persons legally competent to issue sovereign commands to the rest 1 of the community, it does not really trace out the ultimate repository of political power. In a despotic monarchy, the will of the monarch may be the sole lawful authority, but the monarch himself may be merely the pliant tool of a cunning priest or dominating vizier. In countries with repre- sentative government, the elected governing body may have, or seem to have, a temporary legal control, but what are we to say of the general body of electors, whose will they represent, and from whom they derive their authority? Is it an adequate explanation of politi- cal cohesion and obedience to stop short of the legal supremacy of a king or legislature, whose power may be nominal, illusory, or delegated, and to refuse to recognize the real and paramount source of authority which lies behind it? On these grounds several writers have recently sought to amend the Austinian theory by appending to the con- ception of pure legal sovereignty that of real, or "politi- THE SOVEREIGNTY OF THE STATE 61 *1 sovereignty." * Their intention is not to set aside vhe result of Austin's analysis, but merely to draw at- tention to the fact that it does not seem to offer a com- plete explanation of the nature and location of supreme political power. "Behind the sovereign which the law- yer recognizes, there is," says Professor Dicey, "an- other sovereign to whom the legal sovereign must bow." Professor Sidgwick illustrates the point involved by constructing hypothetical cases in which the ultimate political power is clearly not in the hands of the legal sovereign. "An irresponsible dictator appointed by a popular assembly for a term of years and not desiring reappointment" might be said to be legally and actually sovereign. But should he be anxious for reappointment, then the assembly to whose wishes he must bow be- comes the paramount political influence, and his legal sovereignty is no longer the final seat of actual power. Or let us "suppose that a monarch habitually obeys a priest, not from fear of the extra-mundane penalties threatened by the latter, but from fear of finding it difficult to obtain obedience from his subjects if they believe him to be a special object of God's anger we shall agree that he no longer possesses completely sover- eign power." Following upon this line of argument we might well expect to find that the legal and the political sovereigns would but rarely coincide. In one state the priesthood, in another the military or landed classes, in another the personal entourage of the king or the predominant influence of a metropolis, might supply 1 For the theory of political sovereignty the student may consult A. V. Dicey, Law of the Constitution; David G. Ritchie, Principles of State Interference; Sidgwick, Elements of Politics, chap, xxxi, and M 'Kechnie, The State and the Individual, chaps, ix, X. All of these au- thorities consider the distinction between legal and political sover- eignty both tenable and valuable. 62 THE NATURE OF THE STATE the real motive power that controls the public adminis- tration. Here it might well be suggested that the sovereign political power would in many cases lie with the general mass of the people, or at any rate with the general mass of voters, who may constitute in democratic countries practically the entire adult population. Austin him- self, in this particular, fell into an amazing error in that he attempted to attribute not the political but the legal sovereignty itself to the body of the electorate. The fallacy l is here obvious. For although the voters are empowered by law to elect members of the legisla- ture at stated intervals, they have (legally) no power of political action beyond this. Under most govern- ments they cannot pass a law or negative measures of the legislature. In Great Britain, for instance, the Parliament (legally speaking) would be perfectly com- petent to pass a law declaring its own existence per- manent and robbing the voters of their electoral priv- ileges. Only in a country where the system of the initiative and the referendum 2 was made obligatory and universal could the electors be said to be legally sovereign. But without falling into this confusion whereby Austin mars the precision of his own system, it may be argued with much plausibility that the ulti- mate political sovereignty rests with the electorate. Much, however, may be advanced against this view. Is it not quite conceivable that the voters themselves may be under the dominance of a priesthood, or practically under the dictates of the land-owners or aristocracy or some particular class? In such cases the political sov- 1 Professor Sidgwick, in an appendix to his Elements of Politics, demonstrates the absurdity of Austin's position. * See part n, chap, iv, below, "The Judiciary and the Electorate." THE SOVEREIGNTY OF THE STATE 63 ereignty would have to be traced a step beyond the electorate. Is it not, moreover, to be supposed that in cases where the electorate is restricted, as for instance by the exclusion of women, the voters may be influenced by the non-voting class? It does not seem to follow that the voters of a democratic country always and of neces- sity represent the final and ultimate source of authority. 5. Criticism. Indeed, the more one searches for this final authority the more it seems to elude one's grasp. At its first statement the idea of a political sovereignty appears eminently reasonable. On closer examination it becomes a sort of political "first cause," and is as unfindable hi the domain of politics as in that of phys- ics. The moment one passes from the dry certainty of the Austinian conception of legality, all is confusion. The particular set of persons in a modern state who are invested with unlimited law-making power are a definite and findable body. The particular person, or set of persons, whose will is in reality supreme, fades upon analysis into a vague complexity. Professor Ritchie and others have sought to avoid this difficulty, by laying down the theory that the ulti- mate repository of political power is always found in the mass of the people. By whatever routes it is traced, whether directly through electoral power, or indirectly through influence, intimidation, or potential rebellion, the final source of authority is here to be discovered. "The people" possess the physical power. In the last resort the appeal to force they are bound to pre- vail. Any form of rule to which they submit exists, therefore, only by virtue of their tacit consent. We have thus a theory of popular sovereignty carried to an extreme point. Such a theory does not content itself with saying that the people, the majority of the people, 64 THE NATURE OF THE STATE ought to possess the supreme power, but that in all cases they actually do possess it. Having the physical supe- riority which would enable them, if sufficiently pro- voked, to annihilate the existing government, there must always be limits to the extent of coercion that they will suffer. Obedient as they may be within these limits, they are in the last resort the masters. The con- sent by which they permit the existence of the govern- ment, is a tacit, and perhaps unconscious, acquiescence rather than the explicit formula of contract that was present to the minds of Rousseau's citizens; none the less it is true that they do give this consent, and that it is the real universal basis of political sovereignty. "The Czar of all the Russias," said Mr. Ritchie, "rules by the will of his people, as much as does the executive of the Swiss Federation." l Attractive as is such a theory of popular sovereignty, it rests upon grounds essentially fallacious. It assumes that the superiority in actual physical force must of necessity rest with the mass the majority of the people. To suppose this is to leave altogether out of sight the question of military equipment, organization, and mutual understanding. A nation of a million un- armed men could easily be overawed by a force of a 1 Professor Ritchie includes in the sources of political power all those influences, historic and actual, which contribute to the present disposition and opinion of the governed. "The ultimate political sover- eignty is not the determinate number of persons now existing in the nation, but the opinions and feelings of these persons; and of these opinions and feelings the traditions of the past, the needs of the pres- ent, and the hopes of the future all form a part." In the case of the Russian people, Mr. Ritchie argues that "the belief in the Czar's di- vine right is the source of his power, and the ground of his obedience." A similar point of view appears in M'Kechnie's The State and the In- dividual: "The effective force of a nation remains with the whole body of its members, whatever forms of expression or outlet it may find, nnd whatever agents may be legally empowered to act or think for it. The real or ' political' sovereign lies in the will of the people." THE SOVEREIGNTY OF THE STATE 65 hundred thousand soldiers equipped with modern weap- ons, and acting as a disciplined unit. Because a hun- dred convicts "acquiesce" in the control exercised by a dozen armed sentinels, it cannot be argued that the power of the sentinels rests either immediately or ulti- mately upon the consent of these convicts. Whatever was the true interpretation of the political cohesion of Russia before the war, it is at least conceivable that the support extended to the autocracy by the army in its pay may have had as much to do with its maintenance as the good-will of the people at large. It seems evident upon examination that the numerical majority is not of necessity always the stronger power. It becomes so only in proportion as it enjoys the advantages of organiza- tion, equipment, and ability to act on a preconcerted plan. Hence in order to make the theory of political sovereignty stand upright it is necessary again to shift the ground and to claim that the ultimate sovereignty lies not with the mass of the people, nor with the nu- merical majority, but with the strongest group of per- sons trained to act together. But since a group is usually trained only to act together in a prescribed way, and at the dictates of a particular person or set of persons, it is clear that it is not the collective will of this armed force itself which exercises the supreme control, but that of the person or persons whom they are individu- ally trained to obey. Thus the search for ultimate sov- ereignty relapses into the same vagueness as before. 6. Dual or divided sovereignty. The peculiar situ- ation of the United States in reference to the exercise of supreme and unlimited power has given rise to another attempt to alter this universal formula of a single sov- ereign body. In this instance, as already said, neither the federal government nor the government of an in- 66 THE NATURE OF THE STATE dividual State has unlimited power. The precise nature of the constitutional power of the two was long a subject of intense controversy. In this controversy there was developed the theory of a divided or dual sovereignty. According to this doctrine the totality of sovereign power was divided between the state and federal gov- ernments, each of which was sovereign in its own province, but was legally limited outside of its own province by the sovereignty of the other. Such a view of sovereignty is utterly inconsistent with the concep- tion of sovereign power discussed above. The proper application of the analytical view of sovereignty to a federal government will be discussed hi dealing with the general subject of federal organization. 7. Recent criticism of the doctrine of sovereignty. Of late years the doctrine of sovereignty has been subject to further criticism from a somewhat different point of view. It is argued that the organization which we call the state is only one of the controlling forces represented in the cohesion of society. Such powerful organizations as the churches, the labor unions, and a variety of other groupings and affinities possess in real fact, it is said, so great an authority over individual life and conduct, that any theory of social control which ignores them is barren and meaningless. "One begins by thinking Austin self-evident," says Dr. J. N. Figgis; "one learns that many qualifications have to be made, and finally one ends by treating his whole method as abstract and theoretic." l It becomes necessary, therefore, from this point of view, to study not merely the mechanical oper- ation of command and obedience in which Austin seeks to depict the entirety of the state, but group forms which give reality to society itself. The point of view * J. N. Figgis, Churches in the Modern State. (2d edition, 1914.) THE SOVEREIGNTY OF THE STATE 67 in question received a great stimulus from studies such as those of the German jurist, Otto Gierke, and the work done in England by Professor F. W. Maitland under the influence of German thought. 1 In our own time the idea that the Austinian state is not everything is enhanced by the increasing scope and power of labor unions, and, still more, the increasing application toward social control of forces that act not through the state, but hi defiance of it. Such things as "direct action," "general strikes," and plebiscitary votes of vast numbers of workers, or a direct mandate from the Pope in regard to Bolshevism, illustrate what is meant. In proportion, then, as groups and associations, his- torical and actual, are elevated hi importance, the state and the law are minimized. "The mere emphasis laid on groups," writes Mr. Ernest Barker, "in itself affects our theory of the state. We see the state less as an asso- ciation of individuals in a common life: we see it more as an association of individuals, already united hi vari- ous groups each with its common life, in a further and higher group for a further and more embracing common purpose." 2 It is, however, open to the Austinian theo- rist to reply that this line of criticism serves only to con- fuse the issue as to what the original Austinian theory purported to be and to do. It was not meant, he may say, to deal with all aspects of organized humanity, but only with one. Its significance lay in the fact that it did actually separate out one thread from the skein and follow it to its end. Its very abstraction was its strength. It afforded a clear view of the nature of existing legal rights, without professing to have anything to say about 1 See F. W. Maitland, Political Theories in the Middle Ages. (1900.) * Ernest Barker, Political Thought in England from Herbert Spencer 'o the Present Day. (1915.) 68 THE NATURE OF THE STATE historic origins, and development, or the relation of legal rights to public opinion and general morality. The future of the controversy thus opened will probably depend much upon what happens to the coercive powers of the state among the newer forces of our present environment. 1 READINGS SUGGESTED Austin, J., Lectures on Jurisprudence (4th edition, 1879), vol. i, lecture vi. Maine, Sir H., Early History of Institutions (1875; 4th edi- tion, 1885), chaps, xn, xm. Garner, W. J., Introduction to Political Science, chap. VIH (1910). FURTHER AUTHORITIES Bryce, James, Studies in History and Jurisprudence, essay x (1901). Merriam, C. E., History of the Theory of Sovereignty since Rousseau (1900). Stephen, Sir James, HOTCB Sabbaticce (second series), chap, rv (1892). M'Kechme, W. S., The State and the Individual (1896). Ritchie, D. G., Principles of State Interference (1891). Dicey, A. V., Law of the Constitution (1st edition, 1885). Barker, E., Political Thought in England from Herbert Spencer to the Present Day (1915). Laski, H. J., Studies in the Problem of Sovereignty (1917). Brown, W. Jethro, The Austinian Theory of Law (1912). Gray, J. C., The Nature and Sources of the Law (1909). 1 A further discussion of the theory of the state from the point of view of the newer criticism may be found in H. J. Laski's Studies in the Problem of Sovereignty. (1917.). CHAPTER V THE LIBERTY OF THE INDIVIDUAL 1. Formulation of the idea of civil liberty; its dependence on a co- ercive sovereign power 2. Special senses sometimes attached to the term "liberty" 3. Organic theory of the state 4. Criti- cism 5. Elaborate analogies of Spencer, Schaffle, etc. ; the per- sonality of the State 6. Criticism. I. Formulation of the idea of civil liberty; its depend- ence on a coercive sovereign power. The formulation of the theory of the sovereignty of the state does not exhaust the consideration of the relations existing be- tween the state and the individual. The present chapter is to be devoted to the further elucidation of the posi- tion of the individual under organized political control, and to the nature and scope of individual liberty. At first sight, the ideas of state sovereignty and individual liberty appear in sharp contrast. When we say that the state is legally supreme, that there is no limit to its law- ful power, and that the individual can have no lawful rights as against its authority, we seem to have denied the existence of individual liberty. A closer examination of the meaning to be attached to the terms involved will serve to dissipate this view. It will appear that sover- eignty and liberty, far from being contradictory, art correlative terms, and that no legal conception of indi- vidual liberty is possible without the assumption of a sovereign power. Let us begin by observing that such terms as "lib- erty," "freedom," and "free" are used in a variety of senses, and with great latitude of connotation. "To Bacon and to King James," writes Professor Ritchie, 70 THE NATURE OF THE STATE "a 'free' monarchy meant an absolute monarchy, so that a 'free' monarchy is incompatible with what we call 'free' government. The 'liberties' of corporations, classes, or individuals mean their special privileges, and thus involve considerable interference with 'liber- ties' of the non-privileged. 'Freedom of contract' may result in the practical bondage of one of the parties to the other. A 'free' church may allow less 'liberty' of thought than churches which are not liberated from the state." l To the difficulties suggested by these special instances must be added the fact that the term "liberty" is used also as a vague generality to stand for something evidently desirable, and yet so simple in its nature as to need no further definition. It is freely assumed that every one ought to have complete liberty, and that every violation of liberty is an injustice, with- out the need being felt of any special inquiry into the meaning of liberty itself. To reduce the term to a definite and exact signification will serve at once to destroy the mythical and impossible idea of individual freedom, in the light of which the coercive power of the state seems unjustifiable. Such an idea appears in extreme form in the assumption, already referred to, of a "natural liberty," enjoyed by man independently of, and antecedent to, the existence of the state, and of which the institution of the state constitutes an abridg- ment. "What a man loses by the social contract," said Rousseau, "is his natural liberty and an unlimited right to anything that tempts him, which he can obtain." 2 Of a similar character is the confused ideal of liberty which lies at the basis of anarchism, or the negation of the right of coercion. 1 Ritchie, Natural Rights, chap. vn. * Social Contract, bk. I, chap. viu. THE LIBERTY OF THE INDIVIDUAL 71 On examination it will appear that such a concep- tion of liberty is impossible, except it be for one person omnipotent in power. The claim that a person in the enjoyment of natural liberty would have an unlimited right to anything he might desire, would carry with it the consequence that a great number of persons might have an unlimited right to the same thing. It is diffi- cult to attach any meaning to the words "liberty" and "right" that will make such a proposition anything but absurd. Indeed, the statement is clearly self-con- tradictory and inconsistent. "Liberty in its absolute sense/' says Lieber, 1 "means the faculty of willing and the power of doing what has been willed, without influence from any other source, or from without. . . . In this absolute meaning there is but one free being, because there is but one being whose will is absolutely independent of any influence but that which he wills himself, and whose power is adequate to his absolute will who is almighty." It is clear, then, that a lib- erty of this absolute and unrestrained character is an impossibility for every individual at the same time. It can exist neither by the agency nor by the absence of the state. The utmost freedom of action that each and every individual can enjoy upon like terms at the same time is to be completely unrestrained in his actions in so far as they do not interfere with the like freedom of his fellows. This conception of liberty, though lim- ited, is entirely self-consistent. The liberty of one is not a contravention of the liberty of another. Such is the interpretation of liberty found in the famous Declaration of the Rights of Man, adopted in France 1 Franz Lieber, Civil Liberty (1852). Lieber (1800-72), one of the most distinguished of American writers on political science, was for some time a professor at Columbia ColleRe. Of his other works, Po- litical Ethics (1838) is perhaps the most important. 72 THE NATURE OF THE STATE in 1789: "Liberty consists in the power to do every- thing that does not injure another." Herbert Spencer expresses the same idea in what he calls the "formula of justice": "Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man." As thus conceived, liberty is not inconsistent with the exercise of coercive power. On the contrary, since the freedom from interference can only be enjoyed by the forcible prevention of interference, liberty is seen to be dependent upon the existence of authority. It is the state which guarantees this immunity to its citizens, whose "rights" are thus brought into legal existence by being clothed with the "sanction" or compelling force of the power of the state. The apparent paradox between a sovereign authority and a free citizen is thus explained. No freedom, except for a single being, can be absolute and complete. Such freedom as can be en- joyed by all must from its nature imply a compulsory restriction on the action of each. It is the office of the state to effect this restriction, and in so doing to bring liberty into being. It is usual to attach to this concep- tion of individual freedom effected by the existence of a coercive state the term "civil liberty." A further point of great importance is to be noted in connection with the present topic. It is true that liberty as thus defined is only possible for the indi- vidual by the action of the state. It does not follow, however, that it is the duty of the state to find the ideal of its action hi the maintenance of individual liberty; that is to say, to confine its operating to en- forcing non-interference, and to extend its coercive power no further than is necessary to prevent the citi- zens from interfering with one another. Writers of THE LIBERTY OF THE INDIVIDUAL 73 various schools, and especially the individualists of the earlier nineteenth century, have held this to be the sole duty of government. The conception of liberty seemed to them to imply that no infringement of the principle could be justified. But the question natu- rally arises whether the state may not be warranted in exercising a positive as well as a negative coercion over its subjects. May it not with reason interfere with and curtail the liberty of a citizen, provided that the general good or his own advantage is thereby furthered? The full treatment of this question will belong to our dis- cussion of the proper province of government. All that need be noted in the meantime is that, whether the state is called upon to maintain the liberty of the indi- vidual, or whether it is held advisable that the state should interfere with his actions in a positive form, the existence of liberty is not logically incompatible with the existence of the state, and can hardly be thought of as existing apart from it. 2. Special senses sometimes attached to the term " liberty." The word "liberty," in addition to the vague general use which we have discarded and the definite conception of civil liberty which we have adopted, has also been used in political writings in other special senses. 1 It is often used to designate a condition of national independence. When we refer to the present liberty of the Greeks, or the liberation of the Poles as a result of the Great War, it is evidently in this sense that the word is used. It is perhaps convenient to use the expression "national liberty" to indicate freedom of this kind. 1 An excellent analysis of the different political significations of the term is given in Professor Seeley's Introduction to Political Science, lectures v, vi. 74 THE NATURE OF THE STATE In the next place, there is a use of "liberty" which refers neither to freedom from interference nor to na- tional autonomy. When we say that the United States, France, and Great Britain enjoy the advantages of a free government, we mean thereby a government which is chosen by, and which is responsible to, the general body of the people. "Liberty" in this sense, or "consti- tutional liberty," as it may be called, means popular government definitely established. Historically speak- ing, we often use the term "constitutional liberty" to refer to instances where not all the people, but only a minority of them, exercised the power of controlling the government. In England previous to the reform and extension of the franchise (1832, 1867, 1884), the power of government was vested in the hands of a small minority of the whole nation. Since, however, the body of the people followed in the main the political lead thus given, and looked to the minority in question (the vot- ing class) to protect them from possible tyranny of the crown, we may speak of this state of things as constitu- tional liberty. Strictly, however, the term ought only to be used of a government in which the people rule. For if the name be applied to a system in which the gov- ernment is responsible only to a minority of the nation, it implies an unwarrantable disregard of the political status of the majority. Certain American writers have endeavored to estab- lish for the term "civil liberty" a connotation different from that explained above. 1 They claim that most European writers have unduly confused the idea of the state with that of the government; the state ought to mean that fundamental organization of the community by whose authority the government is created, and the 1 As notably J. W. Burgess, Political Science and Constitutional Lota THE LIBERTY OF THE INDIVIDUAL 75 power of the government limited. The government should mean only the ordinary mechanism of adminis- tration. It is in this sense conceivable that the state may set a limit to the action of the government as against the individual, and grant to the latter certain privileges or immunities with which the government may not interfere. These immunities constitute the domain of civil liberty. In the United States, according to this view, the organization of the state is found in the body that makes and amends the Constitution. By the authority of this body it is forbidden to the ordinary government of the country (President, Congress, etc.) to interfere with the religion or the free speech of the individual; the government may not impose an export duty, may not make a law impairing the obligation of contracts, or confer a title of nobility. 1 The civil liberty of the individual is therefore defined by such writers to mean all those rights thus granted to the individual by the constitution-making power. Were all governments of the same form as that of the United States this appli- cation of the term "civil liberty" would be felicitous and useful. But as applied to the governments of Eng- land, France, Italy, and many other countries a diffi- culty occurs. In England the Parliament (King, Lords, and Commons) is supreme. It is therefore (according to this interpretation) the state. It is also the govern- ment, ordinary and regular. It is hence not possible that it can forbid anything to itself by its own author- ity, or guarantee the individual the possession of rights which it cannot legally set aside. The conclusion is obvious. There is no civil liberty in the constitutional law in Great Britain. To assert this is properly equiv- alent to asserting that there can be no civil liberty at all 1 Constitution of the United States. 76 THE NATURE OF THE STATE under the British government. " I pass over the subject of civil liberty in the constitution of England and France for the simple and entirely convincing reason that there is none in either." * This being so, it may well be doubted whether the term is appropriately used in the significance thus attached to it. A definition according to which the citizens of Haiti enjoy a wide measure of civil liberty, while those of Great Britain and its colonies possess none at all, becomes a little absurd. 3. Organic theory of the state. The question of lib- erty and sovereignty as hitherto discussed has been purely one of legal relations. It forms, however, only a part of the wider question of the general relation of the individual to the state, or to society at large. The view that is to be taken of the position in which the individual stands towards the state is of the highest importance, for on it will depend our decision as to the proper province of the action of government. In what has been said in the present chapter and in connection with the statement and criticism of the doctrine of the social contract, reference has been made to two con- flicting points of view. In the one instance the indi- vidual is looked upon as a separate self-contained unit who joins with his fellows for the formation of civil society in a purely mechanical fashion. The state from this point of view becomes merely a numerical aggre- gate. It is not justified hi interfering with the individual 1 Burgess, Political Science and Constitutional Law, vol. i, part n, bk. ir, chap. rv. Burgess does not deny that there is civil liberty in Great Britain, but says that it is created by statute, not by the consti- tution. But his position seems inconsistent. For he says (vol. I, p. 174) that individual liberty "is a domain in which the government shall not penetrate." But in discussing civil liberty under the British and French systems, he asserts (vol. I, p. 262), "Every particle of civil liberty in both systems is at all times at the mercy of the government." THE LIBERTY OF THE INDIVIDUAL 77 further than to prevent his interference with any one else. Such a theory of social relations is often spoken of as an arithmetical, mechanical, or monadistic theory of society. 1 We have already seen fit in dealing with the social contract to reject such a view of the relative status of the individual and the state. As opposed to this we have at the other end of the scale what has already been referred to as the "organic theory of society," or of the state. This theory, either entire or in partial form, occupies a large place in the economic, political, and social philosophy of our tune, and merits, therefore, a careful examination. What- ever be the earlier origins 2 to which it may be traced, it assumed a great prominence at the hands of various German writers of the middle of the nineteenth cen- tury, who advanced it hi opposition to the more me- chanical view of society held by the dominant individ- ualist school in economics and political philosophy. The central idea of the theory is to endeavor to set aside the contrast between the individual and the state by amalgamating them into one. It discards all such ideas as mutual contract, reciprocal service, infrangible immunities, etc. It views the state and the individual as part and parcel of the same thing, both of them being included in what may be called the social organ- ism. As is the relation of the hand to the body, or the leaf to the tree, so is the relation of man to society. 1 See J. S. Mackenzie, Introduction to Social Philosophy, chap. m. * The philosophy of the Greeks may be said to afford the first begin- nings of the organic theory. " Man," says Aristotle, " is a political ani- mal," and the whole tendency of Greek political thought was to insist on the subordination of the individual to the state. (See E. Barker, Greek Political Theory, 1918.) But the elaboration of the theory and its express application to the problem of governmental interference belongs to the nineteenth century. Such a view could only attain its full significance after the establishment of the evolutionary theory of the biological world. 78 THE NATURE OF THE STATE He exists in it, and it in him. As it is impossible to consider that the hand has a separate existence from that of the body, so is it impossible to divorce the individual from society. The antithesis, therefore, be- tween the single citizen and the collective state rests upon a false basis, and implies a view of society that is contrary to fact. 4. Criticism. In criticizing this theory it is first necessary to know to what extent the statement that society is an organism is intended to be true. Some writers have advanced it merely as an analogy designed to elucidate by a striking comparison the nature of social organization. The continuity and gradual evolu- tion of the state, the insensible gradations by which it develops in efficiency and complexity, are compared to the growth of a plant or animal. The different de- partments, councils, officials, etc., which are found in a modern administration, present in their specialized functions and adapted capabilities an analogy with the special organs of a living structure. The single individ- ual, without whom the state cannot exist, and whose activities presuppose the existence of the state, sug- gests the germ cell which forms the basis of a living organism. Viewed in this light, the organic theory has met with a very wide acceptance, especially by the modern German school of writers on the social sciences. It is indeed difficult to quarrel with this or any other contention as long as it remains merely in the form of analogy. When we say that society is like an organism we are expressing an opinion of a very indefinite char- acter. The point of the statement will depend on the amount of the likeness. In one sense every man is like every other; in another sense each man has a different appearance. To say, therefore, that there are certain 79 things about society which suggest an organism, is to say what is hardly open to refutation. The real point of controversy comes in when we consider how far our opinions on social and political problems are to be af- fected by this view. Is it to be looked on merely as an interesting and ingenious comparison, or are we to see in it a profound truth in the light of which the actual solution of social difficulties is to be sought? l It may perhaps be reasonably claimed that the im- portance attached to this view by many sociological writers is altogether exaggerated. It is hard to see in what way it offers a practical programme or line of direction in dealing with applied politics. The indi- vidualistic theory, dictating the abstinence of the state from all positive interference, had at least the merit of indicating a recognizable course of conduct. The utilitarian theory, propounding the greatest good of the greatest number as the goal of social effort, offers also an objective point theoretically distinct, however much its special applications might in practice be open to dispute. But the organic theory, in telling us that we and our institutions grow and are not made, hardly offers a practical guide to political conduct. It is im- possible that we can sit politically passive and watch ourselves grow, and it is inconceivable that the theory ought to be interpreted to obstruct all deliberate vo- litional effort, and to substitute for it a self-contem- plating passivity. To regard the organic theory of society as offering a definite solution of any social problem seems erroneous. The true purpose that it has served has been in helping to destroy the once preva- 1 The latter is the opinion expressed by Mr. M'Kechnie in his State and the Individual, part r, chap. i. "This theory," he writes, "is not only correct, but contains the germ of the whole truth of political philosophy." 80 THE NATURE OF THE STATE lent conception that individual liberty must a priori be a good thing, and needs not to be considered on itf merits. 5. Elaborate analogies of Spencer, Schaffle, etc.; the personality of the state. By some authorities the organic theory has been supported not as a useful analogy, but as a literal truth. To establish this fact they have analyzed in great detail the industrial and political structure of society, and shown that it con- forms to the general organic type, and is therefore liter- ally and actually an organism. Of such analysis, that offered by Herbert Spencer is the most familiar. Spen- cer, 1 it is true, does not entirely identify the social organism with the living organism. Society, he says, is an organism, but "it is not comparable to any particular type of individual organism, animal or vegetable." The analogy that he institutes, however, is carried into such detail as to stop little short of identification. The first point of resemblance is found in the fact that societies, like living bodies, begin as germs (small wandering hordes of people), and increase continually in mass and in complexity of structure. In both cases this increase in mass is effected either by simple multiplication of the units or by union of groups. Thus the organic inte- gration of plants of the lowest order, which increase into a larger form by "clustering" into one, is com- pared to the amalgamation of primitive tribes. Multi- plication and fusion of units may, in both animal and social growths, proceed simultaneously. The progres- sive complexity of structure is shown in the develop- ment of society, as in the development of plants and animals, by constant differentiation of special organs for the performance of special functions. In a rudimen- 1 See Principles of Sociology, part n. THE LIBERTY OF THE INDIVIDUAL 81 tary animal organism the same apparatus acts in an imperfect way as stomach and mouth, or as stomach and skin. Gradually each of these separate organs is evolved and restricted to its own function. An original spinal axis of an elementary character becomes sepa- rated into its vertebrated parts, the head differentiated from the backbone, and the brain from the skull. So in society, separate classes kings, priests, medicine men are differentiated from the original mass, and assigned to their peculiar activities. The division of labor in the society, as in the animal, makes it a living whole. The industrial division of occupation among weavers, iron-workers, food-growers, etc., corresponds to the independent functions of stomach, heart, and lungs. The original structures are found, on examina- tion, to resemble closely the bodily structures. Spencer speaks of a manufacturing district as "secreting" cer- tain goods; a seaport town "discharges and absorbs" them, performing a duty like that of the pores of the skin. Society has its "sustaining system," or parts devoted to alimentation. These are the great produc- tive industries the agricultural areas, the "iron- secreting" districts, etc. There is also the distributing system the roads, railroads, and canals, which serve as the blood-vessels of the social body. The press, the telegraph, telephone, etc., serve as stimuli, by which the nerve centers are moved to action. Finally, there is in society, as in the living organism, the regulating system "nervo-motor" in the one, "governmental- military" in the other. These are evolved by the struggle for survival against the rapacity of other organisms. " The successive improvements of the organs of sense and motion have indirectly resulted from the antagonisms and competition of organisms with one 82 THE NATURE OF THE STATE another." The wars between societies originate gov- ernmental structures, and are causes of all such im- provements in these structures as increase the efficiency of corporate action against environing societies. The special application of this last comparison lies in the argument advanced by Spencer that the governmental organ, like every other, should confine itself to the particular functions for which it has been evolved protection and defense and should abstain from wider action in the field of positive beneficence. As already said, Spencer does not completely identify the social organism with the living plant or animal. The chief difference is found in the fact that while the parts of an animal form a concrete whole, society is "discrete"; in other words, "while the living units composing the one are bound together in close contact, the living units composing the other are free and not in contact, and are more or less widely dispersed." Hence the political or social body is sensitive only in its units, whereas the animal organism has a "senso- rium" in which its sentient existence is centered. Even this distinction Spencer is unwilling to unduly em- phasize. The units of society, though not in physical contact, affect one another through the influence of language spoken or written; there is thus a psycho- logical continuity where physical coherence is lacking. A still more complete presentation of the social organism is offered by the late Albert Schaffle, the dis- tinguished Austrian statesman and economist, hi his Structure and Life of the Social Body. Here the com- parison of social with animal forms is carried to an extreme point, stopping little short of complete identi- fication, though the author professes to be mindful of the differences existing between the two, and avoids THE LIBERTY OF THE INDIVIDUAL 83 the explicit use of the term "organic." Schaffle speaks of the "morphology" and the "physiology" of society, the "social limbs of technique," etc. If the whole of his vast work is to be viewed as an analogy, it reaches the point where such elaborate comparison ceases to be either of interest or profit. Others of the modern Con- tinental writers for instance, Gumplowitz, the Polish publicist, in his Sociological Idea of the State (1892) flatly and absolutely hold that the organic nature of the state is to be considered not as an illustration, but as a literal fact. Of a still more extreme character is the contention of several of the German theorists that the state is a person. The claim that the state, or, if one will, the government, is a person hi a purely legal sense of the term is what no one will deny. The government being an owner of property, a collector of taxes, a bor- rower of money, etc., can undoubtedly be clothed with an abstract personality. But the writers in question Gierke, for example, in his Fundamental Concepts of Public Law go beyond this. With them the person- ality of the state is not abstract but actual; out of the "social side" of each individual composing the state is compounded a new person, a totality of purpose which is the true constituent element of personality. Blunt- schli even determines the sex, maintaining that the state is male and the church female. 1 6. Criticism. This extreme theory of the personality of the state it is hardly necessary to criticize. It be- longs to that class of abstractions which may mean much to the nation that originates them, but which seem to dissolve in passing through the prism of Anglo- Saxon literalism. The general organic theory merits, 1 On the subject of the personality of the state consult also Jellinek, AUoemeine Slaatslehre (1900). 84 THE NATURE OF THE STATE however, a special treatment. 1 Interesting as is the parallel between the collective aspect of humanity and the life of a single organic unit, the differences between the two appear on impartial examination so great that the analogy cannot be looked on as a true guide to social policy, or a true expression of man's relations to his environment. The difference that Spencer masks under the cognate terms "concrete" and "discrete," is in reality of a fundamental character. In neither the physical nor the metaphysical sense of the terms is it true that the individual is literally a part of society. The existence of each human being is a fact apart. The "existence" of society is only an abstraction. Society has no single brain, no "social sensorium"; it has no single physical life. This distinction is therefore more than a mere divergence of special qualities. It is essen- tial and absolute it is the difference between "black" and "white," and between "yes" and "no." Even if we accept the analogy as only an analogy, it does not follow that it is always a proper guide for our social conduct. Too great an amalgamation of the individual and the state is as dangerous an ideal as a too great emancipation of the individual will. Individual varia- tion, individual "unlikeness," and, in a sense, individual isolation of effort, is as necessary for the welfare of man- kind as collective activity and mutual support. The organic theory of society, deprived of its ingenious bio- logical setting, presents only one phase of the truth, erring in one direction as much as extreme individualism has erred in the other. 1 For the criticism of the organic theory see J. S. Mackenzie, Introduction to Social Philosophy, chap, in, and W. W. Willoughby, The Nature of the State, chap. in. THE LIBERTY OF THE INDIVIDUAL 85 READINGS SUGGESTED Seeley, Sir J. R., Introduction to Political Science (1896), lec- tures, V,-VI. M'Kechnie, W. S., The State and the Individual (1896), chap. XXII. Giddings, F. H., Principles of Sociology (1899), bk. I, chap. rvr. FURTHER AUTHORITIES Ritchie, D. G., Natural Rights (1895). Lieber, F., Civil Liberty (1852). Mill, J. S., Liberty (1859). Burgess, J. W., Political Science and Constitutional Law (1898), vol. i. Mackenzie, J. S., Introduction to Social Philosophy (2d edition, 1895). Spencer, H., Principles of Sociology, vol. I, part n (3d edition, 1893). Schaffle, A., Ban und Leben des Sozialen Korpers (2d edition, 1896). Jellinek, G., Das Recht des Modemen Staates (1900). Fichte, J. G., Science of Rights (translation, 1889). Woolsey, T., Political Science, vol. I (1878). Dunning, W. A., History of Political Theories from Luther to Montesquieu (1905). CHAPTER VI RELATION OF STATES TO ONE ANOTHER 1. External aspect of the'state; regulation of its conduct towards other states 2. Evolution of international relations: first, second, and third periods 3. Scope and content of international law 4. Pro- priety of the term 5. International arbitration 6. The League of Nations. i. External aspect of the state; regulation of its conduct towards other states. Viewed in a purely theo- retical light, every state is an absolutely independent unit. Its sovereignty is unUmited, and it renders polit- ical obedience to no outside authority; it has no organ- ized coercive relation with any other political body. Such theoretical isolation is the prime condition of its existence as a state, and its political independence is one of its essential attributes. This is what Hobbes meant in saying that, in regard to one another, separate states are to be viewed as in a "state of nature." Yet while this is true in a purely formal and legal sense, it is nevertheless the case that in actual fact different states stand in close contact with one another in a variety of ways. The mutual intercourse and communication of their citizens, trade, commerce, and various common interests, bring separate states into permanent relations demanding some sort of regulation. The fact that in the civilized world the citizens of one country very largely share in the thought, the art, and the literature of neighboring communities, runs counter to the idea of political exclusiveness. The political as well as the social and cultural institutions of any modern state are largely affected by its contact with other states. Especially is this the case where the citizens of countries politically RELATION OF STATES TO ONE ANOTHER 87 separate speak a common language, and where a kin- dred descent enables them to look back to the same history and traditions in the past. It is, therefore, easily understood that in the evolu- tion of their dealings with one another in relation to diplomacy and civic intercourse the action of modern states shows an increasing tendency to conform to a generally recognized usage. Even the conduct of war confonrs, in theory at least, to a code of regulations designed to mitigate the suffering it involves, and to reduce to a minimum the injury it occasions to the commerce of the world. These rules and usages which regulate the peaceful intercourse of independent na- tions, and indicate a recognized method of warfare adopted by general consent, are not to be regarded as fixed and permanent. They are rather in a formative and imperfect stage of development. But the study of modern political institutions is not complete with- out an analysis of the nature of the bond thus created between different states, the extent of its obligation, and its especial significance for the future. Political science must take account not only of the internal organization of the state, but of its external relations in so far as they assume a regular and definite character. Imperfect as they are, the "rules which determine the conduct of the general body of civilized states in then* dealings with one another are termed 'Interna- tional Law.' " * The question at once arises whether the existence of such regulations can be harmonized with the sovereignty of the individual state. As we have understood it, the term "law" is properly to be re- 1 This is the definition given by Professor T. J. Lawrence (Interna- tional Law, chap. i). In attempting to define international law one meets at once the difficulty as to tho extent of its sanction. 88 THE NATURE OF THE STATE stricted to the command, express or tacit, of a supreme coercive authority; we have seen that it is probably inex- pedient to use it in reference to customary observances not deliberately controllable by a political superior. In other words, " law " has been restricted to mean the com- mand of the state, the two terms being correlative to one another. Such being the case, it is now to be asked whether the term "international law" is properly ap- plied, and whether the sanction or compelling force behind its rules and regulations is sufficient to entitle it to be considered as really law. To undertake this in- quiry it will be necessary first to pass very briefly in review the evolution of international relations, and the interpretations put upon them in political theory, and in the second place to indicate the scope and extent of the rules of international law as now existing. By doing this, its true character, both as it is and as it may become, will be set hi a clearer light. 2. Evolution of international relations: first, second, and third periods. The evolution of international rela- tions may be divided into three great stages. The first embraces the period from the origins of European civi- lization till the rise of the Roman Empire, the second extends from that date until the Peace of Westphalia (1648), and the third period from the Peace of Westpha- lia until the present day. 1 During the first period we find no recognition of international obligations as such. The claims and duties associated with kinship were rec- ognized as a bond between communities of a common descent and tongue. But between tribes and nations alien to one another there was no recognized system of peaceful intercourse or acknowledged principles of 1 Division given by Lawrence, International Law. See also Walker t Hittory of the Law of Nations; Halleck, International Law, chap. i. RELATION OF STATES TO ONE ANOTHER 89 legitimate warfare. The tribes of the Israelites ob- served in their dealings with one another the bond of common birth; they viewed themselves as forming a political system, each member of which had certain in- definite obligations towards the others, while all of them were disconnected from the outer world of Gentiles. In the same way the city-states of ancient Greece, though jealously guarding their political auton- omy, felt themselves bound by the ties of race to their fellow-Greeks, a relation which found its expression in the Amphiktyonic Council, the federations of cities, and the observance of a rudimentary code of welfare. But towards the outside world the barbarians, as the Greeks called them no such obligations existed. In so far as the Greeks recognized a system of interstate re- lations, it was applicable only to the Hellenic people. The Romans, also, previous to their imperial aspirations of universal dominion, occupied the same theoretically isolated position. Rome, it is true, during the repub- lican period of her history, entered into treaties with the Samnites and other Italian tribes. The Romans had also certain systematic observances which bear some resemblance to a code of international conduct. But the Jus Feciale was merely a system of ceremonial acts which constituted the formalities thought necessary for a declaration of war, the conclusion of a treaty, etc. The Jus Gentium offers in its name a confusing analogy with international law. Its precise nature is a matter of some controversy, but it is safe to say that it was a code of regulations which applied not to the deal- ings of one nation with another, but to the dealings of citizens belonging to different nations. It took its name most probably from the fact that its rules were presumed to consist of principles of conduct common 90 THE NATURE OF THE STATE to the laws of all nations. 1 But in none of these cases do we get a standing theory of international relations. Conduct towards outside nations might, of course, be influenced by motives of religion, of friendship, or of expediency, but we find nothing approaching to a sys- tematized view of the relative position occupied by political societies, each possessing towards the rest a definite status with standing rights and standing duties. In viewing the second period, that following the establishment of the world empire of Rome, we find the outlook entirely changed. The Romans had made themselves masters of the known world, and from the pride of their exalted position originated a new theory of political relations. The universal sovereignty of a single power became the dominant idea, the theoretical ground plan of political institutions. The idea of a com- mon superior holding the supremacy over all the polit- ical subdivisions of the world appealed at once by its grandeur and its logical consistency. It endured in theory long after it had vanished in fact. 2 Even as a fact, universal sovereignty, in territorial extent, if not in intensity, seemed at the time of Trajan (A.D. 98-117) to reach its realization. The "appeal to Caesar" repre- sented everywhere the recourse to a final authority. The actuality thus lent to the conception was strength- ened by the universality of the Christian religion, which became after the conversion of Constantino (A.D. 312) the state religion of the imperial system. Even after the decline of the imperial power under the 1 For the jus gentium, see Sir Henry Maine's International Law; Haileck, International Law, chap. i. Walker cites various instances of the term jus gentium used in reference to international obligations and approximating in its meaning to public international law. ' Dante, in his De Monarchia, arguing on the imperial side of the great controversy of the Middle Ages, undertakes to show the need of a single emperor, or sovereign, with power over oil others. RELATION OF STATES TO ONE ANOTHER 91 disruptive force of the barbarian invasions, the idea of universal dominion as a necessary basis of political life still survived. The restoration of the Roman Empire by Charlemagne (A.D. 800) served to give expression to this ideal. But in the succeeding centuries the concep- tion of the nature of the political constitution of the universe underwent a vital change. The church pre- sented itself not as a complementary, but as a rival power. It became necessary in theory to divide uni- versal dominion between the secular and the spiritual sovereigns, whose conflicting pretensions helped to break down the conception of a single final authority. 1 The feudal tenure of land gradually brought into prom- inence the notion of territorial sovereignty (political power operative not as over a people, but over a certain territory), on the basis of which arose the modern theory of territorially independent states. Finally the religious schism of the Reformation destroyed the idea of the spiritual unity of mankind. The Peace of West- phalia (A.D. 1648), which closed the Thirty Years' War in central Europe between the forces of Catholicism and Protestantism, may be taken as indicating the close of the era and the final disappearance of the theory of universal sovereignty. During the third period from 1648 until the pres- ent day the theory of international relations has been reconstructed on a new basis of political independ- ence and territorial sovereignty. Modern international law is essentially the product of this period. At the opening of this era the destruction of the earlier system and the ideas which accompanied it seemed to have 1 For the great mediaeval controversy between the Empire and the Papacy see Bryce, Holy Roman Empire, and Dunning, Political Theo- ries Ancient and Mediceval. 92 THE NATURE OF THE STATE removed the basis of international dealings and to reduce the monarchies of Europe to the anarchy of the state of nature. The savagery of the European wars of the sixteenth and seventeenth centuries threw into a strong light the need for a reconstruction of the theory of the interrelation of political communities, now that the idea of a single common superior, either temporal or spiritual, was no longer tenable. It was this situation which called forth the writings of the great Dutch jurist Hugo Grotius, in which were laid the foundations of modern international law. Grotius and his followers l found the basis for their doctrine of in- ternational obligations hi the reconstruction of the idea of a law of nature long ago assumed by the Stoic philos- ophers hi reference to the relations of individual men. According to this doctrine there was supposed to exist in the very nature of things a code of moral obliga- tions of man to man, which did not depend for its validity upon human enactment. It existed antecedent to any system of government and law and could be dis- covered by the natural light of reason. " The principles of natural law," says Grotius, "if you attend to them rightly, are in themselves patent and evident almost in the same way as things which are perceived by the external senses." Such a theory of natural law is essen- tially fallacious, and, as has been already seen, it dis- integrates upon a closer analysis. 2 Nevertheless it served a useful purpose in offering a possible starting- point for constructing a system of mutual rights and 1 The chief work of Grotiua is his De Jure Belli ac Pads (1625). Piffendorf (a German, for some time secretary of state at Stockholm) published his De Jure Naturae et Gentium in 1672; Bynkerschoek's QtKBstiones Juris Publici appeared in 1737. 1 In reference to the history and criticism of the theory of a law of nature Professor Ritchie's Natural Rights may be consulted. RELATION OF STATES TO ONE ANOTHER 93 duties existing between states without a common supe- rior. This theoretical assumption of a determinable and universally binding law of nature, though it affords, historically speaking, the starting-point of international law, is by no means its only source and basis as it now exists. The major part of it rests upon the successive treaties and conventions by which the great states of the world have adopted certain more or less defined principles to regulate their intercourse with one an- other in peace and war. At the beginning of the era stands the Treaty of Westphalia, to which all the Con- tinental sovereigns of Europe (except the Pope and the Sultan) were parties, and in which " the representatives of civilized Europe united to proclaim formally the erection upon the ruins of world-sovereignty of an inter- national system of states, unequal indeed in power, but claiming each to be independent and each to exercise an exclusive jurisdiction within definite territorial limits." l Of the later treaties some are mainly concerned with the allotment of territory. Of this character is the Treaty of Utrecht (1713), which closed the long war against Louis XIV, and the Treaty of Paris (1763) at the end of the Seven Years' War. In others a funda- ' mental point is the recognition of sovereignty, as hi the Treaty of Versailles (1783), recognizing the independence of the United States, and in the Treaty of Paris (1856), where the independence and integrity of the Ottoman Empire are guaranteed 2 and whereby it is admitted "into the public law and system of Europe." In other treaties principles of conduct are adopted for future guidance. Thus at the Peace of Utrecht four of the signatory powers accepted the principle that real prop- 1 Walker, op. cit., part i, chap. n. 1 By Great Britain, Austria, France, Prussia, Russia, and Sardinia. 94 THE NATURE OF THE STATE erty confiscated from the subjects of an enemy should be returned at the close of the war. The Treaty of 1841 l in regard to the navigation of the Dardanelles and the Bosphorus asserts the territorial jurisdiction of a state over adjacent waters. The international law in respect to neutral commerce and maritime capture has been the subject of a long series of treaty clauses. The principle that "free ships make free goods," 2 adopted (from older precedents) by the United States in the French treaties of 1778 and 1800, gradually gained a general assent and was recognized hi 1856 in the Declaration of Paris, which accompanied the treaty already mentioned. An equally important instance of principles of international conduct consolidated by treaty is seen in the Treaty of Washington (1871), between the United States and Great Britain; here the duty of neutral powers to use a proper diligence in preventing their territory from being used as a basis of operation and equipment by a belligerent is accepted as a binding rule. 3 In addition to deliberate assent to treaty provisions nations may express their adherence to rules of inter- national conduct in various other ways. Public docu- ments issued by a state hi the form of proclamations or manifestoes to its subjects on the outbreak of a war, 4 enjoining their observance of certain regulations hi ref- erence to belligerents and neutrals are of this class. A further source of international law may be found in the 1 Signed by Austria, France, Great Britain, Prussia, Russia, and Turkey. See Alison, History of Europe from the Fall of Napoleon, vol. vi, chap, xxxiv. * See Lawrence, op. eit. * Text of treaty, art 6. See Annual Register, 1871. 4 Compare in this connection the British Order in Council of August 20, 1914, in regard to the Declaration of London. Much in- teresting material in this connection is found in T. Baty and J. H. Morgan, War: Its Conduct and Legal Results. (1915.) RELATION OF STATES TO ONE ANOTHER 95 decisions of prize courts, or special tribunals whose business it is to adjudicate on the legality of captures made at sea in time of war. Lastly may be cited the opinions expressed by the great jurists who have written on the subject. It goes without saying that the mere opinion of any individual writer has of itself no binding force. But since all written laws and regulations must be submitted to the process of interpretation, the opinion of an eminent specialist as to the proper inter- pretation of a recognized formula is evidently of force, and it has always been customary to cite as testimony the opinions of international jurists. Kent in his Com- mentaries l states the point thus: "In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized nation that does not arrogantly set all ordi- nary law and justice at defiance will venture to disre- gard the uniform sense of the established writers on international law." 3. Scope and content of international law. Let us consider very briefly the range of the subject-matter of the international code that has grown up on this basis. It presumes as its starting-point a number of separate, independent states, all of which are absolutely equal in rights. "No principle of law is more universally ac- knowledged," said Chief-Justice Marshall, "than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone." Next to the establishment of this cardinal proposition comes the discussion of the territorial limits of juris- diction, the relation of the sovereign power of a state to 1 Commentaries, vol. i, p. 19. 96 THE NATURE OF THE STATE the adjacent waters of its coast. With this is connected the question of the legitimate means of increasing terri- torial jurisdiction, and the validity of claims arising from conquest, cession, original settlement, and so forth. Rules are also laid down in regard to the jurisdiction and responsibility of a state in reference to its subjects while resident abroad. These with other questions of like character constitute the subject-matter of inter- national law as applied to nations at peace with one an- other the "law of peace," as it is called. The larger part of the code, however, is occupied with the rules of war. Unfortunately international law has as yet never been able to offer any binding system according to which disputes may be settled hi a peaceful manner. Even the existence of the League of Nations established by the principal allied powers in 1919, does not, as will be shown later, in and of itself, enforce such a settlement. International law has also been compelled to assume that controversies will in the last resort be settled by force of arms. The best that it has been able to do in this case is to prescribe certain regulations whereby the conduct of war might be as humane as possible and may occasion the least possible injury to the property and commerce of non-combatant powers. For this purpose international law as it existed before the Great War defined the legitimate agents and methods of war; it prohibited, for example, the use of bullets which oc- casion needless suffering, the recourse to assassination poisoning, etc. It indicated for the use of belligerents a system of communication with one another by flags of truce, passports, and safe-conducts. What was still more important, international law contained an elab- orate set of regulations in regard to the rights and ob- ligations of neutral states in time of war; as far as RELATION OF STATES TO ONE ANOTHER 97 possible it permitted the trade of neutral ships to and from the ports of belligerent powers to continue un- disturbed. Only when the trade in question was with ports actually blockaded, or consisted in a commerce of articles useful for purposes of war, did it become legitimate for a belligerent power to interfere with it. It was hi particular the law of neutrality that was extensively developed in the eighteenth and nineteenth centuries, and had come to constitute the most im- portant part of international law. The extent to which the whole basis and status of this code has been altered by the Great War is a matter of controversy that will be discussed in a later paragraph. 4. Propriety of the term. Taken altogether, this systematized regulation of international dealings, both in peace and war, presented an imposing appearance, and the code of rules which was thus adopted bore a strong analogy to the internal or municipal regulation of any particular state. But it will be clear, from what has gone before, that there was and is a difference be- tween the two of an important character. The observ- ance of the municipal law is compulsory upon the in- dividual citizen. If he attempts to violate it he is re- strained, or at any rate punished after the fact by the physical force controlled by his government. But there is no such definite obligation upon the individual state to comply with the principles of international law. A state which undertakes to violate them may or may not meet with punishment; the state upon whose rights (under international law) another infringes may or may not resort to arms; and even in the event of armed conflict the injured power may meet with defeat. It is true that for a certain number of the states of the world now united hi the League of Nations, there has come 98 THE NATURE OF THE STATE into existence a new kind of guarantee, or sanction of rights and duties, covering a part of the field of inter- national dealings. But it is open to question whether the new situation is materially different from that which preceded it. It is on the grounds indicated that are based the crit- icisms of the applicability of the term "international law," and of the status and character of its rules, that have frequently been advanced. "I think, my Lords," Lord Salisbury once said to the House of Lords, "we are misled in this matter by the facility with which we use the phrase international law. International law has not any existence in the sense in which the term law is usually understood. It depends generally upon the prejudices of the writers of the textbooks. It can be enforced by no tribunal, and, therefore, to apply to it the phrase Law is to some extent misleading." The same objection is urged in detail by Austin (the leader of the English analytical school of jurists) in his Lec- tures on Jurisprudence. Since, according to Austin, the essence of a law lies in its enforcement, the name "international law" is improper; the rules in question belong to the general domain of what Austin calls "positive morality," or rules imposed by current opin- ion (as also are the "laws" of fashion and the "laws" of honor), but not coercively enforced. 1 The regula- tions affecting the conduct of political states towards each other could only be termed "law" in the Austin- ian sense if there were in existence some superior power competent and willing to guarantee their enforcement. Such a power might be imagined as existing in the shape of a general federation or league of states pledged to the recognition of the international code and united 1 Austin, Jurisprudence, lecture V. RELATION OF STATES TO ONE ANOTHER 99 to prohibit any breach of it. In so far as the existing League of Nations is recognized as exercising a coercive power over the states which compose it, it represents an arrangement of this sort. But in proportion as any such union becomes actually binding and permanent, it must in reality bring the associated nations into a single state. It might, therefore, be doubted whether even in this event the term "international law" would not still be a misnomer; for "nation" in this sense being a political and not an ethnological term, the union of the "nations" under a single law would con- stitute them a single state. As against the point of view adopted in such criti- cisms of the propriety of the term "international law," various arguments may be adduced. 1 In the first place, the objection urged by many writers 2 who adopt a re- stricted connotation of the term "law" may also be applied here. We have seen that law in its strict sense is not applicable to a state of society in which life is regulated to a large extent by custom, and to which the idea of deliberate enactment is altogether alien. Nor is the term in its strict sense applicable to a community in which imperfect political organization or chronic anarchy renders the general obedience to regulative control spasmodic and uncertain. Many writers have therefore preferred to expand the sense of the term "law" in order to make its use extend to societies of this character, and recognize the existence of "law in the making," as well as of law. Viewed in this light, international law may be considered as truly law, al- though as yet only in an inchoative stage; it becomes analogous, as Sir Frederick Pollock expresses it, "to 1 See Jellinek, Recht des Modernen Staates, pp. 302-07, 337-41. 1 See chapter iv, above. 100 THE NATURE OF THE STATE those customs and observances in an imperfectly or- ganized society, which have not yet fully acquired the character of law, but are on the way to become law." 5. International arbitration. Arbitration, or the settlement of differences between independent states in accordance with the adjudication of a third party, has, even in the form of a voluntary recourse to such a de- cision, only assumed any considerable proportions in the last half-century and particularly since the establish- ment of the covenant of the League of Nations. It is, of course, true that there have always been examples of disputes settled by the mediation of a third party. Dur- ing the mediaeval and early modern period, while the theory of a common superior still persisted, recourse was often had to the Pope as an arbiter between contending princes. But such arbitration, except in the case of the celebrated award by Pope Alexander VI, dividing the New World between Spain and Portugal, and in a few lesser instances, was not applied to questions of great magnitude. In the seventeenth and eighteenth centuries international arbitration is scarcely found, but the cir- cumstances of the nineteenth century especially favored the development of the principle. The increasing cost- liness of war, the dislocation that it occasions not only to the industrial life of the belligerents, but to that of all countries associated with them, the growing interde- pendence of general financial and commercial operations throughout the civilized world, put a strong premium on any method of settling quarrels without actual war. It is true, as most writers on the subject point out, that as yet arbitration has not been applied to subjects of really vital importance. But there have already been instances of its use in cases in which, though neither national exist- ence nor honor was at stake, pecuniary and territorial RELATION OF STATES TO ONE ANOTHER 101 claims of great magnitude were involved. As between the United States and Great Britain arbitration has re- peatedly been employed, especially for the rectification of boundary lines, as in 1827 in regard to the northeast boundary, 1 and in 1846 for the boundaries on the Pacific coast. Still more celebrated is the successful arbitration of the question of the American claim for damages on account of the devastations of the Alabama and other Southern cruisers, a matter which, by the Treaty of Washington (1871), was referred to a special tribunal, and ended in the award of a compensation of $15,500,000 to the United States. Arbitration was also successfully employed in 1889 by the United States, Great Britain, and Germany in reference to Samoa. There were in all in the nineteenth century over a hundred important cases of arbitration effected by special tribunals or specially appointed umpires. A further stage of development was seen in the at- tempt to constitute a permanent tribunal for the settling of international disputes and in the conclusion of trea- ties to effect a standing method of recourse to such a tribunal. After various proposals from important quar- ters in the closing years of the nineteenth century, a suc- cessful plan was put into operation by a convention signed at The Hague by the Great Powers in connection with the Peace Conference of 1899. Under this agree- ment a permanent court of arbitration was established. It consisted of a panel of distinguished jurists, of whom four were nominated by each signatory power, and from the total number of whom international disputants might select two each to act as arbitrators, the persons chosen themselves adding an umpire. The procedure to 1 The award made in this case by the King of the Netherlands was rejected by the United States. 102 THE NATURE OF THE STATE be adopted by the tribunal thus created was also pre- scribed. Recourse to the tribunal at The Hague, al- though not obligatory upon the signatory powers, never- theless offered standing facilities for peaceful settlement very difficult to bring into being during the strained relations occasioned by acute international controversy. The Hague Conference of 1899 made no definite ar- rangement for a second gathering. A second conference was proposed by President Roosevelt during the Russo- Japanese War. At the desire of the Czar the meeting was delayed till the conclusion of the war and met, as the Second Hague Conference in 1907. This conference un- dertook the further discussion and revision of the system of arbitration adopted in 1899, but was chiefly concerned with the consideration of the rules of war. The great divergences of view which had been apparent in re- gard to the maritime code of war and neutrality and which were obviously being accentuated by the rapidly changing conditions of offense and defense, led Great Britain to invite the chief European powers and the United States and Japan to a special conference in this regard. This assembly met at London in 1909 and drew up the Declaration of London, the provisions of which the House of Lords refused to ratify. The work thus accomplished by general conferences was further supplemented by special treaties among the powers which thereby pledged themselves to adopt a settlement by arbitration where possible. According to the International Peace Bureau of Berne, one hundred and thirty-three treaties of arbitration were concluded during the ten years following the first Peace Conference. In nearly all cases the agreement to submit to arbitra- tion matters of controversy that might arise between two states was made with certain reservations. Ques- RELATION OF STATES TO ONE ANOTHER 103 tions which involved the independence, national honor, or vital interests of a state were excluded from the opera- tion of arbitration. Thus it was made a condition of the Anglo-French Treaty of 1904, and of those identical with it, that "neither the vital interests nor the independence nor honor of the two contracting states, nor the interests of any state other than the two contracting states shall be involved." Such a proviso, unavoidable though it was in the existing state of public opinion, seriously unpaired the theoretical completeness of the arrange- ment, since each state must remain the judge of its own vital interests and might therefore at any time refuse to admit the applicability of arbitration. A few treaties made by lesser states, as notably those con- cluded by Denmark with Italy, Holland, and Portugal respectively, provided for the submission of controver- sies of every character to a court of arbitration. Within the limits indicated above, treaties of five years' duration for references of disputes to the Hague tribunal were made, hi identical terms, by Great Brit- ain with France, Italy, Spain, and Germany. These treaties provided that "differences of a justiciable order or relative to the interpretation of existing treaties be- tween the two contracting parties which may arise and which it may not have been possible to settle by diplo- macy, shall be submitted to the permanent court estab- lished by the convention of July 29, 1899, at The Hague." In the same way the United States had by 1910 con- cluded limited arbitration treaties with twenty-four powers, among which were Great Britain, Japan, Ger- many, France, Austria, and Italy. The treaty made between the United States and Great Britain in 1908, and duly ratified, pledged those two states to refer to the Hague Court any controversies which could not be 104 THE NATURE OF THE STATE settled by means of diplomacy, provided that the issues " did not affect the vital interests, the independence, or the honor of the two contracting states." In 1911 the attempt was made to carry still further the application of arbitration in disputes between Great Britain and the United States. A treaty was signed (August 3, 1911) by the plenipotentiaries of the two countries which was to submit practically each and every dispute to a court of arbitration. The treaty also proposed to institute a joint high commission of in- quiry for the "impartial and conscientious investiga- tion," though not of course for the decision, of interna- tional controversies. By the terms of the agreement the treaty was to remain in force until terminated by twen- ty-four months' notice given by either contracting state. The attempt to obtain the ratification of the United States Senate for this treaty, and for a similar treaty negotiated with France, raised the question of the con- stitutional rights and obligations of the Senate and the ratification of the treaties in their original form proved impossible. During the opening years of the twentieth century the progress of international arbitration was thus of a char- acter to offer to many observers the most delusive hopes for the prospects of permanent peace. These hopes were further intensified by the increasing interrelation and mutual dependence of the general commerce and finance of the world. It began to be argued that war was becoming obsolete and that the close connection between nation and nation of business investment and finance indicated that war, even for a victorious nation, would spell financial disaster. The appearance of a book by R. N. A. Lane (Norman Angell) entitled The Great Illusion, in which these arguments were advanced with RELATION OF STATES TO ONE ANOTHER 105 singular lucidity, attracted world-wide attention in the years just preceding the Great War. In all these dis- cussions, however, it was taken for granted that no bel- ligerent nation would seek to increase its wealth by pil- lage and enslavement. 6. The League of Nations. Such was the general posi- tion of the theory and the facts of international relations at the outbreak of the Great War. In the initial stages of the conflict it was very generally argued that the close of the war would mean the termination of war itself. The wish at least was father to the thought. Unfortunately the world situation in the years following the war is such as to give little if any hope of such a consummation. This general desire, however, led to the formation at the close of the war of a League of Nations. It came into be- ing by virtue of a covenant accepted by the representa- tives of the allied and associated powers hi plenary conference at Paris on April 28, 1919. The covenant forms Part I of the draft treaties of peace presented to the delegates of the German Empire at Versailles on May 7, 1919, and to those of Austria at Saint-Germain on June 2, 1919. It is provided that these treaties shall come into force as soon as they have been ratified by Germany and Austria respectively and by three of the principal allied and associated powers. The allied and associated powers comprise the United States, the Brit- ish Empire, France, Italy, and Japan. The German del- egates signed on June 28, 1919. l 1 The citation here is from Sir Geoffrey Butler's admirable Handbook to the League of Nations (1919). The following powers, subject to necessary ratifications, became original members of the League of Nations as signatories of the treaty of peace : United States of America, Belgium, Bolivia, Brazil, British Empire, with Canada, Australia, South Africa, New Zealand, and India, China, Cuba, Czecho-Slovakiai Ecuador, France, Greece, Guatemala, Haiti, Hedjaz, Honduras, Italy, Japan, Liberia, Nicaragua, Panama, Peru, Poland, Portugal, 106 THE NATURE OF THE STATE The organs of the League consist of an assembly made up of representatives of all the members: a coun- cil consisting of representatives of the principal allied and associated powers (as above), together with repre- sentatives of four other members selected by the as- sembly from tune to tune: a secretariat comprising a secretary-general appointed by the council with the approval of a majority of the assembly and assisted by such staff as may be required; and finally a permanent court of justice competent "to hear and determine any dispute of an international character which the parties thereto submit to it," and to "give an advisory opinion upon any dispute or question referred to it by the coun- cil or by the assembly." The council itself is empowered to regulate the constitution of the permanent court. The seat of the League is established at Geneva. The covenant of the League contains provisions * directed toward the prevention of war, the limitation of armaments, the mutual guarantee of territory and in- dependence. In view of the exceptional importance of the subject it is well to quote the principal clauses of these provisions from the text of the covenant itself: Except where otherwise expressly provided in this Covenant, Rou mania, Serb-Croat-Slovene State, Siam, and Uruguay. The fol- lowing others became original members as having been invited to accede to the covenant, Argentine Republic, Chili, Colombia, Denmark, Netherlands, Norway, Paraguay, Persia, Salvador, Spain, Sweden, Switzerland, and Venezuela. The covenant provides further other states (e.g. states corresponding to the former Central Powers or parts of them) may be made members of the League with the con- sent of two thirds of the League Assembly provided that such a state " shall give effective guarantees of its sincere intentions to observe its international obligations, and shall accept such regulations as may be prescribed by the League in regard to its military, naval, and air forces and armaments." Any member may after two years' notice withdraw from the League. * An excellent summary is found in Butler, op. cit., chap. vn. RELATION OF STATES TO ONE ANOTHER 107 or by the terms of the present Treaty, decisions at any meet- ing of the Assembly or of the Council shall require the agree- ment of all the Members of the League represented at the meeting. (Art. v.) The Members of the League recognize that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforce- ment by common action of international obligations. The Council . . . shall formulate plans for such reduc- tion for the consideration and action of the several Govern- ments. . . . The Members of the League agree that the manufacture by private enterprise of munitions and implements of war is open to grave objections. The Council shall advise how the evil effects attendant upon such manufacture can be pre- vented. (Art. vui.) The Members of the League undertake to respect and pre- serve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled. (Art. x.) Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. (Art. xi.) The Members of the League agree that if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or to inquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the report by the Council. (Art. xn.) The Members of the League agree that whenever any dis- pute shall arise between them which they recognize to be suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration. (Art. xm.) If there shall arise between Members of the League any dispute likely to lead to a rupture, which is not submitted 108 THE NATURE OF THE STATE to arbitration as above, the Members of the League agree that they will submit the matter to the Council. . . . The Council shall endeavor to effect a settlement of the dispute. . . . If the dispute is not thus settled, the Council, either unan- imously or by a majority vote, shall make and publish a report containing a statement of the facts of the dispute and the recommendations which are deemed just and proper in regard thereto. . . . If a report by the Council is unanimously agreed to by the members thereof other than the Representatives of one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report. (Art. xv.) Should any Member of the League resort to war in disregard of its covenants under Articles XII, XIII, or XV, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake imme- diately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their na- tionals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial, or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not. It shall be the duty of the Council in such case to recom- mend to the several Governments concerned what effective military, naval, or air force the Members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League. (Art. xvi.) In the event of a dispute between a Member of the League and a State which is not a Member of the League, or be- tween States not Members of the League, the State or States not Members of the League shall be invited to accept the obli- gations of membership in the League for the purposes of such dispute. . . . If a State so invited shall refuse to accept the obligations of membership in the League for the purposes of such disputes and shall resort to war against a Member of the League, the provisions of Article xvi shall be applicable as against the State taking such action. (Art. xvn.) RELATION OF STATES TO ONE ANOTHER 109 Nothing in this Covenant shall be deemed to affect the va- lidity of international engagements such as treaties of arbitra- tion or regional understandings like the Monroe Doctrine for securing the maintenance of peace. (Art. xxi.) To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are in- habited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this Covenant. The best method of giving practical effect to this prin- ciple is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience, or their geographical position, can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Manda- tories on behalf of the League. (Art. xxii.) Amendments to this Covenant will take effect when rati- fied by the Members of the League whose Representatives compose the Council and by a majority of the Members of the League whose Representatives compose the Assembly. (Art. xxvi.) The situation created by the experience of the war and the establishment of the League of Nations is thus very far removed from the roseate hopes that had been so widely entertained for the prospects of permanent peace. It is quite clear now that in and of itself the interdependence of markets, exchanges, and finance does not end war; that even nations that had previously been classed as civilized may resort to methods of bar- barity, pillage, and enslavement; and that under modern conditions of warfare, both in its technical aspect and in its economic basis, the status of neutrality is diffi- cult to determine, to maintain, and to respect. 110 THE NATURE OF THE STATE Moreover, the covenant of the League is far removed in its terms from the all-powerful coercive authority, the "parliament of man and federation of the world," which was the dream of the idealist. Action by a unanimous vote upon any matter of prime importance is almost impossible hi so numerous a body as the as- sembly of the League and extremely difficult in a body so complex as the council. Pious wishes for the reduc- tion of armaments belong with other counsels of per- fection. The League proposes to take any action that "may be deemed wise" to meet any threat of war, and to "endeavor to effect a settlement" of interna- tional disputes and to boycott any member which breaks its covenants. But it must be remembered that these things will be done only if there is a unanimous agree- ment among the allied and associated powers who may be permanently on the council and the four other powers from time to time adjoined to them. Even allowing for the fact that the unanimity need not include the parties to the dispute, 1 it is obviously more than possible that the council, in a moment of emergency, such as that at the closeof July, 1914, will fail to come to a conclusion. The League offers, in short, an admirable mechanism whereby nations which wish to settle their disputes with one another without war may be assisted to do so; but it offers, and it can offer, nothing more than a partial and unreliable protection against the ambitions and the rapacity of pirate nations. Against aggression of this kind there remains no other national safeguard than adequate physical defense and the inspiration of na- tional patriotism which gives it strength. Under these circumstances, therefore, it may well seem to many that the experience of the Great War tells strongly in favor 1 See the Covenant, art xv. RELATION OF STATES TO ONE ANOTHER 111 of the national state as the principal hope of humanity for generations to come. The wider prospect of cosmo- politan union must still remain little more than a vision, an inspiration, doubtless, toward international friend- ship and good-will, but worse than useless as a reliance against danger. READINGS SUGGESTED Lawrence, T. J., Principks of International Law (1898), part i, chaps, i-v. Machiavelli, N., The Prince (1513). Butler, Sir G., Handbook to the League of Nations (1919). FURTHER AUTHORITIES Walker, T. A., History of the Law of Nations, vol. I (1899). Halleck, H. W., International Law (1861). Maine, Sir H., International Law (4th edition, 1879). Bryce, J., Holy Roman Empire (8th edition, 1883). Dunning, W. A., History of Political Theories Ancient and Me- diceval (1902). Grotius, De Jure Belli ac Pads (1625). Ritchie, D. G., Natural Rights (1895). Austin, J., Lectures on Jurisprudence (4th edition, 1879). Jellinek, G., Dos Recht des Modernen Staates (1900). Dyer, L., Machiavelli and the Modern State (1904). Woolsey, T., America's Foreign Policy (1898). Phillipson, C., International Law and the Great War (1915). CHAPTER VII THE FORM OF THE STATE 1. The classification of states according to their form; Aristotle's divisions 2. Later classifications; Montesquieu, Rousseau, Blunt- schli, etc. 3. Practical classification of existing states 4. The constitution ; written and unwritten constitutions 5. Origin of written constitutions 6. The distinction between states with written and those with unwritten constitutions an illusory basis of division 7. Scope of the constitution 8. Amendment. i. The classification of states according to their form; Aristotle's divisions. Although all states must possess the essential requisites of territory, population, unity, and sovereign organization, they nevertheless differ widely in respect to the extent of their territory, the number of their population, and the peculiar na- ture of their organization. It is natural, therefore, to attempt to group them under some system of orderly classification; indeed, from the time of Aristotle on- wards, almost all writers on political science have in- dicated some such classification. To subdivide states according to the extent of their territory, for instance, into classes each containing so many thousand square miles, would obviously be of very little significance; to divide them according to population would be equally easy and valueless. The evident basis of classificatior is that of the organization of the state; in other words, states are divided according to the structure of their governments. Some writers have held that we ought not to speak of a classification of states, since all are identical in their essential attributes. They prefer to classify instead the different "forms of government" seen in the state. The objection does not seem well THE FORM OF THE STATE 113 taken. The differences in structure of government con- stitute the basis of classification, but we may on that basis either speak of the various "forms of government " or "forms of the state." l The starting-point for all later discussion is found in the celebrated classification given by Aristotle in his Politics. He divides the forms of government accord- ing to the number of persons in whom the controlling power is vested. Where the power is vested hi a single person the government is a monarchy. Power vested in the hands of a few constitutes an aristocracy. Where the general body of the citizens rule, we have a polity. Thus far the classification had already been indicated by Herodotus, but Aristotle proceeds further hi dis- tinguishing between what he calls the "normal" and the "perverted" forms of the state. The normal states are those which aim at the good of the community as a whole; the perverted forms are those which exist for the benefit of the ruler or the ruling class. The terms mentioned above are reserved for the first class; thus a monarchy is a government by a king for the good of the whole community, while an aristocracy or a polity is a government by the enlightened few or by the citizens at large for the same end. Of the perverted forms a tyranny means the government by a tyrant for his own ends, an oligarchy the government of the minority in their own interest, while a democracy signifies the self- ish government of the "mob." It is to be observed that in translating Aristotle's terminology literally, the word "democracy" is shifted out of its modern meaning and becomes a term of opprobrium ; some writers have there- 1 " It need not be said that there can be no such thing as a classifi- cation of states. In essence they are all alike, each and all being distinguished by the same sovereign attributes." (W. W. Willoughby, The Nature of the State, chap, xm.) 114 THE NATURE OF THE STATE fore preferred to avoid a literal translation and to use "democracy" for the normal or beneficent form, and to substitute "ochlocracy" to mean mob-rule. The classification thus offered was intended by Aris- totle to bear a peculiar significance in that it typified not only the divisions of governments, but also indicated a series of forms, representing what might be considered the natural evolution of government. An original king- ship was presumed to change into an aristocracy and then through successive stages of oligarchy and tyranny into democracy. "The first governments," says Aris- totle, 1 "were kingships, probably for this reason, because of old when cities were small, men of eminent virtue were few. They were made kings because they were bene- factors, and benefits can only be bestowed by good men. But when many persons equal in merit arose, no longer enduring the preeminence of one, they desired to have a commonwealth and set up a constitution. The ruling class soon deteriorated and enriched themselves out of the public treasury; riches became the path to honor, and so oligarchies naturally grew up. These passed into tyrannies, and tyrannies into democracies: for love of gain in the ruling classes was always tending to dimin- ish their number, and so to strengthen the masses, who in the end set upon their masters and established de- mocracies." Some writers in their analysis of the Aristotelian classi- fication have put forward as the "natural" order of succession monarchy, tyranny, aristocracy, oligarchy, polity, and lastly democracy. The last in its turn may again change into monarchy and hence form a recurring cycle. 2 The process may be explained in detail thus: 1 Aristotle, Politics, n, chap. xv. * This is the interpretation given to Aristotle's theory by Wood- THE FORM OF THE STATE 115 Starting, for instance, at a given point in the cycle, we find a government in existence as a hereditary mon- archy. With the degeneration of the character and aims of the successive monarchs, it passes into a tyranny, and is no longer directed toward the public good. The united efforts of the more powerful magnates of the com- munity overthrow the monarch and set up an aristo- cratic government. This again degenerates, loses the public spirit which at first inspired it, and lapses into an oligarchy. Against this regime the citizens as a whole break into successful revolt and establish a "polity," or, in modern terminology, a "democracy." Pushed to an extreme the democracy is converted into the oppression of the rich by the masses, and thus be- comes an ochlocracy (Aristotle's democracy). The in- tolerable confusion that results is brought to an end by the emergence of an all-powerful warrior-statesman who establishes himself as a king. Thus the cycle has run its course and begins again. The theory of political change laid down by Aris- totle appears, to a large degree, corroborated by the history of the Greek city-states hi the centuries pre- ceding the Peloponnesian War; l indeed it was as an interpretation of their recurrent experience that Aris- totle, who was essentially an inductive and practical writer, offered this view of political permutations. Even in recent history examples are found of a more or less complete political progression of this sort. The French despotic monarchy of the eighteenth century was over- row Wilson (The State, chap, xin, 1395-1397). It is interesting in this connection to consider Plato's discussion of the same subject, and Aristotle's criticism of Plato's view. See Plato, Republic, viu, 545; and Aristotle, Politics, v, chap. xn. 1 An able analysis of the origin, development, and decay of the Greek city-state is given by Ward Fowler, The City-State^ 116 THE NATURE OF THE STATE thrown by the revolutionary movement (1789-92), which in its inception was largely under the guidance of the enlightened minority, whose initial ascendancy might therefore be looked upon as the overthrow of despotism by aristocracy. 1 In the second phase of the revolution the aristocracy, as represented by the prop- erty-holding voters of the constitution of 1791 (an oli- garchy, in the minds of the Jacobin extremists), were overthrown, and the republic established, resting theo- retically on universal suffrage and complete democracy. The turbulent anarchy into which this democratic regime degenerated (1793-99) was brought to an end by the emergence of a military monarch in the person of Napoleon Bonaparte. The links of the progression are not precisely complete, but yet offer an analogy in some degree corresponding to the Aristotelian cycle. The last-mentioned phase, the suppression of anarchic disorder by the establishment of a military autocracy, is one that has shown itself specially liable to recur. Yet when all is said, it cannot be argued that the Aris- totelian cycle is to be looked upon as a necessary or even as a normal course of political change. Even Aris- totle, who regarded it as normal, shows by his discussion 8 of the means of preventing revolutions that he did not consider it as inevitable. Least of all does it hold true of the condition of the modern political state. Nor is the classification of states into monarchies, aristoc- racies, and democracies to be looked upon as a satisfac- tory and sufficient division as applied to the modern world. In the first place, the terms monarchy and democ- racy open the way at once to great confusion. If a de- 1 The fact that the constitution of 1791 conferred the suffrage only on the property-holders lends color to this view. See Aulard, Histoire Politigue de la Ritolution Franyiise. Politic*, bk. v. THE FOBM OF THE STATE 117 mocracy means, as Aristotle's "polity" does, a system in which the political power lies in the mass of the people, Great Britain is to be classed as such, and falls into the same category as the United States, notwith- standing the obvious formal difference between these two governments. If, on the other hand, having regard to the existence of a titular sovereign, Great Britain is merely described as a monarchy, the classification, while correct in a purely formal sense, is evidently unsatisfac- tory. It is thus seen that the Aristotelian division of- fers no adequate treatment of constitutional or limited monarchies, which are nevertheless as prominent as any existing form of government. The classification is in- adequate, too, in other ways. It fails to take account of the difference between a federal and a non-federal or unitary government a distinction which, as we shall presently see, is of the greatest importance in connection with modern states. Nor does it make any distinction between governments according to the differences of the constitutional relation of legislature and executive. This also, as we shall see, is of the greatest importance. 2. Later classifications; Montesquieu, Rousseau, Bluntschli, etc. Imperfect, however, as the Aristotelian formula is, it was nevertheless accepted as one of the cardinal tenets of political science. Not until quite mod- ern times do we find it subject to serious modification or expansion. Montesquieu, whose Esprit des Lois (1748) will fall under consideration in the succeeding chapter, proposed a division into republican, monar- chical, and despotic governments. Republican gov- ernment was that "in which the people as a body or even a part of the people has the sovereign power; mo- narchical, that in which a single person governs, but only by fixed and established laws; whereas in despotic govern- 118 THE NATURE OF THE STATE ment a single person, without any law or rule, conducts everything according to his will and caprice." l Rous- seau offers a division of governments into monarchies, aristocracies, and democracies, subdividing aristocracies into natural, elective, and hereditary. He admits also the existence of mixed forms of government, as in the an- archical kingdom of Poland. Many other writers of the eighteenth and earlier nineteenth centuries offer varia- tions of the classification of Aristotle, all of which, how- ever, are open to the same objection of inadequacy as applied to the complex organization of modern states. Bluntschli presents a unique addition to the list of gov- ernments in the shape of theocracy, a normal form to which there corresponds a perverted form, "idoloc- racy." The former name is applied to states "in which no human authority has been recognized, in which the supreme power has been attributed either to God, or to a God, or to some other superhuman being, or to an Idea. The men who exercise rule are not regarded as its possessors, but as the servants and vice-gerents of an unseen ruler. Its perversion may be called Idolocracy." Such a classification seems quite fallacious. For even granting the validity of this fourth class, it lies cross- wise of the other three, and is not exclusive of them. We might have a theocracy that had the form of a mon- archy, an aristocracy, or a democracy. Other writers have attempted more elaborate methods of division, which are intended to account for all the various his- torical forms of the state. Of this nature is the classifi- cation of Von Mohl (a German publicist of the earlier nineteenth century) ; he distinguishes patriarchal, theo- cratic, despotic, classic, feudal, and constitutional states. Very little examination is needed to see that such classes 1 Esprit dea Lois, bk. n, chap. i. THE FORM OF THE STATE 119 overlap each other in all directions; indeed attempts of this sort to effect a division that is at once logical and chronological, run the danger of drifting into mere de- scription. More modern writers l undertake a division of states which shall take account not merely of the general loca- tion of supreme legal power, but also of the salient fea- tures of the organization and structure of the govern- ment. Indeed, while accepting Aristotle's division as true as far as it extends, it seems necessary in classifying the states of the modern world to take account of cer- tain especial features of organization the existence of which introduces a fundamental difference between forms of government. Chief amongst these is the dis- tinction between unitary and federal governments. In a unitary government the organs of local authority (pro- vincial and county bodies, etc.) exist by virtue of an express creation, or by tacit recognition from the cen- tral government. The latter has power, legally, to ter- minate their existence or alter their form. The govern- ments of France, Great Britain, and Italy are unitary. The governments of the United States and Canada, on the other hand, are federal. Here both the central and local authorities derive their power from an antecedent source, and neither is legally competent to destroy the other. A further distinction is found in the difference between what is called parliamentary, responsible, or cabinet government, and the form known as non-respon- sible or non-parliamentary. In the former the executive is virtually appointed by, and holds office during the 1 See Gareis, AUgemeines Staatsrecht; and Jellinek, Allgemeine Staatslehre, chap. xx. An excellent discussion of the form of the state is found in Professor J. W. Garner's Introduction to Political Science, chaps, v and vi. Professor Garner prefers to distinguish the " Form of State" from "the Forms of Government." 120 THE NATURE OF THE STATE pleasure of, the legislative body. This is the case in Eng- land and in France. In the latter the executive is not appointed by the legislature, and cannot be dismissed by it. Of this character is the government of the United States, of the separate States of the Union, Cuba, etc. 3. Practical classification of existing states. In at- tempting a somewhat elaborate practical classification of states, it seems advisable to make no attempt to in- clude all the historic forms which have appeared in the evolution of the state (city-states, feudal monarchies, etc.), but to confine ourselves to actually existing types. In dealing with historic and imperfect forms of the state, no more accurate classification than the original cate- gory of Aristotle can be applied without degenerating into mere description. It is well, therefore, to take the primary classification as of general validity, and to sup- plement it with a more exact category of modern states. In the light of what has been said, the division shown in the table on the following page may be suggested. There is first of all to be noted the formal distinction between a republic and a monarchy. In the modern world this is for the most part a distinction of external form rather than of essential character. If the true meaning of "republic" is taken to be a government in which the majority of the people rule through orderly constitutional forms, then the British government is as much a republic as is France or the United States. In the same way the name and external form of a republic may clothe what is in reality a military autocracy. Till recently it was possible to begin a classification of states by indicating the distinction between "despotic govern- ments" and those which were either as limited mon- archies or as republics of a democratic form. In this case the "despotic governments" included those, such _!_ g=2*8 K.1 44 I fiiij -i-iii* fiOMl -.-a s w W ! |sis I I 2 4 S Ml it! "2s 1 d* wj- g s| I ll MS s -6o till! 122 THE NATURE OF THE STATE as Russia or Persia or Turkey at the opening of the present century, in which in the form of law the will of the monarch is supreme. But in the world of to-day, with such dubious exceptions as Abyssinia or Afghan- istan, it is no longer possible to find states of this nom- inal character, whatever may be the actual conditions of rule and obedience which obtain in them. It is proper, therefore, to begin with the formal and titular distinc- tion between monarchy and republic. The division of both constitutional monarchies and republics into uni- tary and federal forms, and into responsible and non-re- sponsible governments, rests upon distinctions already made. 4. The constitution; written and unwritten consti- tutions. The form of any particular state is called its constitution. In America it is natural to think of the word "constitution" as indicating a written document. But in the wider sense of the term it refers to the fixed fundamental law of any state, whether expressed in a written constitution or otherwise. The following defini- tion is offered by Professor Woolsey: 1 "The collection of principles according to which the powers of the gov- ernment, the rights of the governed, and the relations between the two are adjusted is called a constitution." Compare the definition of the distinguished English jurist, Mr. E. Dicey: "All rules which directly or indi- rectly affect the distribution or the exercise of the sovereign power in the state." Of these principles or rules, some may exist in written form in a constitutional document, but others may be of equally binding force though resting for their sanction only on long-standing custom. This is seen particularly in looking at the constitution of England. Some of the most important 1 Political Science, vol. I. THE FORM OF THE STATE 123 parts of it are matters, not of statutory enactment, but of customary usage; and this customary usage is to be regarded sometimes as having the aspect of law enforce- able by the courts, sometimes merely as an understand- ing or convention, whose observance is only guaranteed by the force of tradition and of public opinion. The cabinet system, for example, by which the ministers of the executive are selected with the approval of the majority of the House of Commons from among the members of the two houses of Parliament representing a particular political party or group of parties, is the central feature in the practical operation of the British government; it is purely a matter of convention, not of law. - Hungary is another country which offered, prior to its disruption by the Great War, an example of what is commonly called an unwritten constitution. The rela- tions of Hungary to Austria, together with which it formed the dual monarchy of Austria-Hungary, were indeed based upon a fundamental statute (December, 1867) passed in like terms by the parliaments of the two countries, and bearing some analogy to a written constitution. But there was no single constitutional doc- ument regulating, or professing to regulate, the internal government of the Kingdom of Hungary. As in the case of England, to whose constitutional evolution that of Hungary offered an interesting parallel, the consti- tution rested partly on immemorial custom, partly on a series of decrees and statutes, 1 partly on conventional 1 Of these the principal are: Golden Bull of Andreas II (1222); the Pacification of Vienna (1606) ; Pragmatic Sanction of Charles III (1723) ; Constitutional Laws of 1791, 1844, 1848, and 1867. From the original Contract of Blood (no longer extant, but dating from the first conquest of the country and securing the rights of the nobles) till the present century about fifty constitutional statutes may be enumerated. See Dareste, F. R., Les Constitutions Modernea (2d edition, 1891), vol. I. 124 THE NATURE OF THE STATE usages. The parliament of Hungary and the county assemblies had existed for many centuries, and their existence was not based on a fundamental written law. Of the decrees referred to, the Golden Bull of Andreas II (A.D. 1222) restricting the power of the king in favor of the privileges of the barons, and calling for annual parliaments suggests the Magna Carta of King John. It had been supplemented by numerous other laws, the most important provisions of which were definitely codified in statutes of 1848 and 1867. Any of the pro- visions of these could legally be abolished by ordinary statutes. It would seem, then, that the word " constitu- tion," if it is to include the organization of such coun- tries as England and Hungary, must be used in a wider acceptation than its usual American signification. To the examples of Great Britain and Hungary there might, of course, be added the former despotic states, such as Russia and Turkey, whose government from the nature of the case was not based upon a written constitution. Theoretically one could conceive of a despotic monarchy resting on a written constitution; one might imagine the social contract, as enunciated by Hobbes, operating in the form of a written constitution, under which all the subjects surrendered their power to a despotic king. But inasmuch as, in this instance, the power of the king would extend to the alteration or abrogation of the constitution itself, the latter would be entirely nugatory and the king's real tenure of power would rest in reality on the continuance of the custom of submission. 5. Origin of written constitutions. But among the organized states of the civilized world the number of those which have no written constitution professing to regulate their internal structure is only a very small THE FORM OF THE STATE 125 minority. Within the last century and a half most of the great states have adopted written constitutions. The American colonies, in converting themselves into states, led the way. Written constitutions were adopted in the year 1776 by New Hampshire, Virginia, South Carolina, New Jersey, Delaware, Pennsylvania, Mary- land, and North Carolina; in the following year by Georgia and New York; and by Massachusetts in 1780. Connecticut and Rhode Island converted their royal charters into constitutions by putting the name of the people in the place of that of the king. France, at the commencement of the Revolution, framed and adopted (1791) a written constitution which, although soon set aside in favor of others equally ephemeral (1793, 1795, 1799), established an historic precedent. Each of the successive French governments of the nineteenth century has adopted a written constitution the Bourbon government of the Restoration prefer- ring, however, to avoid the word "constitution" and to substitute for it the term "charter," which seemed to have less flavor of popular sovereignty. The present government in France the Third Republic though it has no single document called a constitution, has, nevertheless, a code of "constitutional laws," with a special method of revision. In the Napoleonic era a number of written constitutions were issued under French influence to the tributary Italian states. Dur- ing the same time written constitutions were declared in Spain both by the Bonapartists, recognizing King Joseph (1808), and by the partisans of the Bourbon Ferdinand VII (1812). Neither of these proved per- manent; but Spain is at present under a written con- stitution presented by the government to a convention, which ratified it in 1876. During the European rising 126 THE NATURE OF THE STATE against Napoleon (1813, 1814) written constitutions were promised by Prussia and by several of the states of Germany; after the war they were actually granted by Bavaria (1818) and by Wurttemberg (1819). The great revolution of 1848 precipitated a shower of writ- ten constitutions all over central Europe. Though nearly all of them were canceled in the ensuing mo- narchical reaction, that of Sardinia (the "Fundamental Statute" of 1848) has remained in revised form as the constitution of the present Kingdom of Italy. The King of Prussia issued in 1850 a constitution prepared by the crown and accepted by a legislative body of a reac- tionary character, which has since, in theory at least, served as the basis of the Prussian government. Aus- tria, in 1867 (defeated in the war with Prussia and Italy, and fearing a disintegration of her heterogeneous provinces), adopted a set of fundamental laws closely analogous to a written constitution. At the close of the Great War a new constitution for Germany, covering a union of fifteen states, was completed and announced by the Berlin government on January 15, 1919. Apart from Great Britain, written constitutions may be said to have become the general rule in Europe. The same is true of the republics of Central and South America, all of which have written constitutions, serving at any rate as the nominal basis of their government. The precedent having been once successfully set in America in the eighteenth century, its extension has been largely a matter of imitation and adaptation. It is interesting, however, to observe the manner in which the institution of written constitutions came about in the United States. In a certain sense the written con- stitutions of the American States may be looked upon as evolved out of the charters granted by the sever- THE FORM OF THE STATE 127 eigns of England to trading companies, and conferring upon them a corporate personality, and, in most in- stances, commercial privileges or monopolies. These charters themselves were closely analogous to the medi- eval charters of privileges given to towns, merchant guilds, or religious orders. Edward IV, in 1463, granted a charter to the merchant adventurers trading with Flanders. Queen Elizabeth conferred a charter (1579) upon the Eastland Company trading in the Baltic, and granted another in 1599 to the East India Company. Under James I (1609) a charter was granted to the "Treasurer and Company of Adventurers and Planters of the City of London for the first colony 1 in Virginia." Most important of all is the charter issued by Charles I (1629) to the "Governor and Company of Massachu- setts Bay." The Massachusetts charter not only incor- porates a "trading company with power to implead or to be impleaded," etc., but also makes provision for a frame of government consisting of a governor, deputy- governor, and eighteen assistants, and calls for the hold- ing of a "greate and general courte" of the company four times a year. The emigration of the company as an entirety to America (a proceeding not contemplated by the government at the granting of the charter) con- verted their corporation into a political rather than a commercial body. Though this charter was canceled in 1684, it was replaced by another one (1691) which conceded less independence, indeed, to the colony, but constituted a more purely political instrument. Similar charters with privileges of government were granted to various other American colonies during the period of 1 This Is the second Virginia charter. The first was granted in 1606. The words "first colony" are used to distinguish them from the Plym- outh Company. See B. Poore, Charters and Constitutions, vol. u. 128 THE NATURE OF THE STATE settlement, though many of them were withdrawn later. At the time of the Revolution colonial charters existed in Massachusetts, Connecticut, and Rhode Island. But although it is necessary to recognize the impor- tant part played by trading charters in the evolution of written constitutions, there are other contributory factors which must not be left out of sight. The insti- tution of compacts or joint agreements for self-govern- ment among the people themselves played an important part. Of these compacts or "plantation covenants," the history of the settlement of New England in the seventeenth century offers several examples. They were occasioned in part by the isolation in which the colonists found themselves, being cut off from the direct action of the sovereign government to which they ac- knowledged allegiance; they were also inspired by the ideas on religious organization and government domi- nant among a large section of the colonists. The latter, being "Independents" in matters of church govern- ance, had already the custom of drawing up a "church covenant," which, being accredited by the members of the congregation, became as it were the constitution of their spiritual government. The most notable of the colonial compacts is the Mayflower Covenant, men- tioned in a preceding chapter. A particular importance attaches to documents framed hi 1639, and named the "Fundamental Orders of Connecticut," which are prac- tically a political constitution adopted by the towns of Windsor, Hartford, and Wethersfield, which thus com- bined to form the government of Connecticut. On this was based the later royal charter of 1662, which, as has been seen already, was transferred into a state consti- tution. During the great rebellion of the seventeenth century in England, the supremacy of the Puritans pro- THE FORM OF THE STATE 129 duced in 1647 the famous "Agreement of the People," intended to be a fundamental written law superior to the power of Parliament, and to be ratified by all the nation. A little later (1653) the regime of the Protectorate was consolidated in the "Instrument of Government," drawn up by a council of Cromwell's officers. This lat- ter was a written constitution. But the restoration of the monarchy, theoretically on its old basis, broke up the thread of constitutional development and left it to be brought to a culmination by the American colonists of the next century. 6. The distinction between states with written and those with unwritten constitutions an illusory basis of division. From what has been said one might reason- ably expect that the classification of governments ought to have included the distinction between those that have a written constitution and those that have an un- written. But such a distinction, self-evident as it ap- pears at first, is in reality illusory and unsatisfactory. In the first place no constitution is wholly an unwritten one. Thus in the case of the United Kingdom certain parts of the constitution undoubtedly consist of writ- ten documents; the Magna Carta, the Bill of Rights (of 1688), the Act of Settlement (1701), and the stat- utes of 1832, 1867, 1884," and 1885, regulating the right to vote and the representation of the people, are evident examples. Nor does a so-called written consti- tution of necessity, or even usually, contain the whole of the fundamental law of the country to which it applies. Any constitution is soon found to become sur- rounded in its operation with a growth of precedents and customary usages which presently obtain what is practically a binding force, and which become in time a part of the constitution in the same sense. The most 130 THE NATURE OF THE STATE familiar example is seen in the case of the presidential office in the United States, a third term being forbidden by precedent, though not repugnant to the written con- stitution itself. A good illustration of the same thing is seen in the government of Italy: the "Fundamental Statute" does not prescribe the necessity of a cabinet system, of ministers dependent as in England on the approval of a parliamentary majority, but the prece- dent set by Victor Emmanuel II has been consistently followed, and now the system l is looked upon as a part of the constitution of the Kingdom of Italy. There are further reasons of still greater cogency for refusing to group together the countries with paper constitutions as forming a class. It is commonly con- sidered that a written constitution stands as a barrier against the arbitrary action of the government, the supposition being that since the powers of the govern- ment are limited and defined by the constitutional in- strument, any action of the government outside of its legal province is void. Such is of course the case with the Constitution of the United States. But it is a con- fusion of thought to suppose that this is a necessary consequence of the existence of a written constitution. The existence of such restrictions on the actions of the government does not follow from the mere fact of there being a written constitution, but depends on the ques- tion whether or not the provisions of the constitution are alterable by the ordinary legislative procedure of the government. In the United States this is of course not possible; Congress has no power to widen its own jurisdiction. But one can imagine a written constitution, 1 For the special features of cabinet government in Italy, see Lowell, A. L., Government and Parties in Continental Europe, vol. i, pp. 151-54. THE FORM OF THE STATE 131 alterable by the ordinary method of legislative enact- ment. This is precisely the case with the constitution (the Fundamental Statute) of the Kingdom of Italy; there is no part of it that cannot legally be altered by an act of the Italian parliament. In spite of the exist- ence in the one country of a written constitution, and its absence in the other, the fundamental law of Italy stands on the same footing as that of the United King- dom. It is the force of custom and public opinion, not any legal check, that limits the power of the existing governmental body. It seems, therefore, that to class Italy and the United States together, and contrast the two of them with the United Kingdom, is to proceed from a purely artificial point of view. The division of governments into those that have and those that have not a paper constitution, is quite misleading. Even apart from the question of amendment or alter- ation of the constitution, a feature of essential impor- tance is the validity or enforceability of the constitu- tional restrictions. In the case of the United States, a constitutional limitation is rendered valid by the pecu- liar power entrusted to the American courts. An act of Congress which goes beyond the constitutional powers of that body becomes inoperative by the decision of the judiciary, to which the executive and legislative branches of the government defer. In this arrange- ment, which will be discussed more fully in a later chapter, lies the true guarantee of the American Con- stitution, and it is this fact, and not the mere fact that the Constitution is a written one, which offers such a special safeguard to public liberty. But this is a feature quite peculiar to the American system. The courts of Europe have no such function, and the in- dividual has no such guarantee. The example of the 132 THE NATURE OF THE STATE Prussian constitution is a case in point. Between the years 1860 and 1865 a struggle was carried on between the King of Prussia (acting under the advice of Bis- marck and anxious to increase the expenditure on the army) and the House of Representatives elected under the constitution. The constitution nominally placed the control of finance in the hands of the parliament, declaring that "taxes and dues for the treasury of the state can be levied only as they are set down in the budget or ordained by special laws" (art. 100, consti- tution of 1850). The king, finding it impossible, even after recourse to a dissolution, to bend the House of Representatives to his will, passed his budget through the House of Peers, and collected the taxes without any sanction from the lower house. This was, of course, a gross violation of the constitutional provisions. Under the American system any individual citizen thus taxed could have appealed to the courts for protection. But the Prussian system does not permit of any such re- course, and although the House of Representatives made formal protest, it had no power to stop the illegal pro- ceedings of the executive. For the reasons thus cited that no constitution is wholly unwritten or wholly writ- ten, that even in a written one the vital part of the matter lies in the process of revision, and in the relation of the courts to the constitution it is well not to at- tach too much importance to the formal distinction between paper constitutions and constitutions relying on custom. 7. Scope of the constitution. In the next place there is to be considered the scope and extent of what is prop- erly to be called the constitution of a state. To harmon- ize with the definition given above, it should contain those principles according to which the powers of the THE FORM OF THE STATE 133 government, the rights of the governed, and the relation between the two are adjusted. This is not the case with all written constitutions; many of them contain regula tions too minute and of too little importance to bt classed as true fundamental law. This feature is par- ticularly noticeable in the present constitutions of the States of the Union. Their provisions cover not only the fundamental regulations of the structure of the gov- ernment, but a great many other things as well. Thus the constitution of Alabama (1901), and amendments recently added to older constitutions are found to con- tain provisions in regard to such things as the procedure of the legislature, the prohibition of special legislation, the control of corporations, the regulations of railroads, the school system, and many minor matters. 1 This practice is typical of modern American constitutions, which have tended constantly to become more and more lengthy and explicit. The New Hampshire constitution of 1776 contains 600 words, and the constitution of Mis- souri of 1875 about 26,000. The official text of the con- stitution of Colorado, as adopted in 1876 and amended to November 5, 1918, covers eighty-five pages of close print. The reason for this lies in the alteration of public opinion in reference to legislative bodies in general. A hundred years ago the legislature was the object of un- limited popular confidence and seemed to embody in itself the sovereign power of the people. The experience of a hundred years has shown the possibility of corrup- tion in the legislature itself, and popular distrust has led to the attempt to safeguard the people from venality and corruption on the part of their representatives. The 1 Compare the Constitution of Alabama, 1901; Constitution of Ohio (amendments of 1912) ; Constitution of Colorado (as amended to Nov. 5, 1918, esp. arts, xv and xvi), etc. 134 THE NATURE OF THE STATE result is that in a certain sense many of the provisions of American constitutions are not of the nature of fun- damental law. It thus becomes a little difficult to say with accuracy just what the words "constitutional law" should mean. If the phrase is taken in a purely literal sense to mean the law contained hi a written constitution, we omit the accompanying customary usages and judicial interpre- tation, and include much that is in the constitution, but which is not fundamental. For example, the article (No. 51) of the constitution of Switzerland which declares that the order of Jesuits is not allowed in Switzerland is only constitutional law in the sense that it is in the constitution. In the case of a country with a customary constitution, ''constitutional law" means all such cus- toms, common law, and statutes as are of a fundamental nature. This is, of course, a definition hi a circle, yet the sense conveyed is fairly obvious. In the United Kingdom, for example, the acts of Parliament of 1832, 1867, 1884, 1885, regulating the representation of the people, are constitutional law; the Factory Act of 1901, though passed in the same way by the same authority, is not. 8. Amendment. Something must be said in conclu- sion in regard to the alteration or amendment of a con- stitution. In such countries as Great Britain or Hun- gary, as it was, revision or alteration is effected by the ordinary legislative process. The same is true of certain countries with written constitutions, such as Italy. Some written constitutions make no explicit provisions for revision, as that of Wiirttemberg (1819) and the French "charters" of 1814, 1815, and 1830. In these cases it is to be presumed that the ordinary legislative process includes the revisionary power. But hi the THE FORM OF THE STATE 135 great mass of written constitutions a special method of revision is prescribed in all cases necessitating a more deliberate and difficult process than the passage of an ordinary law. The German constitution of 1871 (art. 78) allowed revision by ordinary legislative process, with the provision that fourteen votes in the upper house were sufficient to defeat the amendment; inasmuch as Prussia had seventeen votes, the article precluded any revision without the consent of the King of Prussia; in other words, of the German Emperor. Various devices are adopted in other constitutions the election of a special parliament on the issue of the revision (as in Spain), the reiteration of the demand for revision by successive legislatures (French constitution of 1791), etc. The systems at present in force in France and the United States present contrasted extremes of sim- plicity and difficulty of revision. In France a revision can be adopted in a joint session of the Chamber of Deputies and the Senate, a provision originally framed in the hope of easily converting the republic into a monarchy. The natural objection to such a simple proc- ess of amendment is the absence of security against premature and ill-considered change. In the United States, on the other hand, the process is extremely com- plicated, involving the favorable action of a long series of legislative bodies. 1 It may be said, indeed, that the American Constitution had in a sense never undergone amendment till the adoption of Article XVI of the amendments. An analysis of the circumstances under which the first fifteen "amendments" were made shows that the first ten, which constitute the "Bill of Rights," or the protection of individual liberty against the action 1 See Constitution of the United States, art. v, already quoted in chapter IT. 136 THE NATURE OF THE STATE of the government, are really part of the Constitution itself. They were appended in accordance with an agree- ment that was reached at the time of the ratification of the Constitution itself and designed to meet the objec- tions raised in Massachusetts and elsewhere against the possible sacrifice of individual liberty under the new national government. 1 The Eleventh and Twelfth Amendments, in reference to bringing suit against a State and to the method of electing the President, are merely hi rectification of oversights, and contain no real departure from the intention of the makers of the Constitution. The Thirteenth, Fourteenth, and Fif- teenth Amendments, prohibiting slavery and attempt- ing to give equal political status to whites and blacks, only received the required ratification by three fourths of the state legislatures as a consequence of the Civil War and the "reconstruction" of the Southern govern- ments. 2 The system therefore was often criticized in the past as too cumbrous for practical use. 3 The passage of the Sixteenth and following amend- ments by the exercise of the process indicated in the Constitution shows that this criticism was not sound. It is still open to question, however, whether the method of amendment does not err somewhat on the side of complexity. But the most important of all present methods of constitutional revision is by a more direct action of the people than any of the plans mentioned above. The calling of a representative convention elected expressly 1 See Fiske, Critical Period of American History. * See Curtis, Constitutional History of the United States, vol. n. ' "It would seem," says Woodrow Wilson in his Congressional Gov- ernment, "that no impulse short of the impulse of self-preservation, no force less than the force of revolution, can nowadays be expected to move the cumbrous machinery of formal amendment erected in Article I." THE FORM OF THE STATE 137 for the purpose of making a constitution may be looked upon as the typical American system; such a consti- tution is in nearly all cases submitted to ratification by popular vote. Constitutions promulgated directly by the conventions themselves (as for example in South Carolina, 1895, and in Delaware, 1897) are nowadays quite exceptional. It is especially interesting to com- pare with the process of amending the Constitution of the United States the methods of revision existing in the federal governments of Switzerland and the Com- monwealth of Australia. In Switzerland (constitution of 1874) a constitutional amendment passes through both houses of the legislature, a simple majority being sufficient, and is then submitted to the vote of the people; it must be ratified by a majority not only of the votes, but also of the different cantons that form the confederation. It is further provided that a de- mand for a revision of the constitution made by either branch of the legislature, or by the petition of fifty thousand voters, must be followed by a popular vote on the desirability of undertaking a revision. The method of amendment adopted under the federal constitution of Australia is closely similar. Proposals for amend- ment are made in the legislature, and after passing both houses by an ordinary majority are submitted to the people. To be adopted they must obtain a majority of the votes cast as a total and be carried in a majority of the states. READINGS SUGGESTED Aristotle's Politics (Jowett's translation, 1885), bk. in. Willoughby, W. W., The Nature of the State (1896), chap. xm. Borgeaud, C., Adoption and Amendment of Constitutions (translation, 1895), part I. 138 THE NATURE OF THE STATE FURTHER AUTHORITIES Gareis, Allgemeines Staatsrecht (Marquardsen, Handbook de* Oeffentlichen Redds). Woolsey, T., Political Science (1878), vol. i. Curtis, G. T., Constitutional History of the United States (1896). Fiske, J., Critical Period of American History (1888). Bluntschli, J. K., Theory of the State (1885). Sidgwick, H., Elements of Politics (1897). Dunning, W. A., History of Political Theories Ancient and Med- iaeval (1902). Plato, Republic, bk. vin. Stevens, C. E., Sources of the Constitution of the United States (1894). Schouler, J., Constitutional Studies (1897). Stimson, F. J., Federal and State Constitutions of the United States (1908). PART II THE STRUCTURE OF THE GOVERNMENT CHAPTER I THE SEPARATION OF POWERS 1. Nature of executive, legislative, and judicial power 2. Theory of the separation of powers 3. Influence of this theory in Amer- ica and France 4. Extent of its application in existing govern- ments 5. Continental administrative law 6. General criticism of the theory of the separation of powers. i. Nature of executive, legislative, and judicial power. In the first part of the present volume we have been concerned with the discussion of government as a whole, and with the relations of the entire machinery of the state to the individual. The purpose of this and the following chapters is to analyze in detail the struc- ture of government. For this a starting-point is found in the division of governmental powers between legis- lative, executive, and judicial bodies. Every govern- ment that occupies more than a quite primitive or limited sphere finds itself called upon to perform duties of a varying nature. There is, for example, a very evident difference between the functions exercised by a member of a legislature, those of a revenue officer, and those of a judge. In the first place the government has duties to perform that are legislative and consist in the making of laws; a parliament, a city council, or a constitutional convention is a legislative body. This function, though of scant importance in primitive so- ciety (in which the idea of deliberate lawmaking is hardly known), is of vast importance and a matter of constant necessity under the complex conditions of modern life. In a certain sense, inasmuch as the mak- 142 THE STRUCTURE OF THE GOVERNMENT . ing of the law is logically antecedent to its execution and to decisions as to its meanings, the legislative func- tion is the chief of the powers of government. "The legislative power," says Judge Story in his Commen- taries on the Constitution, "is the great and overruling power in every free government." Looked at in a purely theoretical light, the executive function of the govern- ment (the carrying out of the law) appears in a quite mechanical and secondary aspect. In point of fact, however, the functions of the executive branch of the government are of great importance. No matter how explicitly laws are made, they must of necessity leave a wide discretionary power in the hands of those who enforce them; in many matters most notably in relations with foreign states the executive branch of government must act without explicit instructions, and is no longer to be regarded as merely the agent of the legislative branch of the government. The organized physical force armies, navies, police, etc. is at the command of the executive is, in a sense, a part of the executive. It is with the executive (in the shape of police, revenue officers, postmasters, etc.) that the individual citizen is chiefly in contact. Indeed, in any modern government the executive, even apart from the army and navy, vastly outnumbers the two other branches. The executive civil service of the United States includes about half a million persons, while the whole number of federal judges and members of Con- gress was (in 1920) less than seven hundred. The ju- dicial organs of a government, whose function it is to pronounce as to the application of the law to existing cases, though like the executive theoretically inferior to the legislature, exercise in reality a function of the greatest consequence to the citizen, and, in the case of THE SEPARATION OF POWERS 143 the United States, a function of a peculiar constitu- tional importance. 2. Theory of the separation of powers. At the be- ginnings of modern democratic government, and in particular in the political writings of the eighteenth century, it was a cardinal doctrine of political science that these three branches of government, the legislative, the executive, and judicial, should be kept separate from one another. A different body of persons was to ad- minister each of these three departments and neither body was to have a controlling power over either of the others. It was thought that in this way a peculiar guarantee, indeed the only adequate guarantee, might be given to public liberty. This is what is known as the theory of the separation of powers. It is not meant that this theory was altogether new in the eighteenth century. We find traces of it as far back as Aristotle; and Polybius, in the sixth book of his History of Rome, in which he treats of the Roman constitution, describes in detail and with approval the balanced powers en- trusted to the senate, the consuls, and the tribunes. It was natural, however, that with the decline of mo- narchical absolutism and after the great object-lesson of the English Revolution of 1688, constructive theories pointing towards possibilities of popular sovereignty should receive especial attention. At the hands of Montesquieu, author of the Spirit of Laws (1748), the theory met with a definite and emphatic presentation, destined to give it a lasting influence on subsequent political institutions. "If the legislative and executive power," says Montesquieu, "are united in the same person or in the same body of persons, there is no lib- erty, because of the danger that the same monarch or the same senate may make tyrannical laws and execute 144 THE STRUCTURE OF THE GOVERNMENT them tyrannically. Nor again is there any liberty if the judicial power is not separated from the legislative and the executive. If it were joined to the legislative power, the power of the life and liberty of the citizens would be arbitrary; for the judge would be the lawmaker. If it- were joined to the executive power, the judge would have the force of an oppressor." l A similar judgment is expressed by the great English jurist, Blackstone, in his Commentaries on the Laws of England (1765). "In all tyrannical governments the supreme majesty, or the right both of making and enforcing laws, is vested in the same man or one and the same body of men; and when these two powers are united together there is no public liberty." Both of these authors are led to the statement of the theory of distributed powers from their analysis of the British constitution. At the time at which they wrote the cabinet system was only in the earlier stage of its development. The junction of both the virtual executive and the legislative power in the hands of a cabinet or committee chosen out of the legis- lature was not the evident fact that it is to-day. A British ministry of Montesquieu's time was still not a unit: it allowed of divergence of opinion among its members; nor did the latter all take office or leave it at the same time. Montesquieu, therefore, somewhat excusably overlooked what has since become the leading, fact of the British constitution, and thought to see in it a balance of power effected between the king and the two houses of Parliament, no one of the three being supreme over the others, while the judiciary was to a large extent independent of all of them. Blackstone, viewing the constitution only as a lawyer, knows noth- ing of a cabinet. The ministry as known to the law 1 Esprit des Lois, bk. xi, chap. vi. THE SEPARATION OF POWERS 145 even at the present day are the appointed servants of the crown. The fact of their political unity and member- ship of the legislature is only a matter of custom, not of law. 3. Influence of this theory in America and France. The doctrine of public liberty effected by distribution of power became thus almost an article of faith with political writers of the eighteenth century. The fact was of vital importance for the history of the United States. At the time of the establishment of the state governments the doctrine was put into practice by the separation, not of course complete, but yet far-reaching, of the different branches of the government. The in- dependent election of state governors and legislatures, the absence of the power of dissolution, were embodied in the state constitutions, and have remained as funda- mental parts of the American system of government. That the adoption of this plan was conscious and delib- erate is seen in the often quoted passage of the Massa- chusetts constitution of 1780 (part i, art. xxx) : " In the government of this commonwealth, the legislative de- partment shall never exercise the executive and judicial powers, or either of them; the judicial shall never exer- cise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men." The same theory exercised the greatest influence over the Convention of 1787, in which the Federal Constitu- tion was framed. Its members recognized, indeed, the need for a modification of the rigidity of the doctrine of separation, but in the main they accepted it and made it the basis of the Constitution of the United States. " The accumulation of all powers," says the Federalist (the set of essays written in defense of the 146 THE STRUCTURE OF THE GOVERNMENT Constitution by Hamilton, Madison, and Jay), "legis- lative, executive, and judicial, in the same hands, whether of a few or many, and whether hereditary, self- appointed, or elective, may be justly pronounced the very definition of tyranny." The fact that even the state constitutions of 1776 and 1777 and the Federal Constitution of 1787 do not adopt an absolutely complete separation of powers of government, naturally suggests the question in how far such a separation would be possible, and what would be implied by a complete adoption of the principle. It would mean a constitution constructed on such a plan as the following: A legislature elected directly by the people, a set of executive officers either elected by the people (independently of the action of the legislature) or appointed by some person or body of persons elected by the people; judges similarly elected and independent as to their tenure of office and emolument of both the legislature and the executive. Even then it might be questioned whether the liability of executive officers to be tried before the judiciary for breaches of official duty or violation of their legal powers, would not be at variance with a logically complete separation; this, how- ever, will be considered later in dealing with the ad- ministrative law of Continental Europe. But granting such a separate election and independent tenure of office on the part of the three departments of govern- ment, there would still remain a sense in which the separation would not be complete, in which, indeed, it can never be complete without a reductio ad absurdum. The law enforced by the executive and adjudicated on by the courts would still be the law made by the legis- lature. It is to be noted also that such law might con- ceivably be extremely tyrannical and unjust. The THE SEPARATION OF POWERS 147 executive and the judges would still have to apply it, and thus the separation of power in and of itself would offer no guarantee of individual liberty. The theory of separation obtained during the revo- lutionary era in France an influence no less marked than in the United States. The Constituent Assembly of 1789 adopted it as a fundamental principle in their construction of a new government. The sixteenth article of the formal Declaration of Rights with which they prefaced their constitution, declares, "Every society hi which the separation of powers is not determined has no constitution." In accordance with this general prin- ciple, the constitution established a legislature not dis- solvable by the king, forbade the ministers and other executive officers to hold seats in the legislature, gave to the king no right of initiative, and only a partial veto power, and instituted judges elected by the people. The later constitution of 1795 modified the separation by instituting a plural executive the Directory elected by the legislature itself. 4. Extent of its application in existing governments. In the course of the nineteenth century the theory of separated powers has lost a great deal of its former credit. The conspicuous example of the British con- stitution invalidates it as a universal proposition. Here the development of the cabinet system since Montes- quieu's time has thrown the virtual direction of both legislative and executive power into the hands of the same body of men. Yet it would be absurd to say that public liberty in the United Kingdom has thereby been sacrificed. As the British constitution now stands, the group of some twenty persons who compose the cabinet have the conduct of the executive government. They also direct the course of legislation, since a majority of 148 THE STRUCTURE OF THE GOVERNMENT the predominant part of the legislature the House of Commons are prepared to support their measures. Should they lose that support they resign their office. Thus the very contrary of the idea of divided powers seems to be the case. The executive officers remain such only so long as they retain the legislative power. The legal theory of the Constitution, on the other hand, still offers the spectacle of more or less opposing powers mutually balanced the king and his ministers (ap- pointed, in the theory of the law, according to his pleasure, and being merely his servants) conducting the executive government, while the houses of Parliament make the laws. The analysis of the British government given by Walter Bagehot, the distinguished economist and essayist, in his English Constitution (1867), has served to show how completely the development of cabinet government has rendered the earlier view of the British constitution inapplicable to the present situation. In certain other respects the British consti- tution offers in actual fact some features of distributed powers, the most notable being that of the tenure of office of the judges, who are made virtually independ- ent by being appointed for life or good conduct. Nor is there a separation of powers observed in the present parliamentary governments of France and Italy. In France the President is elected by the legislature. His ministers are, in practice, though not in law, the representatives of a majority in the Chamber of Depu- ties. In the same way the King of Italy governs by means of a party ministry. In Germany, in the actual working of the federal imperial constitution, the powers of government were not distributed. The German Em- peror held the executive power of the federation. In his capacity of King of Prussia he had also a very great THE SEPARATION OF POWERS 149 share of legislative control. In the first place there were many measures * those introducing any change of existing regulations concerning the army, navy, cus- toms, and excise which could not be enacted without the consent of his appointed delegate in the Bundes- t rath or upper house of the legislature. Through the same channel he enjoyed an initiative power for any kind of legislation, the control of seventeen out of fifty- eight votes in the Bundesrath, 2 and a veto upon consti- tutional amendments. Even under the Constitution of the United States, the principle of distributed powers is only adopted in the federal government to a modified extent. The executive is not without a share in legislation, since the President has a partial veto power on the acts passed by the Congress, and something resembling a power of initiative by means of presidential messages. Nor is the legislature without share in the executive govern- ment, as is seen in the ratification by the Senate of treaties and appointments. The judges are the ap- pointees of the executive, and the courts are empowered to pass on the constitutionality of the acts of the two other branches of the government. Even this qualified separation existing under the law of the Constitution is still further modified in the actual operation of the. government. Here the existence of the party system is an important factor. Though standing outside of the legal machinery of the government, it none the less acts as a bond of union between the legislature and the heads of the executive government. Whenever the executive and the majority in the houses of Congress 1 Federal Constitution, articles xxxv and xxxvi. * The number of votes in the Bundesrath was increased to 61 when 3 votes were given in 1911 to Alsace-Lorraine. 150 THE STRUCTURE OF THE GOVERNMENT are of the same political party (as was continuously the case, for instance, between the years 1895 and 1913), they are under the guidance of common councils, and are united in the pursuit of the same ends. It is possible, indeed, to look upon the singularly systematic and powerful growth of the party system in the United States as a sort of "natural" evolution consequent upon the attempt to keep apart the powers of government; an attempt, as it were, on the part of nature to rectify an error in organic structure, a process analogous to the healing of a fractured limb. 1 In the state governments the separation of powers is more nearly complete. The separate election by the people of the governor and other executive officers, the legislature, and the judges, is the prevalent constitutional arrangement. The partial veto power given to the governor in nearly all the States of the Union, 2 and the governor's right of sending mes- sages to the legislature, are a departure from the rigidity of the doctrine. In all the States, too, the courts have cognizance of the official acts of the members of the government. 5. Continental administrative law. In the countries of Continental Europe an application of the principle of separation is made quite contrary to American ideas of government. The officers of the government acting in their official capacity cannot be brought to account before the ordinary courts of law; nor can the courts 1 See F. Goodnow, Politics and Administration. 1 The computation made by R. L. Ashley (The American Federal State, 1911) in 1911 was that in that year the governor possessed a veto power in all of the 46 States enumerated, except Rhode Island, Ohio, and North Carolina. In 3 of the States a three-fifths vote waa necessary to overcome the veto; in 29 of the States a two-thirds vote was sufficient; and in 11 of the States only a plain majority was re- quired. Some States reckon majorities by percentages of members elected ; others, of members present. THE SEPARATION OF POWERS 151 question the validity of an act of the legislature. Such a system professes to rest on the principle of the sepa- ration of powers, by protecting the executive and ju- diciary from the control of the third branch of the government. The protection, however, is only afforded at the expense of the individual citizen, the practical effect of this fallacious form of separation being to strengthen very much the hands of the executive. The peculiar relation thus established between the execu- tive and judicial branches of the government will be treated more fully in a later chapter. 6. General criticism of the theory of the separation of powers. It remains to consider, in conclusion, to what extent the theory of the separation of powers is to be regarded as true. Stated in the form of a universal principle, as by Montesquieu and Blackstone, in the quotations above, it is undoubtedly false. It is not true that there cannot possibly be public liberty where ex- ecutive and legislature are joined in the same hands. The example of Great Britain alone amply proves this. Nor is it true either that the separation of the powers of government of necessity guarantees the individual against possible tyranny, establishes in and of itself a government "of laws and not of men." A single gov- ernment board or body of directors need not of necessity act tyrannically; nor does it follow that an executive officer and a legislative council elected and acting sep- arately will of necessity act in the public interest. But though no such universal formula can be laid down, it remains true that in the actual conduct of public affairs a certain degree of separation of powers makes towards efficient government. The divergent requisites in the composition of executive and legislative bodies will be treated in the next chapters; it is apparent, however, 152 THE STRUCTURE OF THE GOVERNMENT that absolute identity of the two is not to be recom- mended. The separation of the judiciary to the extent at least of independence in tenure of office is admitted by all to be desirable. The question of the advisability of establishing an executive controllable by the legisla- ture (as in the cabinet system of Great Britain), or of following the system adopted in the state governments, is a disputed point. Its solution will depend upon the particular circumstances and the historical antecedents of each community. Americans are inclined to look with favor on the system of popular election of state officers. Such writers as A. Lawrence Lowell in his Essays on Government and John Fiske, Civil Government in America, have ably argued in defense of the American plan. The English, on the other hand, are inclined to view the union of powers in the hands of the cabinet as the most admirable feature of their system of govern- ment. READINGS SUGGESTED Montesquieu, Esprit des Lois (1748), bk. xi, chap. VL The Federalist (1788), Essays, nos. 47--51. Bagehot, W., English Constitution, chap. n. .'FURTHER AUTHORITIES Polybius, History of Rome, bk. vi. Goodnow, F., Comparative Administrative Law (1897). H&ie, M. F., Les ConstitiUions de la France (1880). Goodnow, F., Politics and Administration (1900). Lowell, A. L., Essays on Government (1889). Fiske, J., Civil Government in America (1891). CHAPTER II THE LEGISLATURE 1. The legislature; general requisites, procedure, etc. 2. The bicam- eral system ; reasons for its adoption 3. Composition of upper houses 4. Distribution of power between the two house* 5. Direct legislation; the initiative and the referendum. i. The legislature; general requisites, procedure, etc. It has been said in the preceding chapter that there is a necessary diversity in the composition of the differ- ent branches of the government to meet the distinctive requirements of each. The executive is concerned with action more than deliberation; promptness and unity of purpose are the prime requisites. For the judiciary, the technical knowledge of the actual law to be applied, and a trained logical faculty to be used in its application are above all necessary. The legislature, on the other hand, demands an entirely different set of qualities. The legis- lature is, par excellence, a deliberative body, and for deliberation two heads are better than one, and two hundred are better than two. A legislative body must consist of many persons, representing numerous inter- ests, various points of view, and different sections of the community. No precise size can be indicated as proper for a legislature; as numbers increase, the gain in added wisdom is offset by the increased cumbrousness. The French Constituent Assembly, called in 1789, consisted of nearly 1200 members. This was the largest legislative body of modern times, and was found hopelessly un- wieldy. Of the popularly elected legislatures of the world, the House of Representatives at Washington in 1919 contained 435 members, the British House of 154 THE STRUCTURE OF THE GOVERNMENT Commons 707, the French Chamber of Deputies 602, the Italian Deputies numbered 508, and the Spanish Congress had 417 deputies. The number of members in the state legislatures of the United States varies very much. The lower house of Massachusetts had 240 members in 1919 while that of Delaware had only 35. It is hardly possible to accomplish the work of actual legislation among such large bodies of men, without the adoption of definite plans and systems of procedure. Any large gathering which acts at haphazard and with- out formal rules is liable to become a mere Babel of tongues; its resolutions, to use Mr. Bagehot's phrase, get "wedged in the meeting." This was the case with the French Assembly of 1789, already referred to, which in its first enthusiasm was inclined to proceed "accord- ing to the promptings of the spirit," rather than to follow any formal plan. They rejected the suggestion that they should adopt the standing orders of the House of Commons. "They discuss nothing in their assem- bly," wrote Gouverneur Morris, at that time in Paris, and an interested observer of their proceedings. "One large half of their time is spent in hallooing and bawl- ing." Universal experience has therefore shown the need of what is called legislative procedure, a definite method of doing business which the legislature adopts as part of the necessary formality of the making of a law. Such rules have been adopted by all the chief legislatures of the world. They are, of course, made by the legislature itself, and can consequently be set aside if need be in moments of stress. The objects aimed at are the orderly and efficient dispatch of business, the prevention on the one hand of precipitate and ill-con- sidered action, and on the other, of fruitless prolixity of debate. The rules thus adopted tend to be extremely THE LEGISLATURE 155 intricate and confusing by reason of the vast amount of business that tries to force itself upon a modern legislature. Lord Bryce in his American Commonwealth tells us that an industrious member of the House of Representatives needs one whole session to learn the rules of procedure. A few general features of procedure adopted in most legislative bodies may be mentioned. The most impor- tant is the device of requiring a bill to be voted on, not once and for all, but at three separate "readings," or intervals of time. This is intended to prevent the legis- lature from acting on the spur of the moment, and committing itself to a measure under the influence, perhaps, of momentary emotion. In the British House of Commons, "the member who desires to introduce a measure gives notice 4 . . of his intention to do so. When the motion comes on in its order, he moves for leave to introduce a bill. . . . An order of the House is made that the bill be prepared and brought in by the mover and other members named by him. The bill may then immediately be presented, which is done by the member appearing at the bar, whereupon the Speaker calls upon him by name, he calls out, 'A bill, sir/ and is desired by the Speaker to bring it up. He brings it to the table and delivers it to the clerk of the House, by whom its title is read aloud. The questions that a bill 'be now read a first time,' and that it be printed, are put without amendment or debate; an order is then made that it be read a second time on a day named." On this day the bill is again brought up, and a vote taken on the question that the "bill be now read a second time"; having successfully passed this stage it is referred to what is called a "Committee of the whole House"; here it is discussed, voted on clause by clause, 156 THE STRUCTURE OF THE GOVERNMENT and probably amended. At the conclusion of this stage a day is set for the final consideration of the bill; the bill is presented in its revised form to the House, and unless further amendments are now carried, it is sub- mitted to its third and final reading. Even after this the bill may have to be reconsidered if amended in the upper house. 1 Another device of legislative procedure is the dele- gation of the work of the legislature to a series of com- mittees. The aim of this is to facilitate the dispatch of business, and to enable the legislature, by dividing itself into sections, to multiply its powers of work. The system has been most completely developed in the House of Representatives. Here the so-called first and second readings are a purely perfunctory matter, and mean the reading of the title by the clerk. After this the bill is referred to the appropriate standing committee. These are nominated by the Speaker, and are representative of both the great political parties. In the Sixty-Sixth Congress there were some sixty standing committees of the House of Representatives; the committees on Ways and Means, on Appropriations, on Banking and Cur- rency, on Commerce, on Claims, Manufacturing, Pen- sions, etc., are among the most important. The great majority of bills never survive their reference to a com- mittee. 2 The committee, though it has no formal power to negative a bill, destroys them either by making an adverse report or by introducing another bill as a sub- 1 Anson, Law and Custom of the Constitution, part i, chap, vn, sect, n, 2. 1 "In the first session of the Sixty-Fourth Congress (Dec., 1915), in a total of two hundred and seventy-eight days there were 26,099 bills and resolutions." (Everett Kimball, National Government of the United States, 1920.) Professor Kimball's book presents a fund of valuable information on the practical working of American govern- ment. THE LEGISLATURE 157 stitute or by simple neglect. Such a system, accom- panied as it is by stringent rules of debate, tends, of course, to remove the actual conduct of business from the House itself, and to discourage independent action on the part of individual members. The French Cham- ber of Deputies adopts the peculiar system of dividing its members by lot into eleven sections or panels; out of these a special committee is elected (by the members of the panel) for each bill that is presented. Such a plan is plainly unsatisfactory, as it does not accord with the system of cabinet government supposed to operate in the French legislature. The hazard of the lot may lead to government bills being handed over to opposition committees. It is easier, however, to see the faults in legislative procedure than to suggest adequate remedies. A further point of importance in the conduct of legislative business is the need of some method of for- cibly bringing the debate to a close. The procedure of most assemblies allows means whereby a vote may be taken on the question of terminating the discussion and voting on the matter under consideration. To this gen- eral rule the Senate of the United States was long an exception; it had been until 1917 a part of the tradi- tional dignity of that body not to interfere with the freedom of discussion by closing the debate. But the obstruction that was offered by six senators against a bill to permit the arming of merchant vessels led the Senate to a rule whereby in extreme cases debate may be brought to an end. 1 In the House of Representatives, however, the closure of the debate, the " previous ques- tion," as such a motion is called, may be moved by any 1 "Two days after a written notice by sixteen senators closure may be applied by a two-thirds vote, each senator being limited to one hour's debate and no amendment being entertained unless by unani- mous consent." 158 THE STRUCTURE OF THE GOVERNMENT member, and is carried if supported by a majority of those present. Until quite recently the British House of Commons had no such rule. It happened, however, that during Mr. Gladstone's second administration (1880- 85) the Irish members took advantage of this fact to block all parliamentary business by talking against tune. This has rendered it necessary for the House somewhat reluctantly to adopt a rule of closure (stand- ing order of 1882, revised 1887). Under the present regulations a motion can be made for terminating the debate; the Speaker is allowed to use his discretion as to whether or not he will submit the motion to a vote. A similar purpose is effected by what is called the "closure by compartments" or the "guillotine," which consists in a resolution of the House either altogether precluding discussion on certain clauses of a bill or limiting the time to be allotted to the bill or to parts of it. 1 2. The bicameral system; reasons for its adoption. Of all the means that have been used to secure, in the work of legislation, a due amount of caution and re- flection, the most important is the division of the legis- lature into two parts, creating thus what is called a two-chambered or bicameral legislature. It is not meant that the desire to avoid precipitate action is the sole reason for establishing a legislature of this sort; it will presently be seen that it often serves other pur- poses as well, but such is none the less the main ground on which the separation of the legislature into two parts is to be defended. At the present time the bicameral system is of almost universal prevalence. The United States, the United Kingdom, France, and all the chief countries of Europe have bicameral legislatures. The 1 See Alison, Law and Custom, part i. THE LEGISLATURE 159 exceptions are few and of a special nature. The German bicameral Reichstag and Bundesrath gave way at the close of the war to a single National Assembly (Reich- stag) elected in 1919. Mexico and the South American states have copied the United States in establishing "congresses" composed of senates and houses of repre- sentatives, in some cases (as in Brazil) denominated chambers of deputies. Even in the subdivisions of federal governments the bicameral structure of the legislature is often found. All of the forty-eight States of the Union have legislatures consisting of a senate and another house. In Canada two of the provinces (Quebec and Nova Scotia) have an upper and a lower house, and the "states" of the Commonwealth of Australia have all double legislatures, as had also the different king- doms, duchies, etc., of which the German Federation was composed before the Great War. Japan, in reconstruct- ing its government in the light of European experience in 1889, deliberately set up a bicameral system. The objections, indeed, against a unicameral system are of overwhelming force. "Of all the forms of gov- ernment which are possible among mankind," writes the distinguished historian W. E. H. Lecky, "I do not know of any which is likely to be worse than the gov- ernment of a single omnipotent democratic chamber." l Mr. Lecky undoubtedly states the case too strongly. The fact remains, however, that the unicameral legisla- ture has been tried and found wanting. A single legis- lative house, unchecked by the revising power of an- other chamber associated with it, proves itself rash and irresponsible; it is too much exposed to the influence of the moment; it is swayed by emotion, by passion, by the influence of oratory; it is liable to a sudden access 1 Democracy and Liberty. 160 THE STRUCTURE OF THE GOVERNMENT of extravagance or of retrenchment. But quite apart from these more or less psychological arguments, there are other practical objections to a single legislature. Elected (in most cases) all at the same time, its mem- bers represent the opinions of the community at a par- ticular moment and on particular issues. But the lapse of tune and the appearance of new public questions may render a legislature such as this quite out of har- mony with public opinion long; before its term has expired. A somewhat natural confusion of thought tended in the past to confound the existence of a single legislative chamber with the principle of popular sover- eignty, as if the rule of the people would not allow of the existence of a second house. Such a confusion arose from the historical fact that in its origin the British House of Lords was an aristocratic institution. As a consequence of this, the democrats of the French Rev- olution adopted (1791) a legislature of a single house; the proposal to unite with it an upper chamber was rejected in the Constituent Assembly as savoring of aristocratic ideas. The same error was committed in 1848 in the constitution of the Second French Republic. The abortive German parliament of 1848 consisted of a single house. Even in the United States unicameral legislatures have been tried. Georgia and Pennsylvania in 1790, and Vermont in 1836, successively abandoned the system in favor of the now universal double legis- latures. The idea that the existence of a second branch of the legislature is not compatible with popular sover- eignty is indeed purely fallacious. The two houses may each of them draw their power from the people, al- though elected for different terms and by different districts. The division between the two need not in any way imply the existence of caste, or follow the line THE LEGISLATURE 161 of the social stratification of society. The senates of the United States and France are obvious illustrations. 3. Composition of upper houses. Granted the need of the existence of an upper house, the next point to be considered is the manner of its composition. It may be here incidentally mentioned that the term "upper house," familiarly used to refer to a particular part of the legislature, is, of course, at the present day a misnomer. In the matter of constitutional power the so-called "upper" house is in nearly all cases the weaker of the two. The term is merely an historic one; for lack of a better, it is still convenient to retain its use. The composition of an upper house may be based on the principles of hereditary office, of appointment, of elec- tion, or on a combination of these. Let us consider these different methods in turn. The hereditary prin- ciple as applied to the political construction of the future need not be taken seriously. It is not probable that any civilized community, not already having an hereditary legislature, will deliberately bring one into being. It is true that the principle was used to some extent in the creation of the House of Lords in Japan (1889), but rather as a recognition of social and polit- ical differences already existing than as a creation of new ones. "The idea of hereditary legislators," wrote Thomas Paine in his Rights of Man (1791), "is as inconsistent as that of hereditary judges, or hereditary juries, and as absurd as an hereditary mathematician, or an hereditary wise man, and as ridiculous as an hereditary poet-laureate." It is one thing, however, to object to the hereditary principle in the construction of a new legislature, and another to demand its abolition where it already exists. In many countries it has had its origin in the historic evolution of the government, it 162 THE STRUCTURE OF THE GOVERNMENT corresponds to the social distinctions which exist as an undeniable fact in the structure of the community, and it operates on the whole f airly well. Such is undoubtedly the case with the British House of Lords. There is at present no very intense opposition to the continued ex- istence of the House: true, the extreme radicals and the socialists have long demanded its abolition, and the further reform of the House, beyond that effected by the Parliament Act of 1911, is an active issue in British politics. But the opposition to it from the liberals has arisen rather from the fact that the House of Lords is overwhelmingly and hopelessly conservative than from repugnance to the nature of its structure. The British House of Lords is based, indeed, on the hereditary principle to a larger extent than any exist- ing legislature. It contained in 1920 about six hundred and eighty members (the number varying through deaths and new creations of peerages). Included in these were the princes of the royal house, six were members appointed for life, the six eminent jurists who are created lords of appeal, to supply the House with proper legal knowledge when sitting as a court, twenty-six were archbishops and bishops of the Estab- lished Church, sixteen were elected by the Scotch peers from among their number, twenty-eight were elected by the Irish peers, and the rest the members of the peerage of the United Kingdom. The creation of a peerage carries with it the hereditary right to a seat in the House of Lords, nor has the crown the power to make life appointments other than the six mentioned above. The Continental legislatures which make use of the hereditary principle apply it only in a partial degree to the composition of the upper house. Along with the princes of the blood and the hereditary members, there THE LEGISLATURE 163 are included a large number of members appointed by the crown for life only. This is the case with Prussia, 1 Austria, 1 Hungary, 1 and Spain. But of these it is only in Hungary x that the hereditary peers form a majority of the house. In Spain and Austria 1 a representation is also given to the Roman Catholic Church; in Hungary l the Greek, Protestant, and Roman Catholic churches are all represented in the upper house; the clerical representation is in all cases very much in the minor- ity. The Prussian House of Lords 1 includes a number of elected members representing the land-owners, to- gether with representatives of the universities, the mayors of towns of over fifty thousand people, etc. Spain has also a large number of elected "senators," representing the commercial and provincial states, the universities, etc. It is to be observed that even in cases where the hereditary seats are deliberately granted to the nobles under a modern constitution (as in Prussia, 1850, Spain, 1876), they really represent a continuation of the peculiar civil and political privileges (rights of local government, feudal dues, immunity from taxes, etc.) formerly enjoyed by the nobles, or a compensation for a loss of the same. The hereditary portion of the legislature is thus everywhere to be regarded only as a survival of the past. There are no hereditary members in the upper houses of France, Switzerland, the Nether- lands, Denmark, Belgium, Norway, Sweden, Italy, ex- cepting only, in the latter case, the princes of the royal family. In many legislatures the seats in the upper house, or at any rate in a part of it, are neither held by an hereditary tenure nor filled by election. The members are appointed to their office, the nominations being 1 As before the revolution of 1918-19. 164 THE STRUCTURE OF THE GOVERNMENT made almost invariably by the executive government. Such a system, though at first sight repugnant to the idea of popular government, has a great deal in its favor. Experience has shown that the process of popular elec- tion does not always result in the selection of the ablest and most upright men of the country. Election is apt to favor the candidates who possess in a high degree the more popular arts, who have a readiness, or even a ready buffoonery in speech, who are not sensitive to political abuse, and who have a reputation (military, for example) calculated to appeal to the imagination of the crowd. It does not follow that these men, when elected, are the best suited for the legislative office. There are in every community many men of very great talent, conspicuous perhaps in science or literature, who would never be elected at the polls, who would probably hesitate to offer themselves as candidates, and who nevertheless are admirably fitted both by their intellect and their character for a seat in the legislature. The system of appointment renders it possible, in theory at least, for men of this class to be selected. This is the principle that is aimed at in the nominations to the Senate of Italy, where the condition obtains that the person nominated must either have filled a high office, or have acquired fame in literature, science, or some other pursuit tending to the benefit of the nation. Many of the Continental legislatures, as already seen, admit of a partial construction of the upper houses on this plan. The system of nomination is seen in its en- tirety in the Senate of the Kingdom of Italy and in the Senate of the Dominion of Canada. In Italy all the senators, exclusive of the members of the royal family, are nominated for life by the king, and are selected out of the following classes: bishops, high officials, mem- THE LEGISLATURE 165 bers of the lower house after three terms of service, members of the Royal Academy of Science, those who pay six hundred dollars a year or more in taxes, and men who have benefited the nation in literature, art, etc. In Canada the Senate is composed of members nominated for life by summons of the Governor-General, the total number and the number from each province being limited. Experience has unfortunately shown that nominated senates are better in theory than in fact. The difficulty encountered in practice is that, whatever may be the nominal constitutional power of such a senate, it is in reality unable to act as a counterbalancing force to the house elected by the people. The Senate of Italy is a feeble body, and can offer no real opposition to the Chamber of Deputies. In Canada also the par- liamentary life and parliamentary power are centered in the House of Commons. It remains to consider the system of election as ap- plied to the composition of upper houses. This is the method used, either in direct or indirect form, in the United States, both in the federal and state governments, in Mexico, Cuba, and the other Latin-American re- publics, in France, Belgium, and the Commonwealth of Australia. The difficulty encountered here at the outset is the danger of making the upper house a mere reduplication of the lower, which would serve but little purpose, and might lead to a chronic constitutional deadlock. Various means are taken to overcome this difficulty. In the first place, in a federal government, especially since the example set by the United States in 1787, the problem may be said to solve itself: the upper house may be made especially representative to the units of the federation, the lower house may repre- sent the people at large on a basis of population. Thus 166 THE STRUCTURE OF THE GOVERNMENT there are in the United States two senators for each State, in Cuba four senators for each; the Senate of Brazil has three from each state, and the Australian Senate is similarly composed. In the federal government of the former German Empire the constituent parts of the federation were represented in the Bundesrath, not exactly on a footing of equality, nor yet in proportion to population; even the smallest had one vote each, and Prussia, the largest, had only seventeen votes. In all these cases the representation in the lower house is according to population. This is an extremely useful device, as it renders a federation possible between units of different sizes, the smaller of which would be too jealous of the larger to enter a union on a basis of repre- sentation purely proportionate to numbers, while the larger states would be unwilling to accept a federation on terms of complete equality with the smaller ones. A further method of distinguishing the two houses is found in varying the system of election and adopting a direct election for the lower house, and indirect for the upper. This is best seen in the case of France. The Chamber of Deputies is elected by direct universal suffrage from districts of (approximately) equal pop- ulation. The election of the Senate is indirect, and is made by an "electoral college" in each department of France, consisting of the deputies, councilors-general and district councilors (members of the councils for local government), and representatives from the munic- ipal council of every commune: the latter class form a large majority of the total college. The original in- tention was to make the Senate especially representative of the organic life of the commune, or parish, while the deputies should represent the nation at large. Indirect election was also used in the United States, where the THE LEGISLATURE 167 senators were elected by the state legislatures until the principle of popular election was introduced by the Seventeenth Amendment to the Constitution in 1913. In the state governments the senators are elected by the people, the election district being, however, different from that used for elections to the Assembly. In ad- dition to the difference in the manner of elections, a differentiation can be made by the use of different electoral districts for the two houses, as already indi- cated, by adopting terms of office of different length, and by the system of partial renewal. For example, a United States senator sits for six years, a member of the House of Representatives only for two; in France, while the deputies have a four years' term, a senator sits for nine years. Similarly in the United States, one third of the Senate is renewed every two years; in France and in the Netherlands, one third of the upper house is renewed every three years. This method of partial re- newal is of particular efficacy and importance. It lends a character of permanency and stability to the upper house, which offsets the tendency of the lower one to a too complete change of membership and of sentiment as the result of a general election. 4. Distribution of power between the two houses. So much for the question of the composition of the two houses; let us turn now to consider the relative degree of power to be entrusted to them. The usual practice if that the two houses are, in almost all matters of legis- lation, equal and coordinate; either house may originate a bill, and no bill thus originated can become law with- out the consent of the other house. Either house, too, may propose amendments to a bill, which will only be- come valid by receiving the consent of the other. To this general rule there is one most notable exception. In 168 THE STRUCTURE OF THE GOVERNMENT the case of bills referring to the raising and spending of money, the powers of the upper house in most of the chief states of the world are more or less limited. For this different reasons are assigned, in part historical, in part rational. Historically we may consider this to have come about in imitation of the relation existing between the House of Lords and the Commons in England, where the power of the purse ever since the fourteenth century has been vested exclusively in the Commons. 1 But it hardly seems correct to regard this almost universal restriction on the power of upper houses as merely an accidental adaptation. There seems excellent reason for it as well. In the case of most of the bills introduced in a legislature no great harm ensues if the proposals of one house are rejected by the other; matters merely remain where they were before. But in the matter of money bills the case is different; if no bill is passed for the raising and spending of money the public service will come to a full stop. It therefore seems wiser to make the wishes of one house more or less decisive in the mat- ter; and of the two, the house more directly and pro- portionately representing the people appears to be the natural one to entrust with this power. The disability thus laid on the upper house in matters of finance varies in different legislatures. It is most complete in the case of the British House of Lords. This body, by the custom of the constitution, and in accordance with the Parlia- ment Act of 1911, has no power to originate, amend, or reject a bill for the raising or spending of money. Other houses, as is the case with the House of Lords in Prus- sia, 2 and the first chamber of the Netherlands, while 1 Taswell-Langmead, Constitutional History, chap. vin. See also Edward Jenks, The Government of the British Empire (1918), chap. vii. * At least prior to 1919. THE LEGISLATURE 169 forbidden to originate or amend money bills, are em- powered to reject them en bloc. France offers a doubtful case; the Senate is forbidden to originate measures of finance and has certainly power to reject them, but the question of its right to amend is a constitutional point not yet clearly settled. 1 The Senate of the United States represents a higher step in the ascending series of powers. "All bills for raising revenue," says the Constitution (art. i, sec. 7), "shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills." In reality this amending power is used by the Senate with such latitude as to render the two houses in their legislative capacity what Lord Bryce has called "really equal and coordinate." In a few cases, in the federal legislature of the German Empire 2 and in Switzerland, the two houses are legally on a footing of equality in regard to money bills. In Austria 2 an ingenious expedient was added for preventing the disagreement of the two houses from stopping the wheels of government. It was part of the fundamental law that if the two houses, even after consultation, could reach no agreement in regard to a financial measure, then the lower sum of money voted (by either house) is considered as granted. In all matters other than money bills it is usual that the two houses are on a footing of equality as far as the law of the constitution is concerned. But in practice it generally happens that the lower house is decidedly the "predominant partner"; in the case of a conflict between the two, public opinion is generally in favor of the house which more immediately stands for the vote 1 Lowell, Governments and Parties ; Simonet, Traitt EUmentaire du Droit Public. > As before 1919. 170 THE STRUCTURE OF THE GOVERNMENT of the people, and circumscribes to a large extent the resistance that can be offered by the upper house to the more popular body. This is the explanation of the rela- tively feeble power of the senates of France, Italy, and Canada. 1 The cases of the German Bundesrath 2 and the American Senate, which enjoy a power practically greater than that of the lower house, are quite excep- tional. The Senate of the United States owes its exten- sive power partly to its federal character, by virtue of which it represents the States in their separate capac- ity, partly to the length of the senatorial term, and in part also to its historical antecedents, and the traditions of political weight and stability which it has acquired. The constitutional relations existing by the custom of the country between the Lords and Commons of the United Kingdom are quite unique. It is only to be expected that the House of Lords, no part of which is elected by the people either directly or indirectly, should be able to offer only a limited resistance to the Commons even in matters that are not financial. The constitutional relation of the two houses, prior to recent developments, is thus stated by Mr. Dicey: 3 "If there is a difference of opinion between the House of Lords and the House of Commons, the House of Lords ought at some point (not definitely fixed) to give way; and should the Peers not yield, and the House of Commons continue to enjoy the confidence of the country, it be- comes the duty of the Crown, or of its responsible ad- visers, to create, or threaten to create, enough new Peers to override the opposition of the House of Lords, 1 The rejection of the Naval Bill of 1913 by the Canadian Senate showed a degree of independent activity not previously anticipated by its critics. Since that year several other instances of vigorous op- position to the House have been instanced. See Sir G. W. Ross, The Senate of Canada (1914). * As before 1919. * Law of the Constitution. THE LEGISLATURE 171 and thus restore harmony between the two branches of the legislature." By the "confidence of the coun- try" is meant the endorsation of the conduct of the Commons, or more correctly of the majority in the Commons, by the people voting in a general election on the issue involved. This constitutional relation is some- times briefly stated by saying that the Lords have no right to oppose the Commons on the issue on which the Commons were elected. The precedent involved was established by the passage of the Reform Bill of 1832. The Lords insisted on opposing the measure even though a dissolution of Parliament resulted in the elec- tion of a new House of Commons overwhelmingly in support of parliamentary reform. The written threat of the king (William IV) to create peers in favor of the bill, forced the Lords to withdraw their opposition. In accordance with this precedent the Lords have found themselves several times compelled to waive their legal right of resistance to the Commons. The bills for the repeal of the corn laws (1846) and for the disestablish- ment of the Irish Church (1869) are cases in point. That the precedent had not altogether shattered the constitutional power of the Lords was seen in their re- jection of Mr. Gladstone's Home Rule Bill (1893). In spite of the fact that they were opposing a House of Commons elected directly on the question of home rule, the Lords threw out the bill; it was argued in support of their action that though the electorate had spoken in favor of home rule, they had not endorsed this partic- ular bill, which had not yet been made public at the time of the election. A further argument was found in the fact that the bill had been forced through the Commons by means of the closure which had perhaps unduly abbreviated debate. 172 THE STRUCTURE OF THE GOVERNMENT Within recent years the constitutional relation of the two houses of the British legislature has undergone a further readjustment. The House of Lords rejected the Finance Bill passed by the Commons in 1909. Cer- tain portions of the bill, as notably the introduction of a tax on the increase of land-values, were regarded by the majority of the Lords as social rather than financial legislation and as subject therefore to the free action of that House. The rejection of the bill led to a prolonged constitutional crisis which resulted in the passage of the Parliament Act of 1911 (1 and 2 Geo. V, ch. 13). Under this statute any money bill which the House of Lords refuses to pass in the form in which it has come up from the Commons, may become law by the signification of the royal assent. The decision as to what is or what is not a money bill rests with the Speaker of the House of Commons. Public bills other than money bills or a bill extending the maximum duration of Parliament may also become law without the consent of the House of Lords, provided that they have been passed by the Commons in three successive sessions (of the same or of consecutive Parliaments), and provided also that two years have elapsed between the second reading in the first session of the House of Commons and the third reading in the third session. The bills in question must be sent up to the House of Lords at least one month before the end of the session. The same act limits the duration of Parliament to five years. Whatever arrangements may exist, either legal or customary, there always remains in the background the danger of conflict or even of an actual deadlock between the two houses. In most legislatures, as, for instance, in the Congress of the United States and in the Parlia- ment of the United Kingdom, this danger is lessened THE LEGISLATURE 173 by the system of conferences between representatives of each house. In the Congress, when the houses are unable to agree over amendments, three members of the Senate are appointed to confer with three members of the House of Representatives, with a view to arrang- ing a compromise. Although serious differences of opinion have often existed between the two houses of Congress, the possibility of an actual deadlock bringing the legis- lative machinery to a standstill is not one of the special dangers in the American system. Beyond the plan of committees of conference there is no legal machinery for forcing an agreement between the two houses. The case is quite different with the constitution of the Com- monwealth of Australia. Australian legislatures, espe- cially the legislatures of Victoria, have experienced the very serious dangers that may be threatened by the obstinate disagreement of the upper and lower house. 1 As a result of the difficulties that have thus arisen, the constitution of the commonwealth contains provisions that are intended to render impossible a complete dead- lock in the federal legislature. The Governor-General is empowered in the event of the House presenting and re-presenting a bill, and the Senate persistently reject- ing it, to dissolve both houses simultaneously. If after a new election the same situation persists, the Governor may convene a joint sitting, the vote in which is final. 1 5. Direct legislation; the initiative and the referen- dum. As a conclusion to our discussion of the legis- lature and the legislative process, we may briefly advert to what is called direct legislation, or the making of laws by means of the action of the people themselves. That 1 For an account of the experience of Victoria in this connection, and the political crisis of 1877, see Edward Jenks, Government of Vic- toria, part iv, chap, xxxni. * Commonwealth Act, & 67. 174 THE STRUCTURE OF THE GOVERNMENT the whole of the people, or at any rate of the voters, should participate in the process of legislation seems in a sense the embodiment of the idea of democratic self- government. Rousseau regarded it as the only true expression of popular sovereignty. In some form or other it has been known since the earliest historical times. At Athens there existed the Ecclesia, an assembly of all the free citizens, erected by Solon in the sixth century B.C. into an organ of general political control. In it the citizens decided on questions of peace and war, and voted on matters laid before them by the Council of Four Hundred. The Romans also had their Comitia Tributa, or meeting of the people by tribes, which be- came in the latter days of the republic a lawmaking assembly. In the smaller cantons of Switzerland the Landesgemeinde, or gathering of the people, has acted from time immemorial as a legislative body. Such or- gans of government were rendered possible in the city- states of the classical world, and in the cantons of Swit- zerland, by reason of their restricted territorial extent. In the larger states of the world an actual gathering of the people is a physical impossibility. The sovereignty of the people has worked itself out by means of repre- sentative assemblies. But at the present day the growth of rapid communication by post and telegraph renders it possible to have recourse to some extent to the whole body of the citizens in the making of the law; the people of a great state cannot, it is true, be all gathered to- gether in one place in a deliberative capacity, but it is possible for them all at one and the same time to give their vote upon any measure proposed. The system of direct legislation which is thus rendered possible has been favored by the growing distrust of representative legis- latures which is noticed in so many democratic countries THE LEGISLATURE 175 at the present day. There is an increasing tendency to rely on the general will of the whole people as expressed in a direct vote. " The people," says Professor Goldwin Smith, "cannot be lobbied, wheedled, or bulldozed; the people is not in fear of its reelection if it throws out something supported by the Irish, the Prohibitionist, or the Methodist vote." As against this contention it may properly be advanced that the making of laws requires, like every other task of importance, a special training and experience, and that the interests of the people are really safer in the hands of carefully chosen legislatures than when submitted to the hazards of a popular vote. The fact that in every community a large proportion of the citizens are of necessity too much absorbed in their own affairs to be able to prop- erly consider the public questions submitted to them, is also of considerable weight. Rightly or wrongly, how- ever, legislation by the people is already used to a con- siderable extent. It assumes several forms. Of these the most important is the referendum, or submission to the popular vote of a proposed measure or constitu- tional change which becomes law if ratified by the re- quired majority. The initiative means the legal right of the people, acting by petition and in sufficient num- ber, to cause a legislative measure to be brought to a popular vote. There is in the third place, the recall, or the removal of an executive or judicial official from office by a popular vote. 1 It is in Switzerland more than anywhere else that direct legislation is in use. In four of the twenty-two cantons of Switzerland (Uri, Unterwalden, Appenzell, 1 The word "plebiscite" is used in a general sense for any kind of popular vote on an issue. It would be convenient to restrict its use to votes taken as an expression of opinion without involving legal con- sequences. 176 THE STRUCTURE OF THE GOVERNMENT and Glarus) there still exists the immemorial Landes- gemeinde, or Congregation of the district. In Uri, for example (of which the total population in 1916 wae 24,000), the people meet once a year in a large meadow, where they vote taxes, pass laws, and elect their execu- tive officers for the coming year. Even in the cantons which have representative legislatures the referendum the submission of the laws to the vote of the people is largely used. In about half of them it is "op^ tional," employed, that is to say, only when called for by petition. In all the rest (except Freiburg) it is "ob- ligatory," and must be used for all legislative measures of importance. In all the cantons changes in the con- stitution can only be made if ratified by the popular vote. The initiative, or right of the people to intro- duce laws by petition, is of more modern creation, hav- ing been first introduced into the constitutions of the cantons in the middle of the nineteenth century. It is permissible at present in nearly all the cantons both for ordinary measures of law, and for constitutional changes. In the federal government of Switzerland the referendum is compulsory for an amendment of the constitution. There is also an optional referendum, re- quiring the submission of ordinary laws to the people if called for by thirty thousand citizens of eight cantons The initiative in the shape of a proposal supported by fifty thousand voters also exists in the federal govern- ment; though nominally admissible only on constitu- tional amendments it can in practice be applied to any measure by giving it the form of a change in the consti- tution. The system thus established is of great practical importance in the government of Switzerland. Between 1874 and 1908 thirty federal bills (out of a total of two hundred and sixty-one) were submitted to a popular THE LEGISLATURE 177 vote. Eleven were ratified and nineteen rejected. 1 Un- fortunately it is impossible to draw any general conclu- sion as to the utility of direct legislation from the ex- perience of Switzerland, as its critics, both in and out of that country, are much divided in opinion. In the United States, direct legislation, though not always referred to by that name, exists to a consider- able extent. There is in the first place an historic form of it in the shape of the New England "town meet- ing," or assembly of the electors of the township. This is almost a counterpart of the Landesgemeinde of Switzerland. The voters come together in a mass meet- ing once a year (and on special occasions if called for by petition) and not only elect the "select men" or officers of the township, but also vote on the raising of taxes, the spending of money, and on other local questions. The town meeting is an instance of direct legislation of the purest type, inasmuch as it permits of discus- sion as well as voting in the mass meeting. 2 Another form of direct legislation is seen in the ratification by the people of changes in the constitution, a system now practically universal in the United States. The con- stitutions of many of the States make a still further use of the principle. As has already been seen, the power of the state legislature is often restricted by a constitu- tional provision requiring certain kinds of statutes to be submitted to a popular vote. The constitution of Pennsylvania (1873), for example, declares that " no law changing the location of the capital of the State 1 See discussion by W. E. Rappard, Am. Pol. Sc. Review, August, 1912. An excellent work on the subject is that of Deploige, The Refer- endum in Switzerland. See also F. A. Ogg, The Governments of Europe (1913), part v. 1 For details as to the New England town meeting past and present see Fiske, Civil Government in the United States, chap. n. 178 THE STRUCTURE OF THE GOVERNMENT shall be valid until the same be submitted to the quali- fied electors of the Commonwealth at a general election, and ratified and approved by them." 1 Similar provi- sions in regard to altering the location of the capital are found in the constitution of many other States. In the same way a clause of the Iowa constitution of 1846 (adopted later in the constitutions of New York, Cali- fornia, Illinois, and a number of Western States) pro- vides that laws for the contraction of debt (with certain exceptions) must be submitted to the people. In many States, too, the raising of taxes beyond a stipulated limit can only be effected by means of a popular vote. Of other matters treated in this way the alienation of public property, the creation of banks, and the exten- sion of the franchise to women may be cited. Direct legislation is also found in the form of a "municipal referendum" in which the people of a county or town vote on the question of the location of the county seat, the contraction of a local debt, or the adoption of a city charter. This particular phase of direct legislation, whereby the making or amending of city charters is sub- mitted to a vote of the people of the city, is sometimes spoken of as municipal home rule. Several States of the Union have already made extensive use of this system. In California an amendment of the constitution (No- vember, 1906) provided that a petition of fifteen per cent of the voters can cause any proposed charter amend- ment to be submitted to a vote of the people. In Oregon a constitutional amendment of 1906 gave to the voters of every city and town power to enact and to amend the charters of their municipality. The same development is seen in Washington, Minnesota, Colorado, and other States. The Michigan constitution of 1908 provides for municipal home rule. 1 Constitution, art. HI, 28. THE LEGISLATURE 179 Direct legislation is carried still further in certain States of the Union in the form of a general introduc- tion of the initiative and the referendum. South Da- kota by a constitutional amendment of 1898 provided for the use of the initiative and the referendum on a petition of five per cent of the voters. Oregon adopted a state system of initiative and referendum in 1902. The essential principles of the Oregon system, which has become to a large extent a pattern for other com- munities, appear in the following extracts from article iv of the constitution of the State: The legislative authority of the State shall be vested in a legislative assembty, consisting of a senate and house of rep- resentatives, but the people reserve to themselves power to propose laws and amendments to the constitution and to enact or reject the same at the polls, independent of the legis- lative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative as- sembly. The first power reserved by the people is the initiative and not more than eight per cent of the legal voters shall be required to propose any measure by such petition. . . . The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety), either by the petition signed by five per cent of the legal voters, or by the legisla- tive assembly, as other bills are enacted. . . . The veto power of the governor shall not extend to measures referred to the people. All elections on measures referred to the people of the State shall be had at the biennial regular general elec- tions, except when the legislative assembly shall order a special election. . . . The whole number of votes cast for justice of the supreme court at the regular election last pre- ceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted. . . . The initiative and referendum powers reserved to the people by this constitution are hereby further reserved to the legal voters of every municipality and district as to all local, 180 THE STRUCTURE OF THE GOVERNMENT special, and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Not more than ten per cent of the legal voters may be required to order the referendum nor more than fifteen per cent to propose any measure, by the initiative, in any city or town. The constitution of Oregon also provides that "every public officer in Oregon is subject ... to recall by the legal voters of the State or of the electoral district for which he is elected." No popular vote on a recall is taken unless twenty per cent of the voters have peti- tioned for it. A similar general system of referendum and initiative and recall has now been adopted in a number of States, especially in the western half of the Union. The consti- tutions of Arizona, Montana, Oklahoma, Washington, etc., may be cited in this connection. 1 The whole system is decidedly growing in favor, espe- cially in the western part of the Union, and profits by the distrust with which the state legislatures are often viewed by the people at large. Direct legislation has been widely endorsed in general terms by various polit- ical parties and associations, especially those of a rad- ical or progressive stamp, in many States. As long ago as 1896, the Populist Party in its national convention at St. Louis, expressed itself in favor of the use of both refer- endum and initiative, and reasserted its advocacy of direct legislation at each of its subsequent conventions. Various state conventions and the national convention 1 The student of this subject may consult with profit the Oregon Blue Book issued annually by the Secretary of State of Oregon. It contains an interesting analysis of the popular votes taken since 1902. THE LEGISLATURE 181 of the socialistic and radical parties have put them- selves on record in favor of the initiative and referendum. Certain special considerations suggest themselves in regard to the particular form of direct legislation known as the "recall." Expressed in general terms this system means that all persons who hold office must do so only so long as their tenure of office is sanctioned by the will of the people; at any time when a majority of the voters desire it the office-holder is removed from his functions. The arguments for and against the system stand upon somewhat the same ground as those in regard to direct legislation. In idealistic terms it is argued that the will of the people ought to be the supreme power and that the recall offers a means whereby the citizens may at once remove from office those who have abused their trust. The system, it is claimed, affords a ready weapon against political corruption and the sinister influence of the money power. To this it is answered, as in the case of direct legislation, that "the people" are neither all-wise nor all-seeing; that the recall of a conscientious official may be brought about by a false appeal to the passions or interests of voters ignorant of the facts and details of the case; that the resulting uncertainty of office renders the conscientious per- formance of duty doubly difficult; and that, far from being a protection against the malign influence of the money power, the recall introduces a new and dangerous form of public corruption. It is especially hi regard to the recall of judicial officials that stress is laid on these arguments. Here the practice of those States which have introduced the recall varies. Some, such as Oregon, per- mit the recall of judges. Others, as Washington, do not. There is certainly much to be said against the use of the recall hi regard to judicial office. The work of a judge, 182 THE STRUCTURE OF THE GOVERNMENT from its intricate and technical character, is not a sub- ject upon which the mass of the people can pronounce. Certainty of tenure alone can give to the judge the opportunity for independence of mind. READINGS SUGGESTED / Lecky, W. H., Democracy and Liberty (1896), vol. i, chap. rv. Low, S., Governance of England (1904). Bryce, J., American Commonwealth (1889), vol. i, chaps, i-xx. Munro, W. B. (editor], The Initiative, Referendum, and Recall (1912), chap. i. FURTHER AUTHORITIES The Statesman's Y ear-Book (annual). Anson, Sir W., Law and Custom of the Constitution, part i (2d edition, 1896). Lowell, A. L., Governments and Parties in Continental Europe (1897). Poirett, E., The Unreformed House of Commons (1903). Simonet, Traite Elementaire du Droit Public et Administratif (3d edition, 1897). Dicey, A. V., Law of the Constitution (4th edition, 1893). Macy, J., English Constitution (1897). Vincent, J. M., Government in Switzerland (1900). Wilson, W., Congressional Government (2d edition, 1901). Deploige, S., The Referendum in Switzerland (translation, 1898). Ilbert, Sir Courtenay, Legislative Methods and Forms (1901). Munro, W. B., The Government of the United States (1919). Temperley, H. W. V., Senates and Upper Chambers (1910). Kimball, E., The National Government of the United States (1920). Jones, H., Liberalism and the House of Lords (1912). Barnett, J. D., The Operation of the Initiative, Referendum, and Recall in Oregon (1915). Humphreys, J., Proportional Representation (1911). Commons, J. R., Proportional Representation (1907). CHAPTER III THE EXECUTIVE 1. Concentration of authority the first requisite of the executive 2. Methods of appointment ; hereditary executives 3. Elective executives 4. Presidential and parliamentary government 5. Subordinate officials of the executive; the civil service. i. Concentration of authority the first requisite of the executive. The term "executive" is used to designate those officers of the government whose business it is to "execute" or carry out the law of the land. In the narrower sense it often signifies merely the supreme head of the administration, as the President of the United States, or the same person together with his chief subordinates. Thus when we speak of the "execu- tive" of the French Republic, we refer to the President, or perhaps to the President together with the prime minister and cabinet. But the word has also a wider signification, in which it means the entire staff of officials high and low, who are concerned with the administration of public affairs. This does not, of course, include per- sons acting in a legislative or judicial capacity, but comprises all such public servants as postmasters, rev- enue officers, sheriffs, inspectors, commissioners, etc. Occasionally even the army and the navy are included hi this usage of the term. In the following chapter the word "executive" will be used in the narrower sense except where otherwise indicated. The first striking point to be noticed in connection with the executive heads of modern governments is that, while members of the legislature are many, the chief officers of the executive are few. This, as has been 184 THE STRUCTURE OF THE GOVERNMENT seen, arises from the fact that the prime need in the executive or acting branch of a government is prompt- ness of decision and singleness of purpose. That this is difficult to obtain among a number of persons acting with equal authority goes without saying. "One bad general," the Emperor Napoleon once said, "is better than two good ones." It is further to be noted that to a very great ex- tent executive authority either over the whole con- duct of government or over its subdivisions tends to center in a single person. Thus in the United States the supreme administration lies in the President, whose chief subordinates are his own creations, and can be dismissed by him. In Great Britain the virtual control of affairs is in the hands of a cabinet of fifteen to twenty persons, one of whom is, to a large extent, dominant over the others. It is not necessary that any single person should always impose his own ideas and his own will upon the conduct of public administration. But it is essential that there should be some one person who can in the last resort exercise a decisive and final au- thority. It is one of the admirable points in the federal Constitution of the United States that, by virtue of his position of commander-in-chief of the army and navy, the President may become in time of war almost a dic- tator. His power expands with the need of strengthening the executive, and he is able to cut the Gordian knot of legislative perplexities by the incisive application of a single will. 1 It appears, then, that there is a strong presumption against what is called a "plural executive," or group 1 Consult in this respect J. W. Burgess, Political Science and Con- stitutional Law, vol. ii, division in, chap. iv. See also Everett Kimball, The National Government of the United States (1920), chape, vin and xvn. THE EXECUTIVE 185 of persons exercising the supreme executive authority, no one of whom is superior in power to the others. Such a body is able to act only by joint decision. At first sight there appears a decided gain in this system in the direction of maturity of judgment and mutual control of the members against any possible tyranny on the part of any of them. But the necessary loss in promptness of resolution and the danger of actual con- flict of opinion in a moment of crisis, more than offsets this gain. As a matter of fact a plural executive is scarcely able to act at all except by subdividing the work to be done and committing certain special func- tions to the care of each of its members. This was, for example, the plan pursued by the Committee of Public Safety, the joint executive of eleven members which governed France during the Reign of Terror, 1793-94. l History offers many examples of plural executives, such as the dual kings at Sparta and the consuls at Rome. But experience has been decidedly unfavorable to such a plan of government. To this general verdict a signal exception is found in the case of modern Switzerland. Here the supreme executive power is vested in a board of seven persons, the Bundesrath, or federal council, elected for a term of three years, by the two houses of the legislature in joint session. Although one of the council is nominated each year to the titular dignity of President of the Swiss Confederation, he is in no sense above the others in authority. The members act sev- erally as the heads of the seven governmental depart- ments, though this is for convenience only, and not prescribed by the constitution. In their corporate 1 For the division of executive business among the members of the Committee of Public Safety, see Morse Stephens, The French Revolu* tion, vol. n. 186 THE STRUCTURE OF THE GOVERNMENT capacity they manage the general conduct of the ad- ministration. In practice the system works admirably. The members of the council are constantly reflected, and enjoy what is practically a permanent tenure. But this rather anomalous situation is partly to be explained by the fact that the legislature itself decides upon the policy to be pursued in all matters of moment. 2. Methods of appointment; hereditary executives. Returning, then, to the consideration of modern execu- tives in general, and having noted the prevailing prin- ciple of single control, we may next indicate the great differences that exist in the method of selecting the executive heads of governments, in their tenure of office, and in the relations of the executive to the legislative body. Two separate lines of classification are here presented; first the distinction between hereditary and appointed executives, and secondly the distinction be- tween those that are real and those that are nominal. An hereditary executive a king, emperor, sovereign prince, etc. enjoys a tenure which is not only lifelong, but which passes to his heirs. Such an institution has of course no place among the political ideas current in the independent states of the American continent. Looked at in a purely rational light, it is difficult to find much to be said in its favor. An hereditary ruler seems on the face of things as absurd as the hereditary mathe- matician or hereditary poet-laureate referred to in the preceding chapter. But hereditary monarchy, as it ex- ists in Europe, is not to be disposed of in so simple a manner. In nearly all countries where it exists, it is an historical product, and has grown up as a part of the political evolution of the state. In many cases, too, it is regarded by the people of the country, as most notably in Great Britain, not only with tolerance, but with the THE EXECUTIVE 187 most sincere approval. The desire for a republican form of government is about as little known in England as the desire for a monarchical system in the United States. But the real secret of the persistent survival of hereditary monarchy in so many of the civilized communities of the world lies in the fact that, in the cases where it meets with the greatest approval, the hereditary sovereign is a nominal and not a real executive. 1 In the United Kingdom, Italy, Belgium, etc., the actual conduct of government is not in the hands of the king. The king is, to a great extent, though of course not literally, only the nominal head of the state; public business is transacted in his name, and professedly by his authority, but in reality the control of affairs is in the hands of the prime minister and cabinet, who represent the voice of the people. In this form the system can be supported by many arguments of great weight. It helps to lend to the government of the country those features of stability, permanence, and continuity which are among the most essential factors in political institutions. To internation- al dealings it contributes, whether rightly or wrongly, a certain prestige that is not without its diplomatic value. It is certainly, also, to be admitted that the traditions which surround a monarchy of long continuance help to inspire the actual chiefs of the government with a sense of responsibility and dignity most salutary in its effect. In spite of all this it may perhaps be doubted whether the wonders of constitutional monarchy have not been somewhat overestimated by its English panegyrists. When all is said and done there always remains a con- tingent possibility that a future monarch may break 1 A very interesting discussion of the somewhat accidental develop- ment of the peculiar position held by a " constitutional " sovereign is found in Sidney Low's Governance of England. 188 THE STRUCTURE OF THE GOVERNMENT rudely away from the self-effacement imposed upon him by the system. The admirable manner in which Queen Victoria and her successors have filled the position of constitutional sovereign has made people forget that this self-effacement is customary, and not part of the law of the land. The relations thus established, espe- cially in the connection of the sovereign with foreign affairs, are extremely delicate, and demand for their proper maintenance a high degree of tact on the part of the monarch. The successful operation of the system is by no means so independent of the competence or in- competence, the integrity or perversity of the reigning prince as the English writers are inclined to imply. Whether or not such contingent disadvantages over- balance the features of stability and continuity that result from the institution of monarchy is of course a subject admitting a great diversity of opinion. The hereditary monarchs of the present day are nearly all of the constitutional type. The former King of Prussia (who by virtue of his kingship was also German Emperor) was an example to the contrary. Here the con- stitutional maxim that the king "reigns but does not govern " did not hold true. The King of Prussia not only reigned but governed also, 1 and his executive function was both titular and actual. The kingship passed to his descendants. To the American mind it seems very difficult to defend such an institution. The defense on grounds of dynastic rights to the kingship as a sort of property, or on quasi-theological grounds as a thing specially instituted by the Deity, hardly needs refuta- tion. Any defense of such a monarchy on the grounds 1 " With ua the king himself governs ; the ministers of course for- mulate (redigiren) what the king has commanded, but they do not govern." (Speech of Prince Bismarck in the German Reichstag, 1882.) THE EXECUTIVE 189 of its efficiency carries with it the assumption that the future sovereign in line of descent will of necessity prove efficient. Nevertheless, till the ignominious fall of the Prussian monarchy in 1918 German writers on public law were quite prepared to defend the existence of monarchy even where not of the limited or constitu- tional type. 3. Elective executives. In contrast to hereditary executives may be placed the wide class of those that may best be termed "elective." The terminology is here hardly satisfactory, for in addition to officials actually elected, such as the President of the United States, there exists a class of head executive officers who are certainly not hereditary, and who are rather to be thought of as selected than elected. The word "nom- inated," or "appointed," would indicate more precisely the method of their accession to office. Inasmuch, how- ever, as such chief executives are found not in inde- pendent states, but in the subordinate governments of an imperial system, it would seem improper to make on their account a third general category of the executive in general. Such officials as the Governor-General of Canada, the Viceroy of India, and the governors of British colonies, all of whom are nominated by the crown, are of this description. The lieutenant-governors of the Canadian provinces, who are appointed by the Governor-General, on the advice of his ministers, belong to the same class. These executive officers will also be divided into those that are actual and those that are only nominal. The Viceroy of India is of the first sort; the Canadian Governor-General is of the second, and the lieutenant-governors represent only the thinnest kind of nominal power. Such executives are, of course, merely the outcome of the peculiar circumstances of the British 190 THE STRUCTURE OF THE GOVERNMENT Empire, in which it is necessary to reproduce by proxy in the colonies and dependencies the nominal character of the power of the British sovereign. Most independent states that are not under an hered- itary monarch have at their head an elected executive chief. Between these two an intermediate form might be distinguished, a king elected for life out of a "reign- ing family." This form is often found in history, as for example in England at the time of the Norman Conquest. It belongs to an age when the king was in the full sense of the term the "war lord," and when military prowess was so important in a ruler that the reign of a minor or a weakling was repugnant to the general sentiment of the nation. But among the elected executives of modern civilized states such a form no longer appears. The actual elected executives present a considerable diversity. They are almost all alike in that the supreme power, nominal or virtual, is vested in a single person, though even here the Swiss executive has been seen to be an exception. But apart from this many divergen- cies appear. In the first place the manner of election is various. The President of the United States is elected by an indirect election, which through the purely me- chanical nature of the electoral college has become practically direct. In France the President is elected by the two houses of the legislature sitting together as a "national assembly." The governors of the separate commonwealths of the United States are elected di- rectly by the people. The system of election varies among the republics of Central and South America. Some of them, as Mexico, the Argentine Republic, and Chili, choose their presidents by indirect election. In others, as, for example, in Peru, in Brazil, and in Bolivia, the election is made directly by the people. Theoretically THE EXECUTIVE 191 considered, the process of indirect election appears attractive. While not inconsistent with the principle of popular sovereignty, it appears to put the actual choice of the executive head into the hands of a specially com- petent body. Practical experience, however, is against the plan; it is found either to convert itself into what is merely a needlessly cumbrous form of direct election, or else to lend itself to the intrigue and sinister influence of an inside ring. Another difficult problem presents itself in the matter of the duration of the executive term of office and in the question of reeligibility. In all democratic repub- lican countries there is an instinctive repugnance to long continuance in office, and a fear that an office thus held may transform itself into what is practically a monarchical tenure. In accordance with this idea the presidents of the different American republics hold office for terms varying from four to six years. For the same reason the outgoing president is in most of these cases not eligible for the succeeding term. Mexico, where the President is reeligible after his four years in office, and where one and the same person held office continually from 1884 to 1911, is here an exception. In the United States the law of the Constitution does not prohibit re- election. But public opinion has confirmed the prece- dent first set by Washington, and forbids the election of the President for a third term. That such a rule was a salutary precaution at the inception of the Republic was doubtless true. At the close of the eighteenth cen- tury, a republic covering any considerable territorial extent was regarded as an experimental departure in political institutions. 1 It was consequently well worth 1 Montesquieu (Esprit des Lois, 1748, bk. vni, chap, xvi) says: "II est de la nature d'une rpublique qu'elle n'ait qu'un petit terri- 192 THE STRUCTURE OF THE GOVERNMENT while to make special sacrifices to avert the possibility of the subversion of republican institutions by the too great dominance of a single person. The example of Napoleon Bonaparte, who found means to convert his consulship for ten years into a consulship for life, and then into an imperial rule, illustrates the danger which Washington and his immediate successors were anxious to avoid. But it may well be doubted whether at the present time, and in a country in which republican in- stitutions have been consolidated by more than a hun- dred years of political growth, such a customary regu- lation has not become an anachronism. It deprives the country of the services of its greatest political leader at the very time when his matured experience has es- pecially fitted him for his post. Certainly in England such a compulsory retirement of men like Gladstone, Beaconsfield, Salisbury, and Lloyd George at the very zenith of then* political career would be considered a national loss. In France the President is elected for seven years and is reeligible; but it must be remembered that in this instance the President is not the governing executive, but only the nominal head of the state. The French Republic is a parliamentary republic, and the executive power is in reality held by the prime minister and his cabinet. 4. Presidential and parliamentary government. From what has been said it will be seen that the divisions of executive into hereditary and elective, nominal and actual, lie crosswise of each other. An hereditary sover- eign may be nominal, as in the case of the British king, or he may be an actual ruler, as was the King of Prussia. toire: sans cela elle ne peut guere subsister." The reflections which follow on the political dangers of a large republic are especially inter- eating. See also Rousseau's SocicU Contract. THE EXECUTIVE 193 t Similarly an elected executive such as the President of the United States is actual, while the President of the French Republic is only nominal. The distinction be- tween nominal and virtual executives leads to the con- sideration of the most fundamental of all questions in regard to the executive, namely, its connection with the legislature. This has already been referred to in discuss- ing the separation of powers, but some further treatment is here necessary. The governments of modern states are divided between two rival systems of operation. Of these the one is commonly termed "parliamentary," "responsible," or "cabinet" government; the other, for which no satisfactory designation can be found, has been variously styled "non-responsible," "presi- dential," or "congressional" government. In a parlia- mentary government the tenure of office of the virtual executive is dependent on the will of the legislature; in a presidential government the tenure of office of the executive is independent of the will of the legislature. Parliamentary government is always found in connec- tion with the presence of a nominal executive. But it is to be remembered that this nominal executive need not be an hereditary titular sovereign. In France the gov- ernment is parliamentary, but the nominal head of the state is an elected officer. Similarly the presidential sys- tem is always found in connection with a real or virtual executive; but this real executive need not be an elected president, as the instance of Prussia clearly shows. It thus seems that the word " presidential " is somewhat a misnomer, since a presidential government may not have a president, and a country which has a president need not have a presidential government. Unfortu- nately, however, no more adequate terminology can be found; "non-responsible" carries with it an entirely 194 THE STRUCTURE OF THE GOVERNMENT false connotation, and "congressional" has already an- other signification in allusion to the Congress of the United States. The principle of parliamentary government is best understood by studying the evolution and operation of the British cabinet. 1 The King of England was never without a group of councilors and chief officers to aid him in the conduct of the government. These advisers, known in Norman times as the King's Ordinary or Permanent Council, and from the time of Henry VI as the Privy Council, were men of the king's own choice. They were the king's "ministers" in the literal sense of the term. Nor were they, for centuries after the consolidation of consultative assemblies into a national Parliament (1295), controlled by the legisla- ture, except by the heroic remedy of impeachment. They were rather the natural antagonists of the Parlia- ment than its chosen representatives. This is particu- larly seen during the tyranny of the Stuarts, where Sir Thomas Wentworth's desertion of the popular cause elevated him to the position of a minister of the crown. Moreover, the group of ministers who formed the King's Council constantly showed a tendency to unduly increase in numbers. This led to the concen- tration of power in the hands of an inner circle, to whom the name "cabinet" came to be applied. The overthrow of the Stuarts and the recognition of the principle of the supremacy of Parliament by the Bill of Rights (and later by the Act of Settlement) ren- dered the previous relation of ministers and Parliament no longer possible. As a means of conducting the ex- 1 For the operation of the British cabinet system, see A. L. Lowell, The Government of England (1910), vol. i, chaps, n, ui, vni, xvn, xvin, xxiu. THE EXECUTIVE 195 ecutive government with the support of the members of Parliament, William III, acting on the advice of the Earl of Sunderland, deliberately chose his ministers from the ranks of the party dominant in the Commons. This, if ever one may speak with propriety of a political invention, was the invention of the cabinet system of government. Yet the system thus instituted remained for nearly a century in a rudimentary and imperfect state. The ministers did not at first feel called upon to resign on the loss of parliamentary support. They pre- ferred to wait, as did William's ministry in 1698, for the adverse majority to "blow over." Nor did the ministry throughout the first half of the eighteenth century resign or enter office as a body. Lord Rocking- ham's cabinet of 1765 may be looked upon as the first set of ministers coming into office as a body. Even till the end of the century the ministers, though they might belong to the same party, were not of necessity united in policy or harmonious in their political relations with one another. Pitt's insistence on the resignation of his refractory chancellor Lord Thurlow (1792) marks the recognition of this stage of cabinet evolution; the re- fusal of the ministers of George IV to give him indi- vidual advice in reference to a matter of foreign policy indicates its final adoption. 1 Taking the cabinet as it now exists, it may be said to operate on the following plan: It consists of a group of about twenty men, who, though not legally a cor- porate unit, have in practice a united policy and a united responsibility. Each of them is a member of the legislature, either of the Lords or of the Commons. 1 The development of cabinet government in Great Britain is traced in Hearn, Government of England. See also C. Ransome, Rise of Con- stitutional Government. 196 THE STRUCTURE OF THE GOVERNMENT They are nominated by the crown, acting on the ad- vice of one of their number whom the king has first selected to be the prime minister. They belong to the political party or coalition of parties which commands the support of the House of Commons. Should they lose that support they resign collectively. In the United Kingdom the whole of this arrangement is customary, and not legal. But such need not be the case. In France, for example, it is part of the law of the constitution * that "the ministers are collectively responsible to the chambers for the general policy of the government." This is held to mean that they must resign if no longer supported by the Chamber of Deputies. 2 To this relation thus existing between the French or British executive and legislature, the presidential sys- tem as seen in the United States or Germany stands in complete contrast. In the United States, for in- stance, the President, who is the actual executive, is elected independently of the legislature, for a term of years prescribed by the Constitution. Except by the process of impeachment, the legislature cannot shorten his term in office. Nor can the legislature dictate to the President the political or administrative policy to be followed, nor control it in any direct legal way, excepting in so far as the Senate has a veto upon the making of appointments and treaties. Moreover, the members of the President's "cabinet," as the group of executive officers who are at the head of the different departments is commonly called, are appointed by the President himself. There is no obligation upon him to consult the wishes of the legislature in selecting them. 1 Lot Constituiionnette, Feb. 25, 1875, art. 6. 1 The extent of the power of the French Senate to force a ministry out of office is a doubtful constitutional point. Dupriez, Lea Miniatrea dans let Principaux Payt d' Europe, vol. n. THE EXECUTIVE 197 Nor can the legislature, except in the last resort, by impeachment, force the dismissal of members of the cabinet. The President, on the other hand, can appoint and dismiss them at will. Similarly under the former German system the Emperor had an actual executive power. His official acts, indeed, required the counter- signature of his chancellor, but the latter was an officer of his own creation, holding office during the Emperor's pleasure. 1 There was no power on the part of the legis- lature, by an adverse vote or otherwise, to force the resignation of the chancellor. The same relation was found in the government of the Kingdom of Prussia. The above illustrations show what different purposes parliamentary and presidential government may be made to serve. In Prussia presidential government permitted of the existence of a national legislature, the lower house of which is democratic, without putting an end to the dominant power of the crown. In Great Britain parliamentary government has afforded a means of compromise whereby the monarch retains his nomi- nal position as the controlling authority, while in reality the center of power has been shifted to the elected representatives of the people. In France and the United States, on the other hand, the parliamentary and the presidential systems have been each deliberately adopted as the best means of putting into practice the doctrine of popular sovereignty. It is impossible here to institute a detailed criticism of the merits of the two systems. In England the par- liamentary system plays a specially useful part in en- abling the government to be converted into a democracy 1 The immediate assistants of the imperial chancellor at the head of the different departments are not his colleagues, but his subordi- nates in the strict sense of the term. 198 THE STRUCTURE OF THE GOVERNMENT without breaking with the historical position of the crown. The same purpose has been effected by imita- tion in Italy, Spain, and other countries. The King of Sardinia was accepted as ruler by the other states which were joined into a united Italy (1859-70) by virtue of the fact that the governing power would lie with the representatives of the nation at large. If the gradual abolition of monarchy is to be part of the political evo- lution of the future, it will prove to have been effected by means of the parliamentary system. In spite of all that has been said in its favor, the system is not without its drawbacks. It works evenly and well where two great political parties exist, which alternately hold the power of government and of which each is gradually forced to give place to the other. But where not one but many parties exist (as in France and Italy at the present day), loose in cohesion, and constantly forming and re-forming into new coalitions, it introduces a dan- gerous element of instability into national government, and leads to the sacrifice of principle for the sake of power. On the other hand, the presidential system has very* decided disadvantages. The office of chief execu- tive becomes of so great importance that the recurrent election of the president occasions periods of great ex- citement and upheaval, always unfavorable to industrial activity and in turbulent countries fraught with possi- bilities of revolution. Moreover, apart from the artificial junction effected by party ties, the system may place the executive and the legislature in dangerous antagonism. 5. Subordinate officials of the executive; the civil service. It has been said at the opening of the chapter that the term "executive" signifies sometimes the single head of the state, sometimes the head of the state together with his chief associates or subordinates, and THE EXECUTIVE 199 at times the entire force of executive officers, high and low. The subdivisions of the executive government and the relations of its parts among themselves must con- sequently be separately considered. A distinction maj here be at once made between executive bodies that are of the nature of a hierarchy, radiating from a common source, and those that may be spoken of as coordinate. In a purely hierarchical executive the whole staff of executive officers are appointed either directly or in- directly by the chief executive. Of this type is the government of the United Kingdom, in which appoint- ments flow from the crown, and the federal government of the United States, whose officers are appointed either directly by the President or indirectly by a person or persons nominated by the President. The same is true in general of the executive officers of most independent states. On the other hand, the commonwealths of the American Union have coordinate executives. Here the appointing power of the chief officer of the government (the state governor) is very limited; the majority of executive officers are elected to their positions by the people. This is true even of the chief officials associ- ated with the governor the lieutenant-governor, the secretary of state, the treasurer, the attorney-general, superintendent of education, auditor, comptroller, etc. But a body of this sort is still properly to be regarded as a unit and not as a plural executive, since the whole staff of officials is under the supervision and to some extent under the control (sometimes by power of dis- missal) of the executive head of the government. More- over, the departmental heads each exercise a single and not a collective authority. The contrast between a co- ordinate executive and a hierarchical is extreme. The former works well enough in the subordinate govern- 200 THE STRUCTURE OF THE GOVERNMENT ments of a federal system; in these, especially where there is an elaborate written constitution, executive duties are precise and there is but little latitude for general policy. But in a national government the case is different; here there is need for a central power of great authority, exercising a large amount of adminis- trative discretion and able to rely on the vigorous co- operation of harmonious subordinates. The unity of purpose required to meet a sudden and serious national emergency could hardly be found in a cabinet of ex- ecutive officers elected singly and separately by the people. In all governments, even though there may exist one person of supreme executive power, it is necessary to divide up the practical conduct of the administration into a number of departments. The division adopted in the three leading governments of the world is shown in illustrative form in the table at the end of the present chapter. It will be seen that certain great departments of business the management of foreign affairs, of the army, of the navy, and of the finances are common to all. The American Secretary of State corresponds roughly to what is elsewhere called the Secretary or Minister of Foreign Affairs. The names of most of the remaining cabinet officers indicate approximately the functions to be performed. In addition to the usual officers, each country finds it necessary to establish certain special departments to correspond to its pe- culiar needs. The office of the British Colonial Secretary and that of the Secretary for India are examples of this. In "parliamentary" governments, too, it is found use- ful to include in the cabinet group several officers who have either no departmental duties or duties of only a nominal character, and are thus free to aid in the gen- THE EXECUTIVE 201 eral political control. In Great Britain this is effected by means of sinecure offices almost free from actual administrative duties, such as the positions of the First Lord of the Treasury (generally held by the Premier), the Lord Privy Seal, the Chancellor of the Duchy of Lancaster, etc. In Italy, Canada, and other places, the practice is adopted of admitting to the cabinet ministers " without portfolio." In addition to these offices the exigencies of the war period (1914-18) occasioned the creation of a number of special executive departments, such as, in France, the ministers of Liberated Regions and of Industrial ^construction, and in Great Britain the office of Secretary of State for the Air, Minister of Munitions of War, Food Controller, etc. Similarly in the United States the necessities of the war period led to the creation of such special bodies as the Shipping Board, the Food Administration, etc. Below these heads of departments and principal of- ficials comes the general body of executive officers that form what is called the civil service. The relation of the members of the civil service to the heads of the gov- ernment, their appointment, dismissal, and tenure of office, is one of the difficult problems of present politics. It will be well, therefore, briefly to indicate the existing status and regulation of the civil service in Great Brit- ain and the United States. The case of Great Britain may best be discussed first. The British Civil Service in the period before the Great War comprised a staff of about 80,000 officials. 1 This includes the officers of the royal household, a large number of officials connected with the foreign, home, and colonial offices, the admiralty, the treasury, etc., officials serving under the local government board, 1 The number was greatly increased by the needs of the war period. 202 THE STRUCTURE OF THE GOVERNMENT the patent office, the emigration office, the diplomatic and consular corps, collectors of customs and excise, postmasters, etc. The fundamental principle in the conduct of the service thus constituted is penna* nence in office, and the dissociation of tenure of office from the changes of government caused by the cabi- net system. The only officers of a political complex- ion are the heads of the departments, together with certain chief secretaries and assistants who are known collectively as "the ministry," and who number in all about seventy-five persons. Thus, for example, the Home Secretary (principal secretary of state for home affairs) has as his subordinate a " parliamentary under- secretary," who, like himself, is a member of the min- istry, and resigns office on the defeat of the government. He has also a "permanent under-secretary," who is not a political officer, and who is at the head of the standing staff of clerks, superintendents, inspectors, and other officials of the department. A similar plan, though the official titles vary, is in use in various other departments of the government, such as the Foreign Office, the Colonial Office, the Admiralty, the Ministry of Pen- sions, etc. The permanent tenure of office contributes greatly to the efficiency and integrity of the British civil service. Its origin is to be traced to the fact that in earlier times public office in England^was a species of real property held by the incumbent for life or in fee. There still exist in the British civil service a few offices which are held, like the judicial positions, for life or good conduct. In the case of the great majority of official positions in the civil service the crown retains the right of dismissal. This right is exercised, however, only in cases of incompetence or dereliction of duty, and never for political reasons or to make room for a THE EXECUTIVE 203 necessitous office-seeker. For entry into the service use is made, in most of the British departments, of the principle of open competition. In the United States the method of appointment and dismissal in the executive branch of the federal govern- ment has proved a matter of serious national concern. A very few of its officers hold their posts, as do the federal judiciary, on a life tenure. Some offices as, for example, the cabinet positions are held during the pleasure of the President. But in the case of the great majority of positions, the appointment is made for a stated term of years, usually four. In the actual oper- ation of the government, the difficulty centers around the questions of dismissal from office and reappoint- ment at the expiration of the statutory term. It is clearly to be desired that competent officials should be left undisturbed in their positions, whatever be their political opinions. Particularly is this the case with such positions as those in the customs service, the postal service, etc., where the duties to be performed are of a more or less routine nature, and cannot be said to depend for their proper performance on harmony of political opinion between the head of the department and his subordinates. On the other hand, there is always the fear that the too great certainty of continu- ance in office may lead to official stagnation and a per- functory discharge of duty. The Federal Constitution is not explicit on the subject of dismissal from office. The extent of the right of dismissal is reached by infer- ence from the constitutional provisions in regard to appointment, and from the obvious exigencies of the case. The power of appointment in the case of am- bassadors, other public ministers and consuls, and judges of the Supreme Court, lies with the President, 204 THE STRUCTURE OF THE GOVERNMENT subject to ratification by the Senate; but "the Con- gress may by law vest the appointment of such inferior officers as they think proper in the President alone, or in the courts of law, or in the heads of departments." 1 Following the decision of the courts, the power of dis- missal is incident to the power of appointment. Con- gress, it is true, during its conflict with President Johnson, undertook to limit the executive power of removal by passing the Tenure of Office Acts (1867 and 1869), which called for the Senate's ratification of removal. The repeal of these acts (1887) put the matter on the same constitutional footing as before. During the first thirty years of the history of the Union the power of dismissal was not used as a means of finding positions for party adherents. Nearly all the federal officials held office during the pleasure of the executive, and dismissal, except for cause, was not con- templated. Madison spoke of it as unconstitutional. The Act of 1820, prescribing a four years' term of office (still subject to removal at will) for collectors of cus- toms and many other federal officers, offered a starting- point for a new system. With the advent of President Jackson (1829) was inaugurated the "spoils system." Wholesale removals from office were made, 2 and the places thus made vacant became the prizes of the Presi- dent's political followers. This disastrous precedent thus established was followed by later administrations, until the "clean sweep" of offices became a recurrent feature of American politics. Not the worst feature of the system has been the frequent incompetence of the persons appointed for political reasons to the vacant offices. 1 Constitution, art. n, 2. 1 In the first twelve months of his presidency, Jackson made 734 re- movals from federal offices. THE EXECUTIVE 205 The obvious injustice of the "spoils system" and the inefficiency thereby occasioned in the public service led to a movement in favor of civil service reform, which culminated in the Civil Service Act of 1883. The purpose of this act is to separate as far as possible the civil service from politics, and to introduce the system of appointments by merit based on competitive exam- inations. The act establishes a body of three commis- sioners whose duty it is, at the request of the President, to aid him in drawing up rules directed towards the following objects; that open competitive examinations shall be held in all branches of the civil service when classified for the purpose, and that appointments to office shall be made from those applicants graded high- est; that appointments at Washington shall be ap- portioned among the States according to population; that no person in the public service shall be under ob- ligation to contribute to any political fund, nor shall any person in the public service use his authority to coerce the political action of any other person. The act does not call for the classification of persons appointed by the President and ratified by the Senate, nor of those employed merely as laborers. There are also a large number of positions which are, for various reasons, excepted from the rules. 1 Of the 480,327 posts in the executive civil service in 1916, 296,926 were subject to the competitive system. It is evident that where new appointments can be made only on a basis of certified fitness, the tendency deliberately to create vacancies will diminish, and competent officials will invariably be retained in office. Not the least merit of 1 For the peculiar situation that arose in 1913, when the Democratic Party returned to power after being sixteen years out of office, the student may consult Everett Kimball, The National Government of the United States (1920), pp. 228-29. 206 STRUCTURE OF THE GOVERNMENT the Civil Service Act is that it helps to educate opinion. It is only by the growth of a vigorous public feeling in condemnation of the spoils system that the evil can be eradicated. READINGS SUGGESTED Taft, W. H., Our Chief Magistrate and his Powers (1915). Bodley, J. E. C., France (1898), vol. i, bk. 11, chap, n ("The Chief of the State"). Lowell, A. L., Governments and Parties in Continental Europe (1897), vol. i, chap. n. Dupriez, Les Ministres dans les Prindpaux Pays d'Europe, et d'Amerique (1892), vol. i, part v, vol. n, part vi. FURTHER AUTHORITIES Low, S., Governance of England (1904). Hart, A. B., Actual Government (1903). Ransome, C., Rise of Constitutional Government in England (1883). Montesquieu, Esprit des Lois (1748). Moran, T. F., The English Government (1903). Anson, Sir W., The Law and Custom of the Constitution, part i (1896). Ridges, E. W., Constitutional Law of England (1905). Stanwood, E., History of the Presidency (1901). Reports of United States Civil Service Commission. Ford, H. L., Rise and Growth of American Politics (1900). Jill I Jill I o 2 !*U Q 3s ET S5 P wteS oJ ^ .5 -H 5 J |j*P s 2 - 8^ o U3 | "3 -2 2 Z"8 2 bss'Sfc^fc' 3 $*2K3 G K"Z 2 K g 2 j j H & *U c^UcSi S3 i lAa P 1 fe I 'E'S^ ^JSC ww OQ CHAPTER IV THE JUDICIARY AND THE ELECTORATE 1. The judicial office and its tenure 2. The relation of the courts to the executive and to the legislature 3. Administrative law and administrative courts 4. The electorate: evolution of uni- versal suffrage in leading countries 5. Representation of minori- ties. i. The judicial office and its tenure. The judicial branch of the government, though less numerous than the executive (in its wider sense), occupies a position no less important in the organization of the state. The prime function of the judiciary, performed in all states, is to decide upon the application of the existing law in individual cases. The essential requisite hi a judge is consequently an exact knowledge of the law. The work of the judiciary is thus a highly technical function, demanding for its proper accomplishment the trained intellect of a specialist. Whether the law is right or wrong, just or unjust, is a secondary matter: the duty of the judge is to adjudicate upon the law as it is, and not upon the law as it ought to be. It is far better that a bad law should work injustice in an individual instance than that a judge by deliberately refusing to recognize it should impair the principle of law itself. In actual fact, however, judicial decisions are far more than merely declaratory in their nature; they contain a constructive element and serve to expand the existing law into a more and more detailed interpreta- tion. For no statute can be so minute in its provisions as to contemplate all possible cases, and to admit al- ways of only one construction. Whether the letter of the THE JUDICIARY AND THE ELECTORATE 209 law is silent, the judge is called upon to attach to it the meaning which maybe considered "reasonable"; that is to say, which is consistent with the general principles of morality and public policy. In countries such as England and the United States this principle is carried very far; for here the decisions once given are viewed as precedents for future ones. Such precedents are not, of course, absolutely binding, but the presumption, where identity of circumstances can be established, is vastly in their favor. 1 The process of adjudication thus amounts to a supplemental form of legislation, and a large part of existing law is said to be "made" by the judges. The nature of judicial functions, viewed in this light, clearly demands that the judiciary must be as impartial as is humanly possible. Not only must their own pe- cuniary interests be unaffected by the legal decisions given by them, but they must be removed entirely from the play of political interests. It is for this reason that in a well-ordered government the judiciary should be adequately paid by a compensation not affected by the number and nature of their decisions, and should enjoy permanent tenure of office and be independent of the good-will or ill-will of the other branches of the govern- ment. This object is adequately effected in the national government of the United States; the Constitution (art. in, 1) prescribes that "the judges, both of the supreme and the inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be dimin ished during their continuance in office." The same is true in the case of Great Britain. The English judges 1 For a brief discussion of the theory of precedents see P. Vino- gradoff, Common Sense in Law (1914), pp. 172-78. 210 THE STRUCTURE OF THE GOVERNMENT until the close of the seventeenth century held their office at the pleasure of the crown, a position obviously inconsistent with impartiality. The Act of Settlement (1701) declares that "judges' commissions shall be quamdiu se bene gesserint, and their salaries ascertained and established." Removal can only be made "upon the address of both houses of Parliament." r The position of the judiciary thus established has never been altered. The system has also been adopted in the British colonies. The permanent and independent ten- ure of the judges thus secured in the United States and in the British Empire, and found also in France, and other leading countries, is unfortunately not universal. The commonwealths of the United States are a notable exception. In many of these a false conception of the principle of popular sovereignty, and the vicious influ- ence of the doctrine of "rotation in office" have led to the election of the judges by the people for a stated term of years. In some States, it is true, the judges are nominated by the governor or elected by the legislature; in some also they hold office during good behavior. But the majority of judicial positions in the state govern- ments are held by election for a stated term, often as short as two years. Such an institution cannot be too strongly condemned. It exposes the judges to the influ- ence of political and personal motives in their conduct on the bench, impairs the impartiality of their decisions, and inevitably lowers the character of the judicial body. The situation is aggravated when the judges, as is the case in certain States of the Union, are made subject to "recall," that is to say, dismissal, by a popular vote. 1 1 ADSOD describes this as a tenure "as regards the crown during good behavior, as regards Parliament at pleasure." It is practically a per- manent tenure. * See above, p. 181. THE JUDICIARY AND THE ELECTORATE 211 2. The relation of the courts to the executive and to the legislature. Certainty of tenure and of com- pensation guarantees the judiciary against being un- duly controlled by the other branches of the govern- ment. The question next arises, whether and to what extent the officers of the legislative and executive departments are to be protected from the power of the judiciary. That their original appointment or elec- tion is not made by the judiciary goes without saying. But it must be further decided whether, while they are in office, the legality of their official acts is to be sub- ject to the decision of the courts. Shall the judges have power to decide whether the legislature or the execu- tive, or any part of the executive, has acted in excess of its lawful power? To an American unacquainted with foreign governments, the answer seems self-evident, for the principle of limited constitutional powers and responsibility before the courts lies at the basis of the American system. But on this most important point of public law, the usage of modern states is divided between two sharply contrasted systems. In the United States, the Latin-American republics, Great Britain and her colonies, the officers of the government are responsible before the law courts. The complete legal immunity of the British sovereign, and the immunity (except by im- peachment) of the President of the United States, are exceptions of a special nature which need not be con- sidered in this connection. On the other hand, it is the prevalent usage in the Continental countries of Europe that the ordinary courts of law have no power to ques- tion the legality or decide as to the constitutionality of the official actions of the legislative and executive officers. A closer consideration of the consequences of these antagonistic principles will show how greatly the 212 THE STRUCTURE OF THE GOVERNMENT relations of the government to the individual citizens are affected thereby. The case of the British Empire is less complicated and may be treated first. In the United Kingdom every servant of the state (except the king) is responsible for his actions before the ordinary courts of law. "Every official," says Mr. Dicey, 1 "from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment or to the payment of damages for acts done hi their official character but in excess of their law- ful authority." Not only the members of the executive civil service, but the officers and men of the army are individually liable before the ordinary tribunals for any unlawful acts, even if performed at the command of a superior officer. ''The position of a soldier," says the same authority, "may be, both in theory and practice, a difficult one. He may, as it has been well said, be liable to be shot by a court-martial if he disobeys an order, and to be hanged by a judge and jury if he obeys it." In spite of the apparent anomaly involved in the last instance, the protection afforded to individual liberty by this responsibility of executive officers cannot be overestimated. In the case of the British legislature there cannot, of course, be any such thing as a statute made in excess of power. For since the Parliament (used here in its legal sense of King, Lords, and Com- mons) is supreme, every statute that it makes is legally a good statute and cannot be questioned by the courts. But the legislative enactments of any minor body (such 1 Law of the Constitution, chap. VI. THE JUDICIARY AND THE ELECTORATE 213 as a county council) are always subject to be passed upon by the courts, and perhaps set aside on grounds of illegality. It is in such countries as the United States that the principle of judicial decision on the validity of the ao- tions of the government has the greatest consequences. Here, as in England, the officers of the executive are responsible to the courts for their official actions. But this is by no means all. For since the national and state legislatures are given by the Constitution only a certain definite and limited power, it becomes the duty of the courts to decide whether or not the legis- lature in the making of any statute has confined itself to the powers it legally possesses. Where such is not the case, the court (though it cannot abolish or amend the statute itself) can refuse to apply it in the individual case before it, which is in practice equivalent to declaring the statute invalid. Americans are apt to regard this power of the courts as a necessary consequence of a written constitution. For how else, it might be asked, can the legislature and the executive be duly confined to the power granted them? Logical as this seems, it remains true, as will presently be shown in the cases of France and Germany, that the existence of a written constitution is not always accompanied by this re- visional power of the ordinary courts of law. That such an institution should have grown up in the United States is one of the most felicitous features of American political evolution. The germ of its development is found under the colonial governments, from which in the last resort appeal might be taken against any action of the legislature or executive of the colony to the king in council. The written charters that had been so familiar in colonial history and still existed at the Revolution in Massachusetts, Rhode Island, and Connecticut, pre- pared the way for written constitutions limiting the powers of the organs of government. The severing of the connection of the colonies and the crown rendered it necessary to substitute something for the appellate jurisdiction of the king in council. Even before the making of the Federal Constitution (1787) the judiciary of the new state governments had begun to occupy this field. Several decisions of state tribunals are recorded in which acts of the legislatures are declared unconstitu- tional. In the report of a Virginia case in 1782, in which this point was raised, it is stated that " Chancellor Blair with the rest of the judges was of the opinion that the court had power to declare any resolution of the legis- lature or of either branch of it unconstitutional and void." 1 The Federal Constitution of 1787 did not in terms lay down this function of the courts; but the proper sanction for it is found in art. in, 2, and in art. vi, of the Constitution. "The Judicial Power," it is laid down, "shall extend to all cases . . . arising under this Constitution." Moreover, "this Constitution and the Laws of the United States which shall be made in pursuance thereof . . . shall be the supreme Law of the Land: and the judges in every State shall be bound thereby." The case of Marbury v. Madison (1803), in which an act of Congress was declared unconstitutional, definitely established the precedent for the later working of the national government. The constitutional relation thus established between the judiciary and the other branches is not, however, unique hi the United States. In the Dominion of Canada, for example, the judiciary exercise an analogous power in their interpretation of the British North America Acts, and the judges under i W. W. Willoughby, Supreme Court of the United States, chap. v. THE JUDICIARY AND THE ELECTORATE 215 the federal system of the Australian commonwealth are entrusted with a similar function. Widely contrasted with the relation in which the American courts of law are thus seen to stand as re- gards the Congress and the officers of the executive, is the position occupied by the courts in the chief Conti- nental countries of Europe. The latter, as we have seen, are (with the exception of Hungary) countries with written constitutions. Yet the courts of law are not found to exercise the function of declaring the acts of the legislature unconstitutional. In such countries as France and Italy this is not so surprising, for these are not federal governments, and the constitution in these cases is concerned only with the organization of the government, and with the protection of individ- ual liberty, and not with the division of legislative power between central and local authorities. As a con- sequence of this the French courts do not question the validity of a statute. Conceivably a French statute might be grossly unconstitutional; a law, for instance, which professed to abolish the republican form of gov- ernment would be in direct violation of the constitu- tion. But in practice such does not occur. In the case of the former German Empire, which was federal, and which had a written constitution, one would have ex- pected to find the courts constantly called upon, as in the United States, to adjudicate upon the con- stitutionality of state and federal laws. In point of fact no such decisions were given. Isolated cases oc- curred in which the courts (the federal as well as state) declared certain statutes of the minor German legisla- tures to be in violation of the state constitution. But the legality of imperial statutes once made passed un- questioned. The bulk of authority, supported by the 216 THE STRUCTUEE OF THE GOVERNMENT declaration of the Reichsgericht (or imperial court) it- self, was in favor of admitting that such a revisional power existed. Other authorities took an entirely op- posite view. Since no law of the imperial legislature went into force until officially promulgated by the Em- peror, these writers regarded the promulgation as itself supplying the necessary test of constitutionality. Be this as it may, the fact of the matter remained that im- perial statutes were always accepted by the courts as valid. More noteworthy still is the fact that in the federal republic of Switzerland the same practice pre- vails; indeed it is a provision of the Swiss constitution that every statute passed by the federal assembly must be accepted as valid. 1 3. Administrative law and administrative courts. But the absence of this revising power of the courts is not the only point in which Continental practice is at variance with that of America. The whole status of executive officers before the law is different. The principle by which every official in England and America is responsible to the courts for his official ac- tions does not apply. On the Continent this form of liability is replaced by the regulations and procedure known as administrative law. 2 Under this system public servants acting in their official capacity are not subject to the jurisdiction of the ordinary tribunals, but can only be called to account before the administrative 1 Constitution, art. 113. * The term " administrative law " has more than one sense; as used in France (droit administratif) it refers not only to the law covering the relation of the administrative authorities towards private citizens, but also to the whole of the public law relating to the organization of the state. In England it is more commonly used in the former re- stricted sense. For the operation of administrative law in Continental Europe the student may consult Simonet, Traite Ettmentaire du Droit Public (1897), and Goodnow, Comparative Administrative Law (1897). THE JUDICIARY AND THE ELECTORATE 217 courts. These are specially constituted bodies composed for the most part of members of the executive. In France, for example, there is a graded service of ad- ministrative courts which exist parallel with the ordi- nary tribunals. In each department the prefect and his prefectoral council (appointed by the President) act as an administrative court. Special jurisdiction is exer- cised by the court of accounts, councils of revision (as to military recruiting), colonial courts of conflict, and certain councils for public instruction. Final jurisdic- tion is exercised by the council of state, 1 a body nom- inated by the President. A special body (the tribunal of conflicts), made up of equal representation from the two kinds of courts, together with the ministers of justice and two added members, decides on cases of disputed competence. The jurisdiction of administrative courts over official actions is not indeed quite without ex- ception. "The ordinary courts have as a result of statutory provision the entire control of the matter of expropriation or the exercise of the right of eminent domain. Again, arrests made by the administration are under the control of the ordinary courts as a result of the Penal Code. It is true also that where the govern- ment or a department of the government becomes a party to an ordinary commercial contract the jurisdic- tion is in part given to the ordinary courts." 2 But in the main the statement holds good that in France, and in the European Continental countries generally, con- flicts between individuals and the administration are settled by the administration itself. 1 For the precise composition of this council, which is partly an ad- visory executive body and partly a judicial tribunal, consult De la Bigne de Villeneuve, Elements de Draft Constitutionnel Franyais, part i, chap, in, 2, art. in. 1 Goodnow, Comparative Administrative Law. . 218 THE STRUCTURE OF THE GOVERNMENT The administrative system of courts originated in France with the extension of the absolute centralized monarchy, which tended to supplant by royal officials the older local tribunals. The Constituent Assembly of 1789 expressly adopted the principle of executive courts for passing upon the acts of the executive. In doing this they hoped to free the executive from being unduly dependent on the judicial branch of the government, and found the warrant for their action in the familiar dogma of the separation of powers. "The constitution will be equally violated, if the judiciary may inter- meddle with administrative matters and trouble ad- ministrative officers in the discharge of their duties. . . . Every act of the courts of justice which purports to oppose or arrest the action of the administration, being unconstitutional, shall be void and of no effect." l The principle thus established has been adopted by the successive governments that have ruled over France. Though nominally abolished at the inception of the Third Republic, the technical interpretation of the decree of repeal has been such as to render it ineffectual in practice. Theoretically dependent on the principle of distributed powers, it has really commended itself as a means of strengthening the hands of the executive government. Some writers have indeed sought to show that the administrative courts themselves afford a valid protection of individual liberty. But the bulk of the evidence seems to prove that the rights of the in- dividual are of necessity sacrificed under a system in which the executive may be at one and the same time the aggressor and the judge of the aggression. 4. The electorate: evolution of universal suffrage in 1 Instructions to the Law of Aug. 16-24, 1790. Cited by Goodnow, op. cit. THE JUDICIARY AND THE ELECTORATE 219 leading countries. In speaking of the executive, legis- lative, and judicial branches of government, reference has frequently been made to the election of the officials of these departments by the people. Let us therefore conclude the discussion of the organs of government by a brief treatment of the electorate. The body thus desig- nated is not identical with the whole body of citizens. A citizen means any individual member of a state, male or female, who owes it allegiance and who may claim its protection, but the electorate only includes those who, under the suffrage laws of that particular state, enjoy the right to vote. The electorate, or voters, are sometimes spoken of as the "political people," to dis- tinguish them from those who have no direct legal share in the conduct of public affairs. The French constitu- tion of 1791, anxious to harmonize the principle of pop- ular sovereignty with a very restricted suffrage, spoke of these two classes as "active and passive citizens." The right of the general body of the people to vote for representatives to govern them is the corner stone of the free institutions of Great Britain and America. The origin of this representative government lies hid- den at the very beginnings of Anglo-Saxon institutions. In Saxon England we find every township sending up an elected reeve and four men to represent it in the court, or general meeting, of the shire. It is presumed that in such early elections all free men had a part. But at the very beginnings of parliamentary government in England the right to vote tended to restrict itself to owners of land. This was only natural in a country like England, in the fifteenth century, where wealth, social standing, and ownership of land were almost identical terms. A statute of Henry VI (1430) limited the right to vote in county elections to residents possessing a 220 THE STRUCTURE OF THE GOVERNMENT freehold worth forty shillings a year. 1 The value of money having changed as between the fifteenth century and the opening of the twentieth in a ratio of at least one to fifteen, this means a quite high property quali- fication. Although the clause requiring residence fell into disuse, this statute governed the franchise in the English counties for four hundred years. In the bor- oughs, too, the suffrage, though varying greatly from town to town, rested for the most part either on the possession of real estate or the payment of taxes. Thus it came about that in the course of time the right to vote became permanently associated with the holding of property. This political fact was accompanied, as is usually the case, by an explanatory political theory. The property-owner was viewed as having a stake in the community, and his vote was regarded as the con- sequence, not of his personal citizenship, but of his property. In the American States in the early years of their independence this theory was prevalent. The suf- frage, and with it the right to be elected, rested on quite restrictive property qualifications. Even in Revolution- ary France the first constitution (1791) included among its "active citizens" only those who paid annually a "direct tax equal at least to the value of three days' labor." But the democratic ideas which worked themselves out in the philosophy of the eighteenth century and in the French and American revolutions gradually led to the dominance of a quite different view. This was the principle of (so-called) "universal suffrage," of the right of all adult capable citizens to vote, by virtue of their being such, and irrespective of the holding of property. This doctrine was proclaimed by the Jaco- 1 Anson, Law and Custom of the Constitution, pt. i, chap. T, sec. n, 1 1. THE JUDICIARY AND THE ELECTORATE 221 bins, or extreme republicans among the French revolu- tionists, though even among these only a minority con- sidered that women should share in this "universal right." 1 The influence of the same theory was seen in America in the early part of the nineteenth century, when the States abandoned the principle of a property qualification, and moved nearer and nearer to manhood suffrage. In England, too, where abstract political the- ories have but little weight, the practical injustice of the restricted franchise led to the long agitation culminat- ing in the Parliamentary Reform of 1832. The various governments which have modeled themselves on those of Britain and the United States have adopted also the principle of universal suffrage. In the democratic countries at the opening of the present century the people entitled to vote represented a fraction of the population ranging from one fifth down- wards. The general principle was that of the admission to the polls of all the adult male citizens of mental and moral capacity. The principle was extremely simple, and in some states was applied to the whole community by a single and comprehensive law. Thus, for example, in France, the law of July 7, 1874, granted the suffrage to all male citizens of France at least twenty-one years of age. Similarly the right to vote for members of the German Reichstag, the popular house of the imperial legislature, was granted by the constitution to all resi- dent male citizens of the German Empire who had reached the age of twenty-five. 2 This is the situation which still obtains (1920) as the general rule in Con- tinental Europe. But in the English-speaking de- 1 For the question of female suffrage during the French Revolution, Aulard, Histoire politique de la Revolution franyiise, may be consulted. * Constitution of the Empire, art. 20. 222 THE STRUCTURE OF THE GOVERNMENT mocracy a profound alteration has taken place by the extension of the suffrage to women. This may be re- garded as among the most striking political develop- ments of the twentieth century. The claim of women to vote received but little support in the earlier phases of modern democracy. Even the enthusiasts of the American and French revolutions for the most part took for granted that women's "natural sphere" lay elsewhere than in political activity. Only such exceptional groups as the Cordeliers of the French Revolution or such isolated writers as Mary Wollstone- craf t l advocated the political rights of women and their advocacy attracted but little attention. During the first half of the nineteenth century the subject was of little more than academic importance. But the result of economic changes which more and more converted women into wage-workers and substituted machine production for the domestic industry of the home was reflected in the increasing demand for political rights for women. John Stuart Mill's book (The Subjection of Women), published in 1869, may be said to mark an epoch. The right to vote was first granted in newer communities such as certain of the Western States (be- ginning with Wyoming in 1869), and in Australasia. By the end of the first decade of the twentieth century the issue had been recognized as one of prime importance. The vexatious tactics of the "suffragettes" overcame the inertia of the British political temperament. The recognition of women's work in the war afforded a pre- text for the dignified retreat of previous opponents. The British Franchise Act of 1918 and the amendment to the Constitution of the United States described be- 1 See Mary Wollstonecraft, Vindication of the Rights of Women (1792). THE JUDICIARY AND THE ELECTORATE 223 low may be taken as indicating the definite acceptance of a cardinal principle of government not likely to be abandoned. In the light of these changes the right to vote as it exists in Great Britain and America may now be treated in detail. In the United States the suffrage, though extremely democratic both in principle and practice, is extremely complex in its legal details. The Constitution originally left the matter in the hands of the state governments; in voting for members of the federal House of Representatives, the voters (Constitu- tion, art. i, 2) "in each State shall have the Qualifi- cations requisite for Electors of the most numerous Branch of the State Legislature." To this is to be added the provision of the Fifteenth Amendment: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." In 1919 a further amendment was pro- posed by Congress and submitted to the States to the effect that " the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." Meantime a large number of States (sixteen by the end of 1919) had already granted full suffrage to women and a partial suffrage existed in most of the others. The suffrage laws of the separate States, though all agree in excluding persons under twenty-one years of age, vary very much in reference to qualifications. Some States grant the suffrage to aliens, otherwise qualified, who have de- clared their intention to become citizens. The term of necessary residence in the State previous to voting varies from three months (Maine) to two years (Ala- bama and others); so also does the requisite term of 224 THE STRUCTURE OF THE GOVERNMENT residence (if any) in county, town, or precinct. The general list of exclusions comprises insane persons, idiots, and felons. Most States exclude paupers, and some specifically exclude the Chinese (California, Ne- vada, Oregon). In several of the Southern States pe- culiar suffrage laws were adopted to circumvent the Fifteenth Amendment in order indirectly to prevent the negroes from voting. Thus in Louisiana the right to vote was restricted to citizens of the United States who were able to read and write, or who owned three hundred dollars' worth of property assessed in their names, or whose fathers or grandfathers were entitled to vote on January 1, 1867. In the case of the United Kingdom the parliamen- tary franchise, until the statute of 1918, was of the most complicated character. The reason for this is that Par- liament had never seen fit to revise the existing franchise at a single stroke and to repeal all previous statutes and substitute for them a single and uniform suffrage law. Instead of this each measure of parliamentary reform only partially repealed existing legislation. Three great statutes were passed in the nineteenth century in exten- sion of the right to vote. The Reform Act of 1832 widened the old county franchise by including tenants as well as owners of land, and gave the borough fran- chise to rate-paying householders occupying premises worth at least ten pounds a year. The Reform Act of 1867 further extended the franchise. Finally the Repre- sentation of the People Act of 1884 established in Eng- land and Wales both in towns and county a very demo- cratic suffrage: any citizen was entitled to vote who was of the male sex, at least twenty-one years of age; was either the owner or the lessee of land or premises of a certain yearly value, the sum varying according to the THE JUDICIARY AND THE ELECTORATE 225 nature of the tenure; or else occupied or was a lodger in fixed premises of a certain yearly value, or on which the local rates had been paid. The qualifications for the parliamentary franchise in Scotland and Ireland were similar to, though not identical with, those in England. In addition to this, persons might be qualified by virtue of the remnants of earlier unrepealed laws; they might, for example, be voters by virtue of being born and resident freemen of certain towns, or livery- men of one of the city companies of the city of London, or as graduates on the electoral roll of Oxford, Cam- bridge, Dublin, or London, etc. The list of excluded persons comprises aliens not naturalized, idiots, con- victed felons, and members of the peerage. 1 The complex historical aspect of the English suffrage and its prac- tically democratic operation is highly characteristic of the growth of English political constitutions. Little heed is taken of the logical requirements of abstract political theory provided that the practical operation is not, to an appreciable degree, repugnant to the demands of com- mon-sense justice. The growth of democratic sentiment during the World War led to the adoption in Great Britain of a new franchise law, the Representation of the People Act, involving great changes. All men, not disqualified as aliens, conscientious objectors (five years) etc., have the right to vote if twenty-one years of age and with six months of fixed residence. All women, not disqualified, vote who are thirty years of age and either local government electors or the wives of local govern- ment electors. A bill introduced in 1920 to lower the age limit of women voters to twenty-one failed to pass. 1 For further information the student may consult Sir William An- oon, Law and Custom of the Constitution, and A. Lawrence Lowell, Government of England, chap. ix. 226 THE STRUCTURE OF THE GOVERNMENT The right of women to vote is now very widely recognized in the British self-governing Dominions. In all the states of Australia women vote both in state and federal elections. In New Zealand also women possess the franchise on the same terms as men. In Canada women have the right to vote in most of the nine provinces, including the four western provinces, but not in Quebec. Until 1917 the right to vote in federal elections in Canada was confined in each province to the voters qualified under provincial law. The federal government under the British North America Act of 1867 has the right to make a general Dominion fran- chise, but has preferred (except during a brief period, 1885 to 1898) to leave the matter to the provinces. An act of 1917 allowed certain women (wives and mothers, etc., of soldiers) to vote in the general election of that year. An act of 1919 gives the federal vote to all qualified women. 5. Representation of minorities. A question of es- pecial interest hi reference to voting is the represen- tation of minorities. If the members of a national legislature were all elected out of the whole community on one "general ticket," each voter voting as many times as there were places to be filled, it is clear that there would be a minority group of voters who elected none of their candidates. So glaring an illustration of the "unrepresented minority" does not in practice occur. The need of representing at least a part of the people in each district naturally leads to the division of the whole country into districts from each of which a candidate, or a group of candidates, is elected. But even with such a division into districts, a number of the peo- ple in each throw away their votes on a candidate not elected and thus remain in a sense unrepresented. More- THE JUDICIARY AND THE ELECTORATE 227 over, under such a system an elected candidate prac- tically always receives more votes than the mere majority necessary to elect him. In many cases this surplus of votes is very large. Where party candidates are elected district by district it may well happen that the candidates elected from one party have so large a surplus of unnecessary votes in the constituencies that they carry that their representatives may poll a majority of the total popular vote and yet be in a minority in the legislature. This evil may be aggravated if those in power so divide up the election districts as to make the most of the votes of the adherents of their own party and to make the least of the votes of their op- ponents. This is the process known as gerrymander- ing, and unfortunately only too familiar in modern poli- tics. At tunes it is effected by so allotting the electoral districts that the adverse voters will be too few every- where to carry any district. If this is impossible the districts are so contrived as to "bunch together" the hostile voters, and thus it results that when they do carry a district, they carry it by a needlessly large majority, and so practically lose a lot of voters. Much attention has been given to the problem of how to represent the minority, and various schemes have been proposed for this purpose, and to some extent adopted. Of these a few may be mentioned. The most noteworthy of all, historically, is the scheme of Mr. Thomas Hare, which attracted considerable attention in England in the middle of the nineteenth century. 1 This was the plan of "self-made constitu- encies." Instead of dividing the country into districts, it was proposed that any candidate should be elected for whom sufficient votes were cast anywhere in the 1 Thomas Hare, The Election of Representative*, 1859. 228 THE STRUCTURE OF THE GOVERNMENT country. The number required was to be found by dividing the number of voters by the number of seats in Parliament to be filled. By this means any particular minority group, instead of being scattered in district constituencies, and everywhere swamped, could com- bine themselves into a united vote. The scheme, how- ever, demands too elaborate a political activity on the part of each voter to be at all practical. 1 Another method of minority representation is the plan of "limited voting." This can be used whenever several candidates are to be elected to form a board or council; it would not apply to districts where only one candidate is to be elected. Each voter is allowed to vote, not for as many candidates as there are places to fill, but only a limited number of times. For example, in the elections to a city council, there may be twelve places to fill, but each voter has only seven votes. The result is to elect seven members of one political party, and five of the other. No one party could elect all un- less strong enough to divide its adherents into two dis- tinct voting groups, and still defeat the other party. Such a system meets the case of representing a second party, but may, of course, leave a further majority un- represented. Similar to this is the cumulative vote. In this plan, where a number of persons are to be elected, each voter may vote once for each of several candidates or give all his votes to one. Thus, if twelve candidates had to be chosen, a very feeble minority could get a representative if each person gave all his votes to the same candidate. But a much more important method of representing minorities is that now universally advocated and al- ready widely adopted under the name of "proportional 1 For criticism see Bagehot, English Constitution, chap. vi. THE JUDICIARY AND THE ELECTORATE 229 representation." l There are various schemes under this general class all based on the original proposals of Thomas Hare. The one best known and most used is that of the "single transferable vote," sometimes called also the "Hare System" or the "Hare-Spence System" of proportional representation. Its basis is found in the election of members of a legislature or council not from single-member districts, but in groups. The num- ber of votes necessary to elect a member is found by the simple arithmetical process of dividing up the total number of voters by the seats to be filled. Each voter indicates not merely his first choice among the candi- dates, but his second, third, and so on. In counting the votes any candidate with a sufficient number of first choice votes is forthwith declared elected. The surplus of his first choice votes is divided proportionately among those who figure as second choices on the ballots on which he was first. The serious limitation of such a system is that it demands multi-member constituencies. In many communities the desire to have a small area (a town, a county, etc.) represented as such militates against the introduction of the system. A second pro- posal undertakes to meet this difficulty by the plan of the "Alternative Vote." In this the single-member constituency is used by the voter indicating first, second, etc., choices of candidates. A candidate with a clear majority of first choices is declared elected. Failing such a majority, the lowest candidate is eliminated and the second choices on his ballots turn into firsts, and so on till some one is elected. But examination will show that the results of such a plan do not go very far in repre- senting minorities. 1 The authority here par excellence is John R. Humphreys, Propor- tional Representation (1911). 230 THE STRUCTURE OF THE GOVERNMENT Proportional representation under the single trans- ferable vote is now widely used. It was introduced in Tasmania in 1896. In South Africa it was introduced (1909) for the election of the senate. It was applied in New Zealand (1915) to the election of the legislative coun- cil and is made optional in cities. It has been introduced in the elections to the legislature of New South Wales (1918) and in the city of Sydney. It is widely used in municipal elections in Ireland, and under the Represen- tation of the People Act of 1918 it was adopted for the University constituencies in the British Parliamentary elections. In America it has been introduced in the election of city councils, as in Calgary, Kalamazoo, Boulder, and various cities in British Columbia. The method of proportional representation was also applied in the election of the German and Austrian National Constituent Assemblies in 1918, and is used in the par- liamentary elections of Holland, Italy, Sweden, and Switzerland. READINGS SUGGESTED Dicey, A. V., Law of the Constitution (4th edition, 1893), part n, chap. xii. Willoughby, W. W., The Supreme Court of the United States (1890), chap. v. Schouler, J., Constitutional Studies (1897), part in, chap. iv. Bradford, G., The Lesson of Popular Government (1899), vol. I, chap. i. FURTHER AUTHORITIES Von Hoist, H., Constitutional Law of the United States of America (1887). Goodnow, F., Comparative Administrative Law (1897). Taswell-Langmead, English Constitutional History (5th edi- tion, 1896). THE JUDICIARY AND THE ELECTORATE 231 De la Bigne de Villeneuve, Elements de Droit Constitutionnel Franfais. Arndt, A., Staatsrecht des Deutschen Reiches (1901). He" lie, Les Constitutions de la France (1880). Freeman, E. A., Comparative Politics, lecture v (1873). Stubbs, W., Constitutional History of England (4th edition, 1883). Ridges, E. W., English Constitutional Law (1905). Hare, T., The Election of Representatives (1859). Walpole, S., The Electorate and the Legislature (1881). Mill, J. S., The Subjection of Women (1869). Mill, J. S., Representative Government (1875). Humphreys, John R., Proportional Representation (1911). Commons, John R., Proportional Representation (2d edition, 1907). Williams, J. F., The Reform of Political Representation (1918). CHAPTER V FEDERAL GOVERNMENT 1. Importance of the federal principle; its historical development 2. The different kinds of federations 3. Sovereignty in a federal state 4. Utility of the federal principle in effecting a com- promise 5. Distribution of power in federal states 6. Con- clusions. x. Importance of the federal principle; its historical development. The subject of federal government is so important that it may well merit a separate chapter. The origin and growth of federation and the purpose it has served in the evolution of the past are among the most interesting topics of historical study. Of the political problems of our own time none are of more vital bearing than the relation of the local and central powers in a federal system. In the development of modem states the principle of federation has played a prominent part. It has supplied the requisite cohesive power to bind together the commonwealths that compose the United States, and the unequal mon- archies and free cities that were joined into the German Empire. Mexico, Brazil, and Switzerland are federal republics. The British Empire is, as a whole, a unitary state, but its two most important dependencies, the Dominion of Canada and the Commonwealth of Aus- tralia, are, when considered separately, federal sys- tems closely resembling that of the United States. As far as our present political vision reaches, it seems as if any attempt to create a universal state must proceed along the lines of federation. It may perhaps be rea- sonably thought that the experience now being gained FEDERAL GOVERNMENT 233 in the construction of composite governments on a federal plan is supplying to civilized mankind the requi- site training for the making of the world state of future ages. It is impossible to overestimate the important part that has been played by federation in the history of political growth. Speaking broadly, one of the chief features in the evolution of civilized government has been the extension of the area covered by a single political unit or state. This extension has not, of course, proceeded always in a continuous chronological course. Modern Switzerland is but a diminutive state when compared with the Roman Empire. Yet it is true in the main that one of the most notable and most essen- tial factors of political progress has been the increasing size of the territory brought into a single state. 1 To accomplish this, two great historical forces have been at work. Of these one is the principle of conquest, ab- sorption, and expansion. The growth of the French monarchy and the spread of British dominion illustrate this. The other has been the principle of deliberate federal union, whereby a basis of compromise is af- forded permitting the political junction of previous states which are too closely connected by situation, language, and customs to remain apart, but which are too unlike in area, local customs, etc., to permit of com- plete amalgamation. Of these two methods the one is the path of peace, the other is the path of war. No lasting union of the great states of the world can now be expected from the process of conquest. If united at all it must be only by means of a union which will de- stroy neither national pride nor national autonomy. In its broadest sense the term federation indicates any 1 See also part i, chap, m, above. 234 THE STRUCTURE OF THE GOVERNMENT form of union entered into by two or more independent states. Numerous historical examples at once suggest themselves. At the very beginning of political history we have the famous Achaean League. This was origi- nally a defensive alliance of twelve cities of the Pelopon- nesus, but in its later shape as revised in the third and second centuries (B.C. 281-146), this " after-growth of Hellenic freedom " assumed a more elaborate character. It included Corinth, Megara, and many other important city-states of southern Greece. Each city retained the control of its own internal regulation, but surrendered into the hands of the league the control of foreign rela- tions and war. "There was," says Professor Freeman, 1 "an Achaean nation with a national assembly ... no single city could of its own authority make peace or war." Had it not been for the rise of the world power of the Roman Empire, such a league might have supplied a means of converting the Greek city-state into a territo- rial national state. In later history the short-lived com- binations of Italian cities in the thirteenth and four- teenth centuries may perhaps be spoken of as federa- tions. A more conspicuous example is seen in the growth of modern Switzerland. Here the forest dis- tricts of Uri, Schwyz, and Unterwalden, still nominally subject to the Emperor, banded themselves together for protection in 1291. The league thus formed grew in ex- tent and power. Other districts and the free cities of Bern and Zurich were joined to it. The defeat of Austria in the end of the fourteenth century gave it a practi- cal independence, which was finally confirmed by the Treaty of Westphalia (1648). In the confederation thus formed each member retained its separate inde- pendence, mutual protection being the only purpose of 1 Freeman, Federal Government. FEDERAL GOVERNMENT 235 the union. Though for a time amalgamated by the in- terference of the French Revolutionists into a republic, "one and indivisible," it was not until the changes effected by the constitutions of the nineteenth century (1848 and 1874) that Switzerland lost the appearance of a defensive league of separate states. 1 A similar league was that existing between the inde- pendent States of North America under the Articles of Confederation (1781-89). Here each State was a sepa- rate body politic. The only form of common control was exercised through the Congress, a body of delegates which had no power to compel the States to its will, and no power to command or to tax the individual citizens of the thirteen States. The Federal Constitution, made inj 1787 and put in force in 1789, established in the place of; this a single federal state, in which the central govern-' ment was brought directly in contact with the citizens/ The course of the nineteenth century has witnessed sev- eral federations of historical importance. Of these, the Swiss constitutions of 1848 and 1874, the federation of the provinces of Canada into the Dominion (1867), the creation of the North German Confederation (1867) and the German Empire (1871), together with the feder- ation of the Commonwealth of Australia (1900), are the most salient examples. Other countries, too, such as Mexico and Brazil, have adopted the federal system of government, not as a means of increasing their area, but as a method of harmonizing local and national interests. 2. The different kinds of federations. When we con- sider the various forms of union by which separate states may be joined together, it is clear that they pre- sent a graded series of increasing closeness. At one end of the scale is the offensive and defensive alliance en- 1 Sidgwick, Development of European Polity, lecture xxix. 236 THE STRUCTURE OF THE GOVERNMENT tered into by sovereign states. Of this nature was the famous Family Compact of the eighteenth century, be- tween the Bourbon monarchies of France and Spain. Such a union is extremely illusory in its nature, as, in the absence of any joint organ of government, it has no "sanction" or compelling force behind it. More ad- vanced than this are confederate types such as the Achaean League, the German Confederation of 1815, or the Southern Confederacy. In this each participant state retains, in name at any rate, its sovereign charac- ter. It may happen that in such a union of states the formal act of union declares itself perpetual and at the same time declares that each state retains its sover- eignty. This is quite inconsistent, for it implies that each state is free to leave the union, and at the same time bound to remain in it. Such, however, is the case with the American Articles of Confederation (in force from 1781 till 1789) and the constitution of the Southern Confederacy. Beyond this type of union lies the federa- tion par excellence the federal state, 1 a new unit com- posed out of previously sovereign states, now united to form a new sovereignty, but each retaining its own political sphere independent of the legal power of the central government. Such is the nature of the present federal union of the United States. Beyond this again might be distinguished what could be called an amal- gamation, or complete fusion by agreement. It differs from the expansion of a single state by conquest of terri- tory, in that the participant members enter into the amalgamation or amalgamated state of their own free 1 Some writers have claimed that the term "federal state" is not admissible, on the ground that a state is a unity. But while admitting that it is illogical to speak of a confederate state, it seems reasonable to use "federal state" to mean a state of which the organization is federal. FEDERAL GOVERNMENT 237 will. The best examples are found in the composition of the United Kingdom by the act of union of England and Scotland in 1707, and of Great Britain with Ireland in 1800. These unions were effected by similar statutes passed by the separate parliaments of the countries con- cerned. The unions declared themselves to be made on certain stated terms and conditions. But the process differed from federation in that in each case the parlia- ments which made the unions then went out of existence in favor of a new parliament which was legally sover- eign, and not bound by the conditions of union. That this is more than a theoretical view of the case is seen in the fact that the British Parliament in 1869 abolished the established (Episcopal) church in Ireland, whose maintenance was one of the express terms of the union of 1800. A similar case of amalgamation is seen in the "fusion" of the separate Italian states into the Kingdom of Italy (1859-60). The product of such a process is a unitary and not a federal state. The different kinds of united governments thus indi- cated have afforded ground for elaborate classification of the various species of confederacies and federal states. This has particularly interested the modern German writers on public law, some of whom distinguish a great many subdivisions. Such classifications have been un- dertaken by Laband, 1 Jellinek, 2 and others. Jellinek dis- tinguishes, in the first place, virtual unions, such as Canada and Australia (legally part of the unitary Brit- ish state) and legal unions. The latter he subdivides into (1) protectorates, etc., (2) unions of a superior and inferior state (Staatenstaat) , seen in the case of Turkey and Egypt, 3 (3) monarchical unions, in which two inde- 1 Staatsrecht des Deutschen Rfiches. 1 Das Rechl des Modernen Staates. * As existing at the time. 238 THE STRUCTURE OF THE GOVERNMENT pendent states are joined under a common sovereign, this again being subdivided into real and personal, ac- cording to whether the union is organic and deliberate (Sweden and Norway, before 1905) or accidental (Eng- land formerly with Hanover), (4) the confederacy (Staatenbund), and (5) the federal state (Bundesstaat). Other classifications are still more minute. Of all these fluctuating subdivisions American and English writers are generally inclined to throw aside everything except the distinction between a confederacy and a federal state. This is a vital point in public law and requires some explanation. A confederacy is not a single state. It is a collection of independent sovereign bodies united on stated terms for certain purposes. Each of them is, legally, free to withdraw from the confederacy when it pleases. A confederacy cannot therefore be permanent and indissolvable, for if it were so then the sovereignty of the component states would disappear. A federal state is a single state. Its subordinate parts may have been, though not of necessity, 1 sovereign states previous to the union; they cannot be so after the formation of the federation. Such a union becomes, legally, indis- solvable so far as the action of the separate state govern- ments, or of the central government, is concerned. It could only be dissolved by the constitutional amending process, where such exists. The interpretation put on the Constitution of the United States by the seceding States of the South would have made it a confederacy. The interpretation put upon it in the North made it a federal state. 3. Sovereignty in a federal state. This leads at once 1 Compare the case of the Republic of Brazil; the constitution of 1891 puts the provinces on a federal basis, but they were not previously independent states. FEDERAL GOVERNMENT 239 to the much-disputed question of the sovereignty in a federal state. Around this centered the great secession issue between the Northern and Southern States, for the retention by a component state of its sovereign power carries with it, of course, the right to withdraw from a federation of which it is a part. Let us consider the question first of all apart from the particular case of the United States. If what has been said above is correct, it follows, by definition, that the creation of a federal state annihilates the sovereignty of the component states not limits it or divides it, but annihilates it. For sover- eignty either is or is not. But in the new state the sover- eignty does not lie in the central government; it lies in the body, wherever and whatever it may be, which has power to amend the constitution. Legally speaking, this sovereign body can entirely abolish the federation and restore each member of it to its original independ- ence. This is not the same as secession, but it carries with it the consequence that such a union is not legally indissolvable. In a confederacy, on the other hand, each state is still a sovereign state. There is properly no con- federate law. Any common regulations adopted by a central body of the confederacy, and binding on the citizens of all the states, are law to any such citizen be- cause adopted as law by his own state. Where law exists, a state exists. Where a state exists, then it has sovereign power. It follows then that confederacy and secession are one and the same term in point of public law. In actual fact secession resolves itself into a ques- tion of force. Switzerland was an acknowledged con- federacy from 1815 until 1848. Yet when the seven Roman Catholic cantons undertook to secede from it (1847) they were forced back into the confederation at the point of the sword. 240 THE STRUCTURE OF THE GOVERNMENT In the United States the controversy did not turn on the difference between a confederacy and a federal state. It turned on the question whether the United States was the one or the other. On this point, as Professor Gold- win Smith has said, the "Constitution proved itself a 'Delphic oracle.'" The language of the Constitution, especially when read in the light of the antecedent his- tory of the Confederacy of 1781-89 (which was virtually dissolved by the "secession" of eleven of its thirteen states J ) admitted of either interpretation. But apart from the question of secession, many American writers, while admitting the federal union to be permanent, have taken quite a different view of sovereignty from the one here indicated. This is the theory of dual or divided sovereignty. In accordance with this view the sovereign power in a federal union, such as the American Repub- lic, is not located in any single authority, but is divided or distributed between the federal and the state govern- ment. Such a theory is, of course, totally at variance with the whole conception of sovereignty explained in an earlier chapter. It is difficult to regard it as anything else than a confusion of sovereignty, which is complete and absolute, with constitutional power, which may be of any degree of limitation. If the federal and state gov- ernments represent a "division of sovereignty," then the three branches of the federal government represent a further subdivision, and so forth. In spite, however, of its inconsistency, the theory of dual sovereignty has found illustrious champions. President Madison de- voutly believed in it. "It is difficult," he wrote, "to 1 When the Constitution went into force (March 4, 1789) two States, Rhode Island and North Carolina, were not as yet in the Union. They were certainly no longer in the Confederation, which had ceased to exist. Yet the articles had declared that "the Union shall be perpetual" (art. 13). FEDERAL GOVERNMENT 241 argue intelligibly concerning the compound system of government in the United States without admitting the divisibility of sovereignty." The American courts of the same period declared, " The United States are sovereign as to all the powers of government actually surrendered. Each State in the Union is sovereign as to all the powers reserved." l 4. Utility of the federal principle in effecting a com- promise. Returning from the question of the location of sovereignty to the general aspect of the federal state, it may be noted that the peculiar utility of the federal principle in political construction lies in the spirit of compromise which it embodies. Every small community or state is driven by the need of protection to seek for a union with its fellows. But a form of association which annihilates its own traditions of independent self-gov- ernment naturally runs counter to the sympathies of its citizens. Still more is this the case if the communities to be united are of unequal magnitude. In this case a com- plete amalgamation into a unitary state would practi- cally mean the absorption of the minor States into the large ones. The position of New Jersey, Delaware, and Connecticut at the time of the making of the Constitu- tion was of this sort. Still more unequal was the federa- tion long contemplated among the German states, and finally accomplished by the formation of the federal em- pire in 1871. The principality of Schaumberg-Lippe had then an area of 212 square miles, and a population of about 31,186 persons; the Kingdom of Prussia had an area of nearly 137,066 square miles and a population of 24,106,847. In all such cases as this the federal system 1 For the subject of sovereignty under the American constitution, the student may consult Merriam, History of the Theory of Sovereignty since Rousseau, from which the above quotations are taken. 242 THE STRUCTURE OF THE GOVERNMENT supplies the means of creating a single state, combining the whole powers of its members for international de- fense and for matters of general interest, without sacri- ficing the individual life and political susceptibilities of the component parts. Even among "states" of relative equality, as in the case of the majority of the forty-five States of the Union, the federal system has the advan- tage of permitting the legislation of each to accord with differences of environment caused by climate, racial elements, local custom, and antecedents. In the United States, more than anywhere else in the world, full ad- vantage has been taken of the possibilities of the federal principle. Its history is largely a history of federations. In the earliest times of colonial history we have the formation of Connecticut by the federal union of its towns, and the establishment in 1643 of the New Eng- land Federation uniting the northerly colonies for mu- tual protection. The quarrel with Great Britain hi the eighteenth century brought the thirteen colonies into a union, which, after passing through the preliminary stages of the Continental Congress and the abortive Confederation of 1781, was finally consolidated into the present federal republic. The principle of political growth and Constitution adopted in 1789 has governed the whole evolution of the United States during the nineteenth century. 5. Distribution of power in federal states. So much, then, for the historical and political aspect of the federal principle. Let us turn now to consider the important subject of the division of power between federal and sub- ordinate authorities. It is not necessary in this connec- tion to take account of any of the confederacies or fed- eral governments previous to the formation of the Con- stitution of the United States. In these only the most FEDERAL GOVERNMENT 243 elementary and necessary powers were allotted to the central government. But the federations of 1789 and of the nineteenth century offer an interesting series which may be" studied with a view to discovering the teaching of experience in regard to the relative position of central and subordinate authorities. We may here best begin by stating the general principles of apportionment of power. The prime historical motive of federation has been the need of defense. It is therefore first of all req- uisite that the federal government should have control of the military and naval power. Closely connected to this is the necessity that in its dealings with outside states the federation should conduct itself as a unit. The control of foreign relations must therefore rest with the central power. Since neither foreign relations nor war can be conducted without financial support, it is further necessary that the federal government should have some power of taxation of the individual citizens. It is not enough that it should be able to requisition the component commonwealths for the money it needs: this was amply seen in the collapse of the finances of the old Confederation (1781-89). To cover urgent and tempo- rary needs, the financial power must include the power to borrow. These three functions the conduct of war and defense, the control of foreign affairs, and the power to raise money are the prime essentials without which no federal state can exist. As a second class of governmental duties may be ranked all those which are only effective in so far as uni- formly and generally performed. Of this nature are the control of coinage, the regulation of patents and copy- rights, and the conduct of the postal service. Third in the list will stand a variety of public affairs in which, though uniformity is not absolutely essential, it is never- 244 THE STRUCTURE OF THE GOVERNMENT theless largely contributory to national progress. In this connection may be mentioned the control of the more extensive transportation facilities (those which consti- tute "interstate commerce"), railroads, canals, tele- graphs, etc., the regulation of the banking system, and the establishment of a general tariff. The latter is a somewhat anomalous case. Federal control of a tariff is apt to find its place among the powers of the central government from financial reasons sooner than from economic. The tariff offers a convenient and somewhat surreptitious form of taxation. Though not theoreti- cally a requisite power of the central government, it is in practice of great importance: tariff walls are a serious impediment to the consolidation of national life. To illustrate this one may refer to the tariff bickerings of the thirteen States under the Articles of Confederation, or to the case of the German states united in the Con- federation of 1815. In this last instance not only was each state a separate tariff area from the others, but the single states were subdivided Prussia was a political nnit, but contained sixty-seven different tariff areas. 1 As a fourth class may be placed the debatable category of subjects whose allotment to the federal or component government is a matter of opinion and must depend on the circumstances of the case. Here the conspicuous examples are seen in the regulation of marriage and di- vorce and in the control of public education. Beyond this as the fifth and final class lie those duties which cer- tainly ought to be left to the constituent governments to perform. Here again opinion may differ, but public works of merely local scope, public charities, the regula- tion of the liquor question, etc., are generally included. 1 See in this connection Seignobos, Political History of Europe, chap. xiv. FEDERAL GOVERNMENT 245 With this outline let us now briefly compare the ac- tual distribution of powers in the chief federations under our notice. We may begin by quoting the legislative powers assigned to Congress by the Constitution of the United States: The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the Credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uni- form Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and to fix the Standard of Weights and Measures ; To provide for the Punishment of counterfeiting the Se- curities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the Supreme Court; To define and Punish Piracies and Felonies committed on the high Seas and Offences against the Law of Nations ; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel In- vasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be em- 246 THE STRUCTURE OF THE GOVERNMENT ployed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Con- gress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock- Yards, and other needful Buildings; And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. 1 It will be seen at once that apart from the special provisions relating to the Indians and the District of Columbia, there are no powers granted here that have not been given to the central government in all the later federations. The national government receives by this article but little more than the necessary powers of gov- ernment. The residual power of government the authority to control those things for which no special provision is made is elsewhere explicitly withheld from it. Let us place in immediate comparison with this the allotment of power between the federal and provincial governments in the Dominion of Canada. The basis of the constitution of Canada is a statute of the British Parliament named the British North America Act of 1867. The provisions in respect to the distribution of power are in the ninety-first, ninety-second, and ninety- third sections of the act. They are particularly interest- ing in the present connection because they are based on > Art. i, 5 8. FEDERAL GOVERNMENT 247 the arrangement made in the Constitution of the United States revised in the light of subsequent political experi- ence. In addition to the powers possessed by Congress, the legislative power of the Dominion Parliament ex- tends to the criminal law, marriage and divorce, interest, and the raising of money by any mode or system of taxation. Other things, such as banking, etc., are in- cluded which are not explicitly granted to the Congress and to which the federal authority in the United States only reaches by interpretation of implied powers. In addition to this the statute enacts that the Dominion Parliament has legislative power "in relation to all mat- ters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the Provinces." The amount of federal power expressly granted con- trasts strongly with the section of the American Consti- tution quoted above. Even as compared with the power of Congress when expanded by the doctrine of implied powers, the control of the Dominion over such items as the criminal law represents a considerable increase of federal authority. Closely following upon the making of the Canadian constitution, we have the constitutions of two important federal states. These are the constitution of the German Empire (1871) and that of Switzerland (1874). In each of these the scope of the central power was made far wider than in that of the United States. In Germany the constitution, together with an amendment of De- cember 20, 1873, granted to the federal government the control, not only of the things within the jurisdiction of Congress, but also the criminal law, civil law and judi- cial procedure, banking, medical practice, railroads (ex- cept in Bavaria), the regulation of the press, of trades, insurance (including workingmen's insurance and pen- 248 THE STRUCTURE OF THE GOVERNMENT sion laws), and other matters. 1 In Germany the legisla- tive scope of the central government was vastly greater than in America. Its action in the administrative direc- tion was less, since the principle of decentralization was here adopted and the federal measures (tariff, etc.) were carried out by the authorities of the constituent govern- ments. The action of the central government was fur- ther narrowed in practice by the use that was made of the principle of concurrent jurisdiction. In many of the matters mentioned above the power of the federal gov- ernment was not exclusive. Where the federal govern- ment had not seen fit to act, the states were free to exer- cise a legislative power. This applied for example to the control of railroads, medical practice, the criminal and civil law, etc. The federal jurisdiction was only exclu- sive where from the nature of the case it must be so (such as raising of money on the credit of the empire) or where it was expressly stated (for example, the taxation of imports). 2 To prevent conflict of authority it was provided that a federal law always overrode a statute of one of the constituent parts of the empire. This same principle of concurrent jurisdiction obtains, of course, in the United States, but to a much less extent; most of the powers granted to Congress are forbidden to the Com- monwealths, but in some matters, such as bankruptcy laws, they may act in the absence of federal legislation. The present constitution of Switzerland (1874), together with the amendments since added, shows a wide range of federal power. "The legislative authority of the na- tional government," says Professor A. Lawrence Low- ell, 3 "is much more extensive in Switzerland than in this country, for in addition to the powers conferred 1 Imperial Constitution, art. iv. * Ibid., art. xxxv. * Government and Parlies in Continental Europe, vol. n, chap. xi. FEDERAL GOVERNMENT 249 upon Congress it includes such subjects as the regula- tion of religious bodies and the exclusion of monastic orders, the manufacture and sale of alcoholic liquors, the prevention of epidemics and epizootics, the game laws, the construction and operation of all railroads, the regu- lation of all labor in factories, the compulsory insurance of workmen, the collection of debts, and the whole range of commercial law." To this may be added the fact that the federal government has the power (under the con- stitution) to compel the cantons to establish compulsory secular education, gratuitous in the primary schools. The Swiss government has, however, no power to levy direct taxes. As a concluding instance let us notice the position of the central power in the federation of the Australian colonies. The Commonwealth of Australia, considered apart from its connection with the British Empire, is a federal unit made of six separate "states." l Its consti- tution, like that of Canada, is found in a statute of the British Parliament enacted in 1900, under the title of the Commonwealth of Australia Constitution Act. The legislative power of the federal parliament is laid down in great detail. 2 It includes all the essential and virtually essential powers already treated, such as defense, taxa- tion, postal service, tariffs, interstate commerce, etc. In addition to this the federal authority is explicitly de- clared to extend to bounties on production or export, insurance (other than state insurance), marriage and divorce, invalid and old-age pensions, foreign corpora- 1 Rightly or wrongly the Australians have adopted the term " states " as the official designation of the component parts of their federation. Since the whole body is officially called the Commonwealth, we find the terminology used by various American writers exactly reversed. 1 Constitution Act, part v, 51 and 52. A good commentary is given by Professor Harrison Moore, The Commonwealth of Australia, chap v. 250 THE STRUCTURE OF THE GOVERNMENT tions, acquisition of state railways (with consent of the state), railway construction (with similar consent), rail- road control even without consent if needed for military purposes, conciliation of industrial disputes, if not con- fined to a single state, immigration, influx of criminals, and other minor matters. It is interesting to notice the use that is made of the principle of concurrent jurisdic- tion. The German constitution of 1871 had, as we have seen, deliberately adopted this plan. The British North America Act, on the other hand, tries to indicate the powers of Dominion and provincial governments as ex- clusive of one another; in practice this has led to confu- sion. In Australia only a few of the powers are expressly declared exclusive ( 52). In the majority of instances the state government may act where the federal govern- ment has not done so. But, as in the German Empire, "When the law of a state is inconsistent with a law of the commonwealth the latter shall prevail." This last provision must not be misunderstood. The law of the commonwealth in question must not transcend the con- stitutional power of the federal parliament, otherwise its application can be declared invalid by the courts, just as in America. 6. Conclusions. From the foregoing comparison of the chief federations of the nineteenth century, impor- tant conclusions are to be drawn. There is manifest throughout the tendency to entrust the central or na- tional government with a wider and wider sphere of au- thority. For this several reasons are to be assigned. In the first place it represents a process that is altogether natural, and which may rightly be spoken of as organic. The units of the federation once brought into contact begin to grow together, and to be knit into a more and more united body. The original jealousy and particular- FEDERAL GOVERNMENT 251 ism of the separate parts are gradually merged into the wider outlook that accompanies a 'larger national life; the central government of the federation becomes a part and parcel of each individual citizen, and enlists in its support a broader patriotism than narrow adherence to the interests of his section of the community. Where the sense of natural greatness is involved, constitutional limitations can be overridden with public approval; the addition of Louisiana to the territory of the United States at once suggests itself in illustration. An equally potent factor leading to the extension of federal power is found in the material conditions of modern life. Rapid transportation, the telegraph, and the evolution of pro- duction and commerce on a scale undreamed of at the making of the Constitution have broken down the eco- nomic barriers that once existed. Communities that were originally absolutely distinct in their economic and social life have undergone a complete industrial amalga- mation. Each administers to the wants of the other, and each in turn receives a benefit. The wheat-fields of the Dakotas and the factories of Massachusetts are comple- mentary to one another. Where industry and com- merce are thus fused into a single economic life, it is im- possible to separate the control of them into distinct territorial districts. It becomes an absolute necessity that the powers of the federal government must be either so expressed or so interpreted as to cover the whole range of economic life that has passed the bounds of the component "states" and become national. It is for this reason that the process of addition to federal power may be expected to continue in the future. Be- fore the intruding forces of industrial civilization "state lines" are becoming more and more meaningless. More- over, the true path to be followed has been already indi- 252 THE STRUCTURE OF THE GOVERNMENT cated by the German and Australian constitutions. By adopting the plan of concurrent jurisdiction and leaving it to the central government to occupy the field in pro- portion as the progress of national evolution demands it, a way is open for continued expansion without suf- fering the pangs of amendment, or relying upon the strained interpretation of the law. We have still left out of consideration the question of how the American Constitution, made at a time when local jealousies prescribed the most grudging admission of federal power, is able to adapt itself to the changed situation of to-day. That this is not done by legal amendment has been already shown: the amending machinery of the Constitution is so cumbrous that it is insufficient for the kind of adaptation here demanded. But instead of technical amendment a process of virtual amendment has been effected continuously through the nineteenth century by the interpretation given to the Constitution by the courts. The Constitution is fortu- nately an elastic document, capable of meaning much or little at the will of its interpreter. The courts therefore have fallen back on the doctrine of "implied powers," and have stretched the Constitution to cover things never contemplated in its literal meaning. "A power vested," said Chief-Justice Marshall, "carries with it all those incidental powers which are necessary to its complete and efficient execution." The purchase of Louisiana, the Embargo Act of 1807, grants of land for railroads and canals, the annexation of Texas, grants of land for agricultural colleges, etc., are not things for which direct authority can be found in the enumerated powers of the federal government. 1 It is by interpreta- 1 See Everett Kimball, The National Government of the United States (1920), chap. xvi. FEDERAL GOVERNMENT 253 tion only that Congress has the power to issue paper money, to make anything it wills legal tender, to charter and regulate national banks, to claim a monopoly of the postal service. It is probable that, if future needs de- mand it, the Constitution can be held to permit the na- tional government to build, buy, and own railroads, and to monopolize the telegraph service. That this device of latitudinarian interpretation has filled a most useful historical purpose is beyond a doubt. It is an excellent example of the political genius inherent in the Anglo- Saxon temperament, that the difficulty created by the error in making amendment so rigid should be sur- mounted by so simple and natural a remedy. The error remains an error nevertheless. The Swiss or Australian system, whereby recurring amendment is part of the life of the constitution, is greatly to be preferred. READINGS SUGGESTED Sidgwick, H., Development of European Polity (1903), lectures ix and xxix. The Federalist, essays xv, xvi, xvn. Fiske, J., American Political Ideas (1902), lecture H. FURTHER AUTHORITIES Story, J., Commentaries on the Constitution of the United States (5th edition, 1891). Curtis, G. T., Constitutional History of the United States, vol. I (1896). Vincent, J. M., Government in Switzerland (1900). Moore, H., The Commonwealth of Australia (1902). Bourinot, Sir John, Manual of the Constitutional History of Canada (1888). Freeman, E. A., History of Federal Government (1863). Dareste, F. R., Les Constitutions Modernes (1891). Laband, Staatsrecht des Deutschen Reiches (4th edition, 1901). 254 THE STRUCTURE OF THE GOVERNMENT Constitution of the Confederate States of America (see Curtis, Constitutional History, vol. n, appendix). Stephens, A. H., A Constitutional View of the War between the States (1867-70). Merriam, C. E., History of the Theory of Sovereignty since Rous- seau (1900). Doyle, J. A., English in America (1887). West, H. L., Federal Power (1918). Poley, A. P., The Federal Systems of the United States and the British Empire (1913). CHAPTER VI COLONIAL GOVERNMENT 1. The acquisition of dependencies 2. Colonies of the ancient world 3. Colonial expansion after the discovery of the sea route to the East Indies and the discovery of America; Spanish colonial system 4. Colonial policy of England and France in the seventeenth and eighteenth centuries 5. The American Revolu- tion 6. Alteration of British colonial policy in the nineteenth century; establishment of seJf-government 7. Present British system of colonial administration 8. Imperial federation 9. Recent colonial expansion of European states 10. The de- pendencies of the United States. i. The acquisition of dependencies. Taking the word " colony " in its widest sense to include all kinds of de- pendencies, we are met by the fact that the colonies of the world occupy about two fifths of the land surface of the globe, and contain a population of half a billion people. At the end of the Great War Great Britain had at least 372,000,000 colonial subjects, France 44,600,000, the Netherlands 47,149,903, and Belgium 7,000,000. 1 The political status of the communities thus controlled presents the greatest diversity. In the strict theory of law each of them is under tlje absolute dominion of the sovereign state to which it "belongs." In practice they vary, from the virtual independence enjoyed by Canada and Australia to the total dependence of Gibraltar or Madagascar. The vast extent and the general natural resources of the modern colonial area indicate its im- portance in the future history of the world. The real- ization of this by the great powers led, during the closing years of the nineteenth century, to a renewed Statistics from the Statesman's Year-Book, 1919. 256 THE STRUCTURE OF THE GOVERNMENT colonial expansion, in which practically all the "un- claimed" territory of the world was partitioned among the leading states. The subject of colonial administra- tion, both political and economic, has taken on, in con- sequence, an increased interest, and attention is more and more directed to the study of the systematic man- agement of dependencies. The expansion of the United States dating from the war with Spain has rendered this portion of the study of government one of especial con- sequence to Americans. The present chapter, therefore, will be directed towards an inquiry into the origin and evolution of colonial government, the different systems of administrations now employed, and the question of the political future of colonies. Throughout the chapter it will be proper to devote most attention to the colonies of the United Kingdom. Great Britain has been, par excellence, and still is, the colonizing country; and it is by the British government, in a somewhat groping and half-conscious way, that what may be called the modern system of colonial administration has been worked out. The new dependencies of the United States will be ex- amined in conclusion in order that their present govern- ment may be discussed in the light of British experience in the past. A sovereign state comes to possess dependencies in various ways. The simplest is that of conquest, by which the vanquished community is subjected to the rule of its victors. Such was the case with the expansion of Rome, whose "provinces" were countries conquered by the Roman arms. The Spanish colonies of Mexico and Peru, and the British dominions in India, were the fruits of conquest. Closely akin to this is the acquisition of a colony by cession. A country possessing a colony may be compelled by defeat in war to cede the colony COLONIAL GOVERNMENT 257 as the price of peace, or induced from commercial rea- sons to sell it. The numerous treaties of the eighteenth century, whereby France and England handed their colonial possessions back and forth, were of this sort. The cession of Canada by France (1763), and of the Philippines by Spain (1898), are instances of colonial acquisition by war, while the purchase of Louisiana (1803) illustrates the purely financial process of ac- quisition. In addition to these two modes of colonial aggrandizement there remains what may be called, par excellence, the colonizing process, namely, that of occu- pation and settlement. In this case the claim to the colony rests, if not on actual discovery of the land (Newfoundland, Australia, etc.), at any rate on priority of actual occupation. Where a native population is found in fixed agricultural settlements, the assumption of control approximates to conquest. But where the native population is sparse and migratory, merely wan- dering over the land in nomadic fashion, living on the bounty of nature and the fruits of the chase, their pres- ence ought not to invalidate the claim of immigrants proposing to make a permanent and fixed settlement. Much sentiment has been wasted over the supposed claim of the Indians to the continent of North America. When it is recalled that the whole Indian population, from Newfoundland to Florida, and from the Mississippi to the sea, was about as numerous as the inhabitants of a large American city (probably about 200,000), and that its settlements were only in a few places fixed and agricultural, its "claim" to ownership of the whole country becomes somewhat absurd. One may well ask how far such reasoning should be carried. Did the few starveling bushmen of the desert and forest of Australia own the whole continent? Without accepting the brutal 258 THE STRUCTURE OF THE GOVERNMENT code of the right of the strongest, one may in all reason- ableness recognize the right of civilized nations to the acquisition of territory which is only "squatted upon" by wandering savages. 2. Colonies of the ancient world. Of the colonies of the ancient world those of Greece and Phoenicia along the shores of the Mediterranean are the most note- worthy. The Phoenician settlements were for the most part merely trading stations, but there were exceptions also (such as Carthage) in which a large body of emi- grants established a permanent agricultural settlement. The colonies of Greece were on a larger scale: they re- sulted first of all from the Dorian invasion of the Pelo- ponnesus about 1000 B.C., which drove many fugitives to seek new homes. Similarly the conquests of the Spartans and the inroads of the Persians occasioned a scattering of some of the conquered tribes. Other col- onies were due to the political dissensions with which the restless city-states of Greece were rife and which sometimes resulted in the deliberate withdrawal of a part of the citizens to found a new city elsewhere. But the establishment of Greek and Phoenician colonies did not involve what we now think of as colonial govern- ment. Athens, indeed, succeeded in exacting money tribute from the cities she had planted in the ^gean Sea, basing her claim on the naval protection afforded them. But the general practice was to regard a colony as an independent political unit from its inception. It was an emigration, an "outswarrning" of freemen who carried with them the same right of self-government that they had had in their former home. A somewhat dif- ferent type of colony made by settlement in ancient times is seen in the Roman colonia. This was a settle- ment of Roman soldiers on land allotted to them by COLONIAL GOVERNMENT 259 their general after it had been conquered; here the prime object was to create a frontier defense of the em- pire, but these colonies often developed into permanent settlements. 3. Colonial expansion after the discovery of the sea route to the East Indies and the discovery of America; Spanish colonial system. It is with the discovery of the sea route to the East Indies and of America that modern colonization begins. The sixteenth century opened to the adventurous spirits of Europe a wonderland of un- known countries, in which to satisfy their passion for exploration and adventure, their lust for gold, their chivalrous ambition to increase the dominions of their king, and their pious desire to spread the Christian re- ligion to the uttermost parts of the earth. It was in this age of adventure and conquest that Spanish and Por- tuguese colonial aggrandizement acquired the peculiar characteristics of domination and levying of tribute which proved its ruin. The Portuguese, sailing around the Cape of Good Hope, secured a monopoly of the rich trade of the East. Thither their merchants flocked in great numbers, setting up trading stations on the coast of Africa (Sofala, Zanzibar), on the shores of the Indian Ocean (Goa, Malacca, etc.), among the East India Islands, and even in China and Japan (1542). In Brazil partly by sending over exiled Jews and transported criminals, they founded a plantation colony in which the sugar-cane was cultivated and to which slaves were early introduced from the coast of Guinea. Feudal grants of land were made to nobles of Portugal with al- most absolute power over the natives. The Spaniards, equally adventurous, directed themselves not to the East, but to the West Indies, and to the mainland of Central and Southern America. A bull of Pope Alex- 260 THE STRUCTURE OF THE GOVERNMENT ander VI (1493) had divided the unchristian world with magnificent generosity between Spain and Portugal; Spain was to have the western world, Portugal the east. A revision of the shares by treaty gave Brazil and Labrador to Portugal and all the rest of America to Spain. The Spaniards proceeded to make good this shadowy claim by vigorous conquest. By the year 1510, Cuba, Hispaniola, Porto Rico, Jamaica, and other is- lands had fallen an easy prey. Mexico was conquered by Cortes (1519-21), and Peru fell before the brutal con- queror Francisco Pizarro (1525-35). Thence Spanish dominion spread over the whole of Central and South America, except Brazil. From the very beginning, however, the colonial sys- tem of Spain 1 had taken a false bias. The colonial es- tablishments were regarded solely as a source of profit to the conquerors. There was no question of real self- government or liberty of trade. A recent writer 2 has thus described the Spanish system of administration in the centuries which followed: "All the laws, the con- trol of trade, commerce, agriculture, finance, taxation, the foundation of municipalities, the management of the natives, and the regulation of religion were made in the mother country, and sent to the colonies with the expec- tation that the colonies would adapt themselves to the laws. Nor did the decrees of the crown and its agencies stop here, but the home bureau organized the colonial government, local and central. The officers and rulers were natives of Spain sent out to rule their distant de- pendencies. During the Spanish domination in America nearly all the important offices of the state and church 1 See Zimmermann, Die Europdiachen Kolonien, vol. i (1896). 1 Professor Blackmar, U.S. Bureau of Statistics Publication, Colo- nial Administration (1901). COLONIAL GOVERNMENT 261 had been filled by Spaniards. The presidents and judges of the courts were from Spain. There were 18 Americans out of 672 viceroys, captains-general, and governors; and 105 native bishops out of 706 who ruled in the colonies. The system of officialism continued in all of the colonial possessions of Spain to the close of the present [the nineteenth] century." In matters of trade and industry the Spanish colonies were under the most stringent regulation. They could trade with no other country but Spain itself, and even then only through the organization known as the Casa de Contra- taci6n, which held a monopoly. That such a system contained in itself the seeds of its own ruin is only too evident. The revolt of the Spanish colonies and the establishment of their independence in the early part of the nineteenth century were the natural outcome of such a vicious and short-sighted colonial policy. 4. Colonial policy of England and France in the seventeenth and eighteenth centuries. Although Eng- land and France were early in the field with voyages of exploration (Cabot, 1497, Cartier, 1534) the establish- ment of their American colonies belongs to the seven- teenth century. With Champlain's permanent settle- ment on the St. Lawrence (1608), and the landing of the Pilgrim Fathers (1620), the beginnings were laid of New France and New England. From the grant of the charter to the Virginia Company, 1606, dates the com mencement of the plantation colonies of the South. That the English colonies grew and flourished on the Atlantic is to be attributed to the good fortune of the English government, rather than to its political foresight. The sterling qualities of the colonists themselves, animated by the high purpose of religious refugees, or by the daring of adventurers, had much to do with their sue- 262 THE STRUCTURE OF THE GOVERNMENT cess. It was through the neglect, and not by the policy, of the home government, that the colonists acquired their political right of self-government. The charter granted to the Massachusetts Bay Company in 1629 was intended by the government as a sort of commercial instrument for the conduct and governance of a trading company. It was the emigration of the officers and the company itself to the shores of America which converted it into a political constitution. In the seventeenth cen- tury the English in general did not dream of the magni- tude of the colonial empire which lay within their reach. In this their colonial policy was sharply contrasted with that of France. The French government early recog- nized the possibilities of American colonization; they realized the value of the St. Lawrence and the Missis- sippi as opening the way to the interior of the continent, and planned a vast colonial empire which should en- circle the narrow English settlement of the Atlantic sea- board. The English government in the seventeenth century gave little or no help to its dependencies; the French were ready from the first with money and ships to be used in the upbuilding of New France. It has been part of the irony of history that the magnificent empire thus planned by the French should have passed by the fortune of war into the hands of the British crown. But before the close of the seventeenth century, the American colonies, from their growth in population and the development of their resources, began to assume a new importance. The colonial trade offered a harvest to the merchants of the mother country, and supplied a new bone of contention to vex the long-standing quarrels of England and France. Indifferent as the British gov- ernment had been to the political position of its earlier colonists, it adopted in reference to the growing trade COLONIAL GOVERNMENT 263 of the colonies a policy much resembling that of Spain. So too did the French, whose colonial schemes included, of course, the profit to be derived by the mother coun- try from the natural wealth of its possessions. Already in the reign of Charles II the Navigation Acts 1 had placed restrictions on colonial commerce. By the first of these (1660) foreign ships were forbidden to trade with the colonies. All colonial sugar, tobacco, cotton, indigo, and other enumerated articles were to be sent only to England, or to an English possession; nor could foreigners become merchants in an English colony. A new act of 1663 kept out all ships that had been built in foreign countries. An act of 1664 obliged European goods, even if placed in English ships, to be first landed in England before being exported to the colonies. Finally, an act of 1672 made goods passing from colony to colony liable to whatever customs du- ties they would have incurred if brought into England. These are the famous Navigation Acts which formed the basis of the English colonial policy of the eighteenth century. It was necessary, indeed, to modify them by making concessions to the colonists where they became too burdensome. The trade in wine and fish between Portugal and New England was made an exception. On the other hand, the acts were reenforced by a num- ber of statutes in the early part of the eighteenth cen- tury. Such a commercial code, if applied to a modern colony, would appear monstrous. It can, however, be said in defense of the acts, that they helped to encour- age the growth of British and colonial shipping, and thus contributed to the national defense of both the 1 For the contents of the Navigation Acts and a criticism of British colonial policy involved, the student may consult Egerton, Short His- tory of British Colonial Policy, a really admirable work. 264 THE STRUCTURE OF THE GOVERNMENT mother country and the colonies. Nor did the restric- tions laid upon trade press as severely upon the colonies as might be imagined. Evasion of the laws was notorious, and in any case the natural direction of commerce was to the British Isles. Less defense can be found for the policy of Great Britain in legislating in the eighteenth century against colonial manufactures. "The creating of manufactures in the colonies," ran a resolution of the British House of Commons in 1719, "tends to lessen their dependence on Great Britain." In accordance with this a statute of that year, fortunately applied only in part, forbade all forms of iron manufacture in the American colonies. Indeed, when all is said, the whole code of commercial and industrial regulation must be considered as the outcome of the inveterate European habit of viewing colonial establishments as a source of mercantile profit. "The deliberate selfishness of English commercial legislation," says Mr. Lecky, "was digging a chasm between the mother country and her colonies, which must inevitably, when the latter had be- come sufficiently strong, lead to separation." 1 5. The American Revolution. The quarrel between England and her American colonies which ended finally in independence is the most important fact in the evolution of colonial government. It showed to the world the elementary fact of colonial administration, that no civilized colony of size and increasing population can be kept in a state of permanent political tutelage. It led England to adopt, not immediately but ulti- mately, the policy of colonial autonomy. What had previously been done through neglect was now sanc- tioned by the teaching of experience. Yet, as in every 1 W. E. H. Lecky, History of England in the Eighteenth Century, vol. HI, chap. XH. COLONIAL GOVERNMENT 265 quarrel, there were certainly two sides to the question. On the one side was the righteous protest of a free people against political dictation, against that "taxation with- out representation," the very sound of which is repugnant to Anglo-Saxon ears; on the other side were pressing needs of imperial defense. 1 The patriotism of national historians has long obscured the one or the other of the two sides of the controversy; it is only after a lapse of a century and a half that a clearer vision is becom- ing possible. That the American resistance to imperial taxation in the form in which it came to them was justified seems beyond a doubt. But the colonies were equally wrong in adopting towards the vexed question of imperial finance the selfish inertia of indifference. Unkindly critics have not scrupled to say that it was not "taxation without representation" that they re- sented, but taxation in any form and by any authority. The strain on the imperial treasury of protecting Brit- ish subjects, both home and colonial, against foreign powers had been great. The successive wars against France King William's War (1689-97) Queen Anne's War (1702-13), King George's War (1744-48), and the French War (1756-63), to give them the names by which they were known to the colonists had in- creased the national debt at an alarming rate. Amount- ing in 1702 to a little over twelve and a half million pounds, it stood at over one hundred and thirty- two millions at the Peace of Paris (1763). Much of this had been spent in defense of the American possessions. The colonies indaed had contributed, in separate fashion and in unequal proportion, both money and men to 1 The English si ie of the controversy is to be found in Lecky, History of England in the Eighteenth Century, vol. in, chap, xn; and Egerton, Short History of British Colonial Policy, bk. n (pam'm) Soe also Sir G. Trovelyan, Tha American Revolution (1903), vol. I. 266 THE STRUCTURE OF THE GOVERNMENT aid the British arms in America. It was a colonial ex- pedition that captured Louisburg in 1745, the money thus spent being partly reimbursed by a parliamentary grant from Great Britain. But colonial contributions for defense were irregular and unequal. The colonies removed from the scene of immediate danger were in- clined to shirk responsibility altogether. During King George's War the New York Assembly proved quite intractable. At first they would do nothing for defense; later they contributed money sparingly for the Louis- burg expedition, but would send no men. New Jersey was an inveterate delinquent. Sheltered by the adja- cent colonies from the actual ravages of frontier war- fare, she was never ready to make adequate contri- bution towards the common defense. In Queen Anne's War the Assembly struggled hard to prevent the raising of a military force, and was only forced into doing so by the packing of the house. Contributions were made to King George's War, but in the great final struggle of the French War, New Jersey remained culpably in- active. 1 These were not isolated instances, but were characteristic of the difficulty of obtaining joint action from the colonial governments. Mr. Lecky thus de- scribes the situation: "In order to raise the money for the support of the American army it was necessary to have the assent of no less than seventeen colonial as- semblies. The hopelessness of attempting to fulfill these conditions was very manifest. If in the agonies of a great war it had been found impossible to induce the colonies to act together; if the Southern colonies long refused to assist the Northern ones hi their strug- gle against France because they were far from the dan- 1 See Lodge, Short History of the English Coloniea in America, chap. XIV. COLONIAL GOVERNMENT 267 ger; if South Carolina, when reluctantly raising troops for the war, stipulated that they should act only within their own province; if New England would give little or no assistance while the Indians were carrying desola- tion over Virginia and Pennsylvania, what chance was there that all these colonies would agree hi time of peace to propose uniform and proportionate taxation on themselves in support of an English army?" The financial difficulty to be faced was thus an actual one, though aggravated by the mistaken policy of the British crown. The colonies and the mother country had reached an impasse; further continuance on the existing basis was no longer possible; the only solution could have been found in a joint revision of inter- imperial relations; this the dull stupidity of the Eng- lish administration and the willful inertia and mutual jealousies of the colonies rendered impossible. 1 It is of importance properly to appreciate the historic situ- ation thus created ; for the relative political situation of Great Britain and her colonies has reproduced itself in the present century, and as yet no final solution of the problem has been found. 6. Alteration of British colonial policy in the nine- teenth century; establishment of self-government. In what has been said above it is not meant to imply that the system of self-government in the colonies was established at once after the American Revolution. In- deed, for the time being, the case was rather the con- trary. The king and his ministers, attributing the disaster of their colonial system to the license allowed 1 The rejection of the scheme of the Albany Congress (1754), re- jected by both mother country and colonies; the recognition, by va- rious colonial governors of insight, of the need of union and joint taxation; Governor PownalPs proposition of an imperial customs union may be reckoned among the signs of the times. 268 THE STRUCTURE OF THE GOVERNMENT to the colonial assemblies, were inclined to tighten their grip upon their remaining dependencies. The Quebec Act of 1774 established royal government in Canada with no elective assembly, but only a council nominated by the crown. Even under Pitt's Constitutional Act of 1791 the measure of liberty granted to the Canadians, and intended to reward the allegiance of the Loyalists, consisted only in the right to elect the members of the lower house in each of two provinces. The governor, the executive council, and the legislative council or upper house, were all appointed by the crown. The same is true of the other North American colonies. Those that already had partial self-government (as Nova Scotia, Barbados, Jamaica, Bermuda) were not deprived of it, but those newly acquired (Trinidad, etc.) were kept under crown government. Cape Colony, definitely ceded in 1815, remained under military gov- ernment till 1835. Even then the civil government established was a nominated and not an elective one. Self-government being out of the question in a penal settlement, Australia remained long in direct depend- ence on the crown. But the lesson taught by the American Revolution had nevertheless been effective. As the new colonies grew in population and importance, the opinion gained strength that both justice and ex- pediency demanded that they should administer their own affairs. Even on commercial principles it was thought that colonial liberty was more profitable than colonial bondage. The doctrines of the political econo- mists, which became in the middle of the century the official creed of the English government, brought about the establishment of free trade (1846) and the repeal of what was left of the Navigation Acts (1849). Already before this the serious rebellion in Canada (1837) and COLONIAL GOVERNMENT 2C9 Lord Durham's report, strongly recommending the establishment of responsible government, had called public attention to dangers of the existing system. The Act of Union of 1840, joining Upper and Lower Canada into one, introduced as its sequel the principle of parliamentary self-government. 1 Before the end of the next decade the same "enfranchisement" was ex- tended to the other provinces of British North America (Nova Scotia and New Brunswick, 1848, Prince Edward Island, 1851, and Newfoundland, 1855), and to all the other colonies in a position to receive it. 2 It is interesting and instructive to observe the atti- tude adopted in England towards the colonies at the time of the grant of self-government, and in the period immediately following. In the first place two great questions of paramount interest in the colonial policy of the present day were left entirely out of sight the tariff relations of the colonies with the mother country, and the question of imperial defense. That the tariff should have passed unconsidered was entirely to be expected in the light of the ideas then prevalent; indeed the question seemed to have settled itself in the course of nature, and the optimistic free-traders of the middle of the century took it for granted that tariff barriers were soon destined to disappear the world over. It seemed unnecessary, therefore, to stipulate for free trade or any form of customs union between the United Kingdom and its dependencies. The other problem, that of imperial defense, was also passed over: perhaps 1 See in this connection J. L. Morrison, Brilinh Supremacy and Cana- dian Sdf-Government (1919). 1 New Zealand received responsible government by an Act of 1852 as interpreted in 1850; New South Wales and Victoria, lf>55; South Australia and Tasmania. 1856; Queensland. 1859- Cape Colony, 1872: Western Australia, 1890; Natal, 1893; Transvaal, 1903; Orange River Colony, 1907. 270 THE STRUCTURE OF THE GOVERNMENT by virtue of the very difficulty of its solution, perhaps as a result of the sanguine hopes that had been fostered in the peace era. The policy adopted was not every- where approved. Disraeli, speaking in 1872, and fore~ seeing with characteristic prescience the difficulties that must arise, pronounced it a mistake. "Self-gov- ernment," he said, "ought to have been conceded as part of a great policy of imperial consolidation. It ought to have been accompanied by an imperial tariff . . . and by a military code which should have precisely defined the means and the reponsibilities by which the colonies should be defended, and by which, if necessary, this country should call for aid from the colonies themselves." But the real secret of the willingness of the English people to leave the government of the colonies in the hands of the colonists themselves lay in the new view that was becoming current as to the "manifest destiny" of the British colonies. 1 The example of the rise and progress of the United States seemed to point towards the inevitable future of all great dependencies inhabited by an enlightened and increasing population. Inde- pendence seemed only a question of time, and the duty of the mother country was to give the colonies a sound political education in the methods of responsible gov- ernment, and when the destined hour came to let them depart in peace. The views of the -"little Englanders," of the Manchester school of economists, averse to large military and naval expenditures, cosmopolitan hi their sympathies and sanguine in their hopes of the commer- cial unity of the world, powerfully stimulated public feeling in this direction. It is astonishing at the present date to look back on the opinion then prevalent. Sir 1 For interesting details in this connection see B. Holland, Imperium at Libertas (1901). COLONIAL GOVERNMENT 271 F. Rogers (afterwards Lord Blachford), who for eleven years was permanent under-secretary for the colonies (1860-71), wrote at a later date (1885) of the views he held in the following terms: "I had always believed and the belief has so far confirmed and consolidated itself, that I can hardly realize the possibility of any one seriously thinking the contrary that the destiny of our colonies is independence: and that in this point of view the function of the Colonial Office is to secure that our connection, while it lasts, shall be as profitable to both parties, and our separation, when it comes, as amicable as possible." Such views were only too com- mon in the period of colonial history from 1840 to 1880. Mr. E. J. Payne, in his History of European Colonies (1877), designed as an educational work for English schools, wrote: "Canada and Victoria are bound to England by a tie so slight that its rupture would not at all be dreaded; and such a rupture would hardly be felt whenever it happened." Great indeed is the contrast between such a point of view and the sentiments now entertained, both in Great Britain and the colonies, of the relations of the dependencies to the mother country. But before considering the new imperialism and its polit- ical consequences, it will be best to pass briefly in review the varied systems of government at present obtaining in the colonial possessions of the United Kingdom. 7. Present British system of colonial administra- tion. First let us consider the general principles which are adopted in the management of the British colonial possessions. Some persons indeed might deny that there are any general principles involved; for it is contrary to the spirit of British institutions to act on a formal and preconceived plan, and the method adopted is rather an habitual way of doing things, based on the 272 THE STRUCTURE OF THE GOVERNMENT teaching of experience, than a scientific and complete system of administration. The British system, if the word may be allowed, recognizes no absolute right of self-government. It aims, in the words of Earl Grey,' to allow "the inhabitants to govern themselves when sufficiently civilized to do so with advantage," and, where this is not the case, to provide "a just and im- partial administration of those colonies of which the population is too ignorant and unenlightened to manage its own affairs." It is recognized, therefore, that the government adopted in each colony must be in accord with the particular conditions presented, must vary according to the race, character, and number of the population, their degree of enlightenment, the extent of the territory, and (as in the case of Gibraltar) with the possible military importance of the place for the defense of the Empire. Within these limits the princi- ple obtains that a colonial community of which the great majority is made up of civilized whites shall be granted the fullest autonomy; while to the other colonies shall be extended such a measure of self-government as their circumstances seem rightly to demand. The prin- ciple of political training for future self-government, as is seen in the case of the elected municipal bodies in India, is also recognized. In the case of every colony, however, the crown retains a certain power of control; the governor, or executive head of the colony, some- times nominal, sometimes actual, is the nominee of the crown; the crown reserves a veto on all colonial legis- lation; the final court of appeal for colonial cases is the judicial committee of the Privy Council. Though resting on this general plan, the governments of the British colonies present the greatest range of diver- Earl Grey, Colonial Policy (1853). COLONIAL GOVERNMENT 273 sity in the details of their political constitution. Vari- ous classifications have been offered, of which the most satisfactory seems to be the separation first of all into three classes the crown colonies, the representative colonies, the responsible colonies. The crown colonies are those which have no self-government; the represen- tative colonies are those which have partial self-govern- ment; the responsible colonies are those which have complete self-government. These three divisions may be taken to indicate, not only the classification of the dependencies at any particular tune, but also the stages through which a British colony passes in the upward progress. Canada, as has been seen, was a crown colony from its conquest until 1791, a representative colony until the Act of 1840, and since then a responsible colony. In the first of these divisions, the crown colonies (with which also the various protectorates are to be included), are comprised all those dependencies whose governing officials are all nominated by the crown. The list includes the Straits Settlements, Hong Kong, Fiji, Trinidad, Sierra Leone, Honduras, Gibraltar, St. Helena, and many other places. Within the group, how- ever, various degrees of dependence on the home gov- ernment are found. In the places of great military and naval importance (Gibraltar, St. Helena) and in dependencies containing but few white people, the con- trol of the crown is complete; the nominated officials are appointed directly by the home government, and sent out to the colony. In Gibraltar the whole legis- lative and executive authority is vested in the com- mander-in-chief, who is also governor. In other posses- sions, representing a higher stage of colonial evolution, and which contain a considerable element of white, or at least of educated native inhabitants, the control of the 274 THE STRUCTURE OF THE GOVERNMENT crown is less direct. In British Honduras, for example, the administration (1920) is conducted by a governor with a nominated executive council of six members, and a legislative council consisting of five official and seven unofficial members. The government of Hong Kong approaches still more nearly to being representative. The governor has as his executive council a nominated body of eight members, six of whom (the secretary, the officer commanding the troops, the treasurer, the attorney-general, the secretary for Chinese affairs, and the director of public works) hold their positions ex officio. There is in addition a legislative council com- posed of the same ex-officio members together with the captain-superintendent of police and six unofficial mem- bers four appointed by the crown (two of these being Chinese), one nominated by the Chamber of Commerce, and one by the local justices of the peace. Such a body, it will be observed, stops just short of the principle of popular election. The details here given are not of im- portance in themselves, but are intended to show the careful grading of the British colonial government. The representative colonies are those in whose gov- ernment the principle of election has been introduced, without, however, being allowed to predominate. To this class belong Ceylon, Jamaica, Mauritius, the Baha- mas, Barbados, British Guiana, Bermuda, etc. Here again two degrees of relative dependence may be dis- tinguished. In some of them (as Mauritius and Jamaica) the legislature consists of a single body, a part of whose members are nominated and the rest elected; in others (as Barbados) the legislature consists of two houses, one entire house being elected by the people. But in all the representative systems the officers of the executive are nominated, and the parliamentary system of govern- COLONIAL GOVERNMENT 275 ment does not obtain. The legislature (Council of Government) of Mauritius, made up of the governor, eight ex-officio members, with nine nominated by the governor and ten elected members, is typical of the first class. Barbados illustrates the second and more ad- vanced type; it has a bicameral legislature, the upper house (Legislative Council) composed of nine members nominated by the crown, and the lower, or House of Assembly (twenty-four members), being elected an- nually by the people. At the apex of the system stand the really self-gov- erning, the responsible colonies, whose governments are modeled on that of the United Kingdom itself. These include Canada, Newfoundland, Australia (now federated), New Zealand, and the Union of South Africa. The last-mentioned government was constituted under the South Africa Act of 1909 and includes the provinces of the Cape of Good Hope, Natal, the Transvaal, and the Orange Free State. 1 The combination thus formed is not a federation, but is unitary in structure. The responsible colonies enjoy a virtual independence. Their governments have been created, as already seen in the case of Canada and Australia, by statutes of the British Parliament which are practically equivalent to written constitutions. With the exception of the nomi- nation of the governor-general (or governor, as the case may be), the reservation of the power of disallowing colonial statutes, and the retention of the judicial com- mittee of the Privy Council as the final court of appeal, the home government withdraws from any internal con- trol of the self-governing colonies. It must, however, 1 Note that the older designation "Orange Free State" (the name for forty-six years of the independent republic), which had been al- tered to "Orange River Colony" after the South African War, is restored. be distinctly understood that in point of law this self- effacement of the imperial government is only operative at the pleasure of Parliament. The claim has indeed been raised in Canada that the grant to the Dominion Parliament of "exclusive legislative authority" over the matters enumerated in the British North America Act was "exclusive" of the authority of the Imperial Parliament itself. Such a contention is at variance with the very basis of the British constitution, and cannot for a moment be accepted. But unless and until a statute of Parliament allows it, neither the crown nor any other authority in the mother country has any power over the colonies beyond that reserved in the constituent acts. These colonies are thus left free to manage their own internal concerns. This includes the very important privilege of making their own tariff. All of the autono- mous colonies have availed themselves of this, and have erected protective tariffs against the trade of the mother country. It is true that a system of preferential duties in favor of Great Britain (beginning with the Canadian Tariff of 1897) has been established in the Dominions. But it was long the case that the colonial tariffs placed British goods in the same position as those of a foreign country. The colonies have not the power to conclude treaties with foreign states, but it has been the custom of Great Britain, in negotiating treaties affecting im- mediately the greater colonies, to give a ready hearing to the wishes of her colonial subjects. "It is an under- standing or even maxim of the policy governing the rela- tions between England and the Canadian Dominion," wrote the late Sir John Bourinot, a leading authority on the government of Canada, "that Canadian representa- tives shall be chosen and clothed with all necessary au- thority by the Queen in council to arrange treaties im- COLONIAL GOVERNMENT 277 mediately affecting Canada, and all such treaties must be ratified by the Canadian Parliament." The form of government prevalent in the responsible colonies is virtually the same as in England, except that the exist ence of the constituent statutes introduces everywhere the principle of constitutional limitations analogous to what is found in the United States. The governor exer- cises a nominal authority similar to that of the crown. The real executive is the prime minister and his cabinet, whose tenure of power is dependent upon the continued support of the majority of the lower house. The Cana- dian Senate is a nominated body of limited members, but the nominations are made on the advice of the min- istry, and not, as in the representative colonial councils, at the pleasure of the crown. The same is true of the legislative councils of New Zealand and Newfoundland. The upper house of Australia is elective, and the Senate of South Africa partially so. 1 India, whose conditions are altogether unique, stands apart from the rest of the British colonial system. Here a vast population, numbering well over three hundred millions and presenting the widest varieties of racial character, customs, and creeds, are more or less under the control of the United Kingdom. About seventy millions of these are found in the semi-independent na- tive states, the rest fall under the government of what is technically called British India. The government of In- dia is divided between the home authorities, the central government in India, and the subordinate or provincial governments. At the head of the home government is the crown, acting through the Secretary of State for In- dia. With this secretary is adjoined a special council 1 An admirable account of the government of South Africa is found in R. H. Brand, The Union of South Africa (1909). 278 THE STRUCTURE OF THE GOVERNMENT composed for the most part of former residents in India, appointed for seven years, and not eligible to sit in Par- liament. The expenditure of the Indian revenue must be sanctioned by the secretary and a majority of the council. All other business done in the United Kingdom in reference to India is conducted by means of the coun- cil, but in some matters of a diplomatic character, as in dealings with native states, the secretary may act alone. In India itself, the supreme executive power lies in the governor-general, or viceroy, who is appointed by the crown. He has an executive council, which includes the commander-in-chief and the highest officials. For legis- lative purposes, the council is increased by other mem- bers appointed by the viceroy or elected under the In- dian Councils Act of 1909. The provincial governments, under governors (appointed by the crown) or lieuten- ant-governors (appointed by the governor-general) or chief commissioners (appointed by the governor-general in council) assisted by councils, are similar in construc- tion to the central government. The legislative councils of the province, like the legislative council of India, con- tain a minority element of elected members. There is thus as yet but little attempt at self-government in either the 'central or provincial administration of British India. In the municipal governments (by virtue of acts of Parliament, 1883-84), the elective principle has been introduced. Over the native states Britain exercises a varying degree of control. They contain no British offi- cials, except ah advisory resident; they raise their own armies. But they can hold no diplomatic intercourse with one another or with the outside world, and have no right to make war or peace. Britain also reserves the penalty of dethronement as a punitive power over the native princes. COLONIAL GOVERNMENT 279 8. Imperial federation. The question of greatest in- terest in connection with the large self-governing colo- nies of Great Britain is their political future. The idea of their "manifest destiny" as independent states, prev- alent fifty years ago, receded into the background in the closing years of the nineteenth century. New forces came into play. The economic expansion of the great industrial states demanded constantly new markets and new control of raw materials. A wave of "imperialism" swept over Europe. Africa was partitioned among the Great Powers. Large parts of Asia were brought directly or indirectly under European control. The doctrine of the "white man's burden," to some a creed and to others a cloak, became the word of the hour. The day of large empires replaced the dream of a world of little com- munities always at peace. The dissolution of the Brit- ish Empire would have meant the downfall of Great Britain. Under such circumstances the current of British pub- lic opinion turned. The permanent unity of the Empire appeared now as the supreme goal. The end to be at- tained was clear, but the means obscure. The establish- ment of the Imperial Federation League (1884) and its wide initial success marks the opening of an era. The League advocated a pan-imperial parliament and unified imperial defense. But this meant pan-imperial taxes. The colonies would have none of them and the League expired (1893). Meantime in indirect ways the existing imperial union was strengthened. The Colonial Con- ferences * (1887, 1897, etc.) developed from irregular pageantry into something approaching a Council of Em- pire. The name Imperial Conference was adopted (1907) 1 For a complete history see R. Jebb, The Imperial Conference (1911). 280 THE STRUCTURE OF THE GOVERNMENT and the meetings made regular. Australia and New Zealand subsidized an Australasian squadron of the British Navy. But the growing feeling of a distinctive national life in each of the greater colonies precluded anything like a re-absorption of the Dominions into the British system. The increasing danger of a war with Germany quickened the movement. Two distinct cur- rents of opinion, more or less divergent, though both moving towards permanent unity, became apparent. Some people advocated the deliberate institution of a federal imperial representative government with a cor- responding degradation of the existing governments of Great Britain and the Dominions. It was urged that this would produce a maximum of defensive strength and a true guarantee of permanent union. 1 Others claimed that such a union was contrary to the spirit of the Em- pire. They proposed that the Empire should be viewed henceforth as a united group of "nations in alliance" acting together in war and working together in peace, but always on a basis of voluntary cooperation. The havoc that such a doctrine made of legal theories of sovereignty and of the formal basis of British rule was presumed to be offset by the fact that it corresponded to what was really taking place. 2 The events of the war have entirely changed the out- look. All proposals for formal federation and for a su- preme parliament and for pan-imperial taxes are drifting into the background of academic discussion. The argu- ment that formal union is necessary for defense is now met by the fact that defense was carried on without union. The admission of the Dominions to membership 1 For this whole project see L. Curtis, The Problem of the Common' wealth (1916). 1 See in this connection R. Jebb, The Britannic Question (1913}. COLONIAL GOVERNMENT 281 in the League of Nations elevates them with a peculiar status in which they seem to be independent in all but name and form. At the same time the increasing realiza- tion throughout all British countries of the strong ele- ment of stability offered in a troubled world by union under the crown rules out of discussion all question of the establishment of independence in the republican form. 9. Recent colonial expansion of European states. But it is now necessary to describe in some detail colo- nial expansion in recent times of the other great states of Europe, and the methods they have adopted in the administration of their dependencies. Since the year 1880 the territorial area claimed by the Great Powers as their dependencies has vastly increased. The available parts of Asia, and the unclaimed islands of the Pacific have fallen into European hands; the largest prey has been found in the continent of Africa, which has practi- cally been parceled out among the great states. France, which had commenced the conquest of Algiers as early as 1830, has extended its possessions in North Africa, and at the opening of the Great War held not only all Algeria, but Tunis, the Sahara, Wadai, Se'ne'gal, French Guinea, the Ivory Coast, Dahomey, French Congo, etc. This territory includes nearly all of the desert, the larger part of the valley of the Niger, and Central Africa north of the Congo. The island of Madagascar was seized in 1895. France has also (beginning in 1861) obtained a large part of Indo-China (forming the dependencies of Cochin China, Tonkin, Annam, and Cambodia). The French dependencies in 1914 included in all an area of about 4,000,000 square miles, and a population of 44,- 600,000 people. As the larger part of this area is occu- pied by an uncivilized native population (in Madagas- 282 THE STRUCTURE OF THE GOVERNMENT car, for example, there were in 1917 some fifteen thou- sand French in a population of 3,545,264), it has re- mained to a great extent either under military govern- ment (as in Central Africa) or under appointed officials with military support (Madagascar, and Indo-China). Where possible, however, in the older colonies of France self-government is introduced; Martinique and Guade- loupe have each elected councils; so too has New Cale- donia in the South Pacific. Algeria is governed as part of France, being divided into departments and represented in the Senate and in the Chamber of Deputies. No- where has more thought been directed to the theory of colonial government than in France, a large part of the theoretical literature of recent times on the subject be- ing French. In spite of the fact that the maintenance of the new colonial system proves a heavy burden on the French exchequer, the dream of a colonial empire per- sists. It is characteristic of the French people, that while the English still keep their vast colonial possessions un- represented in the Parliament of the mother country, France has already adopted the principle of colonial representation. Cochin China, French India (Pondi- cherry and four other towns), Guiana, and Se'ne'gal each elect one deputy; Guadeloupe, Martinique, and Re*- union each elect two. These last three, as well as French India, are represented by one senator each. Under the terms of the Peace Treaty of 1919 the colonial control of France was still further extended. Togoland and the Cameroons, formerly part of the German colonial empire, were divided between Great Britain and France. At the time of the outbreak of the Great War the German Empire was in possession of a vast colonial domain. The expansion of Germany, which began COLONIAL GOVERNMENT 283 about 1884, had taken the form of establishing "pro- tectorates" and "spheres of influence," rather than co- lonial establishments in the true sense. The territory thus brought into dependence on the German Empire amounted to one million square miles. Most of it was in Africa, and was made up of Togoland, the Came- roons, German South- West Africa, German East Africa, etc. Germany possessed also the very valuable port of Kiaochow (nominally leased from China) and a large part of the island of Papua, together with smaller is- lands hi the Pacific. The administration of these terri- tories, carried on by imperial governors, commissioners, secretaries, etc., was similar to that of a British crown colony of the primary type. There was scarcely any European population. Under the terms of the Treaty of Versailles in 1919 the German overseas dependencies were transferred to the control of various Great Powers. South- West Africa was placed under the Union of South Africa; German East Africa, divided between the control of Belgium and Great Britain; Togoland and the Cam- eroons, between that of France and Great Britain; the Pacific islands were placed under Great Britain and Japan, and Kiaochow transferred to Japan. Italy also has established African dependencies (Eritrea, Italian Somali Land) whose general character and whose ad- ministration are similar to those of Germany. The colonial possessions of the Netherlands, though not attributable to the recent European expansion, are of great wealth and importance. Their population out- numbers that of the mother country in the ratio of eight to one, although of the forty-seven million inhabitants less than one hundred thousand are white. The elective principle is nowhere in use. The governor of the Dutch East Indies, the members of his assistant council, and 284 THE STRUCTURE OF THE GOVERNMENT the provincial "residents" and district "controllers" are all appointed officials. The administration of the colony, however, must be in accord with the principles laid down in a Dutch statute of 1854, for the "govern- ment of Netherlands India." 10. The dependencies of the United States. The most recent chapter in the history of colonial expansion is offered by the acquisition on the part of the United States of a number of dependent territories. The Ha- waiian Islands, annexed in 1898, may be passed over; admitted to territorial status (1900) and having a gov- ernment similar to that of the other territories of the United States, they are not to be looked upon as a de- pendency. But the case is different with the islands acquired by cession from Spain (1898), as the result of the Spanish-American War (Porto Rico, the Philip- pines, Guam), and with Tutuila, Manua, etc., in the Samoan group, annexed in 1899 at the request of their inhabitants. Porto Rico, under the Organic Act of April 12, 1900, was controlled by a governor and an ex- ecutive council appointed by the President of the United States, and a legislature of which the lower house was elected by the people, while the upper house consisted of the executive council. Of this branch of the legislature at least five, out of a total of eleven, had to be natives of the island. The principle here adopted, of forming a legislative body by using an executive council contain- ing a number of natives, resembles somewhat the sys- tem already described as used in the government of British India. A still more liberal form of government was instituted by an Act of 1916 under which the entire legislature (Senate and House of Representatives) is elected by the people. The government of the Philippine Islands has now COLONIAL GOVERNMENT 285 passed the constructive stage. For some time after the defeat of Spain, and even after the formal cession of the islands, the administration remained in the hands of the military authorities. This was superseded by civil government (July 1, 1901) vested in a commission of officials nominated by the President. An Act of Congress (July, 1902) validated the creation of the civil government thus established, and the exercise of power granted to it by executive order. The same act contained a general bill of rights as a guarantee of in- dividual liberty and provided for the summoning of an elected legislature after the pacification of the islands and the completion of a census. The executive govern- ment was put in the hands of a civil governor (desig- nated later governor-general) and seven commissioners (increased in 1908 to eight), four being Americans and three Filipinos. All these officials were appointed by the President of the United States. The commission acted also as an upper house, the lower consisting of an elected assembly. An Act of 1916 abolished the Philip- pine Commission and set up an elected Senate and House of Representatives. Under its provisions the governor-general, a vice-governor, and auditor and a deputy auditor are appointed by the President of the United States. 1 The acquisition of the above dependencies by the United States has occasioned in recent years a vast amount of discussion. It has been a matter of earnest debate as to whether the acquisition of such distant insular territory as the Philippines, peopled by races altogether alien, in part uncivilized, and in part openly hostile, was either just or profitable. Even the consti- tutionality of such a proceeding was widely denied. 1 The Philippine Legislature elects two Resident Commissioners to the United States. 286 THE STRUCTURE OF THE GOVERNMENT The last question has been set at rest by the interpreta- tion of the courts, and by the overwhelming force of ac- complished fact. The plain truth is that at the making of the Constitution, the acquisition of such territory as the Philippines was not considered, either one way or the other. The result is that in reality the Constitu- tion has nothing to say about it. But the convenient doctrine of implied powers has been made to meet the case. The question involving the keenest discussion was that of the tariff. It was held by many that the provision of the Constitution that the tariff must be uniform throughout the United States prevented Con- gress from making a tariff barrier between the Repub- lic and its new dependencies. The Supreme Court, how- ever, hi the Insular Cases of 1901, has decided that this is not the case. As a consequence Congress is held to have complete power to establish between the United States and its dependencies either free trade or a tariff system as it sees fit. It may be observed, in conclusion, that the tendency of the United States in dealing with its dependencies has been to proceed further in the direction of popular government than English experience would warrant. It has been difficult for Americans, in whose minds the principle of popular government has always assumed a more sharply theoretical form than is current with the English, to reconcile themselves to the "possession" of a dependent community. Common sense has shown the impossibility of governing the Philippine Islands on the same plan as Massachusetts or California. Yet the positive assertion of the Declaration of Independence that "all men are created equal" read a little awkwardly in connection with the government of a group of islands by a commission sent to them from a distant country COLONIAL GOVERNMENT 287 and with the exclusion of the unchristian tribes from its future governance. But as usual the brute force of cir- cumstances proves too strong for abstract theory, even when clothed with the historic authority of the Declar- ation of Independence. READINGS SUGGESTED Egerton, H. E., Short History of British Colonial Policy (1897), bk. n. Burke, Edmund, Speech on Conciliation (1775). Curtis, L., The Problem of the Commonwealth (1916), chaps. XX, XXI. Kimball, E., The National Government of the United States (1920), chap. xxi. FURTHER AUTHORITIES Lewis, Sir G. C., Government of Dependencies (t!841). Todd, A., Parliamentary Government in British Colonies (1880). Zimmermann, A., Die Europaischen Kolonien (4 vols., 1896). Arnold, W. T., Roman System of Provincial Administration (1879). Hall, D., The British Commonwealth of Nations (1920). Bancroft, G., History of the United States (1834-74). Lodge, H. C., Short History of the English Colonies in America (1881). Ridges, E. A., Constitutional Law of England (1905), part vi. Seeley, Sir J. R., Expansion of England (1883). Pownall, T., Administration of the Colonies (1764). Reinsch, P. S., Colonial Government (1902). Leroy-Beaulieu, De la Colonisation chez les Peuples Modernes (1902). Morris, The History of Colonisation (1902). Willoughby, W. F., Territories and Dependencies of the United States (1905). Beer, G., The Old Colonial System, part i (1912). Keith, A. B., Responsible Government in the Dominions (1912). Keith, A. B., Imperial Unity and the Dominions (1916). Morison, J. L., British Supremacy and Canadian Self-Govern- ment (1919). CHAPTER VII LOCAL GOVERNMENT 1. Local and central government distinguished 2. Areas of local government; the United States, France, England 3. Composition and powers of local governing bodies; the United States 4. Eng- land 5. France 6. Prussia 7. Local taxation; the property tax of the United States 8. Systems of local taxation in other countries 9. Reform of the American system. i. Local and central government distinguished. Hitherto, our discussion of the structure of government has been confined to the consideration of those govern- ing bodies whose authority extends over the whole state. But in all but the very smallest communities these are not the sole organs of administration. There exists in addition a number of officials and official bod- ies, whose functions extend over only a portion of the total territorial area of the state. These bodies, and the duties that they perform, are spoken of under the gen- eral designation of "local government." Local govern- ment, therefore, will refer to the operations of all town- ship and county councils, the governing bodies of munic- ipalities, districts, etc. The common-sense meaning of the term is quite clear, but the definition of local and central government, in exact, precise form, is not so easy. For it is to be observed that not all the governing bodies whose power extends only to a point of the state are to be classed as organs of local government; for otherwise this would include the component parts of a federal state, which is contrary to the evident sig- nification intended. The state authorities of New York or Massachusetts are not organs of local government. Nor does the distinction lie in the extent of territory LOCAL GOVERNMENT 289 covered, nor in the number of persons ruled over. The municipal government of New York or Boston, or the county council of Lancashire, exercises its authority over a vastly greater number of people than does the government of the State of Nevada; on the other hand, in extent of territory, the principality of Monaco, which occupies eight square miles, is not a local government at all, though far less in area than any French depart- ment. The difference between local and central govern- ment is not, therefore, a matter of area or of population. The distinction lies partly in their relative constitu- tional positions, and partly in the respective nature of the public services performed. In regard to the first point, it is true of most independent states that the local government derives its powers from the central govern- ment, and holds them at the pleasure of the latter. This is the case, whether or not there is a written constitution. In France and in Italy, each of which has a written con- stitution, the organization of the local government is en- tirely under the control of the central parliament. It is for this reason that we do not think of the Swiss cantons or the "states" of the United States as organs of local government; for these component parts of a federal system are, within the sphere of their own competence, quite independent of the central federal authority. But the distinction thus made is not universally true. Though it applies to nearly all independent states, it is not the case with the organs of local government (town- ships, county, and municipal authorities) in the separate Commonwealths of the United States. These certainly are organs of local government, and yet to a great ex- tent they exist by virtue of the state constitution, and could not be put out of existence at the will of the state legislature. 290 THE STRUCTURE OF THE GOVERNMENT The other point of distinction between local and cen- tral government consists in the different nature of the services accomplished. This requires some further ex- planation. The various functions performed by the agencies of the state for the benefit of the citizens will roughly fall into two classes. Some of them will be in the interest of the community generally, and the benefit thereby effected will not be assignable to any single part of the country. For example, the protection afforded by the army and navy, whereby foreign conquest is pre- vented, is a benefit shared by all the inhabitants alike. The same will be true of all the large class of public works, the advantage and purpose of which may be said to be national. There will also be a number of regula- tive functions to be performed the institution of the criminal law, the control of marriage and divorce, law regulating contracts, sales, etc., all of which, to be effec- tive, must be uniform. The whole class of functions thus indicated will properly fall within the province of the central government. But in addition to these, there are other state activities (for it must be recollected that both local and central government form a part of the organization of the state) of quite a different character. Here the benefit to be conferred affects only a small portion of the community, and is obviously assignable to a particular area. The lighting of a town, the erection of a bridge over a country road, the establishment of a street-car system, are matters of this sort. Here it seems reasonable that the advantage, the cost, and the control of the enterprise should be looked upon as solely the concern of those who are affected by it. Such, then, is the general distinction between the du- ties of central and local governments. The public serv- ices of the latter will be found on examination to refer LOCAL GOVERNMENT 291 mainly to the maintenance of schools, hospitals, asylums, bridges, roads, parks, etc., and the management of local public utilities, such as lighting plants, transportation systems. The activities of local government are thus concerned mainly with real property in various forms; it represents the collective activity of the citizens di- rected towards the creation and control of such tangible utilities (roads, bridges, water supply) as are of general benefit in their particular area, and indivisible among the separate citizens. The services thus performed may be better understood by contrasting them with such regulative legislative activities as the making of the criminal law, which belongs to the central government. In spite, however, of the obvious nature of the general distinction, the functions of local and central govern- ment shade and blend into one another. In some cases what is evidently a local matter as to expense and im- mediate benefit is yet in other aspects a matter of gen- eral concern. This is seen in the case of schools. It is of evident universal concern that all the citizens should be educated, and it is therefore within the proper prov- ince of the central government to make education com- pulsory, and to prescribe the general plan upon which it shall be based. It may also properly defray a part of the cost, leaving to the local government the immediate control and the main part of the cost, at least of pri- mary schools. 2. Areas of local government; the United States, France, England. From this general consideration of the nature of local government, we may pass to some of the special problems which arise in its construction and conduct. These we may group under three heads: (1) the question of local areas, and here we shall have occasion to contrast the orderly "multiple system" in 292 THE STRUCTURE OF THE GOVERNMENT use in the United States with the confusion of the Eng- lish areas; (2) the composition of local governing bodies, and their relation to the central executive, in connection with which the centralized system of France may be compared with the decentralization in England and in America; (3) the question of local taxation, involving an examination of the American property tax, and the systems in use hi other places. The institution of local government everywhere ne- cessitates the division of the total territory, not only into one set of subordinate areas, but into several. In the United States we have townships and counties; in England parishes, districts, and counties (with other divisions); in France, communes, cantons, arrondisse- ments, and de'partements. In the United States and in England we have in addition to these the municipal areas occupied by town and city governments. The reason for having more than one set of divisions will be plain. Different public utilities will naturally spread their effect over areas of different size. Thus it will re- quire, let us say, only twenty families to support a country school; but the same number of families could not with advantage erect and maintain a lunatic asylum for their use. Nor presumably could a hospital or a poorhouse be supported out of so small an area. It be- comes plain, then, that local government demands the making of several areas adapted to the respective "rarity" or "denseness" of the function to be per- formed. But for convenience' sake it will be well to make these areas as few as may be, and to group to- gether those which roughly correspond. As the basis of the areas of local government, there will generally be found in old countries such as England, France, or Prussia, a primitive unit of settlement whose LOCAL GOVERNMENT 293 history is long antecedent to that of the central govern- ment itself. Such is the English parish, whose ecclesi- astical name has superseded the original Saxon "town- ship," the French commune, and the Prussian Gemeinde. In its origin this represents the little community of neighbors living together in a hamlet, or in adjacent rural settlements, and conducting their joint concerns by some form of common management. Where such exists it is plainly desirable to adopt it as the primary area of the local government of the modern state. There is, however, this disadvantage, that in the course of their long history the original parishes, etc., will have grown vastly different in size and population. In Eng- land, for example, out of a total of about 15,000 parishes, the smallest contains less than fifty acres, the largest over 10,000; eleven parishes (in 1891) had no inhab- itants, and the most populous (Islington) contained 319,000 inhabitants. Similarly in France some com- munes are rural areas or mere hamlets, while others are great cities. In spite of the distortion of area thus oc- casioned, it is advisable to retain such historic areas in the frame of local government. For they represent an essentially organic unit, and one which offers al- ready a common economic and social life as a basis for political construction. Above such areas as these will come larger units (the counties, districts, etc.) repre- senting the performance of public duties such as road- making, erection of poorhouses, hospitals, jails, etc., which demand a wider support than that given by the smallest local community. The number of gradations in the ascending scale of local areas varies from coun- try to country, and will be best understood by a brief comparative review of the division adopted in some leading states. 294 THE STRUCTURE OF THE GOVERNMENT The United States is singularly fortunate in the con- figuration of its local areas. They are in part historic, and in part deliberately constructed prior to, or at the same time as, the settlement of the land. The towns (townships) of Massachusetts, for instance, and the counties of Virginia may be called historic or organic areas. They represent the original grouping of settlers in their first occupancy of the colony. But one has only to glance at the map of such a State as North Dakota or Kansas to see that here the form of the local area had been a matter of deliberate construction. Tlje town- ships, the sections into which they are divided, and the counties of which they form a part, are rectangular figures constructed on a common plan. But in the greater number of the Commonwealths in the United States, whether in regular lines or not, we find each Commonwealth divided into townships, which grouped together make up counties. In some States, as in New England, the townships have come first, and the county is made up by a subsequent addition of townships; in the South the reverse has been the case, and the original area was the county, subdivided later to make town- ships. In the newer States, townships and counties have been made at the same tune. But the excellence of the arrangement of the areas of local government in the United States lies in the fact that the larger areas are multiples of the smaller ones; township lines do not cross county lines. The result is that all the inhabitants of any township belong to the same county. This will be seen to have a most important bearing on the adjust- ment of local financial burdens. The division of areas in France is based, as in the United States, on the multiple plan. To this general scheme, however, the historic commune is a disturbing LOCAL GOVERNMENT 295 exception. There may be several communes in an ar- rondissement (as is generally the case, since the total communes number about 36,000), or, as in the case of Paris, several arrondissements in a commune. But above the commune the areas fit into one another; the canton (which is only an electoral and judicial district, and not a seat of government) is in every case a part of an ar- rondissement; the latter itself is a subdivision of the largest area, the de"partement. With the exception again of the commune, all these areas represent deliberate construction, involving to some extent the sacrifice of the historic division of the country. They were made in 1790 by the Constituent Assembly, the first national parliament of the French Revolutionary era. This is reflected in the fact that the departments are approx- imately of equal size. Some of the more extreme con- structionists of the epoch wished to subdivide France into a number of rectangles, exactly similar and exactly equal, disregarding at the same time the geographical configuration of the country and the historic associations of provinces, towns, and districts. This was not done, however, and the departments as constructed conform pretty much to the physical features of the country, and are named after the mountains, rivers, bays, etc., which they contain or adjoin. In England, and indeed in the British Isles generally, the utter confusion into which the areas of local govern- ment had fallen has caused one of the administrative problems of the nineteenth century. In Saxon times the townships, the hundred, and the shire formed a simple multiple system with local self-governing bodies. But the hundred fell into decay, the township (taking its ecclesiastical name of parish) became irregular, and lost most of its civil authority, and in place of the local 296 THE STRUCTURE OF THE GOVERNMENT self-government of township and county was substi- tuted first the control of the king's sheriff, and finally the almost universal administrative jurisdiction of the local justices of the peace. For special purposes the care of the poor, highways, burial, sanitation, schools special areas were added, having little to do with parish or county lines, and under a separate governing body. The result previous to the reforms to be de- scribed later was complete confusion. The situation is thus describee! by Dr. William Odgers, recorder of Winchester: * "In 1883 England and Wales were di- vided for local-government purposes into the following areas: There were 52 counties, 239 municipal bor- oughs, 70 improvement-act districts, 1006 urban san- itary districts, 41 post sanitary authorities and 577 rural sanitary districts, 2051 school board districts, 649 unions, 194 lighting and watching districts, 14,946 poor-law parishes, 5064 highway parishes, not included in urban or highway districts, and about 13,000 ecclesi- astical parishes. The total number of local authorities who then taxed the English rate-payer was 27,069, and they taxed him by means of 18 different rates." With one trifling exception, " all the various areas intersected and overlapped each other." The means that have re- cently been taken to rectify the entanglement thus oc- casioned will form the subject of a later paragraph. 3. Composition and powers of local governing bod- ies; the United States. Let us now consider the com- position and powers of local governing bodies, and their relation to the central authority. Here we may distin- guish two broadly contrasted methods of construction. The one is the system of decentralization, or local au- 1 Local Government (1901). An excellent book, which, however, refers only to local government in England. LOCAL GOVERNMENT 297 tonomy. But this control of local affairs is vested in a set of officials, elected by the people of the locality it- self. Subject to certain general regulations which pro- ceed either from the central authority or from the con- stituent power (expressed in a written constitution) which is behind both the central and the local organi- zation, the fullest latitude is given to the citizens of the locality in the management of their public affairs. The other system is that of centralization. Here the man- agement of local affairs is largely controlled by a set of officials appointed by the central government. The former system prevails in complete form in the United States, and to a slightly less degree in England. The latter, or centralized system, is in use in France. In the Kingdom of Prussia 1 something of a combination of the two had been put into practice. A brief review of the governing bodies thus established in the different coun- tries will help us to a judgment as to the peculiar politi- cal purposes and the relative merits of the two systems. In the United States, both in the North and South and in the new States, local autonomy prevails. The form which it assumes differs, however, to some extent. In the New England States the primary area of local government is the historic "town" or township, origi- nally formed by the joint settlement of a group of emigrants. Its government has already been referred to in connection with direct legislation in a preceding chapter. The original organ of its government is the mass meeting of the qualified voters, called the " town meeting." In places that have grown too populous for such a form of government, the town meeting is 1 The discussion of local government in Prussia refers to the King- dom of Prussia as it was before the Great War. As a result of the war Prussia is much diminished in area, and has undergone many internal changes which may or may not prove permanent. 298 THE STRUCTURE OF THE GOVERNMENT replaced by elected municipal government in Massa- chusetts, for example, towns of over twelve thousand inhabitants are erected into municipalities. But in less populous areas, the town meeting still exists. It is held once a year (with extra sessions, if necessary), usually in the spring, though in Connecticut the regular meet- ing is in the autumn. Its business is to elect the officers of the townships for the ensuing year, to vote on the prospective expenditure of money and the basis of its assessment, and other local matters that may be brought before it. When the town meeting is not in session, its authority passes to the officers whom it has elected. These are the group of selectmen, varying from three to nine in number; the town clerk, who keeps its records; the treasurer and the assessors, who are entrusted with the important duty of setting a value on the property of the township for the collection of taxes; in addition to these are a collector of taxes, school-committee men, and minor officers. This system, it will be seen, erects the township into a complete local democracy, a re- public within a republic, as it were. The authority of the superior officials of the State over the affairs of the township is reduced to a minimum. It must be recol- lected, of course, that under the American system, the state constitution itself acts as a check upon the power of the local authorities, prescribing the limits of their authority, often laying down the maximum of their taxing power, and the form of taxation which they are authorized to use. If they exceed their legitimate pow- ers, the usual method of judicial redress through the courts can be brought into play. The area superior to this, the county, is in New England merely a grouping of townships, whose governing authority is an elected body, the functions of which are very restricted. In LOCAL GOVERNMENT 299 Massachusetts there are three commissioners, one elected each year, and serving for three years. Their duties consist in apportioning taxes for county purposes among the towns according to the system discussed later, in erecting and looking after county buildings, and maintaining county roads, in issuing licenses, etc. In the South the position of county and town is reversed. The county is the historic area, originally used for judicial purposes, and extended in use, later, to other administrative functions. The township repre- sents a subsequent subdivision of the county, especially for the purpose of maintaining primary schools. But in some States the county exists alone, without the township. The organization of the Southern county is based on local autonomy. At its head is the elected board of county commissioners, with whom are asso- ciated a treasurer, superintendents of the poor and of education, sheriff, and other officers. Where no town- ship exists, the commissioners of the county conduct the whole local administration (roads, poorhouses, jails, etc.); where the township has been introduced, the things handed over to its elected officers vary very much. In the Central Atlantic States, and to the west of the Alleghanies, we no longer find either township or county assuming the same preponderant position as in New England or the South. Both township and county exist, governed by officers elected by the people, and dividing the local government between them according to the nature of the service to be performed. Some- times the one and sometimes the other has been his- torically antecedent. In New York, Pennsylvania, Delaware, and New Jersey, the township was the origi- nal area, an organic unit based on settlement. For 300 THE STRUCTURE OF THE GOVERNMENT this reason we still find the annual town meeting in rural New York, presided over by the justice of the peace, electing officers, passing by-laws, and voting taxes. But in the Central Atlantic States the existence of a larger and artificial area hi the shape of the "rid- ing," acted as the starting-point for the introduction of county government. In the Northwestern States the county has generally preceded the township. In Illinois, most of whose Southern settlers in early tunes came from Virginia, the county was first introduced. But here, as in a great many other States, the needs of school regulation served to introduce township gov- ernment. By the system of surveys made by authority of Congress (beginning with the Land Ordinance of 1785), the land in all new territory has been cut up into squares six miles each way, and thus containing thirty- six square miles. One square mile in each has been devoted by the national government to the maintenance of public schools. It has thus happened that in many cases the word "township" was first used merely as the designation of the tract of land six miles square. Later on, as settlement grew, the election of officers for the public business of the township naturally fol- lowed. But in other States the township, though the county has existed side by side with it, has been from the first the chief area of local government. This has happened in Michigan, whose first settlers came from New England, and transplanted their local institutions. The town meeting is in use in Michigan almost in the same way as in Massachusetts. Within the township itself there is often found as a subordinate area the school district, with separate elected officers (trustees, directors, etc.), who appoint teachers, supervise the ex- penditure of money on buildings, etc. But this is not LOCAL GOVERNMENT 301 universal, as in many places in Massachusetts and Pennsylvania, for example the school district is amal- gamated with the township. The above are the only organs of government that operate in the rural parts of the country. But there are, in addition to these, the urban organizations (cities, towns, villages, and in Pennsylvania boroughs) ; the exact form of government varies from State to State. Cities and towns, etc., are sometimes organized by virtue of a general statute or constitutional provision, which makes it possible for any locality having a certain population to adopt a municipal government. Sometimes their form of administration is given to them by a special act of the legislature. 1 It may ap- proximately be said that the latter is the case in regard to the larger cities, the smaller ones coming under a general law. In all cases the government is democratic and autonomous. The control of the city is in the hands of officers elected by the qualified voters among its in- habitants, or, if not directly elected, at any rate ap- pointed by some one else who is himself elected. In some States (Virginia) the city government excludes the county; in others the county remains, forming a part of the city, or including the city as part of itself. The government of an American city resembles in its structure that of one of the States. At its head is an elected mayor, as chief executive officer, with a large number of subordinates, partly elected, partly ap- pointed. (There is, in addition, a legislative or quasi- legislative body in the form of the city council, gener- 1 Acts which are in reality special may be made to appear general in form by relation to an apparent "class" of cities of which only one exists. Special legislation is as a rule only permitted under constitu- tional safeguards. Cf. Constitution of the State of New York (as amended to Jan. 1, 1920), art. 12, sec. 2. 302 THE STRUCTURE OF THE GOVERNMENT ally made up of two different sets of members the aldermen and the councilors who are elected for different terms and different districts. The earlier ten- dency, which originated hi the prevalent belief in the omniscience of any legislative body and a distrust of executive officers, was to place the bulk of the authority in the hands of the council, and to give the mayor as little discretionary power as possible. The change of public opinion in this respect (already referred to in a preceding chapter) has caused a con- trary policy. The concentration of authority in the hands of one man, rather than of a whole body, carries with it a definite location of responsibility. One man, conspicuous by the isolation of his office, aware that he alone is answerable, and that the blame of negligence cannot be shifted, and having at the same time the power to act unhampered by idle discussion, is more likely to prove efficient than a committee whose mem- bers can shift to one another's shoulders the blame of then* joint misdeeds. In Boston, for example (under the charter of 1910), the administration is vested hi a mayor elected for four years, but subject to recall after two years, and a city council of nine members, elected at large for three-year terms. The mayor has a veto over the acts of the coun- cil, and appoints nearly all the heads of departments, boards, and commissions. By the charter of Greater New York, amended in 1901, the city government cen- ters in a mayor, elected for four years, and a board of seventy-three aldermen, elected for two years. The mayor has very great power. He can absolutely veto any grant of a city franchise, and has a partial veto over ordinary legislative acts of the board of aldermen. He appoints the heads of fourteen out of the fifteen admin- LOCAL GOVERNMENT 303 istrative departments (fire, education, water supply, etc.), and has power to remove most of them. He ap- points, also, the civil service commissioners. Each of the separate boroughs of Greater New York has its presi- dent, who controls the street paving, the sewers, etc. 1 A significant development of city administration in the opening decades of the twentieth century has been the progressive introduction of what is commonly called the "commission plan" of government. This was the outcome of the peculiar weaknesses developed under the older system of elective councils and accentuated more and more with the growth of the vast expenditure and the complicated technical business of the modern city. It was found that the individual members of a large council, elected for a particular ward or district for a short term and for a small emolument, were lacking in a proper sense of responsibility and were tempted to re- gard their office as a mere source of influence and pres- tige and even as an opportunity for illicit gain. The smallness-of the remuneration that they received pre- vented them from devoting then* whole time to their civic functions, or applying themselves to the formal study of civic institutions. Under the commission plan councils of this sort are superseded, in whole or in part, by bodies called commissions, boards of control, etc. The officials of these are relatively few in number, are appointed for longer terms and paid a salary such as to enable them to devote themselves altogether, or in great measure, to their city work. As in the case of the mayor great responsibility and great power are used as a stimu- lus towards energetic action and meritorious service. This system, combined with the general vote of the 1 The student may consult here W. B. Munro, The Government of American Cities (1913). 304 THE STRUCTURE OF THE GOVERNMENT people as an implement of ratification and recall, has remodeled the democratic government of cities on lines quite unknown in the opening phases of modern democ- racy. It too will develop its peculiar faults, and no mere "scheme" or "method" is proof against corruption which can be fought only by civic virtue and the power of public opinion. But at present commission govern- ment is a new broom which sweeps clean. 1 The most important of all questions in connection with city government is not its construction, but the scope of its operation, the kind of public services which it is to undertake, whether or not it shall operate its own lighting plant, car service, etc. But the consideration of this topic will fall under a later chapter. 4. England. The distinctive feature of American local government has been seen to be the great extent to which autonomy, or self-government, prevails. The same feature is to be observed in the local government of England, as recently reconstructed; but previous to the reconstruction acts of the last half of the nineteenth century, this was not the case. The greater part of local jurisdiction had been placed, not all at once, but bit by bit, in the hands of the justices of the peace. The func- tions of these officials had become so numerous as to defy anything but a purely alphabetical enumeration; they included such important matters as the levy of the county rate, the issuing of liquor licenses, the conduct of asylums, and the supervision of prisons. In their judi- cial capacity these officials tried criminal cases. The justice of the peace, appointed by the crown, on the ad- vice of the lord lieutenant of the county, did not repre- sent the principle of local self-government. He was the 1 The student may consult E. S. Bradford, Commission Government in the AmeriMn Cities (1911). LOCAL GOVERNMENT 305 nominee of the central government, and in many cases was acting as the agent of one of its departments, of the local government board, the board of trade, etc. In ad- dition to the justices, various special bodies had been created in the course of the nineteenth century, occupy- ing some of the conflicting areas already mentioned. The board of guardians (by the Poor Law Amendment Act of 1834) had control of the care of the poor in a "union" of parishes, the board being composed of the local justices together with elected members. The Burial Acts (1852 and others) constituted burial boards, elec- tive bodies operative over a parish or larger districts. Finally there were added, in 1870, school districts, with elective school boards. The parish itself remained as an ecclesiastical area, but exercised also through its offi- cials, or through its general vestry meeting, minor civil functions. These and other bodies made up a medley of authorities, whose areas of jurisdiction were inextricably confused, and whose composition gave but little scope to local self-governance. The government of cities and towns which had grown up under special charters, and was often in the hands of a small portion of the inhab- itants (sometimes of a close corporation), was also hope- lessly confused and hopelessly at variance with any principle of popular government. Though much of the older confusion, at least as viewed by an American, remains, a great deal has been done to place local government in England upon a more reputable footing. Two main objects have been kept in view the rectification of areas and the introduction of local self-government. With this object, a series of reforming acts has been passed : the Municipal Corpora- tion Acts of 1835 and 1882, the Local Government Act of 1888 (referring mainly to county government), the Local 306 THE STRUCTURE OF THE GOVERNMENT Government Act of 1894 (for parishes and districts), the London Government Act of 1899, and the Education Act of 1902. The general effect of the reform is as follows. The justice of the peace is relegated to his judicial sphere, ' retaining but few of his administrative func- tions. The old Saxon system of three ascending areas with elective self-government (township, hundred, and county) reappears in the present parish, district, and county. To the county is given an elected council, with wide range of local power. The elected district council has authority over sanitation, allotments, certain li- censes, and other things. The parishes inside the area of towns are not affected by the reform, but the rural par- ishes have now elective self-government. If the parish has less than three hundred inhabitants, it exercises its government by means of a general "parish meeting," on the lines of the American town meeting, but with much less authority, for the sphere of parish operations is small. In the larger parishes councils are elected. The school district under the Act of 1902 disappeared, and the control of schools was vested in a committee of the county council, having as a subordinate authority a body of managers for each school. 1 The reforms also introduce elective self-government into the cities and towns, in the shape of mayor, aldermen, and councilors; but the relation of the cities to the counties in which they lie is not always the same. Some are administra- tive counties (Southampton, etc.), or are "county bor- oughs" (Liverpool, Manchester, and about sixty others), 1 The violent opposition to the act arose not from this aspect of its provisions, but from the fact that, in unifying the church schools with the board schools, it contrived to allow the former to get a share of the proceeds of local taxation. It amounted, therefore, in the eyes of its adversaries, to a device for making rate-payers of all denominations contribute to the support of the schools of the Church of England. LOCAL GOVERNMENT 307 and stand quite apart from the county government. Below these are graded classes, which fall to an increas- ing extent within the regulation of the county authori- ties. London stands by itself. It contains within it the small central portion (about one mile square) known as the City of London, and governed as before by the lord mayor and the "courts" of which he is president, the court of common council (composed of aldermen and councilors) being the chief. Outside of this lies the vast "County of London" (with a population of 4,522,961 in the census of 1911), l under the control of an elected county council. This whole area (except the City) is subdivided into twenty-eight "metropolitan boroughs," each with an elected council. The result of these various reforms is that throughout the whole system the central government has withdrawn from its former control, in favor of the autonomy of elected local authorities. Such management as it still retains is hi the hands of the lo- cal government board, a body consisting of a president (who is a member of the cabinet, and who is the acting power) and other cabinet officers, nominally associated with him. But the duties of the board consist merely in supervision; it does not appoint local officials, and its chief function of importance is to sanction financial measures of the subordinate authorities. 5. France. In France local government assumes an entirely different character from that found in America and England. The distinguishing feature is its highly centralized form, and the great degree of dependence in which all local authorities are placed in regard to the central national government. Take for instance the ad- ministration of a French department, the largest of the local areas. At its head is the prefect, an official ap- i Estimated in 1918 at 4,521,301. 308 THE STRUCTURE OF THE GOVERNMENT pointed by the President of the Republic, on the recom- mendation of the minister of the interior. He has asso- ciated with him, it is true, an elected body known as the general council of the department. But the power of the latter is reduced to the smallest compass. It is allowed by law only two regular annual sessions, the one of fif- teen days, the other of a month. It has no true taxing power, for the amount of money which it may use and the manner of raising it are both regulated by the French parliament. In the spending of the money thus accruing to it, it does not act on its own initiative, for it is the prefect who draws up the budget which is annually sub- mitted to it. Even then the expenditure as finally voted requires the assent of the President of the Republic. The latter has also the power to dissolve the council, a power which may be exercised even by the prefect if the coun- cil outsits its statutory term. If it exceeds the scope of its legal competence, its acts can be declared void by the President. Its members are unpaid, their attendance is compulsory, they are forbidden to adopt any resolu- tions, etc., bearing upon general politics, nor can a council enter into any political correspondence or rela- tions with that of any other department. In contrast to this the power of the prefect is very great. At times, in- deed, he merely acts as the agent of the general govern- ment, with no discretion of his own, as when enacting the ordinances of the President. But in addition to this, and to the duties in connection with the council already explained, the prefect has a wide sphere of authority. He appoints and dismisses the teachers in the govern- ment schools, is at the head of the police, is recruiting officer, etc. The same system on a smaller scale is adopted in the arrondissement, the first subdivision of the department. At its head is a sub-prefect, appointed LOCAL GOVERNMENT 309 by the President; the functions of its council amount to little more than the division of apportioned taxes among the communes. The primary unit, the commune, is in a slightly less dependent position. Being organic and his* toric, and not merely "geometrical," as are the superior units, it tends to develop a greater vitality. Its mayor (since 1882) is an elected officer. But its municipal coun- cil, like that of the department, has restricted powers and very limited sessions. 1 It is subject to dissolution by the President, and can be suspended for a month by the prefect. All French towns and cities except Paris and Lyons, which have a special form of government, are organized as communes on the same plan. The peculiar form which local government has thus assumed in France has grown out of the troubled history of the country since the Revolution. At the making of the first constitution of that era (the monarchical con- stitution adopted in 1791) the reformers were fully in- spired with the idea of local autonomy. The depart- ments were erected into what were described as "little republics," and the power centered in their "councils general" was very considerable. Such an arrangement made at such a time served only to weaken the authority of the central executive at Paris to an alarming degree. Under the revolutionary government of the Terrorists, therefore, in 1793-94, local power was put into the hands of "national agents," appointed from Paris, and of special "representatives on mission," who exercised a dictatorial power. The intense centralization thus effected rendered it possible for the executive govern- ment to avail themselves of the whole resources of the 1 Full details in reference to the organization of local government in France may be found in Ducrocq, Coura du Droit Administrate/, vol. i; and in Simonet, Traitt EUmentaire du Droit Public et Admin- istratif. 310 THE STRUCTURE OF THE GOVERNMENT nation with wonderful effect. The same plan was de- liberately adopted and perfected by Bonaparte under the constitution of the year VIII (law of Feb. 17, 1800), in which the prefects and sub-prefects appear, and which has since remained as the basis of local govern- ment in France. The struggle between different dynas- ties and parties for the control of the national govern- ment, and the successive revolutions (1830, 1848, 1851, 1870) in which the struggle has culminated, have made each party willing to adopt the centralized system as a means of consolidating its own power. This has con- tributed largely to give to Paris a political preeminence not enjoyed by any other capital. For the purposes of revolution, Paris during the nineteenth century meant France, and the successful seizure of the central control carried with it the mastery of the entire government. The efficiency of this concentration of power in tune of war or invasion is very great; it insures a prompt cooperation from all parts of the country. But as against this must be set the enervating influence on local affairs of government from above, and the tempta- tion of the central government to use its agents for po- litical purposes. 6. Prussia. The system of local government in Prus- sia, as it existed before the changes occasioned by the collapse of the kingdoms after the Great War, contained one or two features of marked theoretical interest. As a compromise between state control and local self-govern- ment, there was in use in the Prussian provinces a dou- ble set of officials, a president and council appointed by the crown, and a provincial diet elected by the repre- sentative bodies in the "circles" and choosing its own executive head (Landeshauptmami) and executive com- mittee. The spheres of state authorities and provincial LOCAL GOVERNMENT 311 elective authorities were kept separate, the former being mainly concerned with supplying information to, and acting as the agent of, the royal government at Berlin. The functionaries of the Prussian "district," the sub- division of the province, were all nominated by the cen- tral government; of those of the circle, or subdivision of the district, the executive chief was appointed by the president of the province, while the diet was elective. In rural communes there were elective assemblies, but there remained still communes, if one may use the term to translate the word Rittergut, that were under the jurisdiction of a manorial lord. The towns and cities were variously organized on the elective plan. But it must be recalled that the elective system in Prussia was arranged on the division of the voters into classes ac- cording to the amount of taxes that they paid, thus greatly favoring the rich. The central government re- tained a supervising power over financial measures. The Prussian system of combining local authority with central control would prove quite impossible in Amer- ica, owing to the conflict of jurisdiction it would occa- sion; in Prussia such conflict was less to be feared, be- cause it was a matter controlled, as already explained in reference to France, by the administrative officers themselves. 7. Local taxation; the property tax of the United States. We come now finally to the difficult question of local taxation and finance. In the United States local taxation has proved one of the most serious of the prac- tical problems of administration. The peculiar difficulty which arose to a greater or less degree all over the Union was of the following character. The state, county, and township authorities drew a very large proportion, in the case of the two latter practically all, of their finan- 312 THE STRUCTURE OF THE GOVERNMENT cial support from the proceeds of a direct tax laid on all forms of property. The tax applied both to real and personal property land, houses, buildings, horses, car- riages, furniture, stocks and shares, mortgages, bonds, etc. At its origination it seemed eminently reasonable. The States were forbidden to levy import and export duties, and to levy excise duties would tend to drive out manufactures to a more favored locality; they therefore of necessity fell back on direct taxes. And of all such, a single tax, laid on all forms of property alike, seemed to commend itself as the most uniform and the most equi- table. In practice it has shown itself to be distressingly inequitable. This was due in part to the manner of its assessment, which was made as follows. The state au- thorities computed the amount of the direct tax needed for their purposes, and divided it up among the coun- ties in the proportion of the value of assessed property in each. To the sum thus called for each county added the amount needed for its own use and then distributed it in like manner among its townships, again according to the proportional value of the assessed property in each. To this sum the township added what was needed for its own purposes, usually the largest amount of all. The total thus reached was distributed among all the prop- erty-holders of the township according to their propor- tion of assessed property; in other words the total of the assessed property was divided by the total tax to be col- lected, and a tax rate was thus obtained which was lev- ied on all the property. If, for example, the total of the property was worth $5,000^000, and the total tax to be collected was $100,000, then the tax rate would be put at one fiftieth or two per cent. Under such a system, then, everything turned on the assessment. If one county had been assessed for very much less property LOCAL GOVERNMENT 313 than it actually had, then the amount of the tax as- signed to it by the State would be very much less than it should be, but at the expense of the other counties, for the rate all round would need to be higher in order to supply the fixed quantity of money asked for. Or again let us suppose that in one of the townships the property was assessed for very much less than it was worth. Then the township in which the assessment was too low was given less than its share of the county tax, but al- ways at the expense of the other townships, on account of the rate being of necessity higher than would be needed if the assessment were larger. Finally, within the township itself precisely the same thing happened among individuals. Any one whose property was put at too low a valuation, or not valued at all, escaped at the expense of his neighbors; and the more the property in general escaped assessment and remained invisible, the higher became the tax rate. Hence arose what is called competitive under-assessment, the counties and town- ships vying with one another in attempting to make their findable property as small as possible. The asses- sors, moreover, being elective officers, elected in most cases for a very short term, were personally interested in not making the total property of their area stand at too high a figure. The upshot was that while the system was originally devised as the most equitable form of universal taxation possible, in its actual operation nothing could be more vicious and inequitable. For it is to be observed that it in reality discriminates most unfairly between different kinds of property. Real estate, for example (lands and buildings), is much less easy to conceal than such forms of property as shares in bank stock, bonds, debentures, etc. In illustration of this it may be mentioned that in 314 THE STRUCTURE OF THE GOVERNMENT the assessment of property in Brooklyn in 1895, real es- tate constituted over ninety-eight per cent of the total values. Some years ago (1884) a tax commission in West Virginia reported in reference to personal prop- erty, "Things have come to such a condition in West Virginia, that as regards paying taxes on this class of property, it is almost as voluntary, and is considered pretty much in the same light, as donations to the neighboring church or Sunday school." In addition to this, a premium is put upon dishonesty, since people of a pliable conscience will find it easier to dodge the assess- ment than those of a more uncompromising morality. Even some of the measures intended to prevent this, as, for example, the adoption of a schedule of property made out and sworn to by the owner, and the penalties (legal and spiritual) for perjury, etc., accentuate the evil rather than lighten it. The worst feature of all is that when under-assessment once sets in, it moves for- ward at an accelerated pace. For the higher the rate rises, the more imperative does it become for each indi- vidual to understate his property. But the more the property is understated, the higher the rate rises, and thus the worse the situation is, the worse it tends to be- come. In some cases the rate becomes so high that to tell the literal truth, and pay the full tax rate, would mean absolute rum. Thus, in some of the "towns" of Chicago, previous to the reform of the assessment sys- tem some years ago, the rate stood as high as eight and nine per cent. Now it must be remembered that this means, not the contribution of eight per cent of one's income, but eight per cent of one's capital property. To actually pay this and continue in business would not for ordinary enterprises, be found possible. The result is that both the assessors and the assessed took to adopt- LOCAL GOVERNMENT 315 ing a rough scale of depreciation, accepting as accurate a figure that is perhaps one fifth or one tenth of the proba^ ble actual value of the property concerned. Meanwhile the incentive to dishonesty remained and a vast amount of property escaped untaxed. 1 Throughout the entire United States opinion is agreed as to the inefficiency and iniquitousness of the general property tax. It has been condemned by a long series of state tax commissions held within the last forty years, and by all the highest authorities on the subject of pub- lic finance. "Instead of being a tax on personal prop- erty," said the New York commissioners of 1872, "it has in effect become a tax upon ignorance and honesty. That is to say, its imposition is restricted to those who are not informed of the means of evasion, or, knowing the means, are restricted by a nice sense of honor from resorting to them." The Illinois commission of 1886 spoke of it as "a school for perjury, promoted by law." The New York report of 1893 says, "It puts a premium on perjury and a penalty on integrity." The Industrial Commission of 1899-1902 hi its final report (vol. xix) quotes as illustrative of the general feeling the words of a special committee on taxation which reported to the California Senate in 1901: "From Maine to Texas and from Florida to California, there is but one opinion as to the workings of the present system. That is, that it is inequitable, unfair, and positively unjust. Theoretically all property is called upon to bear a share of the public burdens in exact proportion to its present value. In practice that end is admittedly not even approached. 1 For detailed statistics as to the operation of the property tax, the following works may be consulted: Seligman, Essays in Taxation, chaps, i, ii, and xm (3d edition, 1900) ; Ely, Taxation in American States and Cities; Final Report of the Industrial Commission, vol. xix, pp. 1031-71. 316 THE STRUCTURE OF THE GOVERNMENT Scarcely a fractional part of the property in any Com- monwealth is brought to the tax rolls. This is especially true of personal property in its most coveted forms, money and credits." That the reform of local taxation is one of the crying needs of the American system of government is only too obvious. But before considering the steps that have already been taken in that direction, and the various plans suggested, it will be well to set in comparison the systems adopted in other countries. 8. Systems of local taxation in other countries. Com- plicated as is the local administration of England, there are certain features of its financial system which merit attention in connection with the present question. In the first case the central government does not divide or apportion taxes among the county councils for collec- tion, so that all question of competitive under-assess- ment as between counties is set aside. Nor is there, for reasons which will appear presently, competitive under- assessment between the minor areas. In the next place the whole field of personal property, tangible and in- tangible, is left out of local taxation. Thus the Amer- ican difficulty of finding "invisible property" is avoided. But at the same tune such property contributes to the national finance through the income tax, which, among its other categories, is levied on stocks, shares, etc., and paid at the source. Though the operation of the income tax is of course fallible, and allows the more fluid forms of income (professional, etc.) partially to escape, it nevertheless serves to make the intangible forms of property contribute to the general revenue of the state. The actual revenues of the local authorities consist partly of sums handed over to them by the central gov- ernment, and partly of "rates" (proportional taxes) which they levy on real property. To the first class be- LOCAL GOVERNMENT 317 long certain payments made by the national govern- ment to the counties (administrative counties, and county boroughs), representing a fraction of the amount received as the proceeds of license taxes (liquor, dogs, guns, etc.), a fraction of the estate duties collected, and, under a statute of 1890, the proceeds of certain duties on spirits and beer. In other words, the national govern- ment collects various taxes, and shares them among the counties. The rest of the local revenue comes chiefly from direct taxation or from municipal services. The rate is levied not, as in America, on the capital value, but merely on the annual value of real property. A com- mittee of the county council fixes the county rate, assign- ing to each parish a standard of what the rate is to pro- duce. This involves assessment as in America of the property value in the parish, but the valuation is never made by an elected parish officer. The county authori- ties follow the valuation made by the national govern- ment for the raising of the income tax, or that of the poor-law authorities, or at times make a valuation of their own. Boroughs, districts, and parishes levy similar rates on the annual value of real property. The differ- ence in conditions between England and America is seen in the fact that while the American property tax, as it was at the opening of this century, ranged (nominally) from about one and one half to ten per cent on capital value, the total of various kinds of English local rates stood at about four and a half shillings in the pound of annual value; in other words, while the nominal Ameri- can rate is at one to ten per cent of capital, the Eng- lish rate is twenty-two and one half per cent of income. It must not be thought, from what has been said above, that the situation in regard to local finance in England is altogether felicitous. There, however, the 318 THE STRUCTURE OF THE GOVERNMENT feature which occasions grave apprehension is not the method of assessment and levy, but the great increase of local expenditure and local debt. The local expenditure of England and Wales in 1868 was only thirty million pounds; in 1900 it reached one hundred and one million; in 1914 it stood at one hundred and sixty-nine million pounds. Much of this has been paid for with borrowed money, and the total of local indebtedness even before the war had reached 562,630,045. As a result local rates have increased to a great, indeed to an alarming extent. The rate per pound in 1891-92 stood at 3s. Sd. ; in 1895-96 at 4s. 5d.; in the largest boroughs in 1910 the rate exceeded 7 shillings and in the metropolitan bor- oughs of London in 1918-19 the rates in several cases reached and hi some far exceeded 10 shillings in the pound. It is true that the borrowing power of local bod- ies is subject to the sanction of the local government board, and the accounts of most local bodies are audited by district auditors, appointed by the same authority, and having a power to disallow items. 1 A further exten- sion of this application of central control would seem justified by the circumstances. In France 2 local government presents certain fea- tures differing in a marked degree from the systems both of England and America. In the first place, use is made of a sort of internal customs duty, the oc- troi, levied on various classes of goods brought into towns. In its origin this tax goes back to the institutions of the Roman Empire. Under the old French monarchy the octroi was farmed out, which led to great abuses and to the abolition of all such taxes during the Revolution. 1 Odgers, Local Government, chap. xn. * For local taxation in France, see Leroy-Beaulieu, Traitt de la Science des Finances, vol. i (6th edition, 1899). LOCAL GOVERNMENT 319 But the system arose again, and in spite of its obvious defects increased to such great proportions that by the end of the nineteenth century some fifteen hundred cities, towns, and villages made use of it and it produced one third of their total municipal revenue. The chief articles thus taxed are wines, beer, and spirits generally, oil, meat, combustibles, fodder, and building materials. This part of the French system is certainly to be con- demned. It hampers trade, and is troublesome and ex- pensive in collection. Unfortunately, like other indirect taxes, it has the insidious quality which renders its use tempting to municipal authorities. For the rest of the municipal revenue and for the revenue of the department, a quite different plan is used. Apart from the income tax, there are four great direct taxes levied by the French national government the tax on real estate, tax on personalty and persons (impdt mobilier ci personnel), the door and window tax, and the tax on business. Of these the last named is e graded tax on all forms of business enterprise, varying according to the kind of business, the magnitude of the business, and the location of the business. The whole classification falls within the scope of the central gov- ernment; there is no apportionment among departments, etc., and hence no chance of competitive under-assess- ment. It is as if the State of Massachusetts imposed a license tax on all forms of business, which, other things being equal, would be higher in Boston than in a town of fifty thousand people, and higher in the case of bank- ing business, other things being equal, than for a grocery business, and finally would be higher in the case of a business employing one hundred men than in one which employed only twenty, still with the condition that other things were equal. The total tax 320 THE STRUCTURE OF THE GOVERNMENT collected would therefore vary with the changing fac- tors. Its use by the government of France was originally meant to supplement the lack of a national income tax. Of the other taxes, that on real estate is based on what is called a "cadastre," or fixed valuation made by the government on a basis of area, productivity, value of buildings, etc. The part of this valuation referring to land remains unchanged for a long time together (1821-90). That on buildings has been frequently revised. The former portion of the tax is apportioned; that is to say, the government decides on a total sum and collects it from the departments in proportion to the valuation of their land, the rate thus varying as in the United States. In the case of the latter portion of the tax, the government fixes the rate and takes the proceeds. It is the duty of the local authorities in the arrondissements to share the apportioned tax among the communes; but as the valuation on which they proceed is made for them, they are in a totally differ- ent position from that of the American assessors. The so-called personalty and persons tax (impdt mobilier et personnel) is in reality an apportioned tax on houses together with a capitation tax of the value (according to locality) of three days' labor. Finally the "door ano! window tax" is an apportioned tax on houses. It has been necessary to show the nature of these direct taxes in order to explain the French system of local taxation. The local revenue is obtained by the addition of a certain percentage to the sums thus col- lected. The "centimes additionnels," as they are called, are settled by the central government, and collected by its agents. It is for this reason that it can be said of the general council of the department that it has no power of taxation. The "centimes additionnels," or LOCAL GOVERNMENT 321 sur-tax, added to the "principal" of the French direct taxes, is greater than the principal itself. No sur-tax is added to the capitation tax mentioned above. 1 In Prussia 2 use is made of the octroi * as in France, its burden falling upon mill-ground articles, cattle, meat, etc. There are also, as in France, sur-taxes added to the direct taxes of the state government and other direct taxes whose proceeds go wholly to the local authorities. The direct taxes of the first class in- clude the income tax and the tax on circulating busi- ness; those of the second class comprise the taxes on land, houses, and fixed business. The extra percentage, or sur-tax, actually collected varies greatly, but is un- der the control of the central government. The land assessment is made by commissioners appointed by the state government, together with a staff of technical experts in each province. The persons liable to the income tax are divided into classes within which all pay the same. The assessment is made by a special board in each circle or county, partly appointed by the local authorities, but in the majority elected by the persons liable to tax. Unfortunately the method of ascertaining income has not proved satisfactory. Till recently (1891), the board relied largely on circum- stantial evidence of income (style of house, obvious expenditure, etc.). The objection that this was an in- quisitorial proceeding led to the adoption of self-assess- ment by declaration. In spite of the severe penalties for fraud, a great part of income escapes. The mode of assessing the business tax is peculiarly interesting. The French system of classification by industries and 1 In some cases, however, "extra centimes" are added to the fixed tax for state purposes. * As before the Great War. * The octroi is not used by Berlin. 322 THE STRUCTURE OF THE GOVERNMENT by population of locality was abandoned in 1891. In- stead of it businesses are grouped into four classes on a joint basis of capital invested and earnings made. The assessment of the top class is made, province by province, by assessors of whom one third are nomi- nated by the minister of finance, and two thirds by the committee of the province (the executive committee of the elected portion of the provincial government). The tax amounts to about one per cent of earnings. The two middle classes are taxed district by district (Beairk), and the lowest class is taxed in each "circle," or county. The government assigns a lump sum (based on the average earnings of included businesses) to be collected from all businesses of the same class in the same district (or minor district), and this is shared among the individual business concerns by a tax com- mittee elected from their number. It must be observed that this elected committee has no power to spare its constituents as a total. This form of tax has proved singularly efficient. 9. Reform of the American system. Let us now, in the light of what has been said in regard to foreign countries, consider some of the chief proposals for the reform of the American system of local taxation, and the steps that have already been taken in that direction. In the first place we have the frequent sug- gestion of a more stringent enforcement of existing laws. This is what was done in Ohio under the "tax inquisitor law," whereby county commissioners could engage an individual to "discover" personal property, paying him a proportion of the tax thereby realized. In view of the obnoxious character of the property tax so generally condemned, mere rigor of enforcement only aggravates the situation. Such a system intro- LOCAL GOVERNMENT 323 duces a feature of management which should have no place in public administration, except in dealing with the criminal class. Nor is the system of making the legal assessment value (as has been done in various places) only a fraction of the true value, of any perma- nent efficacy. It affords, it is true, the opportunity for a general repentance and a new start, but the viciousness of the assessment system is not altered thereby. The proposals which appear to be substantiated by the expe- rience of foreign countries are (1) the separation of the sources of state and local revenue, and the abandoning of the system of apportionment, (2) the abolition of the property tax on personal property, and (3) the creation of other forms of revenue to fill the void thus created and to satisfy the equities of taxation. The first of these proposals has been very widely endorsed. In Oregon under a statute operative in 1905, apportionment of state taxes among the counties was abandoned. The proportion of state taxes paid by each county was made to depend on the ratio of its own ex- penditure to the total expenditure of the counties. The Industrial Commission in its final report (1902) recom- mend that the States (not the localities) abandon the property tax altogether. In the second place the abo- lition of the tax on personalty would leave only land and buildings subject to the property tax. The motive for concealment would be lessened, since there would no longer exist the sense of injustice at the escape of personalty from a tax to which it was legally liable. The experience of England and Prussia certainly falls in with the suggestion of the commission that this tax should be for local purposes only. It might seem advis- able that when the system of elected assessors exists it should be abandoned in favor of assessors appointed 324 THE STRUCTURE OF THE GOVERNMENT by the government of the State and holding an inde- pendent tenure of office. Such a suggestion is but little consonant with the current political ideas of the American people. But the experience of European countries certainly favors it. A valuation of land on the French system by general survey and estimate would reduce that portion of the tax to a stable basis. A number of States have already abandoned the taxa- tion of personal, or at least of "intangible," property under the property tax. Here, however, the question of constitutional powers intruded itself inasmuch as most of the state constitutions contained provisions necessi- tating the uniform taxation of property. Amendments to the constitutions have been necessary to remove this difficulty. In reference to the third question, that of creating other sources of revenue, much has already been done in some States and there is much that naturally sug- gests itself. The successful business taxes of Prussia and France seem to indicate a useful form of taxation. The Industrial Commission recommended the adoption of taxes of this nature as a supplement to the property tax. In several of the Southern States there already exist "licenses" or "privilege taxes" which are of this kind. They are by no means so elaborate as the Continental taxes, varying only according to population or other evident criteria, but not proportional to the volume of business transacted. The taxation of income has also been widely recommended and is now adopted in many States. Theoretically the income tax is the most equitable of all, but experience shows it liable to grave inequalities. It might well form a part of a re- constructed tax system for state purposes, especially if income from real estate were omitted, being already LOCAL GOVERNMENT 325 taxed under the local property tax, and if the English system of tapping the income at its source were put into force. An amended taxation of corporations which are now taxed in various ways, on the value or on the cost of property, on capital stock, on bonded debt, on gross earnings, on dividends, on net earnings, etc. is also proposed. The taxation of inheritances as a mode of state revenue is also being greatly extended. In sum- mary it may be said that what is needed is a complete reconstruction of local taxation. The general object should be to avoid the present evils of competitive un- der-assessment and invisible property and to institute a new composite system of revenue calculated to properly distribute the burden of taxation. READINGS SUGGESTED Courtney, L., The Working Constitution of the United Kingdom (1901), part n, chap. I, pp. 205-20. Lowell, A. L., Governments and Parties in Continental Europe (1897), vol. i, chap, i, pp. 36-43, 308-34. FURTHER AUTHORITIES Odgers, W., Local Government (1901). Eaton, D. B., Government of Municipalities (1899). Ducrocq, Cours du Droit Administratif, vol. i (1881). Seligman, E. R., Essays in Taxation (3d edition, 1900). Report of the Industrial Commission, vol. xix. Ely, R., Taxation in American States and Cities (1888). Leroy-Beaulieu, P., Traite de la Science des Finances (6th edi- tion, 1899), vol. i. Jenks, E., Outline of English Local Government (1894). Bryce, J., American Commonwealth (1899), vol. i. Fiske, J., Civil Government in the United States (1891). Howe, F. C., The British City (1907). Ashley, P., Local and Central Government (1906). Munro, W. B., The Government of European Cities (1909). Munro, W. B., The Government of American Cities (1910). Bruere, H., The New City Government (1912). CHAPTER VIH PARTY GOVERNMENT 1. Conflict of opinion on the merits of party government 2. Origin and development of the party system in England 3. Origin and growth of political parties in the United States 4. The organiza- tion of American political parties 5. Reform of the system 6. Party machinery in Great Britain 7. The party groups of Con- tinental Europe. i. Conflict of opinion on the merits of party govern- ment. By a political party we mean a more or less organized group of citizens who act together as a politi- cal unit. They share, or profess to share, the same opin- ions on public questions, and by exercising then* voting power towards a common end, seek to obtain control of the government. They constitute something like a joint-stock company to which each member contributes his share of political power. They are thus collectively able to acquire the strength which it would have been impossible for them, acting singly, to obtain. In all except the autocratic modern governments this sys- tem of deliberate collective action supplies the motive power which keeps the wheels of administration moving. Though standing to a large extent outside of the legal structure of the state, party government is the vital principle of its operation. The Constitution of the United States does not, indeed, presume the existence of political parties; but in the evolution of American government in the nineteenth century, they have come to be its central feature. In the United Kingdom the law of the constitution knows almost nothing of any such institution; but the customary operation of the consti- PARTY GOVERNMENT 327 tution is altogether based on the supposition of this sort of collective action, for the whole cabinet system which we have seen to be the central fact of Brit- ish government presupposes the united action which alone can render its existence possible. The countries which have deliberately adopted parliamentary govern- ment France, Italy, Canada, Australia, etc. have done so on the same assumption. The law cannot, in- deed, expressly decree the existence of parties, but it can set up institutions, as in the countries named, which become meaningless without them. For a proper study of modern government it is, therefore, necessary to take full account of this form of joint political effort and to study the organization and operation of modern parties. We may thus form some judgment as to the value and efficiency of the political expedient thus devised. Party government, indeed, has been variously judged. It has been extolled as the most natural and condemned as the most unnatural of political phenomena. Those who judge it harshly are shocked by the peculiarly artificial agreement which it sets up among the group of party adherents, and their equally artificial disagree- ment with their opponents. Each side remains in a state of willful inconvincibility, with individual judgment frozen tight in the shape of the party mould. This kind of unanimity seems to its critics false and injurious; it suppresses that very freedom of individual opinion and action which is meant to be the vital principle of democratic government. Where two great political parties dispute the field, it presumes, as has been said by Professor Gold win Smith, "a bisection of human character," which does not in reality exist. Those who defend party government take an entirely opposite ground. They draw attention to the fact that in a cer- 328 THE STRUCTURE OF THE GOVERNMENT tain sense the bisection of human nature is altogether in accordance with fact. There are naturally, they claim, 1 four kinds of men those who wish to return to the methods and institutions of the past (reaction- aries), those who wish to retain those of the present (conservatives), those who wish to reform present institutions (liberals), and those who desire to abolish them (radicals). If for evident reasons of expediency the two former classes and the two latter act together politically, we get a division into two great political parties, resting on fundamental psychological princi- ples. It is further argued that far from being in con- flict with the theory of democratic government, it is the only thing which renders the latter feasible. For it is impossible for all the people to rule all the time taken singly. The rule of the people can only mean the rule of a majority. Now the only way in which any particular set of people can remain together as a major- ity, and thus render possible a stable and consistent administration of public affairs, is that the members of the ruling group shall "agree to agree" with one another. A modern democratic state without this somewhat artificial and yet essential unanimity would become a brawling chaos of individual opinions. The validity of the two contentions thus urged will depend hi some measure on the circumstances of the time and country. It often happens as in the case of the slavery question or the silver question in the United States, the free-trade question in England, etc. that some one paramount political issue presents it- self which of necessity separates the community into affirmative and negative divisions. The importance of the issue is such that the supporters of either side are 1 See W. E. H. Lecky, Democracy and Liberty. PARTY GOVERNMENT 329 perfectly willing to subordinate to it all minor matters and to act in concert in everything for the sake of the main point to be gained. Two free-traders or two free- silver men might consent to vote and act together, and to put their interests into the hands of the same repre- sentative, even if the one of them was a prohibitionist and the other an anti-prohibitionist. It is in such cases as this that the party system seems eminently a defen- sible one; it offers a natural and reasonable method of reaching the main object to be achieved. This was the condition in the United States in the middle of the last century. It was also the chronic condition in England during a large part of the nineteenth century, the general idea of liberal reform being opposed to the general im- mobility of conservatism. It was owing to the existence of this state of things that party government grew to be invested with an air of inevitability, and seemed to carry with it its own defense. On the other hand, where no such main issues exist the party system must depend for existence on the strength of its organization. It must have pledges first and principles after, and its members, having first decided to agree, must next make up their minds what it is they agree about. This is the present position of the party system in the United States. Fail- ing this, for default of a main issue, political parties will take the form of numerous and rapidly changing groups, the government being carried on by temporary and unstable combinations, and the parties, having neither traditions nor standing power, being animated with a dangerous sense of irresponsibility. This is the position of affairs in France, Italy, and several Continental countries. At the present juncture, then, the party sys- tem meets with keen criticism and speculation is rife as to its future evolution. 330 THE STRUCTURE OF THE GOVERNMENT 2. Origin and development of the party system in England. The origins of party government are found in England and may be considered as dating from the Elizabethan era. The Puritans, opposed to the intolerance and the extreme prerogative of the queen's government, exerted themselves to gain seats in Parliament, where their representatives acted as an organized party in arresting the royal grants of monop- olies, etc. On the basis thus formed grew up the popu- lar party, whose cohesion was rendered stronger by the arbitrary government of the Stuart kings. "Sandys, Coke, Eliot, Selden, and Pym, may be regarded," says Sir Thomas May, 1 "as the first leaders of a regular par- liamentary opposition." As the resistance to the royal tyranny increased, the defenders of popular rights and the adherents of the crown changed from political par- ties to the opposing factions of a civil war. But after the Restoration the same parliamentary division reap- pears under the name of the Court Party and the Coun- try Party of the reign of Charles II. With the debates over the Exclusion Bill of 1680 (for debarring the king's brother from the throne) the nicknames of Whig and Tory (terms equivalent to "dough-face" and "highwayman") first appear. Henceforth for a century and a half these names indicated the two great politi- cal parties by whom the parliamentary activity of the United Kingdom was controlled. The Whigs were the opponents of the royal prerogative and the adherents of the doctrine of parliamentary supremacy; the Tories advocated the power of the crown. Their relation to the later parties must not be mistaken. Neither was by 1 Sir T. E. May (Lord Farnborough), in his Constitutional History, vol. ii, chap, vin, gives an account of the rise and development of the party system in the United Kingdom. PARTY GOVERNMENT 331 its origin the party of progress or reform; neither the party of stability or order. They represented merely two different theories of English constitutional relations. After the accession of the House of Hanover the two parties found their positions curiously reversed. The Whigs, the opponents of prerogative, were the support- ers of the new dynasty, while the Tories, the advocates of prerogative, were the opponents of the holder of the crown. This blunted the edge of their original hostility, and helped to convert them from the position of inim- ical factions to the decorous and official form of opposi- tion since maintained. Moreover, the practical triumph of the principle of parliamentary supremacy, and the recognition of the hopelessness of the Stuart cause, led to an alteration in the distinctive characteristics of the two groups. From the accession of George III onwards, the Whigs tended to become the advocates of reform and progress; the Tories placed their faith in order and security. Thus the two changed into the great Liberal and Conservative parties of the nineteenth century. The doctrine of liberalism favored the increased "democra- tization" of the constitution, the grant of equal political privileges to all, the abolition of the remaining religious disabilities and tests, the establishment of economic lib- erty of trade and industry. To this the Conservatives opposed the historic view of political rights that had grown up under the constitution, the safeguarding of vested interests, and the resistance of dangerous inno- vation. But since the middle of the nineteenth century, these original characteristics of the two parties have largely been obscured. The Conservative administra- tions have participated in many of the great reforms of the latter part of the nineteenth century the ex- tension of the suffrage, the reform of local government, 332 THE STRUCTURE OF THE GOVERNMENT of Irish land tenure, and so forth. The more recent com- plexion and organization of party life in the United Kingdom will be considered in a later paragraph. . 3. Origin and growth of political parties in the United States. In America we may consider distinct political parties as beginning with the colonial contro- versies of the eighteenth century. The standing oppo- sition of the representative portion of the colonial governments to the governor and his associates, natu- rally divided political sympathy on much the same lines as in the mother country. As in England during the Stuart period, the war of the Revolution changed the partisans into armed combatants. But with the making of the first truly national government (1787) political parties reappear on an entirely new basis. Those who favored the establishment of a strong central govern- ment became known as the "Federalists," while those in favor of the restriction of the federal power were termed "anti-Federalists." After the adoption of the Constitution the term "Federalist" indicated those in favor of consolidating and strengthening the federal power, while those in favor of the rights of the States were called " Republicans." The latter, being supported by the general trend of public opinion in favor of the rights of the individual and the restriction of govern- mental functions to a niimmum, then current both in Europe and America, eventually carried the day. The Federalists declined hi numbers and influence, and in the early twenties were practically extinct. Their opponents had hi the early years of the Constitution strengthened their hold upon popular sympathy by adopting the name "Democratic Republican," which has developed into the present term of "Democrat." After the disappearance of the Federalists, the absence PARTY GOVERNMENT 333 of definitely marked political parties led to a sort of interregnum known historically as the "Era of Good Feeling"; this designation and the lapse of time has surrounded with an undeserved halo a decade which "was really," says Professor Hart, "a period of bitter- ness and rancor and legislative ineptitude." l With the advent of Andrew Jackson (1829) the Democratic Party entered on a new phase, in which it stood for extreme individualism, the extension of the suffrage, and the rights of "the people" in the special sense of the term. This raised up in opposition the party of the Whigs, advocates of strong government, national improvements (roads, canals, etc.), and a pro- tective tariff. The rising predominance of the question of slavery (1820-60) sundered the Whig Party and removed them from the political arena. In their place sprang up anti-slavery parties of different degrees of op- position. The voting strength of these was finally gath- ered together as the Republican Party, opposed to the further extension of slavery, though not (as a party) opposed to its existence. The Civil War removed the mam issue by abolishing slavery. Since then the same two great parties have remained in name, but their evolution in the last forty years has rather taken the form of a consolidation of the organization of party structure than a collective adherence to any single principle or policy. The Republicans are in favor of protection, but the Democrats are certainly not free- traders. The Republicans, but not all of them, were in favor of the gold standard, and for a time most of the Democrats, but not all of them, opposed it. The States of the South have remained almost solidly Democratic, but this is by the historic continuity with past condi- Actual Government (1903). 334 THE STRUCTURE OF THE GOVERNMENT tions. The plain truth is that both parties are largely opportunistic, adapting their policy on current ques- tions to the circumstances of the day, and mainly gov- erned in their selection of political opinions by the prob- ability of political success. The party organization has become the leading factor, and the party opinions have taken a secondary place. A Republican is no longer to be defined as a man who holds such and such opinions, but as a man who adheres to the Republican organ- ization and will support its candidates. At present, then, the striking fact in connection with American po- litical parties is the complete mechanism of their organ- ization. In addition to these two great parties various minor groups have appeared from time to time. Among the most notable of these was the party of the Populists, or- ganized in the Middle West, and representing especially the interests of the farmers as against the so-called money power of the capitalists of the Eastern cities. The party advocated a wide measure of government ownership, direct democracy under the form of initiative and referendum, and various measures of popular re- form that have since become the stock in trade of the various radical parties of the present day. The Populists carried four States in the presidential election of 1892, but were presently more or less absorbed with the radi- cal wing of the Democratic Party. A later organization that appeared in the opening decade of the present century was the Progressive Party, advocating a large measure of social reform to be effected by utilizing to the full the powers of the central government. This party appeared in great strength in the election of 1912 when it polled 4,119,507 popular votes in a total of 15,031,169. Meantime the growth of modern socialism, PARTY GOVERNMENT 335 as described in a later chapter, has brought into being two socialist parties (the Socialist and the Socialist Labor) in the United States, which undoubtedly rep- resent not a transitory phase, but an abiding factor in national politics. 4. The organization of American political parties. That parties should have become highly organized is the natural outcome of the circumstances of the country. Among the contributory causes are to be noted in the first place the disjunction of executive and legislative power, which naturally calls for a bond of union in the shape of a party organization. 1 To this we must add the great extent of territory to be covered, the impossibility of selecting candidates for the presidency, or for the state governorships, secretaryships, etc., in any purely spontaneous fashion. Nor is there under the American system any set of persons among those holding power who are placed in the same position of evident party leadership as has always been the case with the party leaders in England. The attempt of the members of Congress to assume this position and to nominate candi- dates for the presidency in a party "caucus," soon fell into disrepute, and in 1824 broke down altogether. The similar attempt of the state legislatures in the decade following was equally ineffective. In place of this there sprang up in the twenties, in accord with the general American idea of the sovereignty of the people, the practice of holding a special "convention" or meeting of representatives selected by the members of a political party, to make the choice of its candidates. The system thus established grew apace. As long as the great slav- ery issue was before the nation, the convention failed to give to the political parties the highly mechanical 1 See in this connection F. J. Goodnow, Politics and Administration. 336 THE STRUCTURE OF THE GOVERNMENT aspect they have since assumed. But from the close of the Civil War the machinery has become more and more definite, until it has reached the elaborate form in which it now exists. The sweeping reforms of recent years, which tend to substitute direct votes of the people for the actions of conventions, have greatly altered the operation of the party machine. But the subject may be best under- stood by considering first the organization as it was be- fore the era of reform. The scheme of its construction was as follows. 1 Its organization followed the division of areas made for the purposes of elections. In each of these a special meeting of party adherents was held for the selection of candi- dates. The basis of it was found in what was known as the "primary," often called a "caucus" in the New England States. In theory this consisted of a meeting of all the qualified party voters resident in the smallest voting area township, county, or precinct, as the case might be. In actual fact it was only a minority of the voters of the party who were to be found at a meet- ing of the primary. Many absented themselves from in- difference, others for lack of the technical requirements for admission. Others properly qualified were excluded by unfair means. This was particularly true of primaries held in urban areas, where the voters had but little in- dividual acquaintance with one another. The duty of a primary meeting was threefold. It appointed the stand- ing committee of the party for that area, it nominated 1 Lord Bryce's admirable description of party machinery in the United States, American Commonwealth, vol. n, part in, has never been surpassed. For more recent information see W. B. Munro, The Government of the United States (1919), chaps, xxn and xxm; also Everett Kimball, The National Government of the United Statet (1920), chaps, v, vi, and viz. PARTY GOVERNMENT 337 party candidates for the elections held in its district, and, most important of all, it sent up delegates to the party meetings held in the area of which its own formed a subdivision. In these larger areas, such as a congres- sional district, or state assembly district, or state senate district, it was impossible for all the voters to be gath- ered together. In them, therefore, the party meeting took the form of a " convention," composed of delegates sent from the primary meeting. The functions of such a convention were similar to those of the primary itself. It appointed a committee, it made nominations for office in the district, and in the case of some areas it sent up delegates to the state convention. The state convention similarly nominated candidates for the governorship, etc., appointed the state party committee, and sent delegates to the national convention held once in four years. 1 This national convention stood, as it still stands at the apex of the system. It was held for the selec- tion of the party candidates for the presidency of the United States. It consisted of twice as many members as there were members of Congress, two delegates being sent from every congressional district, and four from each State at large; these together with six representa- tives from each territory made the full complement of a national convention. A duplicate set of members known as "alternates," or substitutes in case of accident, were also appointed. The convention thus constituted drew up the national platform of the party, and made its nominations for the presidency. The nomination was made by ballot; in the Republican Party a simple major- ity sufficed, in the Democratic a majority of two thirds 1 Delegates were sent to the national convention from the state con- ventions, or from the congressional district conventions. In any case the four delegates corresponding to the representation of the State in the Senate were sent from the state convention. 338 THE STRUCTURE OF THE GOVERNMENT was needed. In the Republican Party the members of the delegation sent from a State might vote individually for different persons; in the Democratic Party they must vote as a unit for the same person. The Demo- cratic Convention of 1912 abrogated the unit rule except where demanded by state law. The system as thus planned was beautiful hi the symmetry of its organization. It seemed to offer a thor- oughly just method of selecting party candidates, and one in which all were equally entitled to participate. But unfortunately in practice it opened the way to the gravest political abuses. In the first place it made a considerable demand upon the tune and energies of the voters, a demand rendered all the greater by the multi- plicity of American elections. There was a natural temp- tation for the voter to stay away from the primary, and to content himself with whatsoever candidates it might select. The conduct of the primary, and as a conse- quence of the superior conventions to which it was con- tributory, thus fell under the control of the professional "politicians" and their hangers-on. Hence arose the familiar phenomenon of the party "ring" and the party "boss," for whom the elaborate system of party ma- chinery served as a ready-made instrument of political control. The more the primary fell under the control of an inside ring, the more were the ordinary citizens tempted to stay away from it, deploring its vices, yet unable single-handed to combat them. In the city pri- maries the number of those entitled to vote, who actu- ally did vote, was seldom more than one third, and often dropped to the merest fraction. Even the number of those entitled to vote in the primaries was often only a small part of the voters of the party. For as long as the primaries remained self-constituted bodies, it was possi- PARTY GOVERNMENT 339 ble for them to adopt exclusive rules of admission which shut out all but the favored few. The persons who were entitled to vote in a primary, and actually did vote, be- came only a fraction of a fraction. Indeed the whole of the elaborate party machinery that we have described came to be operated not from its own spontaneous force, but at the bidding of the clique of inside politicians, who "worked the machine." Instead of the real selection by a party convention, there was the adoption by the con- vention of a "slate," or list of names already prepared for them. The worst feature of all was the class of men thus brought into American politics, and the point of view they brought with them. The nature of the party machine lent itself to repel the honest and to attract the unscrupulous. Relatively few men had sufficient pub- lic spirit to consent from purely patriotic motives to seek office by such obnoxious means. The opportunity was thus opened to second-rate, shifty, and self-seeking aspirants, to whom the whole party machinery merely offered a method of gaining an easy livelihood, embel- lished with a tawdry conspicuousness. Too much stress must not, however, be laid on the sinister side of Amer- ican party life. It is not true, as a foreign observer might be inclined to think, that the American people as a nation were corrupted by it. In moments of stress or in the presence of a great national crisis, the artificial barriers set up by such a system were easily pushed aside, and the right men shouldered their way to the front of public life. But in the ease of quiet times, and in the absorbing prosperity of a great industrial civiliza- tion, the machine fell back again into the hands of those who made it their business to run it. 5. Reform of the system. The question of finding a remedy for the evils of a party machine has long been 340 THE STRUCTURE OF THE GOVERNMENT discussed. The only real and permanent cure would be found in rousing the ordinary voter from his habitual indifference and absorption, and bringing him to take an active interest in the exercise of his full political rights. This, however, is a matter quite beyond legislative con- trol, and can only come with the growth of vigorous pub- lic sentiment in regard to the duties of a citizen, stimu- lated by the object-lessons afforded by rampant corrup- tion. It may in any case be doubted whether, with the present system of short terms of office and numerous elections, such an active public life of the citizens at large could be gained without serious detriment to their other social activities. It would be easier to reform the operation of American parties if the attempt were ac- companied by the lengthening of elective tenure of office. Why, for example, should an elective officer hold office, as do a vast number in the United States, for one year only? Or a member of a legislature, as is custom- ary, for two years only? There is nothing peculiarly democratic about the space of twelve months; if change is a good thing in itself, why not hold a new election every month? With fewer elections the ordinary voter would be able to concern himself more directly with those there were, and the practical exclusion of the majority from political control would no longer be pos- sible. But since the opening of the present century vig- orous efforts have been made to reform the evils that had been developed by party organization. The first method of reform to be widely adopted was the plan of making the primary meeting of a political party a legally organized body instead of a self-consti- tuted group. This is the intention of the so-called "pri- mary election laws" which have been enacted within the last two or three decades in most of the leading PARTY GOVERNMENT 341 States. These laws provide that due public notice shall be given of the time and place of primary elections; that the elections shall be by ballot, and that the expense shall be paid by the State. The laws are usually com- pulsory in cities and optional in rural districts. The above provisions still leave the question of admission to the primary to be regulated by the party itself. But in some States the law goes farther, and defines the qualifi- cation required for admission to the primary. There is no uniformity in the state laws in regard to admission to vote at a primary, but two leading systems may be distinguished. Some States hold "open primaries" at which the voter, by the use of the secret ballot, may cast his vote as he pleases without declaring to which party he belongs. In these cases the law has to be framed to prevent the voter from voting for more than one party. In other States "closed primaries" are estab- lished. Admission to vote in a closed primary implies some test of party allegiance, such as the declaration of allegiance exacted in California and Minnesota, or the pledge of support to the candidate selected required under the law of Louisiana and Texas. In other States the authorities of the party itself are allowed by law to prescribe the test of membership. Thus far we have spoken of the primary only as an instrument for the selection of party candidates for the local area and party delegates for the superior con- ventions. But the reform of the primary system has brought not only the "legalization" of primary voting as described above, but a further change in the function of the primary itself. This new feature is embodied in what is called the direct primary or direct nomination. The general aim of the plan is to eliminate the conven- tion altogether and cause all recognized party candidates 342 THE STRUCTURE OF THE GOVERNMENT to be selected by a vote of the people gathered in the primary groups. Under this method prospective candi- dates for office may announce their names to the public in any way which they see fit to use or their names may be unofficially placed before the public by any group of supporters. Hence the names of any number of aspir- ants for the position of candidate of a recognized party may be unofficially announced. When the direct pri- mary, or direct nomination, is held, each citizen votes for one of these names, or for any other name which he writes in on his ballot, as his choice for the candidate of one or other political party. The persons receiving the highest number of votes in each party become the recog- nized candidates and, presumably, the supporters of the beaten nominees will transfer their votes to them on the day of election. In this way the primary meetings can nominate candidates for various state offices without an intermediary convention. They can nominate candi- dates for United States senatorships on whose names the voters of the two or more parties will vote. Finally they can, and they do, indicate their preference for this or that aspirant for the position of party candidate in the presidential election. The system of direct nomination has made enormous progress. Its highest application is now found in the presidential elections where the voters in the primaries are called upon not only to elect the members of the national convention, but also to register their "prefer- ence" for a particular presidential candidate. The sys- tem has called forth unlimited enthusiasm and become the subject of extreme laudation. Its advocates see in it the end of machine politics, of ready-made conventions, and of the rule of a self -chosen clique of bosses and party managers. It is more than possible, however, that the PARTY GOVERNMENT 343 advantages of direct nomination are somewhat over- rated. After all, the organization and the machinery set on foot by the political managers can move one stage back, and, in the indifference of the general voter, preface the direct nomination itself by a preliminary and machine-made choice. Unless direct nomination can bring with it a more active public spirit and more general participation in civic concerns, it will go the way of the machinery which it displaces. Here as elsewhere the forms of government are of no avail without the spirit. Moreover, serious critics of direct nomination are already calling attention to the fact that it tends to shut out deliberation and the opportunity for collective discussion afforded, ideally at least, by a party conven- tion. 6. Party machinery in Great Britain. In the United Kingdom party machinery is not found in the same highly organized state as in the United States. This has been due to the fact that it is not so necessary. The cabinet system, as has been seen, puts executive and legislative power into the same hands. In America the party organization forms the connection by which the two legally distinct branches of the government are brought into harmony. This function, therefore, is not needed in England. Add to this the fact that the English parliamentary elections are much less numer- ous than the various elections for federal and state offices in the United States. Nevertheless the use of regular party machinery is growing in Great Britain; though long regarded by many English people with dis- favor as an American importation, its obvious utility for election purposes has insured its adoption. 1 At 1 Few works on British government contain any reference to party organization. President Lowell's masterful work, The Government of 344 THE STRUCTURE OF THE GOVERNMENT the center of English party structure stand two great political organizations the National Conservative Union and the National Liberal Federation whose headquarters are in London. Of these bodies affilia- tions are formed in each polling district of a parlia- mentary constituency, made up of the active adherents of the party in that area. This is the germ cell of party structure, corresponding to the American primary. It elects representatives to a party council of the whole constituency, and from these constituency councils rep- resentatives are sent to form a council for the whole county or borough. Finally this last council elects representatives to the central body at London. The party leaders in Parliament naturally exercise a con- trolling influence, somewhat as the congressional cau- cus of the early nineteenth century aspired to do. The caucus broke down because under the American fed- eral system the national congress is not the sole and su- preme organ of national political life. But the different situation in which the British Parliament is placed naturally puts the party leaders in a position to exer- cise a radiating control over all the constituencies. The affiliated branches of the organizations mentioned act as the means of giving definite direction to this control. With the gradual evolution of the "party convention" the system of party "platforms" is begin- ning to appear. Authoritative "open letters" or ad- dresses of the great party leaders and resolutions passed by the councils, constituencies, etc., are of this charac- ter. Candidates are still selected in somewhat irregular and varying fashion, accentuated by the fact that resi- England (1908), contains an admirable discussion of the topic, part n. See also Ostrogorski, Democracy and the Organization of Political Par- ties, and Mr. Winston Churchill, Lord Randolph Churchill, especially chap. vii. PARTY GOVERNMENT 345 dence in the constituencies is not needed as a qualifi- cation. The custom of reflecting the same person again and again obviates the necessity of making a selection. If a new choice must be made, it is done either by the constituency council, or if they cannot agree, the central council at their suggestion proposes a likely candidate to them, or even indicates two or three from whom they may select. 7. The party groups of Continental Europe. On the continent of Europe party governance presents certain features differing markedly from the situation hitherto existing in America and Great Britain. Instead of two great political parties overshadowing all others, and alternating in the control of the government, we find in France, Germany, and Italy a considerable number of party groups, no one of which is strong enough to outnumber all the others. In France and Italy, this is a particularly disturbing element in public life, since the administration of those countries is based on the cabinet system, rendering the executive government dependent on the continued support of a majority in the lower house of the legislature. Under the group system of party life, no one party is able to afford that support. It must, therefore, be obtained by means of a coalition of separate parties whose mutual support is given purely for reasons of expediency, and may be withdrawn at any time in favor of a more profitable combination. It is to this fact that is due the notorious instability of French ministries under the Third Repub- lic. There exist in France four chief party groups, with many subdivisions and combinations. The chief lines of political cleavage are marked out by the terms, Conservative, Republican, Radical, and Socialist. The Conservatives include the remnants of the older 346 THE STRUCTURE OF THE GOVERNMENT monarchical parties, once divided into Imperialists, Or- leanists, and Legitimists, but now representing rather the opposition to advanced democracy than the hope of a monarchical revolution. The recently formed group of Nationalists is a reconstruction of conservative ele- ments. The Republicans have stood first and foremost for the maintenance of the Third Republic as estab- lished, without aiming at the advanced social reforms de- manded by the Radicals. The Socialists differ from the latter in wishing to break entirely with individualism and found a cooperative commonwealth. French Social- ists have been much divided both as adherents of rival leaders and as exponents of rival doctrines munici- palism versus the central state, opportunism versus no- compromise, etc. No one of these parties has ever been strong enough to maintain a ministry by its support. Hence all the ministries (but one), from the beginning of the true republican era under President Gre"vy until 1905, were formed with Republicans as the nucleus and with fortuitous support. The Bourgeois ministry (1895-96) was chiefly Radical and the ministries from 1905 till the period of the Great War were based on a combination of Radicals and Socialists. The government of France during the war period naturally represented a general union of patriotic elements. The instability, which during the greater part of its existence has char- acterized the ministries of the Third Republic, has been aggravated by the methods of French legislative proced- ure, it being customary for the cabinet to resign even if defeated on matters of minor moment, or in consequence of an "interpellation" 1 in the Chamber of Deputies. 1 The "interpellation" differs from the "questions" raised in the British Parliament in that a debate on the point raised is allowed after the interpellation, but not after a question. PARTY GOVERNMENT 347 Even the members of the cabinet itself are less inter- ested in its continuance than is the case in England, since they may very possibly themselves form part of the reconstructed cabinet which supplants it. The re- lation of political parties to cabinet government thus stands upon quite a different footing in France from what it does in the United Kingdom. Indeed the com- mendation which it has so largely met in the latter country rests on the presumption of the existence of two great parties as a sort of natural phenomenon likely to continue. The absence of such in France upsets the whole calculation. In the former German Empire, there was the same subdivision of party groups. The elections to the German Reichstag before the Great War showed at least a dozen different parties. The Reichstag con- tained 397 members, but even the most numerous of the parties, the Socialists, had only a hundred and ten seats. Several of the parties (anti-Semitics, Guelphs, etc.) had less than a dozen. The subdivision of parties was, however, of much less national consequence in Germany than in France, since parliamentary govern- ment did not exist. Looking at the institution of party government gen- erally, it seems liable to one or the other of two grave dangers. If bisection of opinion on a paramount issue does not exist, then the consolidation of the party may become a purely mechanical affair. What was in its origin a natural bond of union may degenerate into the cohesion created by artificial party ties. On the other hand, where such cohesion, natural or artificial, is not forthcoming, parties assume the fragmentary and unmanageable form seen on the continent of Europe. In Great Britain, where the operation of the constitution in its present shape is dependent on party government, 348 THE STRUCTURE OF THE GOVERNMENT the situation of public affairs in the opening decades of this century is at a very interesting juncture. The older line of cleavage has been intersected in all directions with new divisions. The adoption of the Home Rule Policy by Mr. Gladstone (1886) divided the Liberals into Unionists and Home-Rulers. The adhesion of the former to the Conservatives partially healed the breach thus created. But with the close of the century the division into Imperialists and anti-Imperialists, Protectionists and Free-Traders, and other minor rifts of opinion violently disturbed the formation of parties. The emergence of the parliamentary Labor Party as a powerful factor in the twentieth century further dis- turbed the situation. The older Liberal Party had de- veloped before the war a radical wing pledged to en- ergetic social reform and the limitation of the power of the House of Lords. This section by its partial union with the Labor groups and the Home-Rulers had become dominant in England. The war interrupted its activities and led to the formation of a national coalition gov- ernment. Of the re-formation of the political parties and party groups which will take place during the com- ing period of reconstruction, it is impossible to speak. It remains to be seen whether the British political par- ties will disintegrate into groups, will adopt a formal system of union with pledges and platforms on the American plan, or will find some means of reverting to their earlier condition of "natural" opposition on a fun- damental question. READINGS SUGGESTED Ostrogorski, M., Democracy and the Organization of Political Parties (1908), vol. i, chap, vm, and vol. 11 (especially), part u. See also Lord Bryce's preface. PARTY GOVERNMENT 349 Salt, E. M., Government and Politics of France (1920), chap. x. Godkin, E. L., Unforeseen Tendencies of Democracy (1898), essay no. 3, "The Nominating System." De Tocqueville, A., Democracy in America (1835), chap, x ("Parties in the United States"). Lowell, A. L., The Government of England, part n, chaps. xxiv and xxv. FURTHER AUTHORITIES Woodburn, J. A., Political Parties and Party Problems in the United States (2d ed., 1914). Macy, J., Political Parties in the United States, 1846-61 (1900). McKee, T. H., National Convention and Platforms (various editions). Lowell, A. L., Governments and Parties in Continental Europe (revised edition). Ford, H. J., Rise and Growth of American Politics (1898). Bryce, J., American Commonwealth (1889). Macdonagh, M., The Book of Parliament (1897). Carr-Gomm, F. C., Handbook of the Administrations of Great Britain (revised edition, 1901). Lecky, W. E. H., Democracy and Liberty (1896). Maine, Sir H., Popular Government (1886). Goodnow, F. J., Politics and Administration (1900). May, Sir T. E. (Baron Farnborough), Constitutional History of England, vol. n (especially chap. vm). Ogg, F. A., The Governments of Europe (1913). Mallock, W. H., The Limits of Pure Democracy (1918). De Witt, B. P., The Progressive Movement (1915). Blease, W. L., Short History of English Liberalism (1913). Curtis, F., The Republican Party, 1854-1904 (1904). PART m THE PROVINCE OF GOVERNMENT CHAPTER I INDIVIDUALISM 1. The individualistic theory of the functions of government 2. Individualism as based on a theory of justice 3. Based on a theory of profitability: the doctrine of laissez-faire 4. Based on a biological analogy: the survival of the fittest 5. Conflicting forces. i. The individualistic theory of the functions of government. In the first and second divisions of the present volume we have considered the general nature of the state, and the constitution and structure of gov- ernmental bodies. The discussion of the form of gov- ernment has of necessity preceded the treatment of the proper sphere of its operation. Yet in our own time the latter topic in practice assumes the place of para- mount importance. The general opinion of civilized countries recognizes the validity of the principles of popular sovereignty and democratic government whether expressed by means of a limited monarchy or in a republican form. 1 It is generally admitted also that the adoption of popular government does not, in and of itself, as the sanguine theorists of a hundred years ago hoped it might, offer a solution of all our political and economic problems. Even granting that the gov- ernment is to be controlled by the people and for the 1 In stating that the general consensus of opinion is in favor of democracy, it is not to be denied that popular government has found occasional detractors among writers of reputation and ability. Sir Henry Maine (Popular Government, 1886) declares it to be "extremely fragile," "not in harmony with the normal forces ruling human na- ture," and "apt therefore to lead to cruel disappointment or serious disaster." Compare also W. H. Mallock, The Limits of Pure Democ- racy (1918). 354 THE PROVINCE OF GOVERNMENT people, we have yet to ask what is to be the proper sphere of its operation for the general benefit. We employ in ordinary discourse a variety of phrases to in- dicate the subject hi question, speaking indifferently of the sphere of the state, state control, the functions of government, the province of government, etc. More spe- cial aspects of the problem are seen in connection with government ownership of railways, the control of trusts, and the management of public utilities. But whether in its general theoretical aspect or in particular form, the problem involved is emphatically the paramount question of the opening of the twentieth century. In the following three chapters we shall endeavor to deal with it hi systematic form, considering one after another the solutions that have been offered hi theory and practice to the open question of government con- trol. First we shall deal with the individualistic solu- tion, or system of natural liberty, to which we have already referred in a somewhat different connection in a preceding chapter. In the second place we shall dis- cuss the ideals of collectivism, and the attempts that have been made for its partial realization. The discus- sion of the actual economic operations of modern states on what may be called an individualistic basis, modified to a great extent by utilitarian and opportun- istic considerations, will be considered in conclusion. To the treatment of the individualistic doctrine of the functions of government belongs of right the pre- cedence. For it constituted during a large part of mod- ern times what might be called the official creed of enlightened governments; was, until our own genera- tion, defended by the greatest theorists of the modern era, and although discredited in its extreme form, re- mains as the working basis of the economic operation TABLE OF Name of Upper Route Xante of Lower Hume "^5 v III 5 : ^ VSs 4I| Term of I i>i>er Hout Term of iMicer Houte Clerico R f ,,r ( tentutn: UNITED STATES Senate House of Rep- resentatives 96 435 (1920) Each senator G years ; one third renewed every '.' years '2 yeara (\ THE UNITED KINGDOM House of Lords House of Com- mons 677 (u>20) 707 Life, except Peers repr.-K.'iit- ing Scotlaii 1 *> years uulewi Parliament pre- viously dissolved 'i arcliliis ops 24 bishop n CANADA Senate House of Com- mons 96 ZA Life r> years unl. - sootier dissolved AUSTRALIA Senate House of Rep- resentatives 36 15 6 years 3 years unless sooner dissolved (i FRANCE Semite Chamber of Deputies 300 584 (1919) !> years. One third of tlie sen- ators retire every 3 years 4 years unless sooner dissolved GERMAN EMPIRE (as in 1914) Bundesrath Reichstag 61 votes 397 At the discretion of the con-titii- ent parts of the Empire "> years unleas sooner dissolved PRUSSIA (at in 1914) Herrenhaus Abgeordneten- haus About 330 (va- ries) 433 Life ~> years unless sooner dissolved Repre.en tives ot chapters SPAIN Senate Congress 360 maxi- mum 406 Life 5 years unless sooner dissolved AUSTRIA * (at in 1914) Herrenhaus Abgeordneten- haus About 270 (va- ries) 516 Life tenure i> years unless sooner dissolved IS HUNGAKY (at in 1914) Forendihaz (House of Magnates) Kepviselfihaz (House of Deputies) 368 (1911) 453 Life tenure ex- cept e* nfficio members 5 years unless sooner dissolved 6J ITALT Senate Chamber of Deputies 390 (1920) 008 Life "> years unless sooner dissolved (i SWITZERLAND Standerath Nationalrath 44 167 At the diirret ion of the coti-titu- ent cantor :! years i By the Uw ot \Kf, (tince repealed) vrntv-flve of the senator* were to be n ;";>ntl for life by the two c-hamW Anrtria-IIunpary had, for purpoi of political union, two legiilatire bodin ll.-d the Delegation t.onr conut:n. separately, but for the purpoce of forcing an agreement they met together 101 GISLATURES (1921) omposition of Upper House Constitutional Relation of the Two House* Hereditary Repre- sent at i vet Appointed Elected % " All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills." Con- stitution, art. i, 7. 558 C Lords of Appeal 28 from Peers of Ireland ; 1C from Peers of Scotland Regulated by Parliament Act, 1911 (1 and 2 Oeo. V, ch. 13). The Lords have no power over bills certified by the Speaker of the Houtie of Commons to be money bills. Other bills, except those extending the duration of Parliament, become law without the assent of the Lords if passed by the House of Commons in three successive sessions, two years having elapsed between the second read- ing of the bill in the first session and the third reading in the third cession. See above, pp. 170 et seq. 96 Bills for appropriating any part of the public revenue or for imposing any tax on imports .shall originate in the House of Commons." British North America Act, 18li7, 53. 36 " Proposed laws appropriating revenue or moneys or imposing taxation shall not originate in the Senate. The Senate may not amend proposed laws imposing taxation or proposed laws appropriating revenue or moneys for the ordinary annual services of the government." Commonwealth of Australia, Constitution Act, 1900, 53. Oi 300 " Finance bills must first be presented to the Chamber of Deputies and voted by them." Loi Constitutiounelle, 24 Feb., 1875, 8. Cl Coordinate powers. " Imperial legislation is effected by the Bi.ndesrath and the Reichstag. The consent of the majority vote of both houses is necessary and is adequate for an imperial law." Constitution, act 5. The princes Life peers of the royal (indefinite) house, heads named by the of 16 media-! King, repre- tized prince- sentatives of ly houses, universities, and about 50 'mayors of ci- of the Prus- ties of popu- sian territo- lation over rial nobility 50,000 8 elected by Landowners from the Provincial Nobility " Finance bills shall be submitted first to the Chamber of Deputies; they shall be accepted or refused in their entirety by the House of Lords." Constitution, 1850, v. 62. 80 maximum 100 180 " Laws in reference to the taxes and the public credit must be first presented to the Congress." Constitution, 1876, 42. 89 Minimum 150 ; maxi- mum 170 "The consent of both houses and the consent of the emperor is necessary for every law. If in a finance law in regard to particular items, or in a law for raising recruits in regard to the number of the contingent to be raised, in de- spite of repeated consideration no agreement can be reached by the two houses, then the lower sum proposed shall be considered as adopted." Fundamental Law of 21 Dec., 1867, 13. 1C archdukes 236 heredi- tary peers 50 3 delegates from Croatia and 10 elect- ed by the Upper House Coordinate. Custom, and Law of 1885, 13. (\ princes ;;,si (i " Every law for imposing taxes or for sanctioning the balances or accounts of the state shall be presented first to the Chamber of Deputies." Statuto, art. 10. 44 (appoint- ed by can- tons) Coordinate powers. Constitutional Art 89. " Federal laws can only be passed with the consent of both houses." m member* chosen by the Austrian parliament, and one of a like number chosen by the Hungarian parliament. They Mt and debated INDIVIDUALISM 355 of both the American and the* British governments. The individualistic theory may be briefly stated in the proposition that the sole duty of government is to protect the individual from violence or fraud. Accord- ing to this theory the positive interference of the state with the individual even in his own interest is not justi- fied. Nor is the state justified in undertaking opera- tions of an economic character, or in imposing restric- tions (other than in prevention of violence or fraud) on the economic activities of its citizens. A schedule of government functions admissible on a purely individ- ualistic plan would include the maintenance of an army and a navy, courts of justice and a force of police, the enforcement of a criminal law and of statutes in ref- erence to sanitation, adulteration of food, inspection of steamboats, etc., these being indirectly protective in their character; but it could not comprise the conduct of the post-office, the maintenance of hospitals and poor-houses, or the operation of railroads. Only such actions on the part of the state as were directed to pre- vent the interference of its citizens with one another would be legitimate. 2. Individualism as based on a theory of justice. This system of individual liberty against the interfer- ence of government has been defended on different grounds. As a matter of justice it has been argued that the individual has a right to be let alone. On economic grounds it has been contended that it pays to let him alone. Lastly, on purely scientific grounds, it has been argued that it is in general consonance with the evolu- tionary nature of human progress that the individual should struggle for himself and survive, or fail, according to his fitness. The first of these arguments the re- striction of the operation of government to the defense 356 THE PROVINCE OF GOVERNMENT of the rights of the individual is especially found in the writings of the political philosophers of the later eighteenth and early nineteenth centuries. 1 We find it in the theory of the state advanced by Kant and Fichte and following as a corollary upon their view of the doctrine of the social contract. Kant, actuated by a spirit of protest against the paternal interference of the Continental governments of his day, and their intrusion into the private life of the citizen, bases his views of gov- ernmental functions on the idea of liberty, and assigns to the state "the hindering of the hindering of liberty" as its proper policy. 2 But among German writers Wil- helm von Humboldt, in his Sphere and Duties of Govern- ment, 3 offers the most complete expression of the thor^ oughgoing political individualism characteristic of this period. Taking as his starting-point the "individual man and the highest ends of his existence," Humboldt finds the paramount consideration to be that of individ- ual variety and self-development. On this the active interference of government can have none but a detri- mental effect. For this reason "the state is to abstain from all solicitude for positive welfare, and not to pro- ceed a step further than is necessary for mutual security and protection from foreign enemies." Even such ex- amples of interference as national education and state relief of the poor are to be condemned. This political theory of non-interference received a decided stimulus from its false analogy with the doctrine of popular sover- eignty. It was but natural that at the beginning of mod- ern democratic government the idea of the right of the nation to govern itself should be confounded with the 1 An excellent critique of the individualism of the eighteenth cen- tury and its transmission to the nineteenth is found in Michel, L'ldce de VEtat (introduction and bk. ni). * See above, bk. i, chap. v. * Written 1791 ; published 1852. INDIVIDUALISM 357 somewhat similar claim of the individual to be left alone to manage his own affairs. Political freedom and non- interference seemed synonymous terms. In America the idea of individual rights was dominant during the forma- tive period of the Republic. The original situation of the colonists, compelled to wring their sustenance from a reluctant wilderness, the discredit of government in general by the land fees, quit rents, and tea taxes of the royal regime, inspired the Americans with an intense be- lief in self-reliance and individual rights. We find it aa the central feature of the political philosophy of Thomas Jefferson, and the writers of the period, 1 and it has per- sisted until to-day in the opinions held by a large section of the people of the United States. The individualistic theory of governmental non-in- terference resting on a doctrine of individual rights has an attractive and undoubtedly plausible appearance. Its weak point lies in the fact that on closer examination it is seen to contain inconsistencies of a serious charac- ter. To carry it out fully and absolutely would involve the adoption of an attitude at variance with the dic- tates of common sense, and one which no government has ever found it practical to completely accept. Mill has shown that the limitation of the province of govern- ment to the prevention of force and fraud "excludes some of the most indispensable and unanimously recog- nized of the duties of government." 2 Every govern- ment recognizes and enforces the right of private prop- erty, but it can be objected that this, in the case at any rate of property in land, looks very much like positive interference, since the maintenance of the claim of one 1 See C. E. Merriam, History of American Political Theories. 1 John Stuart Mill, Principles of Political Economy, bk. v, chaps, l and xi. 358 THE PROVINCE OF GOVERNMENT individual is equivalent to the exclusion of all others. In the case of the regulation of the right of bequest, the fact of interference, though universally approved, is still more evident. In matters such as the coining of money, and the conduct of the postal service, we have instances of governmental action in positive direction of such obvious convenience and general utility as en- tirely to warrant the violation of individual liberty involved. In other cases, as has been shown in detail by Professor Sidgwick, 1 there is an obvious breach of public morality in a policy of complete abstention; that a government should leave deserted children to starve, and content itself with "not interfering" with the des- titute poor, is a point of view that meets with almost universal condemnation. The positive duties of the state in regard to national education are also generally admitted, although it is hard to find a defense for such a function of government on a purely individualistic plan. 3. Based on a theory of profitability: the doctrine of laissez-faire. The view that social justice demands that the individual should be left in possession of his "natural rights" may therefore be discarded. Far more importance has attached to the economic defense of in- dividualism, the claim that it is more profitable for the welfare of industry and commerce that every one should be left to follow his own interest as he himself understands it. This is the doctrine that was paramount in England during the rise of modern industrialism and which was to a large extent reflected in America and elsewhere. The cause of the peculiar dominance of in- dividualism in the direction of economic policy is to be found partly in the industrial circumstances of the time, 1 Henry Sidgwick; Principles of Political Economy, bk. in, chap, n. INDIVIDUALISM 359 partly in the effect exercised upon public opinion by the writings of the political economists. During the period between 1750 and 1850, England, and in consequence the industrial world, underwent a series of economic changes of such fundamental importance as to earn the name of the "Industrial Revolution." 1 The invention of special machinery for the textile industries (the spin- ning jenny, the mule, the power loom, the cotton gin), together with the application of steam as a motive power, changed the system of production from its previ- ously restricted and domestic character and established the factory system. The contemporary improvements in the smelting of iron ore (coal being used as fuel), the improved means of transportation in the shape of better roads, canals, and later the introduction of steamboats (1807) and the building of railroads (1830) enormously increased productive power and stimulated international exchange of products. At the same time the existing system of government regulation of industry (the tolls, duties, prohibitions, labor statutes, etc.) became en- tirely out of harmony with the industrial situation and with the need for mobility of capital and labor and op- portunity to exploit foreign commerce. The inadequacy, and to a great extent the positive hindrance, of the older system of state interference be- came apparent and contributed directly to the rise of modern political economy. Adam Smith, in Wealth of Nations (1776), followed by Ricardo, Malthus, Fre'de'ric Bastiat and others, elaborated the economic system of individual liberty as the new guide of legislative pol- icy. The fundamental argument of their system runs as 1 The student may with profit consult in this connection Toynbee's Industrial Revolution, Cunningham's Growth of English Industry and Commerce, and Hobson's Evolution of Modern Capitalism. 360 THE PROVINCE OF GOVERNMENT follows: Every man is actuated in his economic relations mainly by the pursuit of his own interest. If individuals are left free to follow their own choice in the use of their capital, the sale of their labor, or the renting of their property, the liberty of each will be in the general inter- est of all. For capital and labor will by this means be directed to those operations in which they are most profitably employed, and in which the remuneration for them is in consequence the highest. A similar reasoning applies to prices; for if articles are freely exchanged, an increased demand for any commodity will tend to raise the price and to call forth an additional supply, until by the operation of these balanced forces an equilibrium is obtained. International exchange of goods, if left unre- stricted, will be effected in the quantity and kind most profitable to those making the exchange : every country- will prefer to direct its labor towards the production of those articles for which it has the greatest adaptability and will rely on its trade with other nations to supply the commodities whose production it finds relatively difficult. We have thus a general economic harmony in which every individual seeks to obtain the greatest ad- vantage for himself to the general well-being of all. In such a state of things government interference becomes needless and necessarily noxious. To fix prices and wages by legislative act, to assign a legal rate of interest and prescribe a legal schedule of rent, to prohibit im- portation or hamper the movement of labor from trade to trade or from place to place, all this is contrary to a natural law which if left to itself will coordinate everything to the best advantage. The effect of this teaching throughout the world, but especially in Great Britain, was momentous. It led to the repeal (1813-14) of the long-standing regulation of INDIVIDUALISM 361 labor under the Elizabethan statute. It occasioned the abrogation of the laws against free combination of workingmen (1824-25) and of the laws of settlement re- stricting the movement of laborers, the repeal of the remains of the Navigation Code (1849) which since the reign of Charles II had sought to limit the trade with British colonies to the ships of the mother country, and the abolition of the trade monopoly of the East India Company. It found its greatest triumph in the aboli- tion of the Corn Laws (1846), followed by the repeal of the remaining protective duties and the establishment in the United Kingdom of the system of free trade. 1 In America, though the absence of positive interference in the past prevented the necessity of similar statutes of repeal, the same ideas exercised an enormous influence. The writings of earlier American economists reflect with what General Walker has called a "Chinese fidelity" the ideas of the English school; and the low-tariff move- ment before the war was based on the doctrine of free trade. In a succeeding chapter we shall have occasion to refer to the later criticism of natural liberty. 4. Based on a biological analogy: the survival of the fittest. The evolutionary basis of the individualistic theory of governmental functions has not enjoyed the same prominence as the economic doctrine. We see it especially in the political philosophy of Herbert Spencer. As we have already noticed in connection with the or- ganic theory of society, Spencer endeavors to apply the biological theory of evolution to the interpretation of social and industrial progress. The government is re- garded as one of the "organs" of society. It should be entrusted only with that function for which it is specially adapted; and with the advance of social complexity it 1 A. Mongredien, History of the Free-Trade Movement. 3G2 THE PROVINCE OF GOVERNMENT must lose in scope what it gains in intensity. "A func- tion to each organ, and each organ to its own function," says Spencer, "is the law of all organization. . . . The lungs cannot digest, the heart cannot respire, the stom- ach cannot propel blood. . . . Must we not expect that with government also, special adaptation to one end implies non-adaptation to other ends? " Spencer, in his earlier writings, at any rate, was willing to follow his theory to its logical outcome, and to erect the dogma of "the survival of the fittest" into a moral law. To inter- fere with its operation was to disturb the "natural" order of progress. Should the state aid the poor, the sick, and the aged, it thereby contributes to the sur- vival of forms which have no claim to survive, and whose existence is a detriment to life in general. "It seems hard," he says, " that a laborer incapacitated by sickness from competing with his stronger fellows should have to bear the resulting privations. It seems hard that wid- ows and orphans should be left to struggle for life or death. Nevertheless when regarded not separately, but in connection with the interests of universal humanity, these harsh fatalities are seen to be full of beneficence." The theory thus advanced is interesting as illustrating the extreme form which individualism was apt to as- sume during" the period of its dominance, but hardly needs a detailed refutation. Such an argument would apply equally well to the suppression of private charity, private aid to the sick, and private maintenance of the poor as well as to government relief. If the sole test of fitness to survive is found in the fact of survival, then the prosperous burglar becomes an object of commenda- tion, and the starving artisan a target of contempt. If it is assumed that widows will die unless the government helps them, and that usurers will grow rich unless the INDIVIDUALISM 363 government stops them, this seems a very poor reason for saying that widows ought to die and that usurers ought to grow rich. Even taking the evolutionary argu- ment on its own ground, it can be urged with justice that as soon as the government does "interfere," then its interference becomes one of the facts of the situation, one of the operative forces to be taken into account. In- deed the attempt to thus apply the biological doctrine of evolution to the theory of the functions of govern- ment involves a distortion of the truly scientific point of view. 1 5. Conflicting forces. Even in the first half of the nineteenth century, when the individualistic view of government was dominant in both theory and practice, its doctrines were not altogether unopposed. The won- derful progress made in productive industry by the fac- tory system operating under a regime of natural liberty seemed the strongest possible argument in its favor. As against this the appalling distress of the working classes during the same period plainly called for a more active policy on the part of the state than mere non-interven- tion. The factory system under the play of free con- tract seemed inevitably to lead to oppressive hours of labor, unwholesome and brutalizing conditions of work, and the employment of children of immature age as a substitute for adult labor. 2 The degradation and insuffi- cient remuneration of the workers as a consequence of their enjoyment of "natural liberty" called forth a strong current of opinion in opposition to the policy of non-interference. Thomas Carlyle in his Past and Pres- 1 See in this connection G. Nasmyth, Social Progress and the Dar- winian Theory (1916). 1 An account of the miseries occasioned by the factory system may be found in Spencer Walpole's History of England, vol. in, chap. XIII. 364 THE PROVINCE OF GOVERNMENT ent (1843) and Latter Day Pamphlets (1856) l denounced the "dismal science" of the economists and ridiculed the doctrine of laissez-faire. The practical effect of this humanitarian movement is seen in the legislative regu- lation of factory labor in Great Britain by Acts of Par- liament of 1833, 1844, 1847, 1850, and later statutes. These measures which limit the hours of employment for women and children are flatly at variance with the individualistic principle. They have, however, been subsequently imitated in the legislation of the great industrial States, including most of the manufacturing States of the American Union. The further disintegration of the principle of non-interference will be traced in the third chapter. From what has been said, however, it may safely be concluded that pure individualism in the conduct of government is impossible. Its adoption, in complete form, runs counter to the most instinctive impulses of humanity and would neglect governmental duties of the most evident character. As a matter of political justice it rests on a mechanical attempt to completely divorce individual and social rights. On an economic basis it overlooks the plain advantages of co- operation and regulated effort. As a scientific law it will not stand examination. READINGS SUGGESTED Mill, J. S., Principles of Political Economy, bk. v, chap. XI. Ritchie, D. G., Studies in Political and Social Ethics (1902), chap. in. M'Kechnie, W. S., The State and the Individual (1896), part n, chaps, xiv, xv, xvi, xvn. 1 "Let us hope that the leave-alone principle has got its apotheo- sis. . . . Respectable Professors of the dismal science, your small 'Law if God ' is hung up along with the multiplication table itself . . . the length of your tether ia pretty well run." (Latter Day Pamphlets, no. I.) INDIVIDUALISM 365 FURTHER AUTHORITIES Montague, F. C., Limits of Individual Liberty (1885). Donisthorpe, W., Individualism (1894). Kelly, E., Government, or Human Evolution (1901). Michel, H., L'Idee de I'Etat (1895). Sidgwick, H., Elements of Politics (2d edition, 1897). Von Humboldt, Sphere and Duties of Government (1791). Pollock, Sir F., History of Science of Politics (1900). Godwin, W., Political Justice (1798). Bluntschli, J. K., Geschichte der Neueren Staatswissenschaft (3d edition, 1881). Cunningham, W., Growth of English Industry and Commerce (1903), vols. ii and ra. Spencer, H., The Man versus the State (1884). Brown, W. Jethro, The Underlying Principles of Modern Legis- lation (1914). Gide, C., and Rist, C., History of Economic Doctrines (trans- lated) (1913). Nasmyth, G., Social Progress and the Darwinian Theory (1916). CHAPTER n SOCIALISM 1. The socialistic theory: its destructive criticism 2. The con- structive programme of socialism 3. The German Social Demo- crats 4. Socialism in England and America. I. The socialistic theory: its destructive criticism. Entirely opposed to the individualistic conception of government are the doctrines known as socialism, col- lectivism, communism, and which, subject to later dis- tinction, may be spoken of together as the socialistic theory of the state. No socialistic state has actually existed on any except a small and experimental scale. Socialism is therefore mainly an ideal rather than an actuality. But the doctrines it embodies have appealed BO strongly to so many minds, have exercised such an important influence on actual legislation and practical politics, and contain in spite of their fallacious nature so much that is of use and inspiration, as to merit a special treatment. Socialistic theories present both a destructive and a constructive aspect. They offer in the first place a criti- cism of the existing industrial system (whose basis is in- dividualistic), with a view to show its inherent unsound- ness and its inevitable collapse. In the second place they propose to substitute for the present state a cooperative commonwealth to be founded on associated effort and joint control. The critical part of the socialistic doc- trine is intended to show that the individualistic system of industry is wasteful and ineffective from an economic point of view, and inequitable in that the remuneration SOCIALISM 367 which falls to the different classes of workers is not ac- cording to their relative deserts. The more celebrated writers of the school, as for instance the great German socialist Karl Marx in his Capital, which has been called the gospel of socialism, criticize the existing state from a point of view elaborately historical. Marx alleges that the system of individual private property on which it rests is the outcome of original aggression of the strong against the weak, representing an appropriation of the means of existence by the stronger class, and their conse- quent exploitation of the mass of workmen, who remain in a state of dependence spoken of as wage slavery. The progressive improvement of the means of production renders the workmen more and more dependent on those who employ them. The appropriation of the land by private owners (a process practically complete in older countries) renders it impossible for any individual to apply his labor directly to the natural resources of the earth. The increasing use of machinery, although vastly more efficient than the hand labor which it has replaced, makes all productive operations more and more dependent on the possession of capital, on the ability to purchase machines, premises, etc., and to forego the prospect of immediate reward for the sake of future profit. In such a condition of things the isolated laborer has nothing whereon to subsist except his labor power, which he must sell as best he can to the highest bidder. In the nature of things he cannot receive less for it than what will enable him to barely exist, but any- thing over and above this will depend on the bargain he is able to make with his employer. Now this bargain, although nominally effected under the rule of free con- tract, is in reality a forced one. The workman must sell his labor or die of starvation. But since the increase of THE PROVINCE OF GOVERNMENT population, as Malthus and others have shown, is con- tinuous until some point where it is actually checked by lack of means of subsistence, the labor market will al- ways be so crowded with laborers as to bring down the level of wages to that which practically amounts to the necessaries of life. Should wages rise above this, a responsive upward movement of population must bring them down again. Such is the famous "Iron Law of Wages" formulated by Lassalle on the basis of the Ri- cardian economics. The other side of the industrial bar- gain is represented by what the employer receives from the laborer. This consists each day of a certain amount of labor power, which results in the fabrication of a cer- tain number of useful commodities produced by the application of the day's labor. From the nature of the bargain it does not follow that the commodities thus produced by the workman's labor need be exactly equivalent to the commodities given to him through the medium of his wages by the employer. Indeed, the socialistic writers assure us the two are by no means equal. The workman produces in the day more than he consumes (for otherwise the employer would have no mo- tive in undertaking production), and the surplus thus created falls to the lot of his fortunate employer. The laborer who sells his labor under compulsion is com- pelled to submit to this fraudulent system. Such is the doctrine of surplus value, that is particularly associated with the name of Karl Marx, and which is the founda- tion of the critical theory of socialism. The point hi which it lies open to attack is that it attributes to labor the whole of the productive result, and does not allot a share to the machine which was used in cooperation and which is the property of the capitalist. It is impossible here to enter into the economic dis- SOCIALISM 369 cussion to which this question gives occasion. It is only intended to show on what grounds the socialistic con- tention accuses the present system of being essentially inequitable. Marx and the writers who have followed his lead are not content with alleging the present un- fairness of the method of free contract and free competi- tion. They claim that with the continued application of machinery and improvement of production, the con- tinued appropriation of natural resources and constant growth of population, the inequity of the system will be emphasized, the gulf between the capitalists and the la- borers, the rich and the poor will be further and further increased. Sooner or later, they maintain, the forces thus at work will precipitate a vast social catastrophe which can be avoided only by altering the industrial basis of our social system, and substituting associated effort for the economic anarchy of free competition. Their theory thus assumes the aspect of a social proph- ecy. On more valid grounds the socialists draw attention to the wastefulness of the individualistic method of production and distribution. A vast amount of work is performed under it that has no social utility, a great deal of work is duplicated and even done several tunes over with no general advantage. The labor wasted in competitive advertising, and efforts of a similar char- acter intended merely to divert business from one person to another, is the most conspicuous instance of economic loss of the first class. Instances of work that is needlessly multiplied are seen in the case of com- peting railroads running trains over parallel lines, and in retail stores existing in considerable number where one general distributing establishment could do the work. Perhaps the simplest and best illustration of the 370 THE PROVINCE OF GOVERNMENT point in question is seen in the contrast between the delivery of letters at consecutive houses and in neigh- boring streets by a postman (an official under collec- tive management) and the waste of time and labor involved by the spasmodic delivery of milk and gro- ceries at various houses throughout an extensive dis- trict by the employees under individual management. It is in the economic saving thus effected that the amalgamation of industry by large corporations proves economically superior to production and distribution by small concerns. The large industrial companies and department stores of the present are standing proof of the fact. These the socialists regard as indi- cating the necessary passing of the older system of individualism, the large corporations representing a transition stage towards the general industrial man- agement by the state. 2. The constructive programme of socialism. From what has been said it will be easily seen that the critical or destructive side of socialistic theory contains a great deal that is true and extremely useful hi indicating the proper direction of measures of social reform. The other side of socialism, its constructive programme for a cooperative commonwealth, is much weaker and can- not be worked out in detail without meeting with hos- tile criticism from socialists themselves. In general terms the programme of socialism is to substitute gov- ernment management for private management, to put all productive industry under state administration, thus making the state the sole employer, and putting all the workers in the employ of the state. On this system the functions of government would extend to the whole domain of economic operations; it would manage all the railroads, the factories, the mines, and the farms. SOCIALISM 371 In place of competing retail stores, government distrib- uting houses would be established for delivering to each citizen his share of the national production. Individ- uals would still have a property right to the things they actually intended to use, houses, food, clothes, etc., but all the means of production would be nationalized. The inherent impracticability of such a system be- comes evident when one turns from the general scheme of production to the question of distribution the method according to which the wages of the workers under the socialist state are to be managed. On this point there is a great variety of opinion. The most ex- treme view is found in those writers who recommend that everything produced should be common property, all persons taking from the general stock according to their needs. La mise au tas, la prise au tas, ran the for- mula adopted by Proudhon, the French anarchistic writer. Such a system would, of course, leave no such thing as individual wages, the remuneration of each laborer being according to his needs, not according to his efficiency. Somewhat similar to this is the sugges- tion for a general equality of wages, all persons being compelled to work for an equal number of hours (or a number of hours equalized according to the rela- tive attractiveness or repulsiveness of the trade) and all receiving the same remuneration. This, it will be remembered, is the solution of the wages problem offered by Edward Bellamy in his Looking Backward, a pres- entation of the socialist state under the form of a ro- mance, which attracted at the time of its publication (1888) a phenomenal attention. To all except the most sanguine visionaries any socialistic scheme involving equality of wages is totally impracticable. It is evident that under such an arrangement the individual stimu- 372 THE PROVINCE OF GOVERNMENT lus to work would be gone and the efficiency of pro- duction hopelessly impaired by idleness. Bellamy and others attempt to argue that under the improved con- ditions brought by socialism, the elevation of the gen- eral moral tone would severely discountenance any such shirking of work, and that with the shortened hours of labor possible under cooperative work there would be no aversion to labor on the part of the individual. Such an argument is altogether of an idealistic character, and contains the most monstrous assumptions of a sud- den and mechanical renovation of human nature, so sweeping as to beg the whole question of social reform. The argument is also in contradiction to the method (adopted by Bellamy) of lengthening or shortening the hours of labor in any trade in order to attract or repel workers according to the needs of any particular mo- ment. This plan itself rests on the assumption of an aversion to work. We come finally to the scheme of industrial organi- zation that may be described as socialism proper, in op- position to communism and collectivism. In this case wages are to be awarded to each laborer according to his efficiency. The plan supposes a hierarchy of officials (on the elective principle) who control the productive process, drafting the workers from trade to trade as may be needed, and paying salaries, making promotions, etc., according to the industrial efficiency of the workers. The pay of a good workman would be high, of an inef- ficient or idle workman low. The scheme would be almost perfect, if one could assume the official per- sons who assign places, salaries, and promotions to be omniscient and impeccable. But the possibilities of cor- ruption, the play of interested motives, intrigue, per- sonal spite, and unfairness of all kinds would be so SOCIALISM 373 appalling under present conditions of public morality as to altogether remove such suggestions from the domain of the practicable. If all industry were forcibly appro- priated by the government and private business pro- hibited, the individual who fell under the odium of the "bosses" and "cliques" that might very possibly control such a government would feel himself to be under a despotism from which the organization offered no escape. The arguments against a general centralized socialism of the kind described are of such evident weight that it is not surprising that within recent years many va- riations of socialism have been put forward with a view to escape the difficulties of the centralized plan. There are, for example, various kinds of guild socialism and municipal socialism. The main principle of these is the same idea of cooperative effort used to replace in- dividual competition as lies at the base of all socialism. But by restricting the area to the numbers concerned, and above all by basing the union on similarity of oc- cupation and interest, it is hoped to avoid the brutal rigor of cast-iron centralism. More notable still are the various schemes which go by the name of "syndical- ism," in which the industry becomes the basis of social organization. The miners take the mines, the railroad men take the railroads, the operatives take the fac- tories, and so on, till economic society consists of vast federated groups of workers each exchanging its products with the others. It is characteristic of syn- dicalism that it seeks to gain its end, not by the la- borious methods of persuasion, vote-getting, and po- litical activity, but by "direct action" in stopping the wheels of the world's machinery. It hopes, by means of the general strike, the turning-off of the water supply 374 THE PROVINCE OF GOVERNMENT and the electric light, to force its enemies to capitulate. It forgets that if, in anger against the capitalist, it turns off the light, the syndicalist also is in the dark. 1 3. The German Social Democrats. Socialism, how- ever, has more than a merely theoretical aspect. On the continent of Europe it has made itself a force in practical politics of the highest importance, and social- ist political parties have of late assumed some impor- tance in England and the United States. But it is in Germany especially that the socialist propaganda has met with success, and has exercised a powerful influence on the legislative policy of the government. The evo- lution of socialism in Germany is not only interesting of itself, but is singularly instructive in the light it throws upon the probable future of socialist political parties, and the extent to which they are likely to suc- ceed in modifying the attitude of existing governments. It arose, as also in France, in the earlier part of the nine- teenth century, assuming at first an altogether ideal and Utopian form. 2 The earlier socialists, or communists as they were at first called, greatly underestimated the enormous difficulties that stand in the path of social reform. Attributing all existing evils to the prevalence of the capitalistic system, they presumed that its imme- diate abolition in favor of state control would effect an almost immediate regeneration of mankind. The origi- nal programme of socialism, when it arrived at the stage of having a political programme, consisted in the un- 1 The writer of this book has endeavored to show in another work (The Unsolved Riddle of Social Justice, 1919) the essential fallacy of all the different brands of socialism, while admitting the cogency of the .socialist indictment of the regime under which we live. 1 Of the initial period of modern socialism in Germany, Weitling's Die Welt wie sie ist und sein soU (1838), and in France the writings of Saint-Simon and Fourier, may be cited as illustrative. SOCIALISM 375 compromising destruction of capitalistic industry. This was the attitude of the socialist wing of the revolution- ists that for the time being overthrew monarchical gov- ernment in France in 1848, and threatened its existence in the German convulsions of the same year. After the collapse of that great movement the German socialists fell into opposing groups some of them still aiming at a general universal revolution, and attempting to or- ganize on a cosmopolitan basis, others recognizing the present national state as their starting-point, and de- sirous of gaining their ends by constitutional reform. By the latter plan socialism, instead of fighting itself into power, would vote itself into power. The greatest influence during this period was exercised by Ferdi- nand Lassalle, who organized a German Workingmen's Association, and advanced as an immediate programme the use of state credit for the foundation of working- men's productive associations, which should act as the beginning of a socialist state. The secession of the revolutionary anarchists, the collapse of the interna- tional aspect of the movement, 1 aided the growing tendency of German socialism towards a national con- stitutional form whose immediate aim should be the attainment of practical measures, rather than the com- plete realization of the ideal state. At a congress at Gotha in 1875, a general union of the Socialist Party was effected on a basis of compromise. In the pro- gramme there adopted the "abolition of the system of wage labor" was indicated as the ideal of socialism, but certain immediate measures were proposed "in order to prepare the way for the solution of the social question." 1 Karl Marx, in 1864, while a refugee in London, founded the Inter- national Workingmen's Association, which aimed at social revolution without the help of existing governments; the movement collapsed after the Franco-Pruesian War. 376 THE PROVINCE OF GOVERNMENT In the period following (1878-90) the party under- went a severe persecution at the hands of the German Imperial Government, which did not, however, drive it into revolutionary measures. At a congress held at Erfurt (1891) a revised platform was adopted, which became the official programme of the German Social Democratic Party and has since been very widely recognized as a sort of charter of socialism. It demands universal, equal, and direct suffrage by ballot (extend- ing the franchise to women), proportional representation, direct legislation, substitution of a universal militia for a standing army, freedom of the press and of meeting, free justice, a graduated income tax, improved factory legislation, statutory limitations of the hours of labor. With these immediate demands are coupled a general denunciation of the evils of capitalistic industry. But it is asserted that the "struggle of the working classes against capitalistic exploitation must of necessity be a political struggle," 1 and it will be seen that the present demands of the party include nothing that is not asked by various radical groups in Anglo-Saxon countries, except perhaps the item of a legal labor day. On this basis the progress of the Social Democrats in point of numbers has been extremely rapid. At the foundation of the German Empire they elected only two members to the Reichstag; in 1893 they elected forty-four mem- bers, representing 1,876,738 votes, and in the last elec- tion before the Great War (that of 1912) succeeded in returning one hundred and ten members, representing 4,238,919 votes. In the welter of parties, groups, and factions which has occupied the remains of Germany since the war it is no longer possible to distinguish 1 A translation of the text of the Erfurt programme may be found in Ely's Socialism and Social Reform, Appendix I. SOCIALISM 377 where socialism begins and ends. But before the war it was very generally conceded that the Social Demo- cratic Party (including therein those who vote for so- cialist candidates) was not entirely made up of socialists. It had become to a large extent the party of discontent and of standing opposition to the imperial government, and was by no means to be looked upon as entirely made up of persons believing in the practicability of a co- operative state. In all the Continental countries one of the vexed questions of present socialism is the extent to which the earlier doctrines of the socialistic theory are to be maintained. Some of the socialists tenaciously adhere to the original tenets of Karl Marx, and persist in be- lieving in the imminence of the social cataclysm. This, however, in view of the evident improvement in the lot of the working classes during the nineteenth century, during which the actual wages of skilled labor were about doubled, is an expectation that seems belied. A great many socialists believe in the progressive alteration of present conditions with a view to immediate social amelioration to the extent actually practicable. These "revisionists," as they are called now, everywhere dis- pute the field with socialists of the older, orthodox, and Marxian type. Indeed, it may be claimed that the greater number of socialists now favor the amelioration of pres- ent conditions rather than their complete overthrow. The socialists, though extremely numerous in France and Italy, have nowhere else as much cohesion and unity of operation as they had obtained before the Great War in Germany. In France in particular they are divided into opposing factions. Some of them, under the name of "collectivists," are of the Marxian type, favoring a complete economic control exercised by a 378 THE PROVINCE OF GOVERNMENT centralized government; others advocate the adoption of a socialistic programme by the development of mu- nicipal control; others again, the " possibilists," are inclined to accept any measures of amelioration that can be obtained and to cooperate with any existing governments that will meet their views. It is obvious, however, that the coming of the Great War dealt a severe blow to the international aspect of socialism. Before 1914 many socialists indulged the vain hope that the socialist workers of the world were united to a degree that would forbid warfare between nation-states. The bond of a common economic lot and of common economic aims was thought to be stronger than the ties of race, language, and national political union. This dream was shattered like glass. The social- ist had forgotten that organized control is a factor of profound import. Those in command of the existing government and the existing national army have a long start. But even apart from this it seems clear enough that at the present stage of the world's history the ties of blood and language and neighborship are still stronger than the mere affiliation of international groups. 4. Socialism in England and America. Various so- cialistic associations have been formed in England the Social Democratic Federation (1881), the So- cialist League (1884), now extinct, and the Fabian Society. The latter has contained among its members many persons of marked talent the two Webbs, 1 Mrs. Annie Besant, and others and the collection of papers published by it under the title of Fabian Es- says in Socialism has had an extensive sale. The pro- gramme of the society consists in the gradual introduc- 1 Sidney and Beatrice Webb, well known as joint authors of His- tory of Trade-Unionism, etc. SOCIALISM 379 tion of socialism, recognizing the need of a transitional stage in passing from capitalistic industry to collective management. In the United States there have been nu- merous examples of practical attempts at the realiza- tion of collective management in the foundation of va- rious communities in which the principle of associated labor and common ownership was adopted. 1 Of these the Rappites of New Harmony (later of Economy) and the communists of Zoar, Amana, and Oneida are famil- iar examples. These experiments have always proved failures, except where the main motive was religious and not economic, and where the community of prop- erty was only incidental to aspirations of a higher character. Of late years socialism has appeared in the United States in the form of political parties which are developing a considerable voting power. The So- cialist Party and the Socialist Labor Party are the most important. In the presidential elections of 1912 some 900,000 votes were given to the Socialist candidate and 29,000 to the Socialist Labor candidate. In the elec- tion of 1916 the Socialist Labor candidate received some 14,000 and the Socialist candidate over 590,000 votes. But in the case of both these parties, though they pref- ace their platforms with general statements in favor of the nationalization of production, special stress is laid on the immediate demands for state railroads, municipal control of lighting plants and street cars, a graduated income tax, etc. They thus illustrate in their practical programme a very close similarity with radical political parties whose basis is not socialistic. The present de- mands of socialist parties both in America and in Europe are very closely allied to those that are and have been 1 Consult in this connection Charles Nordhoff, The Communistic Societies of the United States. 380 THE PROVINCE OF GOVERNMENT advanced by various parties of a radical type (Populist, Independent Labor, French Radicals, etc.) which are not avowedly socialist at all. The fundamental basis of radicalism is individualistic and hence represents in theory the opposing extreme from the socialistic con- ception of the state. But the progressive evolution of modern socialism is carrying it further and further from its original ideal. The latter many socialists admit to be Utopian and unattainable, and many persons not socialists would concede that the theoretical ideal of a cooperative commonwealth may exercise a formative influence on the direction of actual legislation. The aims of the socialists in connection with municipal govern- ment we shall discuss in the next chapter. READINGS SUGGESTED Kirkup, T., History of Socialism (1892), chaps, i, vn, xn. Skelton, 0., Socialism, a Critical Analysis (1911), chap. n. Schaffle, A., Quintessence of Socialism (translation of 8th Ger- man edition, 1889). FURTHER AUTHORITIES Bliss, W. D. P., Handbook of Socialism. Bellamy, K, Looking Backward (1888). Marx, K., Capital (1867). Webb, S. and B., History of Trade-Unionism. Nordhoff, C., Communistic Societies of the United States (1878). Pohlmann, R., Geschichte des antiken Kommunismus und Sozialismus (1893). Schaffie, A., Impossibility of Social Democracy (authorized English edition, 1892). Zenker, E. V., Anarchism (1897). Leacock, Stephen, The Unsolved Riddk of SocialJustice (1919). Hughes, J. W., American Socialism of the Present Day (1912). Walling, W. E., et al. (editors), The Socialism of To-day (1916). Barker, J. Ellis, British Socialism (1908). CHAPTER HI THE MODERN STATE 1. The new environment 2. Theory of protection to industry 3. Modern protective tariffs 4. Interference with competitive prices ; trust and railroad legislation 5. Government interference on behalf of the working class; factory laws, state insurance, and pensions 6. Municipal control. I. The new environment. We shall now consider in conclusion the actual functions exercised by modern governments and the existing state of opinion in refer- ence to the economic duties of the state. The practical operation of all modern civilized governments remains, in a certain sense, on an individualistic basis. By this is meant that there is no state in which the principle of common property in the means of production, or of equality of wages, or of universal employment by the government, is adopted. Each individual is still left to earn his own living by his own efforts, and the amount of wages remains as a matter of free contract between employers and employed. But subject to this general reservation, it can easily be shown that the practice of modern governments is further than ever removed from complete individualism, and that the tendency towards state interference with industry is everywhere on the in- crease. We have but to consider the public policy of our time in reference to the regulation of railroads, of mo- nopolies and tariffs, to realize that the former reliance upon the principle of unrestricted competition and indi- vidual self-interest has been completely lost. This obvi- ous change in public policy has been accompanied by an equally evident change in public opinion. The econo- 382 THE PROVINCE OF GOVERNMENT mists and political philosophers of the present time are prepared to defend a degree of state interference quite at variance with the doctrines of their predecessors. The reason for this remarkable alteration both in theory and practice is found in the altered circumstances of our industrial environment. We have seen in a previous chapter that the rapid expansion of industry under the stimulus of the new mechanical processes of the indus- trial revolution seemed to demand its liberation from all forms of governmental restraint, and that the conse- quent removal of the standing impediments to the free movement of capital and labor was accompanied, at any rate as far as the total volume of production was con- cerned, with marked success. But it has been seen also that in reference to the welfare of the laboring class the system of free competition, particularly in regard to the work of women and children, was open to serious objec- tion. The further development of modern industry has emphasized many other disadvantages attendant upon unrestricted competition. The more important of these may be briefly discussed in theoretical form, after which we shall proceed to the treatment of the actual legisla- tive policy adopted under the circumstances. The theory of government functions laid down by Smith, Ricardo, and the classical economists was es- sentially a cosmopolitan theory. It was intended to show that if wages, prices, and trade were left to the free play of individual bargaining, the self-interest of each would promote the general interest of all. Each individual would be enabled to apply his labor and his capital to the particular branch of industry in which he might expect the highest remuneration. In the same way each nation would be enabled to concentrate its production in the directions for which it had the great- THE MODERN STATE 383 est natural advantages, an unrestricted trade with its fellow nations supplying the commodities not produced at home. As applied to the conditions prevalent in Eng- land in Ricardo's day, the theory of international rela- tions is generally admitted to have been correct. There could be no doubt as to England's paramount advan- tages at that time in nearly all lines of manufacturing industry. But the attempt to apply the free-trade theory to other nations and to later times has by no means met with a general acceptance. In the first place it is objected that the acceptance of the policy of free trade militates against national self-sufficiency and independence. In strict accord with the Ricardian doctrine it will follow that if a nation has especial ad- vantages for agriculture and relatively poor facilities for manufacture, it will, apart from government inter- ference with the "natural" course of things, rely upon its neighbors for manufactured articles, and devote its energies mainly to agriculture. Conversely a nation with special facilities for manufacture, but poor in agri- cultural resources, will be led to leave its land untilled and to obtain its food-supply by exchanging its manu- factured articles for agricultural products. It is clear that in these cases the welfare of each nation is abso- lutely dependent on its being able to carry on an unin- terrupted trade for the supply of its particular needs. Should such intercourse be interrupted by war, either between itself and the nation it trades with or be- tween the latter and an outside power, its economic existence is at stake. The economic gain afforded by its trade in time of peace is thus offset by its economic feebleness in time of war. It is to be especially observed that it is not only a war of its own that it must appre- hend, but a war undertaken by an outside nation on 384 THE PROVINCE OF GOVERNMENT which it is in some degree economically dependent. On this ground it is argued that state interference in the shape of protection to manufactures (or to agriculture) is justified in so far as may be needed for establishing a proper quantity of economic independence. Even Adam Smith in his approval of the Navigation Acts l admits the validity of considerations of a similar char- acter, and the argument is generally admitted by pres- ent economists to be of weight. There is a consider- able divergence of opinion as to the extent to which economic independence should be attempted. It is, however, universally admitted that for the manufacture of the munitions of war no state should permit itself to be dependent on the outside world. 2. Theory of protection to industry. The foregoing is only one of the many grounds on which state inter- ference in the form of protective duties has been ad- vocated. More familiar, especially in America, is the line of reasoning known as the "infant-industry" argu- ment. It is claimed that the resources and circum- stances of a country may be such that while the initial expense of setting a manufacturing system on foot in the face of foreign competition offers insuperable diffi- culties for the industrial producer, yet such a system once properly established would be of a sufficiently profitable character to compete on equal terms with the imports of foreign manufactures. In this case, it is urged, the government should impose a temporary duty which may make it possible for manufactures to be established, and which may later on be removed. The temporary help thus afforded by state interference will enable the community to advance to a higher stage of industrialism, and better to exploit the natural resources of its terri- 1 Wealth of Nations, bk. iv. THE MODERN STATE 385 tory. This argument has met with especial support from American economists. The weak point in connec- tion with the infant-industry argument is that in coun- tries where duties of this kind have been adopted, the industries in question have never outgrown their infancy, as far as the protective tariff is concerned. In practice the duties have not only not been removed, but have been increased. A further ground of argument in favor of protec- tive interference arises out of the cosmopolitan charac- ter of the free-trade doctrine. Assuming a complete in- ternational regime of free trade, the system might tend towards the denudation and impoverishment of the less favored nations in favor of those possessing the great- est resources and offering the best conditions for man- ufacture. The Ricardian theory presupposes that each nation will occupy itself with the pursuits for which its circumstances are best suited. It is admitted l that one nation may be worse suited in every respect than an- other and yet continue to trade with it, because the people of the most favored nation will prefer to devote themselves to the occupation in which their advantage is greatest. Thus let us suppose that Portugal can pro- duce both wine and corn with less labor than Morocco; and let it also be supposed that in the production of corn the advantage is but slight, whereas in the case of wine the advantage is enormous; the people of Portu- gal will still prefer to get their corn from Morocco, al- though produced there at greater pains than in Portu- gal, because the quantity of wine they exchange for it is produced at still less cost. On this ground the clas- sical economists undertook to show that two nations 1 See John Stuart Mill, Principles of Political Economy, bk. in, chaps, zvii. xvin. 38 THE PROVINCE OF GOVERNMENT might trade with mutual advantage even where the re- sources of the one were superior in every respect to those of the other. Such an argument, however, takes it for granted that the capital and labor of each country , will remain within its own borders, and not emigrate to the more favored territory. Why should it not be sup- posed that with free intercourse and open markets, the capital, and what is far more important, the laborers of less favored communities would emigrate to places better suited for manufacture? It will be noted that this supposed denudation of poorer countries contains nothing at variance with the free-trade theory itself. The emigration of persons and capital under these cir- cumstances would doubtless increase the gross total of the world's production, and would add something to the general productive efficiency of mankind. But it would assuredly not increase the gross total of the productive- ness of the country out of which they emigrated. The question then is, whether the adoption of protective duties in aid of home manufacture can prevent the de- sertion of poorer for richer countries. It may be argued that, even after the duties are imposed, the individual capitalist or laborer will still find it more profitable to use his capital and labor in the more favored country, and that the tendency to emigration of both of these is independent of protective interference. There are, however, a great many people in every country whose remaining there is not altogether a matter governed by economic motives; some will remain from sentimental reasons of attachment and patriotism, others because their material fortunes are already amply sufficient. Under a protective system the manufactured commod- ities consumed by these persons must needs be made at home and necessitate the continuing within the state THE MODERN STATE 387 of a sufficient manufacturing population for the pur- pose. Such manufacture will, under these premises, be conducted at an economic loss: the persons of means thus residing in the country will have to pay more for what they consume than if content to import it from abroad and to let the manufacturing population depart. But the upshot will be that a larger number of citizens remain within the state than would have remained without the state interference in the form of protective duties. It is plain, of course, that the applicability of such an argument depends on the particular circum- stances of any country at any time. The situation of Great Britain at the present time naturally suggests it- self for examination in this connection. It may conceiv- ably be the case that the facilities both for agriculture and for manufacture are now inferior in Great Britain to those of the United States. The progressive appli- cation of water power and electricity as motive forces may further emphasize this advantage. Under such circumstances according to the Ricardian doctrine the laboring people of England ought, each consulting his own advantage, to come to live in the United States. There would remain in England the persons of means, who would invest their capital in the manufacturing industries of America, and draw from that continent the various commodities of their consumption. The case is purely hypothetical and may be perfectly at vari- ance with present facts. But it seems to show that, in pure theory, the system of free trade is not of necessity identical with national greatness. To grant this and to contend that it is always consistent with the general welfare of the world, even where fatal to the welfare of a particular nation as such, would be thought by many a quite insufficient argument. 388 THE PROVINCE OF GOVERNMENT 3. Modern protective tariffs. Acting on the general considerations thus stated, almost all of the modern in- dustrial states have seen fit to adopt a system of protec- tive duties for the promotion of domestic manufacture. Such legislation in the United States was indeed adopted in a mild form at the very opening of the history of the present Constitution. 1 During the first half of the nine- teenth century, the rival theories of free trade and pro- tection struggled for mastery. The high tariff of 1828, the "tariff of abominations," was followed by the greatly reduced tariff of 1846 a measure partly due to the influence of the free-trade campaign in England, and by the reciprocity treaty with Canada in 1854. But since the Civil War the system of protection to national industries has been strengthened, and extended to prac- tically the whole range of industry. The Dingley tariff of 1897, while admitting free of duties a large number of raw materials for use in manufacture, imposed on manufactured articles duties amounting in some cases to more than fifty per cent. Indeed the period between 1890 and 1900 may be considered to have witnessed the acceptation in the United States of the protective sys- tem, not as an expedient, but as a principle. Subsequent revisions of the tariff, while lowering and removing va- rious duties, have left this principle untouched. The Dominion of Canada, though granting a special rebate duty to imports from Great Britain, is now on a high- tariff basis, the policy of protection having been explic- itly adopted by the Conservative Party in 1878, and transmitted to their opponents on their accession to power in 1896. The German Empire, with the tariff of 1879, adopted the policy of protection, in especial the 1 See Schouler, History of the United States, vol. i; Taussig, Tariff History of the United States. THE MODERN STATE 389 tariff of 1902 having further raised the existing duties, including those on agricultural products. 1 France, Italy, and the other Continental countries are also under a system of tariff protection. Of the manufacturing coun- tries of the world, Great Britain alone remains upon a free-trade basis, while even there the future retention of such a system has recently become a subject of acute controversy. 4. Interference with competitive prices; trust and railroad legislation. Interference with the freedom of importation is only one instance of the present tendency towards legislation in contravention of the formerly dominant theory of natural liberty. We have already seen that in accordance with this system it was consid- ered advisable that prices should be left altogether to the play of free competition among buyers and sellers. It was presumed that under a regime of unrestricted competition, the price of any article would be in propor- tion to the cost of producing it. For the attainment of the maximum economic efficiency, and for the satisfac- tion of the demands of social justice, it seemed necessary merely to leave people alone to buy and sell as they pleased at such prices as they should arrange between themselves. The essence of the position, however, lay in the assumption that there would be active competition among a number of persons producing the same article. The case is altered if we suppose the entire stock of any particular commodity in the hands of a single seller, or, what is the same thing, in the hands of a group of sellers acting in concert. Where a person has a monopoly of the available stock of a commodity, there is no reason, in and of itself, why he should sell it at a price represent- ing the cost of production, rather than at any other 1 See W. H. Dawson, Protection in Germany, chap. ix. 390 THE PROVINCE OF GOVERNMENT price. He is free to ask any price that he likes, subject always to the consideration that if he asks too high a price no one will buy the article he wishes to sell. When we come to inquire how prices will in such a case be set- tled, we find that a monopoly price follows a law quite different from that governing prices under free compe- tition. 1 The adjustment of a monopoly price may be explained as follows. The seller obviously cannot sell below the cost of production, because that would entail a direct loss. He must, therefore, sell at a price some- where above the cost of production. But it is clear that the lower the price the greater will be the number of articles that he sells. The whole amount of his profit will depend, therefore, on two factors, the total number of sales and the amount of profit on each sale. As the price rises the number of buyers decreases, though prob- ably not in a regular progression, but irregularly and in a jolting fashion. There will be found somewhere in the upward scale a point of maximum profit, at which the product of the number of sales multiplied by the profit on each is greater than at any other point. Now this point may in some cases be far above the cost of produc- tion : for example, in the case of an article of prime ne- cessity, bread, sugar, oil, etc., any one having a complete monopoly of the available stock could exact a price much in excess of the actual cost of production. In the economic situation of the earlier part of the nineteenth century, the monopolization of articles of ordinary production had not appeared to any great extent. The law of price applying to these conditions, though apprehended by the economists of the day, as- sumed no particular importance, nor did it seem to have 1. For the law of monopoly price, see R. T. Ely, Monopolies and Trusts. THE MODERN STATE 391 any immediate bearing on public policy. But in our own day the possibility of monopolization of ordinary arti- cles of production has become a significant factor in the industrial situation. To this, various causes have con- tributed. The increasing use of machinery renders the initial cost of embarking on any industrial process con- stantly greater. The evolution of the principle of joint- stock undertakings has rendered it possible to carry on production on a very large scale, and in consequence to considerably reduce the cost of each article produced. This has rendered it very difficult for small concerns to compete with large industrial corporations, and has set up in the industrial world a tendency towards the amalgamation of similar businesses under a common management. When this amalgamation has proceeded far enough to cover, or at any rate to dominate, the whole production of a certain class of commodities, then the principle of competitive price-making no longer ap- plies, and the law of monopoly price comes into play. To prevent this state of things modern governments have seen fit in some instances to use their legislative power. This is particularly the case with the United States, where the process of industrial amalgamation has been most rapid and has occasioned the greatest public ap- prehension. The federal government in 1890 passed an anti-trust law (known as the Sherman Act) forbidding contracts or combinations in restraint of interstate trade, prohibiting the monopolizing of any part of the trade between the states, etc. The effect of this statute has been reenforced by the interpretation given to it by the courts. It was applied in 1897 to contracts between rail- roads in interstate commerce; in 1904 (Northern Securi- ties Case) to the prohibition of certain forms of corporate amalgamation, and in 1908 to a boycott ordered by a 392 THE PROVINCE OF GOVERNMENT labor union. 1 Under an Act of 1914 a Federal Trade Commission was created with power to restrain unfair methods of competition. Most of the States have legis- lated against the trusts, either by constitutional provi- sions or by statutes. A great deal of such legislation has, however, been declared invalid by the courts, or ren- dered inoperative by various kinds of evasion. 2 A special case of the interference of the modern state in regard to prices is seen in legislation concerning rail- road rates, which are of course prices charged for trans- portation of persons and freight. A little examination will show that railroad rates differ from most other prices in a very peculiar way. We have seen that under free competition in the production of ordinary commodi- ties then- selling price will approximate to the cost of production. Even where a single seller has a monopoly he will find no advantage in making sales below the cost of production. But in the case of a service performed by a railroad in transporting passengers or freight over a certain distance the "cost of production" is of a quite different character, and stands in a quite different rela- tion to the price demanded. In the first place we can see that there is very little, almost no expense incurred by the railroad for the particular transportation of any single article. Supposing that a train is scheduled to run between two stations, ten miles apart, the cost of send- ing a barrel of flour on it (the additional expense, that is, actually incurred by taking that particular consign- ment) consists merely of the labor of two or three min- utes' handling and an infinitesimal quantity of extra coal by reason of the extra weight added to the train. 1 See Everett Kimball, The National Government of the United States, pp. 605-10. * For anti-trust statutes, see Report of the U.S. Industrial Commia- eion, vol. n. THE MODERN STATE 39i< It must be noted in the second place that as between a distance of ten miles and a distance of one hundred miles the cost is practically the same, for only the same amount of handling is needed, and the other expense is insignificantly small. There is of course the expense of running the train itself (coal, wages, etc.). Very obvi- ously some of the prices charged for the passengers and freight it carries must make this good or the train is be- ing run at a loss. But there is no reason (none, that is, of an economic character., and apart from ideas of senti- ment, justice, etc.) why this charge should be levied in a proportionate manner upon the different consignments. Suppose, for example, that the state of the cotton trade is such that consignments of cotton will be sent even if the railroad charges a high price, and that the market for flour is such that no flour will be shipped except at a rate excessively low, it will clearly be to the advantage of the railroad to charge much for the one and little for the other. In other words each of these two rates will be of the nature of a monopoly price, the limitation of the charge being found in that above a certain point the number of consignments begins to fall off. Over and above the special expenses of running this individual train the railroad has to meet its permanent and stand- ing expenses in the shape of the interest charge upon its original construction, and the cost of maintaining the roadbed and terminals. But there is no reason to assign these charges proportionately and uniformly among all the trains operated, and upon all the business handled. Each train and each consignment must of course repay the direct added cost which its operation entails. But above the extremely low minimum rate thus indicated, it is always worth while to accept business, even for a small charge where a larger cannot be had. In the prac- 394 THE PROVINCE OF GOVERNMENT tical levy of railroad rates it is therefore quite out of the question to distribute the total cost in a proportionate manner. Each service performed will be sold at a price representing "what the traffic will bear" and not what the traffic has cost. It will result in consequence that the different charges made by a railroad may be evidently and visibly out of proportion to their relative cost. It may happen that a greater charge is made for carrying a particular article a short distance than for carrying it a long one. Although at first sight this seems contrary to common sense and to common justice, it is quite in keep- ing with the principles we have just laid down. In trans- porting goods between two places five hundred miles apart a railroad may have to encounter the opposition of competing lines or of transportation by water, and may be compelled to accept a very low rate on the freight it carries. But at the same time there may very well be included in this five hundred miles a strip of one hundred miles which is not covered by any competing railroad, and which has not access to water transporta- tion. As between the towns on this strip the charges that the "traffic will bear" are very likely greater than the utmost charge that can be levied on the through traffic of five hundred miles. 1 There is a further peculiarity in the economic situa- tion of railroads in the fact that active and permanent competition between them is practically impossible. A state of keen competition induces the roads to reduce charges to a point which, while covering the actual and individual cost of the train service, makes no provision for the permanent interest and maintenance charges of the railway. In such a situation a poor road particu- 1 For the theory of railroad rates see E. Johnson, American Railway Transportation (1903). THE MODERN STATE 395 larly one whose interest charges are already in default, or which is even in the receiver's hands is a stronger competitor than a good one, for it can indulge in a more reckless and suicidal rate-cutting. In practice, there- fore, railroads have always found themselves compelled to enter into agreements, express or tacit, as to the regulation of their rates. From the point of view of the general public such understandings look very much like a combined attempt on the part of the roads to exploit the community for their own benefit. The distinctive position which the railroads thus occupy in the industrial world has induced all modern governments to subject them to special regulation, and to entirely abandon in reference to them the principle of non-interference. In some cases, as in Prussia, Austria, Hungary, the states of the Commonwealth of Australia, etc., the state itself owns and operates the railroads. In France charters are granted to private companies for limited periods, after which the roads revert to the state. The chief railroad systems of the country (some 20,500 miles of road out of a total 25,500) will become national property between the years 1950 and 1960. Even while the roads are in private hands their general relation to the state is very different from that of ordi- nary business enterprises. A large part of the original permanent cost was defrayed by the French Govern- ment; the government also guaranteed the payment of a fixed dividend. In return the rates are fixed by the government itself, and the transportation of the mails, troops, prisoners, etc., is made gratuitous. In the United States, although the railroads have been left in private hands, they have been the object of special legis- lative control of both the state and the federal govern- ments. The Interstate Commerce Act (1887) provided 396 THE PROVINCE OF GOVERNMENT that in the case of charges levied on commerce between the States, no railroad company shall unduly discrimi- nate in favor of particular persons or particular locali- ties. The same law forbade the railroads to charge more for transportation for a shorter than for a longer dis- tance over the same line, and prohibited the pooling of railroad earnings. The statute also established an Inter- state Commerce Commission of five members appointed by the President of the United States; it is the duty of this body to supervise the operation of the act, but it had at first no power of itself to punish violations of its provisions or to fix rates. A law of 1906 conferred upon the commission the power to prescribe rates. The provi- sions of the federal anti-trust statute of 1890 have also been applied by the courts against the railroads in re- gard to various forms of combination that were pre- sumed to be in restraint of commerce between the States. In addition to the national legislation most of the States have passed laws intended to prevent dis- crimination in freight and passenger rates, and to hinder undue combination. In most States also railroad com- missions are established, in some cases with duties that are mainly advisory and statistical, but hi others with coercive powers for the making and enforcing of rates. 1 During the war period the railroads of the United States were taken under the direct administration of the government. But this represents merely an exigency of war and not a change in the basis of state policy. In the United Kingdom there is also a commission for the supervision of the operation of railroads, established in 1873, and rendered permanent by an act of Parliament 1 It has been laid down by the United States Supreme Court that an exercise of power of this kind the making of a rate by the con> mission itself must be subject to revision in the courts. THE MODERN STATE 397 of 1888. The schedule of maximum rates of each rail- road is subject to the approval of the Board of Trade. Pooling is not prohibited, but discrimination is against the law. The war-time management of the roads by the government rested on the same principles as that of the United States. 5. Government interference on behalf of the work- ing class; factory laws, state insurance, and pensions. The attitude of modern governments towards the labor- ing class is in many respects no longer one of unqualified individualism. The general recognition of the idea of social solidarity and of aggregate social duties towards the workers and the poorer members of the community has profoundly influenced the legislation of our day. The original factory acts adopted in England, to which reference has been already made, have been imitated in all the great industrial countries, and expanded into an elaborate code designed to protect the wage-earner against the rigor of unrestrained competition. Legisla- tion of this kind in the United States falls under state and not under federal jurisdiction. There were still States of the Union in which, at the close of the nine- teenth century factory industry being but little de- veloped, no protective statutes had been passed. But in Massachusetts, New York, Pennsylvania, Ohio, In- diana, Illinois, and all the great manufacturing States, factory legislation of a thoroughgoing character has long since been adopted, and their example has now been followed to a greater or less degree throughout the country. The factory acts prohibit working people from being employed under conditions dangerous to health or life. They contain provisions for fire-escapes, prevention of explosions, fencing of machinery, ventila- tion, etc., and provide for the appointment of inspectors THE PROVINCE OF GOVERNMENT to supervise the operation of the acts. The hours of la- bor in the case of women and young persons are also limited by law. All the manufacturing States have leg- islated against excessive hours for young persons (of either sex) and have absolutely prohibited factory labor for children. In Massachusetts, New York, and several other States only children of at least fourteen years of age may be employed; hi other States employment is permissible at lower ages. In England, under the gen- eral factory law of 1901, similar restrictions on industrial freedom of contract are imposed by the government, both the conditions of work and the permissible hours for employment of women, young persons, and children being made the subject of legislative interference. The German Imperial Government adopted in 1891 a factory act of similar scope. In the period before the Great War neither in Great Britain nor the United States was any attempt made to limit by legislation the hours of work of adult male laborers. But at the present time the stat- utory regulation of hours in general is quite within the scope of legislation. The matter is now rather one of expediency than of principle. The general tendency of the advanced opinion of the day may be seen in the "Labor Sections" of the Peace Treaty of 1919. The preamble of the opening sections states that "The League of Nations has for its object the establishment of universal peace, and such a peace can be established only if based upon social justice"; and goes on to declare that "conditions of labor exist involving such injustice, hardship, and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled; and an improvement of those conditions is urgently required; as, for example, by the regulation of the hours THE MODERN STATE 399 of work, including the establishment of a maximum working day and week, the regulation of the labor sup- ply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease, and injury arising out of his employment, the protection of children, young persons, and women, provisions for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of freedom of association, the organization of vocational and technical education and other measures." A later article (427) indicates "the adoption of an eight hours' day or a forty-eight hours' week as the standard to be aimed at where it has not been already attained." The altered attitude of the state towards the working class is seen also in the systems of compulsory insur- ance and old-age pensions, now operative in various countries of Europe, and in certain Australasian colo- nies. The system was first adopted on a comprehensive scale in Germany. An imperial law of June 15, 1883, provided for compulsory insurance against illness for all working people whose wages did not exceed $476 a year, the expenses of the insurance being imposed jointly on working people and employers, the former pay- ing two thirds, the latter one third of the cost. A simi- lar law of July 6, 1884, prescribed compulsory insurance against accidents. In each of these cases the govern- ment itself contributes nothing; but for the compulsory old-age pensions, established under an imperial statute of 1889, the government contributed yearly towards each pension a fixed sum of $1 1.90 over and above the amount accruing from the past contributions of the workingmen and their employers. France and Austria have also in- stituted compulsory state insurance against accidents 400 THE PROVINCE OF GOVERNMENT (in Austria against illness also), and Italy, under a statute of 1899, has state insurance both against dis- ability and old age. The colony of New Zealand, by a law of 1898, established a system of old-age pensions (with a maximum of eighteen pounds per annum) to be accorded by the government to persons of sixty-five years of age who have resided thirty-five years in the colony, no previous contribution being exacted from the recipient. Persons possessing an income from other sources are not eligible, or only eligible as pensioners to the extent that their income falls short of the pension. The same type of old-age pension law was adopted in England by the Acts of 1908 and 1911, under which non-contributory pensions with a maximum of five shillings a week are granted to all needy persons over seventy years of age. This was followed by the National Insurance Act of 1911 introducing a general (contribu- tory) system of insurance against accident and illness. Even the most extreme individualists admitted that the protection which it was the primary duty of the state to afford to the citizen did not merely include safeguards against physical violence and forcible robbery. Pro- tection of an indirect character, intended to prevent fraud or culpable negligence, was admitted to be within the proper sphere of the state action. But in the course of the nineteenth century the category of legislation of an indirectly protective character was enormously ex- panded. Such familiar examples as adulteration acts hi reference to food, acts in reference to the inspection of steamboats and buildings, the granting of certificates to engineers, druggists, etc., will at once suggest themselves in this connection. Prohibition acts in restraint of the manufacture or sale of intoxicating liquors, acts in re- straint of public gambling, etc., represent the same legis- THE MODERN STATE 401 lative principle carried to a further degree. In practice, the line is extremely difficult to draw between protective legislation whose intention is to guarantee the indi- vidual against external harm and to prevent him from harming others and paternal legislation, whose object is to compel him in a positive direction for his own good. The attitude of most modern governments is not clearly defined in this respect; but there is a large amount of modern legislation which is practically of a paternal character. 6. Municipal control. Mention may be made in con- clusion of the wide extension of state activity seen in the sphere of modern municipal control. Under pres- ent conditions the supply of water and light to towns and cities and the arrangement for interurban trans- portation, telephone communications, etc., offer prob- lems of a peculiar character. To a great extent these services are in their nature monopolies; they must be under a single control, and cannot, or at any rate can only at an economic loss, be performed for the com- munity by rival purveyors. Separate telephone systems, separate gas and water companies with parallel pipes, separate car lines upon the same streets, are plainly impracticable. On the other hand, where these enter- prises are placed unreservedly in private hands, the principle of monopoly price, as already explained, as- serts itself to the detriment of the general public. It is necessary, therefore, either that the public authorities should themselves directly perform these services for the community, or that the grant of privileges accorded to a monopoly company should be accompanied by spe- cial restrictions and special regulation of the prices to be charged. But for a survey of the present extent of municipal ownership, the student must be referred to 402 THE PROVINCE OF GOVERNMENT special works upon the topic. Reference is only made to it in this connection to illustrate the greatly widened sphere of state control characteristic of the present era. READINGS SUGGESTED Leroy-Beaulieu, P., The Modern State (translation, 1891), bks. i, n. Hobson, J., Evolution of Modern Capitalism, chaps, m, rv, v. Jenks, J. W., The Trust Problem (1901), chaps, iv, x, xi. Johnson, E., American Railway Transportation (2d revised edition, 1919), chap. xxix. Barker, E., Political Thought from Spencer to Today (1915), chap. vm. FURTHER AUTHORITIES Ripley, W. Z., Railroads (1912). Ripley, W. Z., Trusts, Pools, and Corporations (rev. ed. 1916). Von Halle, E., Trusts (1900). Taussig, F. W., Tariff History of the United States (5th edition, 1901). Stevens, W. H. S., Unfair Competition (1917). Ashley, P., Modern Tariff History (1904). Dawson, W. H., Protection in Germany (1904). Ely, R. T., Monopolies and Trusts (1900). Report of U.S. Industrial Commission (1900-02). Bemis, Municipal Monopolies (1899). Carey, Municipal Ownership of Natural Monopolies (1900). Willoughby, W., Workingmen's Insurance (1898). New Zealand Year-Book (annual). Bulletin of U.S. Bureau of Labor: Government Industrial Arbi- tration (1905). Ogg, F. A., Economic Development of Modern Europe (1917). Adams, T. S., and Sumner, H. L., Labor Problems (1918). INDEX INDEX Acquisition of dependencies, the, 255. Acton, Lord, The Study of His- tory, 7. Administrative courts, 217, 218; origin in France, 218. Administrative law: in refer- ence to separation of powers, 151; nature of, 216; opera- tion in France, 218. Agreement of the People, 129. Alabama claims, 101; consti- tution of, 133. Albany Congress, 267. Aliens, suffrage granted to, 223. Allison, History of Europe, 94. Alternative vote, 229. Amendment of Constitution, 131, 132, 135, 223; Switzerland, 137. American Revolution, t. Revo- lution, American. Analytical school, 55, 56. Anglo-French treaty of 1904, 103. Anson, Sir W., on legislative procedure, 156; Law and Cus- tom of the Constitution, 158, 220, 226. Anti-federalists, 332. Anti-trust Act, 391. Appeal to Caesar, the, 90. Application of the theory of the social contract, 25; criticism, 29. Appointments and dismissals, in U.S. executive branch, 203. Arbitration, International, v. In- ternational Arbitration. Aristotle, 24; on patriarchal theory, 39; cycle theory, 43; classification of government, 112; Politics, 114. Arrondissement, 295, 308. Assessment, v. Local Taxation, Property Tax. Aulard, Histoire Politique de 2u Revolution Franfaise, 116, 221. Austin, view of sovereignty, 51; on International Law, 98. Australia, federal powers in, 249; constitution of, 249, 250; signifi- cant references to, 41, 159, 165, 232, 237, 395. Australian Constitution, provi- sions for deadlock, 173. Austria, 163. Austria-Hungary, 16, 46, 123. Bagehot, W., on separation of powers, 148; on legislative procedure, 154; English Consti- tution, the, 33, 228. Ballot, double, 342. Barker, Ernest, upon the theory of the state, 67; Greek Political Theory, 77; Political Thought in England, 67. Bastiat, F., 359. Baty, T. and Morgan, J. H., War: Its Conduct and Legal Results, 94. Belgium, 163. Bellamy, E., upon the wage problem, 371. Bontham, Jeremy, criticism of social contract, 29; on sover- eignty, 52. Bicameral system, 158 et seq.\ Lecky on, 159; prevalence of, 158; reasons for, 160. BUI of Rights, the U.S., 135. Blackmar, Professor, on Spanish colonial system, 260, 261. Blackstone on separation of pow- ers, 144. Blair, Chancellor, 214. Bluntschli, J. K., definition of political science, 11; criticism of social contract, 29; view of sovereignty, 52; classification 406 INDEX of states, 117, 118; Theory of the State, 19. Boston, government of, 302. Bourinot, Sir J., on treaty-making power, 276. Bradford, E. 8., Commission Government in the American Cities, 304. Brand, R. H., The Union of South Africa, 277. Brazil, 238; o. also South and Central America. British Columbia, 230. British Franchise Act (1918), 222. British North America Act, 246. Bryce, J., on sovereignty, 58; on legislative procedure, 155; American Commonwealth, 155, 336; Holy Roman Empire, 91; Studies in History and Juris- prudence, 59. Bundesrath, German, 166; pow- ers of, 170; Switzerland, 185. Burgess, on origin of the state, 38 ; on sovereignty, 49; Political Science and Constitutional Law, 16, 74, 76, 184. Butler, Sir Geoffrey, Handbook to the League of Nations, 105. Cabinet, British, 144, 145; de- scription of, 147; its evolution, 194-196. Cabinet government, distin- guished, 119, 123, 193 et seqq.; in France, 196; in Italy, 198. Cadastre, 320. Canada, senate of, 164; power of courts, 214; federal powers in, 246; significant references to, 159, 164, 189, 246, 269, 388. Cantons, of Switzerland, 175; v. also Switzerland. Carlyle, T., on doctrine of laissez-faire, 364. Casa de Contra taci6n, 261. Chamber of Deputies, parties in, 346. Charters, colonial, 127. Church, relation to Holy Roman Empire, 91. Churchill, W., Lord Randolph Churchill, 344. City Government, U.S., 301. Civil liberty, idea of, 69. Civil Service Act, 205. Civil Service, British, 201, 202; U.S., 203, 204. Classification of existing states, 120. Closure in House of Commons, 158; in U.S. Senate, 157. Colonial Government, o. Colo- nies. Colonial policy, British, 261; British in nineteenth century, 267 et seqq.; French, 261. Colonies, government of, 258 et seqq.; area of, 258; methods of acquisition, 256, 257; of ancient world, 258; in Amer- ica, 260 et seqq.; self-governing, 268 el seqq.; British attitude towards, 269 et seqq.; present British system, 271 et seqq.; crown, 273 ; representative, 274; responsible, 275; relation of British to home government, 276 et seqq.; recent colonial expansion, 281 et seqq.; France, 281, 282; Germany, 282, 283; U.S., 284. Colorado, constitution of, 133. Commission Plan, 303. Committee of Public Safety, 185. Common faith, not a requisite, 18. Common law, 57. Commons, House of, procedure, 155, 158; closure, 158; con- stitutional powers of, 168, 170. Commune, 294. Compact, governmental, 25. Confederacy, Southern, 236. Confederation, Articles of, 235, 244. Congress, Continental, 235; pow- ers of U.S., 245, 246. Constitution, 122 et seqq.; writ- ten, 124 et seqq.; relation to courts of law, 131, 132; amend- ment of, 134-37; scope of, 132 et scqq.; of Alabama, 133; INDEX 407 of Ohio, 133; of Colorado, 133; of Switzerland, 134; made by convention, 136; provisions in state constitutions for direct legislation, 177; U.S., inter- pretation of by the courts, 252. Constitutional law, 134. Constitutional monarchy, 188. " Contrat Social," 28. Convention, 337. Council of Four Hundred, 174. County, U.S., 298 et seqq. Courts of law, power to interpret constitution, 213. Covenant of the League of Na- tions, 106-09. Crown colonies, 273. Cuba, 120, 165. Cunningham's Growth of English Industry and Commerce, 359. Curtis, L., Constitutional History of the United States, 136; The Problem of the Commonwealth, 280. Cycle, the Aristotelian, 43 Czecho-Slovakia, 18. Dante, on the papacy and em- pire, 90. Dareste, F. R., Lea Constitutions Modernes, 123. Dawson, W. H., Protection in Germany, 389. Declaration of Paris, 94. Declaration of the Rights of Man, 71. Definition and scope of political science, 3. Democracy, progressive growth of, 46, 47. Democratic Party, 333. Denmark, 163. Department, French, 295, 307. Departments of executive gov- ernments, 199 et seqq. ; table of, 206. Dependencies of the United States, 284. Deploige, The Referendum in Switzerland, 177. Dicey, A. V., on sovereignty, 61. Dicey, E., definition of con- stitution, 122; on responsibility of executive officers, 212. Direct legislation, 173; in the United States, 177 et seqq. Direct nomination, 340 et seqq. Disraeli, on colonial policy, 270. Distinction between state, so* ciety, government and nation, 15. Distribution of power between the two houses of a legislature, 167; in federal states, 242. Divine origin of the State, 32. Dual, or divided, sovereignty, 65. Ducrocq, Court de Droit Admin- is tratif, 309. Dunning, W. A., History of Political Theories, Ancient and Medicecal, 10, 91. Dupriez, Les Ministres dans Its Principaux Pays d' Europe, 196. Education Act, England, 306. Egorton, Short History of British Colonial Policy, 263, 265. Elective executives, 189. Electorate, 218 et seqq. Ely, Taxation in American States and Cities, 315; Socialism and Social Reform, 376; Monopolies and Trusts, 390. Embargo, 252. England, colonial policy of, 261; local government in, 304 et seqq. English Revolution of 1688, 143. Esprit des Lois, 143. Essential attributes of the State, 12. Evolution, general features of political, 45. Executive (branch of govern- ment), 141; the, 181 et seqq.; plural executives, 184; state governments of U.S., 198; hereditary, 186-88; elected, 189 et seqq.; responsibility to the courts, 211. Executive power, distinguished, 141. 408 INDEX Factory acts, 363, 364. Factory laws modern, 397 et seqq. Federal government, distin- guished, 119, 232 et seqq.; Greek federation, 234 ; classification of, 237; distinguished from confed- eracy, 238 et seqq.; sovereignty in, 238; distribution of federal power, 244-50; U.S., 245-46; Canada, 246; German Empire, 248. Federal Trade Commission, 392. Federalist, the, on separation of powers, 145. Federalists, 332. Federations, different kinds of, 235. Feudalism, 17. Figgis, J. N., The Divine Right of Kings, 33; Churches in the Modern State, 66. Filmer, Sir Robert, 33. Finance Bill of 1909, 172. Fiske, J., on separation of pow- ers, 152; Critical Period of American History, 136; Civil Government in the United States, 152, 177. Force, theory of, 34. Fowler, W., The City-State, 115. France, cabinet government in, 196; colonial policy of, 261; recent colonial expansion of, 281, 282; local government in, 307 et seqq.; significant refer- ences to, 47, 54, 74, 135, 148, 163, 166, 193, 218, 289, 345. Free trade, 361 ; critique of, 382. Freeman, W., on Achaean league, 234. French Revolution, illustrating cycle of government, 116; re- ferred to, 51, 185, 220, 222. Fundamental Orders of Connec- ticut, 128. Fundamental Statute of Italy, 130. Gareis, Allgemeines Staatsrecht, 119. Garner, L. W., Introduction to Political Science, 15, 119. General council, in French local government, 307. German Confederation, 236, 244. German Empire, federal powers in, 247. German Social Democrats, 374. Germany, ministers, 197; courts in, 215; federal units of, 241; pre-war colonial expansion, 282, 283; significant references to, 18, 46, 169, 196, 213, 215, 221, 244, 247, 374, 388. Gierke, O., Political Theories of the Middle Ages, 34 ; Fundamen- tal Concepts of Public Law, 83. Gladstone's Home Rule Bill(1893), 171. Goodnow, F., Politics and Ad- ministration, 150; Comparative and Administrative Law, 216, 217. Government, distinguished from state, society, and nation, 15 et seqq. ; province of, 353 et seqq. Governmental compact, 25. Great Britain, significant refer- ences to, 47, 53, 62, 74, 124, 126, 134, 147, 151, 162, 170, 184, 187, 199, 201, 210, 223, 237, 304, 343, 360. Great Britain and the U.S., arbi- tration of disputes between, 106. Great Illusion, The, book by R. N. A. Lane (Norman Angell), 104. Great War, effects of, 46, 73, 110, 123, 126, 159, 163, 169, 189, 215, 225, 255, 280, 282, 297, 310, 347, 348, 376, 378. Greece, ancient colonies of, 258. Greeks, international relations of, 89; significant references to, 4, 16, 19, 23, 47, 115, 234, 258. Grey, Lord, Colonial Policy, 272. Grotius, on international law, 92 ; De Jure Belli ac Pads, 92. Group system, of party govern- ment in Europe, 345 et seqq. Gumplowitz, on organic theory, 83. INDEX 409 Hague tribunal, 101-05. Haiti, 76. Haller, L. v., on origin of govern- ment, 36, 37. Hare, T., on representation of minorities, 227. Hare-Spence system, 229. Hart, A. B., Actual Government, 333. Hawaii, 284. Hearn, Government of England, 195. Hereditary executives, 186. Hereditary principle, in the com- position of the upper house in national legislatures, 162 et seqq. Historical or evolutionary view of the state, 38. Hobbes, T., 25; on external re- lations of states, 86. Hobbes, Locke and Rousseau, upon the social contract, 25. Hobson, Evolution of Modern Capitalism, 359. Holland, B., Imperium et Libertas, 270. Holland, T. E., Elements of Juris- prudence, 12, 13, 15. Holy Roman Empire, 17. Home Rule Policy (1886), 348. Hours of work, regulation of, 398. House of Commons, v. Commons, House of. House of Lords, t. Lords, House of. Humboldt, W. von, on scope of government, 356. Hume, David, criticism of social contract, 29. Humphreys, J. R., on propor- tional representation, 228. Hungary, nature of constitution, 123, 124, 163, 216. Ideal state, the, 18. Imperial federation, 279-81. India, government of, 189, 277. Individualism, 353 et seqq.; in U.S., 357; J. S. Mill on, 357. Industrial commission, on prop erty tax, 322 et seqq. Industrial revolution, 358 et seqq. Infant industry argument, the, 384. Initiative, 173 et seqq. Instrument of government, the, 129. Insurance, state, 397 et seqq. International arbitration, 100 et seqq.; v. also League of Nations; examples of, 101; treaties re- specting, 102-04. International law, 86 et seqq.; definition of, 87, 88; modern period of, 91; scope of, 95; of peace, 96; propriety of the term, 96. International Peace Bureau of Berne, 102. International relations, division into three periods, 88. Interpellation, 346. Interstate Commerce Act, 395. Iron Law of Wages, 368. Italy, senate of, 164; cabinet system of, 198; significant ref- erences to, 18, 75, 130, 148, 163, 187, 198, 345. Jackson, Andrew, 204, 333. Janet, P., defines Political Science, 11. Jebb, R., The Imperial Confer- ence, 279; The Britannic Ques- tion, 280. Jellinek, G., definition of history, 8; classification of federation, 237; Allgemeine Staatslehre, 83, 119; Recht des Modernen Staates, 99. Jenks, E., on patriarchal theory, 40; military origin of the state, 44; on government of Victoria, 173; History of Poli- tics, 40; Government of the British Empire, 168; Govern- ment of Victoria, 173. Johnson, E., American Railway Transportation, 394. Johnson, President, 204. Judges, tenure of British, 209; tenure of U.S., 209 ; France, 210. 410 INDEX Judicial power, distinguished, 141. Judiciary, 208 et seqq.; functions of, 209, 210. Jugo-Slavia, 18. Jurisprudence defined, 12. Jus Feciale, 89. Jus Gentium, 90. Justice of the Peace, England, 304. Kant, view on social contract, 31 ; on individualism, 356. Kent, Commentaries, 95. Kimball, E., National Government of the United States, 156, 184, 205, 252, 336, 392. Laissez-faire, doctrine of, 358; Carlyle on, 364. Landesgemeinde, 174. Lassalle, F., 375. Law and right, meaning of, 49. Law, nature of, 49 et seqq. ; sources of, 59; international, t>. In- ternational Law; of nature, 92; constitutional, t>. Con- stitutional Law ; administra- tive, v. Administrative Law. Lawrence, T. J., on international law, 87, 88, 94. Leacock, S., The Unsolved Riddle of Social Justice, 374. League of Nations, 96, 97, 99, 100, 105 et seqq., 281, 398. Lecky, W. E. H., on bicameral system, 159; on British colonial policy, about 1719, 264, 266; Democracy and Liberty, 159, 328; History of England in the Eighteenth Century, 264, 265. Legislative power, distinguished, 141 ; Story on, 142. Legislature, 153 et seqq.; number of members, 154; procedure, 155. Leroy-Beaulieu, Traite de la Science des Finances, 318. Leviathan, 26. Liberty, 69 et seqq.; different meanings of, 69, 70; natural, 70; civil, 72; constitutional, 74; national, 73; in the U.S., 74; in Great Britain, 75; in France, Italy, etc., 75. License taxes, 324. Lieber, F., on liberty, 71. Limited voting, 228. Local government, 288 et seqq.; distinguished from central, 289- 91; areas of, 291 et seqq.; United States, 294; France, 294; Saxon, 295; local auton- omy, 296 et seqq.; England, 304; Saxon, 306; France, 307 et seqq., 312; Prussia, 310. Local taxation, U.S., 311 et seqq.; England, 316-18; France, 318-21; Prussia, 321, 322; reform of, 322 et seqq. Locke, J., 25. Lodge, Short History of the English Colonies in America, 266. London, government of, 307. Lords, House of, British, 162; powers of, 168; constitutional powers, 168, 170. Lords, House of, Prussian, 163. Louisiana purchase, 252, 257. Low, Sidney, Governance of Eng- land, 187. Lowell, A. L., on separation of powers, 152; on Swiss federal government, 248; Governments and Parties in Continental Europe, 130, 169, 248; Govern- ment of England, 194, 225, 343; Essays on Government, 152. Mackenzie, J. S., Introduction to Social Philosophy, 77, 84. Madison, President, 204. Maine, Sir H., criticism of Aus- tinian School, 55, 90, 353 et seqq. Maitland, F. W., Political Theories in the Middle Ages, 67. Mallock, W. H., The Limits of Pure Democracy, 353. Malthus, R., 359. Marbury vs. Madison, case of, 214. Marshall, Chief-Justice, 95; on implied powers, 252. INDEX 411 Man, theory of origin of the state, 44; doctrines of, 367, 375. Massachusetts, charter of, 127, 262. Matriarchal theory, 39. May, Sir T. Erskine, Lord Farn- borough, on origin of parties, 330. Mayflower, 30. Mayflower Compact, 128. M'Kechnie, on sovereignty, 61; on organic theory, 61, 64, 79. McLennan, J. F., on matriarchal theory, 40. Merriam, C. E., History of the Theory of Sovereignty since Rous- seau, 241 ; History of American Political Theories, 367. Mexico, 165. Michel, L'Idee de I'Etat, 356. Middle Ages, 25, 34. Military and economic factors in evolution of the State, 44. Mill, J. S., Principles of Political Economy, 357, 385; The Sub- jection of Women, 222. Minorities, representations of, 226 et seqq. Mohl, classification of states, 118. Mongredien, A., history of the Free Trade Movement, 361. Montesquieu, classification of states, 117; on separation of powers, 143, 191. Moore, H., The Commonwealth of Australia, 249. Morris, Gouverneur, on Constit- uent Assembly, 154. Morrison, J. L., British Suprem- acy and Canadian Self-Govern- ment, 269. Municipal control, 401-02. Munro, W. B., The Government of American Cities, 303, 336. Napoleon, 19, 116, 126. Nasmyth, G., Social Progress and the Darwinian Theory, 363. Nation, distinguished from state, society, and government, 15 et seqq. Nations, League of, c. League of Nations. National convention, for nomina- tion of U.S. President, 337. Nature, state of, 22, 28; law of, 92. Nature of executive, legislative and judicial power, 141. Navigation Acts, 263; repeal of, 361. Netherlands, 163, 168. Neutral commerce, 94. New England federation, 242. New South Wales, 230. New York City, government of, 302. New York, State, Constitution of, 301. New Zealand, 230, 400. Nomination, r. Direct Nomina- tion. Nordhoff, C., The Communistic Societies of the Unitod States, 379. Norman Conquest, 190. Norway, 163, 238. Ochlocracy, 115. Octroi, 318, 321. Odgers, Dr. W., on areas of local government in England, 296, 318. Ogg, F. A., The Governments a/ Europe, 177. Ohio, constitution of, 133. Open, and closed, primaries, 341- Orange Free State, 275. Oregon Blue Book, 180. Oregon system of direct legisla- tion, 179 et seqq.; system of taxation, 323. Organic theory of the State, 76; criticism, 78. Oriental despots, 56. Origins of state, 21; divine origin of state, 32 et seqq. Ostrogorski, Democracy and the Organization of Political Parties, 344. Ottoman Empire, independence and integrity guaranteed (1856). 93 ;v. also Turkey. 412 INDEX Paine, T., on hereditary princi- ple, 161. Papacy, relation to Holy Ro- man Empire, 90. Paris, treaty of, 93. Parish, England, 306. Parliament, British; sovereignty of, 63, 62; supremacy of, 212. Parliament Act of 1911, 172. Parliamentary government, dis- tinguished, 119, 192 et seqq. Parties, political, organization of in U.S., 332 et aeqq.; in Great Britain, 343 et seqq., 347 et seqq. ; France, 345; Germany, 345, 347. Party government, 326 et seqq.; Goldwin Smith on, 327; origins in England, 330; origins in U.S., 332; continental Europe, 345 et seqq. Patriarcha, 33. Patriarchal theory, 39. Paulsen, Immanuel Kant, 31. Payne, E. J., History of European Colonies, 271. Peace conferences, Hague, 102 et seqq. Peace Treaty of 1919, 398. Peerage, of United Kingdom, 162; Irish, 162; Scotch, 162. Pensions, old age, 397 et seqq. Personality of the State, 80; criticism, 83. Philippines, cession of, 257; government of, 284-85. Plantation covenant of New Haven, 30, 128. Plato, 24; cycle theory, 43. Plebiscite, 175. Plenary conference at Paris (1919), 105. Poland, 18. Poles, liberation of, 73. Political evolution, some general features of, 45. Political science, definition of, 3; scope of, 4, 5; relation to history, 6, 7; relation to politi- cal economy, 8; relation to constitutional law, 9; its essen- tial attributes, 12. Political sovereignty, criticism of various theories, 63 et seqq. Pollock, Sir F., on development of law, 99. Polybius, on separation of pow- ers, 143. Poore, Charters and Constitutions, 127. Populist party, the, 334. Porto Rico, 284. Portugal, colonial expansion of, 259. Prefect, 307, 308. President, France, 190, 193. President U.S., 189; term of office, 191. Presidential government, 192 et aeqq.; in Italy, 198. Primary, 336; primary law, 340 et seqq. Progressive party, the, 334. Property tax, 311 et seqq. Proportional Representation, 228- 30. Protection, theory of, 383 et seqq. ; modern protective tariffs, 388, 389. Protective tariffs, modern, 388. Proudhon, 371. Prussia, ministers, 197; local government in, 310; significant references to, 126, 132, 135, 188, 193,241,292,310,321. Puritan colonies, 7, 18, 127. Quebec Act, 268. Radicalism, 379. Railroad Legislation, 389 et seqq.; rates, 393, 394; commissions, 396. Ransome, C., Rise of Constitu- tional Government, 195. Recall, 180 et aeqq. Reconstruction of Europe (1919), 18, 46. Referendum, 173 et seqq. Reform acts; Act of 1832, 224; Act of 1867, 224. Reformation, 91. Reichstag, former parties in, 347. INDEX Relation of the courts to the executive and to the legislature, 211. Relation of political science to other sciences, 6; states to one another, 86 et seqq. Representation of the People Act, 224, 230. Representative colonies, 274. Republicans, 332, 333. Responsible government, distin- guished, 119; in British colonies, 269. Revolution, American, 264 et seqq. Ricardo, D., 359. Rights of Man, the, 161. Rights of Man, French declara- tion of, 71. Ritchie, D. G., on sovereignty, 61, 64; on liberty, 69; Darwin and Hegel, $5; Natural Rights, 92; Principles of State Inter- ference, 61. Rogers, Sir F., on colonial policy, 271. Roman Empire, 45, 89, 91, 258, 318. Roman law, 24. Rome, fall of, 19. Ross, G. W., The Senate of Canada, 170. Rousseau, J. J., 25, 70; classifi- cation of states, 117. Russia, significant references to, 46, 64, 124. Russo-Japanese War, lp2. Salisbury, Lord, on international law, 98. Samoa, 101. Schaffle, A., on organic theory, 82 et seqq.; criticism of organic theory, 83, 84. School district, England, 305. Schouler, History of the United States, 388. Secession, 240. Secretary of State, U.S., 200. Seeley, J. R., 6, 73. Scignobos, Political History of Europe, 244. Self-government, granted to Brit- ish colonies, 268, 274 et seqq,; local in England, 304 et seqq. Seligman, Essays on Taxation, 315. Senate, Canada, 164; Italy, 164; Cuba, 165; Brazil, 166; Aus- tralia, 165; Belgium, 165; French, 166; powers of U.S., 169; powers of Canadian, 170; relation to cabinet in France. 196. Separation of powers, in America, 145; in Massachusetts consti- tution, 145; in federal Constitu- tion of U.S., 146, 149 ; in France, 147; in existing governments, 147; analyzed by Bagehot, 148; absent in French govern- ment, 148; absent in Italian government, 148; criticism of, 151 ; procedure, 154 et seqq. Sherman Act, the, 391. Sidgwick, H., Elements of Politics, 62; Development of European Polity, 235; Principles of Polit- ical Economy, 358. Simonet, Traite Elementaire du Droit Public, 169, 216, 309. Smith, Adam, 359, 384. Smith, Goldwin, on direct legis- lation, 175; on U.S. Constitu- tion, 240; on party government, 327. Social contract, 21 et seqq. Social Democrats, the German, 374 et seqq. Socialism, 366 et seqq.; pro- gramme of, 370; in Germany, 374 et seqq.; France, 377; England, 378; U.S., 379. Socialist parties in the U.S., 334, 379. Socialistic theory, 366. Society, distinguished from state, government, and nation, 15 et seqq. Sociology defined, 11. South Africa, 230, 276, 277. South and Central America, republics of, 190, 211, 232. 414 INDEX Southern Confederacy, 235. Sovereignty, 49 et seqq.; location of, 53 et seqq.; in British Em- pire, 53, 54; in U.S., 54; in France, 55; political, 60; dual or divided, 65; in federal gov- ernment, 238; criticism of doc- trine of, 55; in existing govern- ments, location of, 53. Spain, colonial system of, 259, 260; significant references to, 100, 163, 259. Sparta, kings of, 185. Special executive departments, due to the exigencies of war, 201. Spencer, H., origin of govern- ment, 34; an organic theory, 80 et seqq.', on scope of govern- ment, 361; criticism of organic theory, 83, 84; Principles of Sociology, 80; The Man versus the State, 12. Spoils System, 205. Standing committees, in U.S. House of Representatives, 156. State, analysis of, 12, 13; defini- tion of, 15; distinguished from society, government, and na- tion, 15 et seqq.; ideal, 18; origin of, 22 et seqq. ; of nature, 22, 28; divine origin of, 32; external aspect of, 86 et seqq.; organic theory of, 76; form of, 110 et seqq.; Aristotle's classifi- cation, 112 et seqq.; table of classification, 121 ; despotic, 120; democratic, 120, modern functions of, 381 et seqq. ; and a common faith, the, 18; insur- ance, 397. Stephen, Sir James, on sover- eignty, 58. Stephens, Morse, The French Revolution, 185. Story, on legislative power, 142. Suffrage, 218 et seqq.; British, 219; in Revolutionary France, 222; French, 221 ; German, 221 ; U.S., 221; woman, 222-26; negro, 223. Survival of the fittest, 361. Sweden, 163, 238. Switzerland, constitution of, 134; direct legislation in, 174, 175; courts in, 216; history of its fed- eration, 234; as a confederacy, 239; federal powers in, 247, 248; significant references to, 134, 163, 169, 174, 185, 216, 234, 239, 248, 289. Syndicalism, 373. Tarde, G., Lea Transformations du Droit, 42. Tariff, British colonial, 275 et seqq. ; insular tariff question, 286. Tasmania, system of voting in, 230. Taswell-Langmead, Constitutional History, 168. Taussig, Tariff History of the United States, 388. Taxation, v. Local Taxation, Property Tax, etc. Theory of divine origin, the, 32; of force, the, 34; of political sovereignty, 60; criticism, 63, 66; of protection to industry, 384; of the social contract, 21. Tories, 330. Town meeting, 177, 297 et seqq. Towns, government of, t>. City. Township, U.S., 297 el seqq. Toynbee's Industrial Revolution, 359. Trajan, 90. Treatise on government, 28. Treaty of Washington, 94. Trevelyan, G., The American Revolution, 265. Trust legislation, 389 et seqq. Turkey, 124. Unicameral legislatures, Lecky on, 159. Unit Rule, 338. Unitary government, distin- guished, 119. United States, federal powers in, 245-46; dependencies, 284; local government in, 291; local INDEX 415 taxation in, 311 et seqq.; signifi- cant references to, 64, 65, 74, 130, 176, 191, 196, 199, 203, 209, 223, 240, 289, 292, 296, 322. 332, 378, 397. Upper houses of legislatures, 161 et aeqq. Utrecht, treaty of, 93. Villeneuve, Elements de Droit Constitutionnel Franfais, 217. Vinogradoff, P., Common Sense in Law, 209. Von Haller, Restoration of Political Science, 37. Vote, t>. Suffrage. Wages, Iron Law of, 367. Walker, on Jut Gentium, 90. Walpole's History of England, 363. Washington, treaty of, 94. Webb, 8. and B., History of Trade-Unionism, 378. Weitling's Die Welt trie tie itt und sein soil, 374. Westphalia, peace of, 88, 93. Westphalia, treaty of, 234. Whigs, British, 330; U.8., 333. Willoughby, W. W., The Natur* of the State, 6, 25, 84, 113; Supreme Court of the U.S., 214. Wilson, W., on nature of law, 59; on cycle of government, 114; The State, 14, 59, 115; Congres- sional Government, 136. Wollstonecraft, Mary, Vindica- tion of the Rights of Women, 222. Woman Suffrage, t. Suffrage. Woolsey, T., definition of con- stitution, 15, 122. Written and unwritten constitu- tions, 129. DATE DUE JC 253 C.4 A 001026069