THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES THE DEVELOPMENT OF THE STATE ITS GOVERNMENTAL ORGANIZATION AND ITS ACTIVITIES BY JAMES QUAYLE DEALEY, Ph.D. PEOFESSOR OF SOCIAL AND POLITICAL SCIENCE AT BROWN UNIVERSITY SILVER, BURDETT & COMPANY NEW YORK BOSTON CHICAGO 3 (^tfb. b COPYKIOHT, 1909, BY SILVER, BURDETT & COMPANY TO PREFACE This work contains in brief form the essential princi- ples of the development of the state, its several govern- mental agencies and its activities. The writer has endeavored to show that the state de- velops in accord with definite laws and principles, and that these are largely determined by the conditions of economic and intellectual life. Progress comes there- fore by purposive modification of such conditions through a governmental policy based on scientific knowledge. An attempt to cover so broad a field necessarily in- volves neglect of details and occasional poverty of illus- tration, but numerous references for wider reading and further study may in part atone for imperfections of that sort. It is hoped that from this epitome of the development of the state, the student and the general reader may obtain an outline of political organization and activity, so coordinated, that he will be able to understand more clearly the m^eaning of political institutions. In this age of democracy it is needful that all citizens comprehend the meaning of world politics, as well as the more hum- ble field of national administration. Other things being equal, power goes to the state most capable of wielding it, and national greatness ulti- mately depends on an intelligent citizen-body striving for 3 4 PREFACE a definite end. A knowledge of governmental develop- ment should make more clear the means to be utilized for the attainment of that end, and what that end should be. These means, it is argued, are general economic well-being and intelligence, the fundamental conditions for the maintenance of democratic forms of government. J. Q. Dealey. CONTENTS J>ocial anti J^oUtical 2DebeIopment CHAPTER I SOCIAL DEVELOPMENT SoaAL Institutions 13 The Growth of Civilization: Meaning of civilization. Its earlier stages. Civilization traced through certain institu- tions. The progress of civilization 14 Conditions that Affect Social Development: The three fundamental conditions. Necessity of abundant food supplies and metals. Expansion through commerce. Ex- pansion through manufactures. The question of popula- tion. The standard of living. The stimulus of economic opportunity. The mentality of a people . . . . 18 CHAPTER II STAGES IN THE DEVELOPMENT OF THE STATE The Four Stages 26 I. The Primitive Period: The age of beginnings. The embryonic state 28 II. The Period of Settled Social Institutions: The factors in development. Elements of permanency. Agriculture. Slavery. Changes in tribal organization. The village community. The loose confederation. The developing state 30 5 6 CONTENTS III. The Period of Urban Civilization: The influence of commerce. Changes in political organization. Central- ized monarchy. National states 37 rv. The Period of Industrial Civilization: The problem of sufficient food supplies. Importance of the tool. Utili- zation of the powers of nature. The struggle for suprem- acy. Aspects of the state 41 €f)e J>obereigntp of tfje ^tate CHAPTER III POLITICAL SCIENCE AND SOVEREIGNTY The Field op Political Science. Its General Divisions. Its Relation to Sociology. Definition of Terms . . 51 Sovereignty: The meaning of sovereignty. Limitations on government. Development of the idea of sovereignty. Modern meaning of "life and property." Importance of pohtical theories 55 CHAPTER IV ESSENTIAL POWERS OF THE STATE Sovereignty Identified with the Essential Powers , 63 Forms of Taxation : Taxation through service. Taxation of property. The budget. Assessment and collection . . 65 Sovereign Powers in Exercise : I. The War Power of the State: War and peace. Service in the army or navy. Diplomacy. International law. Government of conquered provinces. Future of war . 70 II. The Preservation of Domestic Peace: Social regulation of crime. Suppression of outlawry. Breaches of the peace. A system of fines. Theories of punishment. Regulation of crimes against property. Regulation of civil disputes. The natural process 80 CONTENTS 7 CHAPTER V ESSENTIAL POWERS OF THE STATE— Continued III. Economic Regulation. The Ownership of Land: Based originally on use. Individual use. Communal ownership. The rise of personal ownership. Survivals of communal ownerships 88 Food Supplies. Colonization. Commerce: The market place. A medium of exchange. The bank. State regu- lation 94 Manufacturing: The artisan. The larger industries. Regulation of labor . . ..".... 101 rV. The Family in its Relation to the State : The matriarchal family. Rise of the patriarchal family. Relation horde to the state. Groups in the community. The ] patriarchal family and the state. The modern family The Relation of Church and State: The totem. An- cestor worship. Influence of the church in patriarchal times. Beginnings of the separation of church and state. Subordination of the church to the state. Separation of church and state. Increased jurisdiction of the state. The church independent 109 . . 101 iarchal ^^ of the / le later / ' ily ..^io^" €f)c 45obernment CHAPTER VI THE ORGANIZATION OF THE STATE Definition of Government. Classification of Govern- ments : The Greek classification. Classification by form. Classification based on the spirit of government . . 119 The Federation: Contrasted with confederation. Its util- ity. The dual form of federal government. . . .123 The Departments and Functions of Government: De- partments of government. Classes of governmental functions. The development of departments. The execu- tive department. Limitations on royal power. Develop- ment of administrative and legislative bodies. The fundamental laws of Russia 127 8 CONTENTS The Separation or Differentiation of Powers: Develop- ment of the theory of separation. The usual powers of the three departments. Checks and balances. The separation of administration. The legal sovereign. The supreme court as final interpreter of the constitution. The electorate. A broader definition of government 137 CHAPTER VII THE EXECUTIVE DEPARTMENT AND ITS POWERS Powers of the Executive 147 Headship of the State: Rise of monarchy. Royal power. Limited by constitution. Types of governmental headship. 148 The Cabinet: The autocratic type. The English type. The American type 153 Divisions of Administration: Separation of church and state. Separation of the judicial department. Separation of a lawmaking department. Separation of an electorate. The administrative system. Coordination of administra- tive divisions. The civil service. Office-holders. Tenure of office. The right of recall 156 Administrative Districts: The three grades. Home rule or centralization 164 CHAPTER VIII THE JUDICIAL DEPARTMENT The Judicial Function. Executive judicial power. Admin- istrative courts. French administrative courts. French administrative law. American parallels. Judicial power in the lawmaking body 168 Development of the Judicial Department: Specialization of judicial business. Independence of the judiciary. Privileged classes. Systems of courts. The system of equity. Specialized jurisdiction. The judicial system as a whole 175 Legal Penalties: Forms of punishment. The four stages of punishment. The use of torture and the ordeal. Modern penal systems 182 CONTENTS 9 CHAPTER IX THE LAWMAKING DEPARTMENT Rise of a Lawmaking Body. The English parhament. Im- portance of a lawmaking body. The bicameral system. Composition of the lawmaking body. Initiation of bills. Privileges of legislatures and legislators. Rules of proced- ure. The committee system. The veto power. For- mulation of legislative policy. The American system. Powers of the popular assembly. Changes through the struggle of interests. Functions of legislative bodies . 188 CHAPTER X THE LEGAL SOVEREIGN AND THE ELECTORATE The Legal Sovereign: A constitution implied in the organiza- tion of every state. The constitution as representative of dominant interests. The legal sovereign. Location of legal sovereigntj'. The legal sovereign in origin some- times revolutionary. The constitutional convention . 207 The Electorate: Its development. Definition. The suffrage. The electorate a governmental agency. Restrictions on the powers of electorates. Methods of voting . . . 215 A Newer Democracy: Historical development of the modern initiative and referendum. The representative system. Swiss direct democracy. Direct democracy in the United States. New Zealand's political laboratory. The con- tributions of nations to political civilization. Law and citizenship 220 ^art four CHAPTER XI CLASSIFICATION OF LAW The Meaning of Law. The multiplication of law. The law of treason. Criminal and civil law. The ordinance. Ad- ministrative law. Constitutional law. The statute. Equity law. Canon law. Internationallaw. Public and private law. Codification 237 10 CONTENTS CHAPTER XII LAWMAKING OR LEGISLATION The Growth of Law: Unchanging law. Change through con- quest. Change through interpretation. The influence of commentators. The influence of codifications. Codifica- tion a sort of legislation. Lawmaking through the execu- tive. Lawmaking through ancient assemblies. Modem legislation. The making of new law. Scientific legislation. Legality of legislation 252 The Written Constitution: Its origin. As a check on despot- ism. Its growing importance. Amendments. Its devel- opment in the United States. The convention . . . 264 CHAPTER XIII RIGHTS AND POLITICAL PARTIES Rights Under the State: Origin of rights. The fundamental right. How rights are safeguarded 274 Political Parties: The party system. The basis of success. Origin of parties. The three types of party organization. Governmental regulation. Party issues .... 278 CHAPTER XIV CITIZENSHIP Citizens and Aliens. Classes of citizens 287 The Rights of Citizenship: Ethical and legal rights. Civil rights. General welfare and happiness. Historical rights. Limitations on rights. Political rights 289 The Duties of Citizenship: Allegiance. Service. Taxation. Importance of taxation 296 CHAPTER XV MODERN DEMOCRACY Its Development : The people. The ideal of democracy. Tribal democracy. Commercial democracy. Popular democracy. The equality of man. Forms of democracy. Modem radical experiments 300 The Trend of Democracy: Modem democratic influences. Democracy dependent on education. Democracy and international policies. Democracy and the larger interests of humanity 309 PART ONE SOCIAL AND POLITICAL DEVELOPMENT CHAPTER I SOCIAL DEVELOPMENT The progress of mankind has been made possible through a continuous development of social institutions. Primitive human beings, banding themselves fns*titutions together into natural groups, began slowly to rise above the harsh conditions of mere animal existence, as they attained through the struggle for sur- vival greater mental capacity and the power to satisfy their increasing needs. During the course of this social development men have from the beginning formed aggre- gations and associations for purposes of social utility, and in these associations arise innumerable social rela- tionships, by the aid of which all men may find their truest and best life. Every man is born into such rela- tionships; his training and character depend largely on his associates, and his attainment and success in life are determined chiefly by the social influences and institu- tions that environ him. Social institutions unitedly form the social order, or organization. Through them are conserved the contri- butions of bygone ages to civilization, and without them social life would lack unity and stability. Primarily these institutions were developed either for the purpose of training or instruction, as, for instance, the institu- tions of the family, the church and the school; or for 13 14 THE DEVELOPMENT OF THE STATE the purpose of securing food supplies and other physical necessities — our economic institutions; or in order to safeguard and strengthen the entire social life of society. The institution developed for this purpose is the state, the dominant social institution of the day. Though it is customary to study these several institu- tions separately, yet social life must be considered as a unit, since every important modification in social life affects all aspects of that life, its several phases are parts of a common experience, and the same conditions and causes in varying degree affect alike all social institu- tions. In this century, therefore, when fundamental changes are taking place in social organization, a knowl- edge of the development of civilization as a whole be- comes important. This study is one of the branches of sociology, and is an attractive department of modern knowledge. In order, therefore, to see the relative place and importance of the state in social life, it may be well to indicate briefly the broad periods of civilization through which society has passed. The Growth of Civilization Civilization has been defined in many different ways, but practically all definitions are based on certain funda- mental ideas: (1) that man attains civilization Meaning of ^^ j^^ mastcrs and utilizes the materials and civilization. forces of nature about him; (2) that in achiev- ing this mastery he develops large brain capacity; and (3) that this greater mentality is best seen in the higher faculties of the mind, such as the powers of generaliza- tion, abstract reasoning and creative imagination. A SOCIAL DEVELOPMENT 15 highly civihzed race, therefore, should have a great measure of control over natural conditions, high men- tality, idealism and philosophic insight. A race low in civilization would on the other hand be not far removed in attainment and mentality from the higher forms of animal life. In tracing the development of civilization it is usual to divide its earlier period into stages, each characterized by some particular social attainment, either itsearUer material or intellectual. Attention may, for stages. '' ' instance, be directed to the substance used in the making of tools. The earliest human beings who became "tool-using animals" presumably used sticks and roots or branches of trees as primitive hammers and weapons. At a later period pieces of heavy stone were fastened to wood either by thongs or by insertion. Still later these stones were polished so as to give a better cutting edge and a more ornamental appearance. Then came the age of bronze or copper, in which were used soft metals that could be beaten into shape while in their natural state. In the last stages of early civiliza- tion, when the use of fire was understood, hard metals, such as iron, came into use through smelting, and civili- zation was then ready for the massive machinery of modern times, whose introduction depended on scientific knowledge as to the utilization of the powers of steam and electricity. Other writers prefer to trace civiliza- tion by noting the chief sources of food supplies for human beings. At first natural foods which could be obtained by man without tools or weapons were con- sumed. Then came, in addition, food supplies from 16 THE DEVELOPMENT OF THE STATE hunting and fishing. Still later, through the domestica- tion of animals, came permanent supplies of flesh foods, and then agriculture made its important contribution toward the sustentation of the human race. Others emphasize the development of the chief forms_joLoccu- pation, such as the wild and precarious life of the hunter, the care of flocks and herds, the pursuit of agriculture, and finally the occupations involved in the trades, in commerce, manufacturing and professional pursuits. Others fix their attention on the evolution of the notion of property in land and personal possessions and discuss three stages: (1) that in which the notion of the owner- ship of land and other forms of property was unknown, (2) that in which land and other property i were considered as held or owned by the community as a whole, and (3) that in which land and other property are considered to be the personal possessions of in- di^dduals. Still other writers prefer to trace civilization through the varying forms of the family and indicate a threefold civiUzation development: (1) a matriarchal ^ stage, char- traced acterized fundamentally by kinship traced certain through the mother, and the absence of per- institutions. niaucucy in family life; (2) a patriarchal stage in which kinship is traced through the male, and the power of the paternal head of the family tends to be- come absolute; (3) the modern stage in which kinship is traced through both parents and emphasis is placed on ' Except such personal possessions as weapons, tools, ornaments and clothing. ^ Metronymic is the better term, but the other is more familiar by usage. SOCIAL DEVELOPMENT 17 a permanent marriage relationship between one man and one woman. Other writers would trace civilization by a study of the development of religion through its his- toric stages, such as animism, ancestor and nature wor- ship, polytheism, pantheism and monotheism. Others may trace it in the several stages of morality, starting from primitive notions of utility and its opposite, as shown in the customs of savages, and leading on to theories of abstract morality such as those taught by philosophers and theologians. Still others prefer to emphasize the attitude of men's minds tftward explana- tions of the mysteries of the universe in terms of natural causation; or toward authority, by calling attention to the individualistic attitude of mind among developed peoples as contrasted with the passivity and conserva- tism of backward races. It is hardly necessary to enumerate other explana- tions of development set forth by sociological writers. The very fact that the progress of civilization progress of cau be indicated under so many aspects shows civilization. ^-^^^ thcsc are but specialized phases of one great movement of a unified social life, manifesting itself under many different forms, but all alike teaching that mankind is rising from primitive savagery to higher and more ethical, more intellectual stages of development. Evidently, therefore, even the most advanced peoples have not yet attained the highest possible development. Even the best of them are low and savage when com- pared with the ideals of social perfection taught by the noblest representatives of humanity in ages past and present. Further development is still possible, and 18 THE DEVELOPMENT OF THE STATE every wise utilization of the materials and forces of na- ture and every upward step in intellectual and moral attainment will aid in the furtherance of social progress. Conditions that Affect Social Development It is evident from the foregoing survey that physical and psychical conditions may largely affect the develop- The three mcut of social institutions, and so important mental ^^ ^^^^ influence that for the student of politics conditions, further explanation becomes necessary. At- tention should in the first place be directed to the in- fluence exerted on political development by the climate, by the fertility and mineral wealth of the soil and by the contour and configuration of the land with its sea- coasts, harbors, rivers and lakes, so necessary for the promotion of domestic and foreign commerce. Con- sideration should then be given to the population, noting its numbers, virility and physical stamina. In the third place should be studied the qualities of the mind, such as keenness of insight and the powers of mental endurance and adaptability. A flexible type of mind, able to balance the old and the new, and to decide wisely under changing conditions, is a factor of prime importance in political development. Such conditions as these will of course manifest themselves in the kind and extent of education imparted in any given com- munity, in its customs and in the strength of its social institutions. They will be indicated also in the political and economic capacity of the people and in the feeling of political unity that must necessarily be manifested, if a state is to make the progress demanded by its oppor- SOCIAL DEVELOPMENT 19 tunities. The chief points under these three topics may now briefly be indicated. I. Communal life, which is essential for political growth, develops only when abundant food supplies Necessity of attract masscs of population. Communities, abundant therefore, first developed in fertile river valleys, food sui>- . n.ii- • -I plies and HI wcll- Watered plams with warm and equa- metais. j^jg climato, whcrc game was plentiful, pas- turage possible and agriculture easily productive. These natural advantages, however, are not sufficient. There are other needs besides that of food. Even in the formative or primitive stage there was a demand for hard woods, flint and jade, colored earths, clay, fibrous plants and primitive luxuries. Locations fur- nishing such supplies were eagerly sought out, and the possessors of the land developed a rude system of barter with hordes less richly supplied. As civilization ad- vanced, metals came to be necessities, and mines were sought for in all directions. Explorers and traders established centers of commerce wherever mines were found. Great city states and empires rose one after the other, rising as they became the centers of trade between wealthy and populous regions, and falling as other and better regions were discovered or shorter and safer routes were developed. In this way rose and fell the empires of the East and the later civilization of Persia, Greece and Rome, as the. mining wealth of India, Arabia and Africa, Asia Minor, Southeast Europe and the out- lying countries fringing the Mediterranean was discov- ered and utilized. The domestication of animals and the utility of some 20 THE DEVELOPMENT OF THE. STATE of them as beasts of burden developed the caravan and the long overland routes of Asia. Water transportation along the dangerous shores of southern and Expansion ° , through southwestern Asia lagged far behind, but when commerce. (.iyjji2ation reached the eastern shores of the Mediterranean, Phoenicia, the first Mistress of the Seas, pushed westward as far as the Atlantic seeking metals, establishing colonies, and carrying with her the flourish- ing civilization of the East. After the Phoenicians came the Greeks, born colonists and keen traders, who, build- ing on the contributions of ancient civilization, with versatile mind continually sought after "some new thing" 1 and thereby developed the highest type of ancient civilization. After them came an empire of ex- ploitation, a nation with a developed capacity for war, administration, order and law, which conquered and absorbed one after the other ancient civilizations and barbarian tribes, bringing all under the common yoke of Rome. But it was a nation lacking imagination, unin- ventive and ultraconservative ; it failed through lack of adaptability; it lacked the scientific attitude of mind; it knew in economics only exploitations and devasta- tion; and with all its political experience and its capacity for law and administration, it ifailed to establish the state on sound economic foundations. The collapse of the western Roman empire drove civilization back to the East and to the South, where it flourished for nearly a thousand years longer, at Constantinople, and in Persia and northern Africa. Western Europe barely held its own for five hundred years, but then came in ' Acts xvii, 21. bOCIAL DEVELOPMENT 21 the tenth century the discovery of metals in the Harz Mountains, the rise of German and Itahan cities and the crusades.^ These greatly aided European civilization by the destruction of many turbulent robber barons, the redevelopment of conunerce with the East and the consequent inflow of the intellectual attainment and culture of Greek and Saracen civilizations. The use of the compass opened new routes to the East and rendered possible the discovery of America. This discovery made western Europe, for the mineral wealth of Mexico and South America poured into its cities, and the great ex- pansive movement westward in commerce and coloniza- tion gave new vigor and energy to its seafaring nations. ^^Tien the era of steam began in the eighteenth cen- tur}^, first the demand for cotton and cotton goods, and Expansion thcu for modcm machinery, gave England through ^j^^ ^Yie United States of America their oppor- factures. tunity, through their possession of immense beds of coal and iron. To-day the competing nations are searching the world for accessible stores of metal ores, fuels, oils, building stone, forests and fertile plains suited for grazing and agriculture. These are first and necessary conditions of a nation's material prosperity. Then if other factors be present, such as facilities in transportation, skilled and unskilled labor, open mar- kets and an energetic population, a basis exists on which may be built up a great and mighty civilization. II. In considering the effect of population upon politi- cal development, several points must be taken into con- * Note in this connection Brooks Adams, '.' The Law of Civiliza- tion and Decay." 22 THE DEVELOPMENT OF THE STATE sideration. (1) It is obvious that, other things being equal, the numerical greatness of a people is a distinct advantage in competition, whether in war or question of for economic supremacy. The chief factor in popu ation. (jg^g2'mining the number of a population is the food supply. Among savage peoples, when population presses too closely on food supplies, the weakest are regularly put to death and perhaps consumed as food. From this necessity probably arose the customs of in- fanticide and the slaying or exposing of the aged or in- firm. The custom of infanticide was practised also by patriarchal peoples, as, for example, among the ancient Greeks and Romans, and to-day in China. Population is also reduced by the excessively high rate of infant mortality among uncivilized and semi-civilized peoples, and by wars, famines and pestilences. Among civilized communities the standard of living plays an important part in determining the increase of pop^il^t^o^- The demands of social life are so standard of numcrous and expensive that the higher social ^'"^" classes tend to restrict the number of their off- spring either by natural or unnatural means. The wis- dom of "this "race suicide" is open to question from the standpoint of social and national development, but the entire matter is debatable. (2) A dense population is not really an advantage to a state unless the masses of the people have a sufficient and varied food supply, so as to develop strong physiques able to endure hardship and to resist disease. Under such conditions, at least in a competitive age, there develop in men masterful, manly and aggressive qualities of mind. If population SOCIAL DEVELOPMENT 23 presses too closely on food supplies, the people, poorly fed, become physically inert, passive, sickly and lack mental energy. Such persons, compelled to live from hand to mouth, become improvident, lack ambition and the higher qualities of the mind, and remain low in civilization and character, even though the wealthier classes of the community are comparatively high- in civilization. This evil is seen at its worst in the tropics where the per capita amount of necessities is so small, and the fertility of the soil so great, that the land fairly swarms with millions who barely exist in times of plenty and who die by the thousand in times of famine and pestilence through lack of physical vitality and through mental inertness.^ The virility of a population also depends to some ex- tent on the stimulus of economic opportunity and of the The intellectual and social environment. Under !!.'I!^!i!!L°^ favorable conditions human beings easily be- economic <-> •^ opportunity, comc cconomically versatile, but, when nar- rowed by the dreariness of a monotonous life and occupation, they lose ambition. On the other hand, a mind well trained by proper education and stimulating social influences, reacts on the body and quickens its activities. Freedom from anxiety also, due to the knowl- edge of the safeguards of well-enforced law, is a power- ful stimulant to physical energy along economic lines. When such conditions are favorable, there readily de- velops an energetic and aggressive spirit that brings to the front the explorers, merchants, inventors and thinkers ' In respect to this subject note in Bibliography works by R. Russell. 24 THE DEVELOPMENT OF THE STATE of the age. No one, to be sure, should assert that an inert peon, by increase and variation in diet, would at once become an aggressive American: but, undoubtedly, several generations of the sustenance and training which Anglo-Saxons have had, would make the descendants of that peon much more forceful persons than their ances- tor. Caesar had a rather ])oor opinion of the fighting and staying capacity of our Germanic forefathers, but un- questionably an American Rough Rider regiment would have a similar opinion of Caesar's legions, if they should ever meet in combat on the Elysian fields. III. Brain capacity and mental character are most important considerations in estimating the worth of a The population. A savage, like an animal, has no mentality couccntration of mind and lacks imagination. a peop e. -^^ -^ savage in disposition only when ill fed or ill treated. Otherwise he is peaceable, good-natured and indolent. Patriarchal life, holding as it did the mass of its population at hard labor, developed in them pa- tient endui'ance and tireless industry, but no high men- tality. That developed in the elders and masters, who, having much leisure, besides domineering, aggressive qualities, developed also mental acumen and philo- sophical insight, always characteristic of the higher classes of patriarchal systems. Commercial life de- mands aggressiveness, ingenuity, mental alertness and ruthlessness in stamping out opposition. An age of production through machinery demands scientific in- sight, executive capacit}'' and ability to master details. In the type of the dominant peoples of western civiliza- tion we find a composite of these qualities. Civilized SOCIAL DEVELOPMENT 25 man is regularly ruthless and merciless to an opponent, but is kindly and sympathetic when opposition has ceased. He is guided by ideals when material interests are not involved, but is selfish and covetous at the pos- sibility of gain. He is masterful in dealings with in- feriors, resourceful when necessity arises, ca])al)le of pa- tient toil and hardship, yet is fond of ease and relaxation. Energetic, keen-minded, inventive and idealistic, he combines in himself the best and the worst of humanity. He is a savage becoming a god, and has shown great natural capacity in both directions. SPECIAL REFERENCES Development of Social Life : General works on sociology, such as those by Giddings, Mackenzie, Small, Spencer, Stuck- ENBERG, and Ward ; Maine, " Early History of Institutions." On lirimitive and early civilizations: "The Temple Cyclo- paedic Primers"; De Nadaillac, "Manners and Customs of Prehistoric Peoples " (translated by Nancy Bell), 1894. Industrial Development: Bourne, Bucher, Ely, Mason, Wallace; Ward , "Pure Sociology," Chap. xix. On eco- nomic and geographic conditions: Cyrus C. Adams, "Text- book of Commercial Geography," Chaps, i-vi. On future possibiHties : Morison; Shaler, "Man and the Earth." Population: Malthus, Nitti, Stangeland, Ussher; AmeiHcan Juunial of Sociology, vol. ii, July, 1896, Albion W. Tour- gee, " The Reversal of Malthus"; Yale Review, vol. iii, p. 166, Richmond Mayo-Smith, "Theories of Mixture of Races and Nationalities"; vol. vii, p. 153, Frank A. Fetter, " The Essay of Malthus," A Centennial Review; Political Science Quarterly, vol. x, p. 44, S. N. Patten, " The Law of Population Restated." Mental Development: Buckle, Crozier, Kidd, Mackenzie; Ward, "Applied Sociology." CHAPTER II STAGES IN THE DEVELOPMENT OF THE STATE With this outline of the development of civilization as a background, it will now be possible to consider at more length the several stages in the develop- w stages. "^6^t of the state. These stages, it will be found, are closely associated with the condi- tions of economic life, and for that reason economic periods of development will form the best basis for an historical study of the state. The periods chosen may briefly be indicated as follows: I. The formative or primitive period, based on the occupations of hunting and fishing, and lasting to the development of a pastoral and agricultural mode of ex- istence; II. The period of settled social institutions character- ized by the definite occupations of grazing and farming, and by the growth of property rights; III. The period of urban civilization, developed through the growth of commerce and international trade; and IV. The period of industrial civilization emphasizing production through the utilization of the materials and forces of nature. In these last two stages the specialized occupations incident to commerce and manufactures supplement the 26 STAGES IN DEVELOPMENT OF THE STATE 27 fundamental occupations of the earlier periods. The first period, often referred to as the primitive age, or the age of savagery, emphasized natural foods, the occupa- tions of hunting and fishing and the use of stone imple- ments. The second period, the age of fixed, static or patriarchal civilization, made use of flesh foods and grains, obtained through the occupations of pastoral and agricultural life, and made use of soft metals and, to some extent, of iron. The third period, the age of commerce and urban civilization, added to former occu- pations those involved in transportation and interna- tfonal trade, making also a large use of iron, and gaining food to some extent by exchange of goods for needed supplies. The fourth period, characterized by a com- plex and centralized social organization, emphasizes in- dustrial occupations and abundant productivity through the utilization of the materials and forces of nature by means of machinery. Each later period includes what has gone before, but with diminishing emphasis. Hunt- ing, for example, becomes a diversion more than an oc- cupation, and foods from the soil are substituted for flesh as the "staff of life." It must not be supposed that these periods are syn- chronous for all mankind. They represent grades of de- velopment and apply to racial and national groups of men, not to mankind as a whole. The larger half of humanity ^ is still in one or the other of the first two periods, chiefly in the second; some nations after passing into the third period have sunk back into the second; ^ ' China, India and most of Russia, for example. ^ Asia Minor illustrates this change. 28 THE DEVELOPMENT OF THE STATE the last period applies only to a numerically small part of humanity made up of the most advanced modern nations, I. The Primitive Period In earlier primitive times human beings must have been little removed from the conditions of the beasts about them. They had no tools, no perma- The age of ^qj^^ marriage ties, few or no religious beliefs, beginnings. o 7 o 7 nothing worthy of the name of state, and sub- sisted, like animals, on what natm'e spontaneously pro- duced. In later primitive times, some knowledge of which is fairly well supplied from a study of relics and fossil implements, and from observation of low civiliza- tions still existing, men had become far superior to the members of the animal world. They knew the use of fire, and had devised weapons, industrial and household implements and the canoe. They erected rude houses, and made use of clothing, partly for protection against the inclemency of the weather but chiefly for purposes of ornamentation. Personal ornaments, rude drawings, idol or image-making, and the monotonous rhythm of their musical implements, dancing and singing, all tes- tified to the beginnings of esthetic development. The voice had been trained into articulate speech. The mys- teries of religion were manifested in fetishistic and ani- mistic beliefs under the guidance of the conjm'er and the medicine man. The natural matriarchal family of ear- lier times was still the dominating type, but was develop- ing tendencies looking toward the patriarchal form. Personal property rights can hardly be said to have de- ' STAGES IN DEVELOPMENT OF THE STATE 20 veloped, except that weapons, ornaments and clothes were individual possessions. Ownership in land was unknown, except that each savage horde had hunting grounds beyond which its members went at their own peril. Such an age was plainly the age of beginnings. Men were no longer beasts but neither had they much civilization. Evidently in such a low stage of social life little should be expected along lines of political develop- ment. Yet the germs of practically all we have to-day may be traced back to those early tirftes. The nation was represented by the horde/ a loosely organized mass of human beings not necessarily closely akin, but yet bound by ties of common descent, customs and language. The horde was not a permanent organization by any means, yet it held together for purposes of food-getting, offense and defense, and for social or convivial gatherings. Long-established customs tracing their descent from time immemorial, and prohibitions in the form of tabus represented early law, which was enforced by Theembry- p^]-)li(3 opinion uudcr the guidance of the el- omc state. r i o derly men of the horde, who, as persons of wide experience and larger knowledge of traditions, were deemed wise. Intercourse between hordes was regulated by a fairly definite mode of procedure, the germ of diplo- macy and international law. Here surely seemed to be all the elements necessary for the existence of the state — authority, law, procedure and a unity organized ' There is much diversity in respect to the terminology applied to the several forms of early human groups. To avoid confusion, therefore, the reader should carefully observe the idea conveyed in this text by the words horde, tribe and clan, and should remember that the same groups are named differently by different writers. 30 THE DEVELOPMENT OF THE STATE for purposes of common utility and protection. Yet there was lacking the element of permanency, perma- nency in interests, in organization and in purposes. For as long as a community depends entirely on hunting and fishing for a precarious subsistence, nothing really permanent in civilization can develop. In such a stage of life hordes of men and women moved about from place to place seeking food supplies. When food was abun- dant, the pleasures of feasting and companionship in- creased the meiftbership of the horde. But when food became scarce, the horde lost its unity since its members scattered far and wide so as to maintain life more easily. Under such conditions there could be no permanent home, no opportunity for the steady development of law, order, discipline and morality, no time for mental development except along lines of cunning competition with hostile beasts and savage men. Physical instincts, derived from animal ancestors, modified by custom and the rule of force, and perpetuated by hard experience were the chief factors in life. Continuity of purpose and forethought were unknown. Men lived from hand to mouth in a desperate struggle for existence, and by no possibility could develop a state. Yet the conditions were present that at a later stage allowed the elements of the state already in existence to develop into a definite body politic, exercising sovereign authority over a per- manently settled community. II. The Period of Settled Social Institutions Several factors contributed to the development of higher civilization among many of these primitive STAGES IN DEVELOPMENT OF THE STATE 31 hordes. The needs of the body compelled greater ingenuity in the manufacture of hunting weapons as The well as cunning and skill in the use of them factors in agaiust humau enemies, whose flesh in those develop- " ' ment. days supplied a much-desired variety in daily food. Women developed patient endurance, medicinal knowledge and inventive power, as they plied their tasks of rearing the young, gathering edible vegeta- tion, preparing food, weaving, house-building and orna- mentation of all sorts. If the higher mentality of a horde met its reward in the shape of more abundant food supplies, improvement in the physique furnished the conditions for the possibility of a still higher mental development. Some ingenious community at last hit on the happy expedient of saving alive the young of wild animals, domesticating them, and thus by the ex- ercise of a little foresight and self-denial, it was enabled to keep food supplies on hand against times of scarcity. This discovery of human supremacy over animals sus- ceptible of domestication, gave an immense impetus to civilization. Transient hordes became firmly compacted tribes held together by the common ownership and use of plentiful food supplies in the form of flocks and herds. The vague boundaries of hunting grounds became definite areas of excellent grazing lands fiercely defended against envious aliens. For the possession of flocks and herds meant war with hungry neighbors. Hence developed better weapons, wiser leadership, braver men, who as shepherd-warriors were prepared to defend their wealth against all comers. Such an aggressive mode of life de- veloped masterful qualities in the men; women were rel- 32 THE DEVELOPMENT OF THE STATE ogated more and more to the inner life of the group and with the increase of domestic responsibihties, tended to become household drudges. The abundance of flesh foods gradually banished cannibalism, especially when it was perceived that the enforced labor of a captured foe was of more utility than his body as food. Perma- nent food supplies, more leisure and greater mental capacity gave opportunity for meditation, and as a re- sult came clearer ideas in regard to the supernatural. Crude animistic beliefs changed into theories of nature and hero divinities, preparing the way for later systems of nature and ancestor worship. The possession of per- manent sources of wealth brought about social distinc- tions between the rich and the poor, the master and the slave. Though many centuries probably elapsed in the tran- sition from the old to the new, a period filled with curious blendings of primitive and patriarchal civiliza- Eiementsof i\q^ yg^ slowly but surcly the higher civiliza- permanency. ' -^ '' "^ ^ tion supplanted the lower. In place of the horde came the tribe; the growing importance of the male was marked by the semi-slavery of the women and the rise of the patriarchal family in place of the matri- archal. Continuous wars brought about clear notions of leadership, authority, sul:)ordination, law and social regulation. A more permanent communal life devel- oped mental capacity, social institutions, wiser tradi- tions, greater ingenuity in the manufacture of tools, weapons and household conveniences. All this had its influence on the developing state. There came a per- manent tribal life, definite social institutions, clear-cut STAGES IN DEVELOPMENT OF THE STATE 33 notions of authority and law, and a recognition of a social welfare, to be fought for and strengthened, even, if nec- essary, at the sacrifice of individualistic well-being. In such conditions are to be found all the essentials of a state, not so well defined as in modern times, but yet a state in all fundamental features. The patriarchal period attained its maturity with the development of agriculture. No one knows who first planted seed in the ground with the thought of ultimately reaping its product. Possibly the knowledge of seed-planting may have existed even in early primitive times, but certainly as long as men lived here to-day and there to-morrow such knowledge was of no practical use. No one would care to plant seed that another would almost certainly reap. But when communities came to have fairly well-defined boundaries within which they might roam, and when in the pastoral period a diet so largely of flesh demanded some variation, chance experiments, natural appetite, a little reflection and forethought, probably all contributed to the devel- opment of a rude system of agriculture, merely to sup- plement the food supplies furnished by flocks and herds. This again gave a great impetus to civilization. For as population increased men had to depend more and more on agriculture for food supplies. A com- munity that relies chiefly on flocks and herds for food needs much more land than one that depends chiefly on agriculture. As the competition for fertile grazing lands became keener with the growth of popu- lation, a community must either fight oftener and more vigorously for suflficient land or else be satisfied with 34 THE DEVELOPMENT OF THE STATE what it had and get food by farming. Fighting was probably much more attractive than working, but for- tunately, perhaps, another alternative presented itself. The institution of slavery was rapidly developed. Aliens captured in war, weak and inferior neighbors, criminals and debtors of the tribe were deprived of liberty, com- pelled to do the drudgery of farm labor and in this way secured for their masters edible grains easily turned into nutritious food by the labor of the women. Slav- , ery in modern times is a curse, but in earlier periods was probably the principal agency whereby humanity passed from pastoral life into agricultural, and was thus the determining factor in the development of the chief source of modern food supplies. Selfish interests and experience soon added improved methods of farming and when tribes came to depend chiefly on the products of the soil for sustenance, the pastoral stage of human existence had passed into the age of agriculture. Well-marked effects followed this important change. The tribe definitely broke up into clans composed of Changes members closely united through ties of kinship orgln^ ^^^ economic interests. The character of these zation. clans as they settled down into farming village communities became strongly patriarchal. The head- ship of the clan was vested in the oldest male of the leading family but tended to pass from father to son. Religion secured a powerful hold on the mind by em- phasis on ancestral worship. The family became per- manent and definite, but included a wider range of kin than the modern family. The entire clan was virtually one great family looking to the head as the Patriarch STAGES IN DEVELOPMENT OF THE STATE 35 or ruling father who guided and protected his children. They bore a common name, 'had a common system of worship and cultivated their lands and pastured their herds in common. Their disputes were settled and their affairs regulated by the heads of households in joint session under the leadership of their chief. In this system each village community was itself a petty state voicing its sovereignty through the chief of the clan who was assisted in his deliberations communUy. ^^Y ^^^ oldcr and more influential men under his authority. Such a community by inter- marriage became closely kindred in blood and in social customs, and thus developed a homogeneous, autono- mous, self-centered life that gave wonderful permanence to that form of organization. To this day the larger part of humanity live in agricultural village communities, practically stationary in their civilization and retaining customs and modes of thought having a history of many centuries, 1 Through such communities mankind became trained in manual labor, endurance of toil, reverence and respect for law and authority, tenacity in the main- tenance of civil rights and veneration for the super- natural. Without such training civilization could never have attained stability, nor would humanity have de- veloped the homelier virtues and domestic tastes. Its conservatism, however, so necessary in a static civihza- tion, becomes weakness in times of transition and broader development. If unable to adapt itself to newer con- ditions such a community readily becomes the prey of * For best examples of such, note studies of the village life of China, India and Russia. 36 THE DEVELOPMENT OF THE STATE stronger, more aggressive communities and falls into a condition of subordination and servitude. The several village communities, which had once been parts of an original tribe or primitive horde, naturally ^^ , maintained their connection one with another. The loose confedera- This intcrcoursc manifested itself in joint wor- ship at stated times, marriage alliances, com- mercial dealings and joint action for offense and defense in times of war. In this way developed loose confedera- tions which in many cases became more strongly unified through peaceful alliance or through the superiority of a powerful community. i From such confederations, by constant social intercourse and intermarriage, aided by ties of kinship and religion, there might easily develop a tribal monarchy like that among the Israelites and the Homeric Greeks. If the conditions that make for civil- ization were favorable, and able leaders were in charge, such tribal monarchies readily passed into still more uni- fied kingdoms and empires, not strongly centralized as in modern times, but presenting that type so charac- teristic of oriental monarchies, a sort of confederation or a feudal suzerainty, a unity made up of subordinate units, practically autonomous in local affairs, but yet tributary and in general matters under regulations or- dained by the sovereign lord or king. In such communities as these, whether petty village states or loosely confederated monarchies, were all the necessary elements of the state. Law and authority ' An excellent tyi>e of such a confederation among American Indians may be found in Morgan's "Ancient Society." A varia- tion in development may be noted in the early history of Rome. STAGES IN DEVELOPMENT OF THE STATE 37 were clearly in evidence; definiteness and permanency in organization had been attained; there were well-de- fined ideas of rights and obligations, and a dis- ^gstlte°^ tinct consciousness of political unity. They differed radically from modern states, however, in that a patriarchal community was a state, family and church in one. These three institutions had not become differentiated in the minds of men. They were all three controlled by the same leaders and might be considered merely three aspects of the same thing, forming a kind of political trinity in unity. Under such conditions the jurisdiction of the state proper did not extend over the other two institutions, unless by a legal fiction it is as- serted that " what the sovereign enforces he commands." i Toward the end of the patriarchal period the three be- came differentiated in thought and were looked on as coordinate, each exercising supremacy in its own sphere, and the three united representing the supremacy of the entire community. Then the state became aggressive, through the influences brought about by commerce, and steadily began to encroach on the sphere of parental and ecclesiastical control. III. The Period of Urban Civilization A third stage of political life was ushered in through the development of commerce. Even in primitive times a system of barter and trade had developed among different hordes. A brisk traffic was carried on in the exchange of salt, food supplies, ornaments for the dress, paints for the body and jade, flint and metals for tools ' For discussion of this point, see Willoughby, p. 169. 38 THE DEVELOPMENT OF THE STATE and weapons. Between centers producing such forms of wealth and populous centers in need of them, well- Theinflu- beaten paths were made, the humble begin- enceof nings of the modern railroad. When wealth multiplied through flocks, herds and agriculture, men's needs multiplied proportionately. Commerce kept pace with the demand. Beasts of burden were trained to the yoke, navigation developed, forms of money as a medium of exchange were devised, and the merchant definitely took his place in civilization. With commerce came the city, that great agent in social development. The reason for the rise of the city is obvious. Certain village communities established themselves in the center of a mining district, or in the heart of fertile lands well suited for grazing or farming. Others, again, at favor- able spots on rivers, such as the mouth, a junction or the head of navigation. As trade developed between mining or food centers and masses of population, resting places at regular intervals were established for the con- venience of travelers. At all such centers the market place developed and trade was encouraged by the main- tenance of peace and order. The termini of trade routes and the best locations between the termini grew into great centers of population. Here gathered the wealth and learning of the time. Here was to be found merchandise of all descriptions. From all parts of the known world came the keenest men of business, travelers of broad experience well versed in foreign customs and ideas, and wise men eager to add to their knowledge. By constant social intercourse and by competition of ideas, the mentality of the population rapidly developed. STAGES IN DEVELOPMENT OF THE STATE 39 Increase of wealth developed new wants, higher learning, broader minds and a more thorough organization of social institutions. Evidently such a social development demanded changes in political organization. The members of a Changes in Conservative village community living in prac- or'anizl- tically the same way as their fathers might tion. well continue the customs and habits of their ancestors. But when the population and wealth of the community increased by leaps and bounds, when strangers of wealth and brain capacity settled in ever larger numbers within their borders, modifications had to be made. The village lord became a king, his little council became a great body of advisers and adminis- trators, the petty business of the village became a mass of duties requiring the services of many hundreds. Then followed centralization of authority, codification of cus- toms and the introduction of business methods in administration through the organization of great depart- ments of state. Increasingly larger numbers of influen- tial residents, whether native or foreign' by descent, shared in the responsibility of government. Such mod- ifications brought about the development of the city state, best known through the classic examples of Greece and Rome, but found in all early civilizations charac- terized by a developed commercial life. ^--J^^city state, by war or more peaceful means, might extend its influence so as practically to control many smaller cities and large areas of farming, grazing and mining lands. In this way developed another type of ancient monarchy, one much more strongly unified and 40 THE DEVELOPMENT OF THE STATE centralized than tribal or feudal monarchies, because its several parts, by more frequent intercourse and more vigorous mentality, attained a greater harmony Centralized ^£ QQjY^jy^Qj-( interests and a consciousness of monarchy. national unity. The best illustration of such a development is seen in the Roman empire, which through war extended its boundaries in all directions and then bound together its discordant parts into a harmonious unity through ties of commercial interest, centralized provincial administration and allegiance and submission to a common law and an imperial sover- eignty. The downfall of the western Roman empire was a retrograde step in civilization and plunged western Europe back into those stages of political life states"*^ characterized by village communities and city states. The so-called feudal system repre- sented the movement toward confederation. The rise of the Holy Roman empire, and of the Papacy in its am- bition for temporal authority, represented the move- ment toward the confederation and centralization of empires. The failure of both of these to realize their aims, coupled with the revival of commerce through the influence of the crusades, the invention of the compass and the discovery of America, caused the development of smaller empires or kingdoms, known usually as na- tional states. These national states were commercial in their tendencies, and were strongly unified by definite communal interests, racial, religious and economic. This unity of mterests tends to result in a demand for political unity or independent statehood and is usually discussed STAGES IN DEVELOPMENT OF THE STATE 41 in political theorizing as the feeling, or the principle of nationality.! Xhe formation of national states started once again a forward movement in civilization after a thousand years of seeming inactivity, during which the barbarians of the West were slowly veneermg them- selves with the polish and civilization of Judea, Greece and Rome. The movements of recent times toward world empire are best illustrated by the Napoleonic period in France and by the imperialistic policies of such states as Russia and Great Britain. IV. The Period of Industrial Civilization The last and greatest era in the development of civili- zation began in earnest when from about the middle of Theprob- ^^^^ eighteenth century machinery was defi- lem of nitely applied to the manufacture and transpor- food tation of goods and to the production of foods, supplies. rpj^g really great problem of material civiliza- tion is to multiply food supplies and to satisfy the material wants of humanity. Population increases easily and readily under favorable conditions, but food supplies come only by hard work and mental toil. Mal- thus and his followers have shown the real connection between population and food supplies, holding that, under natural conditions, the former tends to multiply far more rapidly than the latter. Without an abundant supply of wholesome food man cannot do his best work nor develop a high civilization. Every rapid and per- ' See p. 76, For brief discussion of nationality, see Willoughby, pp. 120-122. For modern illustrations of demands based on nationality, note home-rule movements of Ireland and Poland. 42 THE DEVELOPMENT OF THE STATE manent multiplication of food supplies, therefore, fur- nishes the basis for an increase in human energy and progress. All the great eras of human development have been preceded by a permanent addition to the sources of food supplies. This may be illustrated by the development that came from the use of weapons in hunting, tools and machinery in industrial life and from the utilization of natural forces in production and transportation. If one traces the wonderful history of human ingenuity in mastering the forces of nature, enslaving them and compelling the energy of the universe to do the tance of the will of man, it becomcs possible to understand *°° ■ what a powerful stride was taken in develop- ment when men for the first time consciously used tools. It v/as the beginning of civilization, and from the very first its importance was realized. Men die, but their ideas and inventions live after them. Each new ac- quisition becomes the parent of many others, and each contributes its quota to the multiplication of human possibilities. From the time when primitive man began to utilize as a weapon a rude club or a clinched stone his develop- ment has been marked by a steady advance in invention. The club and the stone united formed the hammer and the ax, the sharpened stick for digging purposes de- veloped into the spade, the hoe and the plow. The edged tool typified by the knife developed from the keen edge of a sharp chip of flint. From such primitive tools have developed slowly, but with rapidly accelerating speed, the numerous forms of tools and weapons used STAGES IN DEVELOPMENT OF THE STATE 43 to-day in military and industrial life. Each great stage in economic development stimulated men's inventive faculties and enabled them the better to utilize some newly discovered force of nature. Fire was rendered obedient to the human will; wind and water were har- nessed for purposes of transportation, the utilization of the force of gravitation gave strength to human muscle ; the inventive capacity of the race learned how to con- trol the energy of steam and electricity, and for many ages the knowledge of the possibilities arising from the subjugation of the animal world, and the utilization of the fecundity of nature, has furnished tangible and direct results in the multiplication of food. Thousands of years lie between the first rude boat in the form of a log, paddled by hand, and the developed utilization ocean liner of to-day. Yet they are alike in "Iwe^rsof ^^^^^ ^^^^y ^^^^ utilize natural power for pur- nature, poses of transportation. The real distinction is quantitative not qualitative. The one transported with difficulty and danger a few pounds at a snail's pace, the other carries swiftly and safely thousands of tons' burden and hundreds of lives. This develop- ment in the use of machinery had been slowly going on ever since the human race began, but about the middle of the eighteenth century men apparently had reached their writs' end in productivity. Production by hand and by crude machinery worked by hand or animal labor was not sufficient for the demand. Population was checked through the relative dearness of food and necessities, and commerce could not expand through lack of goods to export. England had immense wealth 44 THE DEVELOPMENT OF THE STATE in iron ores and coal, but not even the muscle of the ''village blacksmith" could turn goods out cheaply enough and fast enough. At last, in 1769, after men had experimented for at least a hundred years with steam, came Watt's steam engine. In the nineteenth century came the knowledge of the use of electricity, and from these times the inventive ingenuity of the western na- tions has been devoted to the multiplication of ma- chinery so as to utilize the boundless energy of the uni- verse through control over the power generated by steam and electricity. The significance of all this is, that the productive capacity of the human race in both goods and food supplies is multiplied many thousand- fold, with the advantage that machines, instead of de- manding their proportionate share of organic food, are satisfied when fed with fuel. In other words, the pro- ductive power of the population is multiplied geometric- ally but its consumptive power arithmetically. Western nations, therefore, may expand their populations and yet through machmery and commerce multiply food supplies in such abundance as to banish almost from possibility the danger of famine. The inevitable effect of an expansion of material capacity is an expansion of intellectual attainment. Scientific discoveries in chem- istry and biology, rendered possible by material develop- ment, powerfully aid in the development of food supplies and other material necessities. As a further result of this development, commerce has multiplied past all precedent, every corner of the habit- able earth has become known and explored, hermit nations are forced out for better or for worse into western STAGER IN DEVELOPMENT OF THE STATE 45 civilization, governmental activity has expanded so as to meet new conditions. Larger interests, greater Thestru - ^^'^alth and increased population give greater gie for fighting power, and to the leading nations the old struggle for empire once more comes to the front. They strain every nerve to develop material and mental capacity, so as to attain supremacy in inter- national competition; they seek to expand by extending their sway over nations inferior in attainment, and they readjust their political organizations so as to manage more wisely their great interests. In such an age as this political change is inevitable. World politics finds no place for the petty state, the backward nation, the ultraconservative people. Broad and high intelligence, moral energy, capacity for hard work and bold initiative and invention are the virtues of the age. Intelligence in the state involves democracy in the system ; immense resources demand executive and administrative capac- ity; the necessity of accomplishing a desired end by con- centrating every possible oimce of energy at the proper place, insures concentration of governmental power. Such capacities and virtues, in a struggle for national existence or w^orld supremacy, are not matters of indif- ference but necessities for survival, and hence the present age tends to develop a political life suited to the attain- ment by states of whatever will contribute to the highest development of their peoples. The various aspects assumed by the state in the course of its historical development may now be noted in re- view. In primitive times are to be traced the begin- nings of the fundamental ideas involved in the theory 46 THE DEVELOPMENT OF THE STATE of the modern state; the loosely organized horde repre- sents the nation, and the power wielded by its natural leaders typifies the power of sovereignty in thTSte"^ later times. The pastoral stage of the patri- archal period substituted the tribe for the horde, and gave greater definiteness to the organization of the community. The agricultural stage gave the clan or the village community, which slowly developed by conquest and alliance into loosely confederated empires. At the same time the influence of rapidly growing commerce gave birth to the city state, best known in the familiar Greek form, but found also in the medieval cities of Ger- many and Italy. In the East, in Greece under Alexan- der, and in Rome, as well as in later Europe, developed the idea of a world empire, the dream and the ambition of every great military leader of all times. This ideal was translated by Christianity into dreams of a spiritual empire in which all the nations of the world would pay allegiance to the Founder of the Faith, and, with the development of the Papacy, to his successor seated in St. Peter's chair at Rome. The rise of commerce and the consequent differentia- tion of interests among the peoples of western Europe resulted in the formation of national states held firmly together by ties of common interests and nationality. Intercourse among these gave great impetus to the de- velopment of diplomacy, permanent embassies and in- ternational law, all designed to aid in the development of economic interests and the maintenance of peace. The discovery of America not only poured mineral wealth into the impoverished kingdoms of Europe, but ushered STAGES IN DEVELOPMENT OF THE STATE 47 in the great era of colonization in which Spain, Portugal, Holland, France and Great Britain vied with one an- other in seeking out by exploration all of the unknown w^orld that could be utilized for purposes of commerce and exploitation, A happy combination of circum- stances developed in the United States of America the federation, an improved form of confederation, combin- ing in one organization the advantages of autonomous ccmmonwealths with the high centralization of an empire in matters of general policy. This form, so well adapted to the needs of great empires, is rapidly proving its utility as a form of government; indeed, the time may yet come when the smaller states will best secure their autonomy and nationality by uniting in federation with one another and with the larger leading states. _/ These in brief are the epochs in the development of the state, and if this line of evolution and these types of governmental forms be fixed in mind, the development of any of the historic states of the w^orld can be followed with much greater ease and profit. SPECIAL REFERENCES Writers who seek to show that political and social develop- ment is largely determined by economic conditions are now numerous. Among these the following are included in the bibliography: Brooks Adams, Buckle, Cunningham, Crozier, LoRiA, Patten, Robertson, Rogers, Seligman, Sidgwick, and Wallis. Slavery: Ingram, and Veblen; Ward, "Ancient Lowly." The Social Importance of Food: Russell, and Kidd. The Village Community: Baden-Powell, Gomme, Hourwich, Maine, Seebohm, and Simcox. 48 THE DEVELOPMENT OF THE STATE Tribal Organization : Gummere, Keller, Morgan, and Seebohm. Patriarchal Civilization: Fustel, Hearn, Kovalevsky, and SiMCOX. The City State : Brooks Adams, Fowler, Fustel de Coulanges, Greenidge, and Munro. Commerce: Clive Day. PAKT TWO THE SOVEREIGNTY OF THE STATE CHAPTER III POLITICAL SCIENCE AND SOVEREIGNTY After this rapid summary of political development, it now becomes possible to study more closely the laws The field ^^^ principles underlying the state and its of political activities. The branch of knowledge which makes a study of these is known as Political Science, which may be defined as the science concerned with the study of the state and of the conditions essential to its existence and development. In other words, the field of political science should include a study of the origin of the state, its nature, its numerous forms of or- ganization, its aims, powers, methods of activity and the conditions that aid or retard its development. The state is the most important of modern social or- ganizations. It has been and is a mighty factor in civ- ilization. Though in history it has frequently been the instrument of tyranny and despotism, and has often hindered rather than helped humanity, yet it admittedly stands for the highest in human development. For at least twenty-five hundred years the study of this insti- tution has occupied the minds of the wisest philosophers and most thoughtful statesmen, and ancient \\Titings even yet supply the basis for modern political studies. ^ We are at the present time in an era of numerous im- * For example, Aristotle's "Politics." 51 52 THE DEVELOPMENT OF THE STATE portant developments in political life; colonization, ex- pansion, federation and democracy are so powerfully- affecting the political conditions of the world that the study of political science has become especially impor- tant. Most of all is this true in the United States of America, which as a leading state has an important part in the discussion and formulation of world policies. The subdivisions of political science are numerous and the boundaries of each ill defined. There are in conse- quence many possible classifications, each de- dilSonr' termined by the standpoint of the particular writer, ^ If the state be viewed abstractly, we have the branch known as political philosophy or theory, devoting itself to reasonable explanations of the princi- ples underlying political life and development. As in the case of other philosophies, there may also be a his- tory of political theory, a subject rightly receiving much attention at the present time. Another branch of polit- ical science devotes itself to the concrete aspect of the state, studying its development, the conditions that aid or retard its prosperity, and its numerous forms of or- ganization and administration. Again, attention may be given to the functions or activities of the state, the theory of these explained, and the practice of various states worked out historically or comparatively. This would lead naturally to the study of law or jurisprudence in all its branches and also to the study of the art of pol- itics, and the methods whereby states formulate their policies and seek to carry them out. Again, states have ' As illustrations of classifications, see Willoughby, pp. 4-5, and Pollock, pp. 94-95. POLITICAL SCIENCE AND SOVEREIGNTY 53 dealings and relationships one with another and have developed a code of international law and the art of diplomacy, both of which branches are of extreme im- portance in these days of great states and complex in- terests. Each of these general topics is itself susceptible of numerous subdivisions, but a complete and exhaustive classification falls more properly under political theory, and is not demanded by this study. Enough has been said, however, to call attention to the scope and im- portance of political science and to indicate, briefly, its general divisions. It is a branch of the larger study known as social sci- ence or sociology. Social science devotes itself to the Its reia study of associated man, either by seeking to tion to ascertain the principles and laws underlying sociology, i^^j^g^j^ activity or by concrete studies of vari- ous forms of social life. The phenomena of social life are closely related and interdependent, but, for conven- ience, they are regularly classified into groups, and each class or group of phenomena made the subject of special study. In this way are developed such social studies as economics, political science, ethics, comparative religion, education and history. Evidently all social activity will find expression in some form of human association. Human beings by in- stinct and habit tend to associate together in of^terar communities and the members of these are held together by such permanent and powerful ties as those of common blood, language, customs, religion and economic occupations. In such communities special associations are naturally formed for the purpose of safe- 54 THE DEVELOPMENT OF THE STATE guarding and developing some particular common in- terest or set of interests, a tendency especially charac- teristic of higher civilization. But when a community definitely and permanently becomes organized as a unit for purposes of self-defense and general welfare, then the community is politically organized and may be called a body politic. All bodies politic are not states. Throughout the in- habited world there are numerous bodies politic, large and small, each definitely organized for purposes of com- mon defense and welfare, but most of these are in subor- dination to similar but larger organizations. Some of these larger organizations are recognized as independent and sovereign, in which case they are known as national bodies politic and are called states. Tlie subordinate bodies politic are known by such names as provinces, de- partments or counties, cities or municipalities and town- ships or communes. A state, therefore, may be defined for theoretical purposes as a sovereign political unity, or, if studied concretely, i, e., through its organization, it may be defined as a national body politic having sover- eignty. Tlie term nation is applied to the unity spoken of as the national body politic, and the term people is applied to the collective mass of inhabitants having dom- icile within the state, owing it allegiance and entitled to its protection. ^A^ien emphasis is placed on the fact that the state has authority over its members, these are called subjects; if emphasis is on the fact that the members have rights within the state, then the term citizen might better be used. In constitutional forms of government male adult citizens, under certain restric- POLITICAL SCIENCE AND SOVEREIGNTY 55 tions, are given the right to elect by vote officers or rep- resentatives, and the collective body of such citizens is known as the electorate. This body in popular discussions is regularly assumed to be the exponent or mouthpiece of the people. Sovereignty As the state exists in order to safeguard the interests of the community, it must evidently have authority and The mean- power to commaud the services of its subjects, ing of "Yhx^ authority and power is called sovereiqnty, sover- ^ i- o 01 eignty. and sovereignty may be defined as the su- premacy of the state over the lives and property of its subjects. It is the most essential attribute of the state. There can be no state without sovereignty and every body politic having sovereignty is a state. The word "supremacy" must not be interpreted in the sense of partial supremacy. Sovereignty implies absolute su- premacy. A state must be entirely free from the dom- ination of bodies politic external to itself, and must be completely supreme within its own borders. It can- not surrender in whole or in part its sovereignty and remain a state. It may delegate the exercise of one or more of its sovereign powers to bodies politic subordi- nate, or even external, to itself, if only it reserves the right to recall such delegated power or powers at will. Every political power, therefore, exercised by a subordi- nate body politic within the jurisdiction of a state, is derived from the sovereignty of the state which may recall it at will. This supremacy of the state over the lives and property 56 THE DEVELOPMENT OF THE STATE of its subjects seems to be a dangerous power, and might easily result in despotism and the destruction of per- Limitations •'^^nal liberty. Yet after all, the aim of the on govern- state is the protection, not the destruction, of life and property ; and with all its defects it has measurably succeeded in its purpose. Tendencies toward tyranny can regularly be checked by an intelligent citi- zen body, who can so arrange the constitution of the state as to make the government a powerful agency in the development of all that is needful and helpful in national prosperity. The state should exercise whatso- ever powers seem necessary and expedient for national welfare, provided that, in so doing, it meets with the tacit approval and hearty support of the people. If, in the opinion of the people, it is inexpedient to allow the government to exercise large powers, constitutional re- strictions can minimize governmental activity almost to the vanishing point. If, on the other hand, it seems wise to enlarge the powers in exercise, one limitation after another can be removed, until the government may direct and regulate a very large proportion of the powers included under the notion of sovereignty. Such limitations on the exercise of sovereign powers take the form of bills of rights, constitutional regula- tions of governmental power and control over officials, effective enough to make them useful agents rather than tyrannical masters of the people. Just as an autocratic king may be so dominated by his ministers as to be a mere puppet in their hands, so a sovereign state may have its governmental organization so wisely regulated by constitutional provisions as to POLITICAL SCIENCE AND SOVEREIGNTY 57 make it the greatest factor in the development even of individuahty. These regulations or limitations will naturally arise through the expression of an intelligent public opinion. Yet as a matter of fact even in modern democracies the expressed will of the government is only approximately like that of the people, and is frequently veiy different. Hence the state, voiced by its governmental organs, frequently clashes with public opinion. If this has formal and regular channels i through which it may readily influence the government — well and good; but if not, then there is a constitutional system that does not truly represent, and there will inevitably arise, with the growth of intelligence, discord, internal strife and revolutions. This condition is so common even in the present century that much more attention should be de- voted on all sides (1) to the development of an intelligent public opinion voicing all the interests of society, and (2) to the perfection of governmental organization so as to allow such public opinion definitely and forcefully to express itself in the formulation of a wise national policy. The conception of sovereignty as supreme authority over the lives and property of subjects is, then, the most Develop- csscutial principle in the modern theory of the meat of state. It has already been said that when a of sever- commuuity definitely organizes itself for self- eignty. protcction, it thereby becomes a body politic. In early civilization, long before private property de- veloped, communities organized war bands in order to * Such as the electorate or a system of political parties enjoying free speech. 58 THE DEVELOPMENT OF THE STATE make raids against weaker neighbors or to resist inroads on the part of warhke enemies. Such a necessity was ever present in those troublous times, and the duty of fighting for the common safety was incumbent on every member of the community able to bear arms. For this reason the group probably had, in most cases, a military organization, and thereby easily developed ideas of authority, allegiance and responsibility for the general safety. If communal life was peaceful through abundance of food supplies and absence of aggressive neighbors, similar ideas might readily arise in the regulation of communal customs and property rights, since the notion of general safety would chiefly involve communal rights of food-getting and property as the fundamental con- dition of life. But the embryonic state, whether funda- mentally a war band or an economic group, did not assert its right at that time to regulate religion, private quarrels or individual property rights as these developed. It merely protected general interests in times of offensive or defensive war and left to the family and to similar social institutions the regulation of other forms of social life. As i)opulation and wealth increased, and human social relationships became more complex, the state slowly but surely began to extend its jurisdiction over the family, withdrawing by degrees from the control of this institution the regulation of property rights and the safeguarding of life. At the same time, by similar proc- esses, the authority of religious organizations became more and more subordinate to the state. Through this extension of authority, the power of the POLITICAL SCIENCE AND SOVEREIGNTY 59 state was greatly enlarged, and a theory of sovereignty as supreme power was slowl}' developed in order to justify the greater activity of the state. Such a theory of sovereignty may be traced in Athens, in Rome and in Europe after the Renaissance. It was common enough even in medieval academic discussions, but did not be- come popular until the seventeenth century. The enor- mous development of wealth and population since that time has caused the general adoption of such a defhiition of sovereignty for the reason that an efficient regulation of public interests demands a much larger sphere of governmental activity. Older theories in consequence have to be modified to suit the newer conditions. The political theorists of the Reformation, typified by Bodin and Hobbes, and the social contract writers of later times, Locke, for example, brought the matter definitely into discussion, until finally Rousseau, in his "Social Contract," sought to show how a theory of absolute sovereignty might be harmonized with democracy. Ever since that time, the theory has been worked out more carefully in details, and is coming more and more mto acceptance. '\ATiether fully accepted or not, all progressive nations assume the theory to be true, and extend governmental jurisdiction over any function whatsoever when public interest seems to demand it. In this way economic, domestic and religious institu- tions are increasingly passing under the power of the state. Illustrations of this tendency are seen in pro- tective tariffs, banking and currency legislation, in the subordination of the church to the state, in the regula- tion of inheritances and kinship rights, In civil marriage 60 THE DEVELOPMENT OF THE STATE and divorce and in the secularization of education and the assumption of it by the state as a pubhc function. Though the early and the late theories of sovereignty seem so far apart, they -can by interpretation be made Modern ^^ harmouize. Sovereignty still implies that meaning tlic State merely protects life and property, but of " life T /v and prop- the dmereuce lies m the meaning assigned *''*^'" to the terms. Protection is not only defense against positive aggression of a hostile foe, but denotes also a parent-like care which shields against every pos- sibility of harm. Not merely the securing of physical existence but also the fostering of mental and spiritual life is within the scope of the state. Property includes not only material wealth, but intangible goods, such as reputation, rights and happiness. Under such broad definitions the protection of life and property has come to mean that the state may do anything expedient, and with such a scope for governmental activity sovereignty can only be defined as absolute power. One may, how- ever, feel sure that in practice the power of the state will be exercised pari passu with the utilization of scientific methods and ideas in government, and with the attain- ment of broad intelligence and sound morality on the part of the people, for the scope of power exercised by a despotic government is in practice very much less than that exercised under constitutional democracies. Discussions and theories such as these are not merely questions for practice in debate. They are attempts in explanation of the great problems presented on all sides in political life. New conditions of life compel new theories and restatements of older theories. A great POLITICAL SCIENCE AND SOVEREIGNTY 61 theory clearly explained is a revelation to the men of its day. It shows them the causes and the reason impor- underlying the life of their time, it epitomizes iMiticai complex phenomena so that the average man theories. may understand, and it is one of the greatest aids to the development of a larger interpretation of civilization. Wlien civilization is practically stationary, political theorizing is merely a formulation of accepted and authoritative beliefs in regard to the existing order of things. But in times of transition or of rapid develop- ment there are regularly wide differences in political theories. Furthermore, in former periods the authority of the state was so largely restricted by powers held by family, church and economic group that discussions in regard to the state were relatively unimportant. But when the sovereignty of the state is defined as supreme, widely divergent political theories should be carefully scrutinized so as to obtain a clearer and more scientific explanation of the facts and tendencies of political life. Such explanations will throw light on the principles involved in the evolution of the state, on the relative importance of the mdividual and of the community and on the exercise of sovereign powers. They make clearer the value of democratic and aristocratic ideals, and in- dicate the emphasis that should be placed on moral, educational and economic factors by wise statesmen. A really wise statesman is more than a skilled poli- tician. He should be as Aristotle says,i acquainted with :!vhat is best in theory as well as with what is best under given conditions. He should know the history, develop- 1 " PoUtics," Book IV, Sec. 1. 62 THE DEVELOPMENT OF THE STATE meiit and purpose of the state, and the best theoretical and the best practicable forms of government. He should also be able, because of his large knowledge of governmental agencies in different parts of the world, to suggest remedies for defects in existing governmental systems. SPECIAL REFERENCES Political Science: Bagehot, Bosanquet, Burgess, Lilly, McKechnie, Pollock, Willoughby, Woolsey ; Rousseau, "Social Contract." History of Political Theories: Dunning, Carlyle, Figgis, Gierke, Graham, Merriam, Michel, and Willoughby; Political Science Quarterly, vol. xv, p. 75, W. W. Wil- loughby, "Value of Political Philosophy." Sovereignty: Freund, and Merriam; Bryce, "Studies." CHAPTER IV ESSENTIAL POWERS OF THE STATE From the consideration of sovereignty itself we may now pass to the apphcation of it in the various aspects of national life, first outlining in a general way the rela- tion of sovereignty to the essential powers of the state. The authority of the state in respect to the protec- tion of life and property is often discussed under several Sovereignty terms, such as the war power, the police identified power or the power to prescribe the peace of with the , / 1 1 . , N -n. 1 essential the State (the kings peace). But whatever powers. name may be applied to such manifestations of supremacy, whether exerted in carrying on war, in sup- pressing riots and rebellion or in checking crime, it is but another name for sovereignty, which is the collective term for whatever power is possessed by the state. Certain aspects of sovereign power, however, are so im- portant in themselves that it is customary to speak of sovereignty as though made up of three essential powers, namely, the police power, including the war power, the power of taxation and the power of eminent domain. By police power is meant the power of the state to do anything needful for the safety and welfare of the nation {salus populi swprema lex). The power of taxation im- plies that the state may take from its subjects the services and property necessary for its support. The 63 64 THE DEVELOPMENT OF THE STATE power of eminent domain implies that the state has the right to take from its subjects their lands or property for public use. In all states that have developed along democratic lines these powers are constitutionally safe- guarded, so as to secure the people against governmental tyranny; but in practice it is understood that such re- strictions are for times of peace. AVhen necessity arises the riot act is read or martial law proclaimed, civil and constitutional guaranties, like habeas corpus, are sus- pended, and the government, in the exercise of the so-called war or police power, takes into its hands the full power of sovereignty on the plea that, inter anna leges silent. In well-ordered states, when the crisis is over, the government may be brought to account for the exercise of any unnecessary arbitrariness. It is easy to see in all this that the so-called police power is merely another name for sovereignty, and that the other so-called essential powers are simply implica- tions arising from that. If the state is to protect the nation from harm evidently it must have the power to raise the means for the performance of this duty. It may do this by demanding the services of its subjects, or by levying a per-capita tax on them, or by taking from them whatever property it needs. All methods are unpopular with subjects, who never pay taxes with cheerfulness or perform forced labor for the state with alacrity. From hard experience the state has gradually learned to compromise with its subjects, and now regu- larly accepts a financial equivalent for services and an annual payment for the support of the government. But in case of necessity the state does not hesitate to ESSENTIAL POWERS OF THE STATE 65 order its able-bodied subjects into the army or navy or to compel them to assist in the suppression of crime or to labor on public works or in the public service, even without compensation. Nor would it hesitate under similar circumstances to levy forced contributions from the wealthy, nor to appropriate to its own use supplies wherever found, nor to seize any land needed for public use. In other words, the sovereignty of the state implies a virtual ownership of the services, property and land of its subjects, as far as these are necessary for the preserva- tion of the life of the state. The decision as to the neces- sity of all this lies with the state through its officials, who are restrained by constitutional checks or by the fear of rebellion or revolution. Forms of Taxation The power of taxation has become increasingly bur- densome with the growth of the scope of governmental activity, since the state in exercising its supervisory and administrative powers has regularly proved to be an ex- pensive necessity, and the burden of taxation has too often been a source of discontent and rebellion. A state best shows .its wisdom when it proves able to raise an income that will at once support the government generously and yet not prove burdensome to the people. An efficient system of taxation is one of the highest marks of statesmanship. It is essential, therefore, that one have in mind a brief outline of the numerous forms and methods of taxation used by the state in the course of its development. Taxation in its early crude forms was naturally suited 66 THE DEVELOPMENT OF THE STATE to the conditions of savage or barbarian life. As war was the chief and almost only business of the state, its activity was intermittent. Taxation consisted Taxation "^ through in a demand for the sei-vices of its fighting service. ^^^ ^^^ ^^^ ^^^ ^£ othcr Capable members of the community for purposes of advice, defense and main- tenance. In time came regulations as to the kind of arms and the amount of food and other supplies each should furnish. If the number of fighting men was in excess of the demand, a system of drafting developed. The state's power of taxation, then, involved its right to enroll or to conscript its able-bodied men for war and to demand suitable arms and supplies. Other govern- mental expenses, if a.nj, were met by the chiefs or kings themselves, who considered governmental privileges and responsibilities personal perquisites, not a public trust. Offerings, gifts and tribute from subjects and subordi- nate communities furnished substantial additions to pri- vate funds, and special expense might be met by foraj^s on neighboring enemies or by confiscations and seizures. Public lands, also, won by conquest or held in joint possession,! often furnished a large source of revenue. As the state grew in importance, it assumed other functions that involved men's services. Roads and bridges had to be built for war and commercial pur- poses; public buildings, such as temples, palaces, monu- ments and fortresses had to be erected; cities founded, irrigating canals dug, public lands cultivated and civic business administered. All these involved taxation, ^ For example, the ager publicus of Rome, the Crown lands of England or the public domain of the United States of America. ESSENTIAL POWERS OF THE STATE 67 and the system employed was similar to that used hi war. All able-bodied men might be forced to labor or a district might be required to furnish a quota or a tax might be levied, from the proceeds of which necessary public work would be performed. In earlier systems of- fice-holdmg, like other services, was compulsory and often involved irksome toil and heavy expense. It is only in modern systems that the emoluments of office cause it to be eagerly sought. As class distinctions de- veloped, taxation became differentiated. The nobility held office, the wealthy paid heavy taxes and the poor performed services. A definite system of taxation came into use with the rise of private property and the personal ownership of Taxation ^ocks and tlic products of agriculture. Its first of prop- form was the levy of a definite per cent of the ^'^ ^' produce of the flocks or herds or of the fruits and crops of the land. At a later period the tax on the produce of land was transferred to the land itself. When to this was added a tax on property fixed to the land, e. g., a building, we have the modern idea of real estate as distinct from movable or personal property. Personal services were gradually comnmted for other forms of payment and are now rarely de- manded except for purposes of war. In farming communities personal property is naturally small in amount when compared with real property; but the rise of commerce and manufactures, multiplying this form of property, resulted in the development of newer forms of taxation. Besides the direct tax on personal property, always hard to estimate and to collect, came 68 THE DEVELOPMENT OF THE STATE taxes on goods sent out or brought into a country, the modern export and import taxes. Again, a tax might be levied on goods manufactured for the purpose of do- mestic sale, the excise or internal revenue tax; or on special business transactions, as a stamp tax; or on oc- cupations, a special form of which is the license tax, for permission to enter on a business which from its nature, must be under governmental supervision, such as the sale of liquors, explosives or poisons. A common but obnoxious tax is the poll or head tax. Income and in- heritance or legacy taxes have a history of many cen- turies. They were levied in the classic period and the latter is becoming increasingly popular. ^ Taxes on cor- porations and on franchise privileges furnish a con- stantly increasing revenue for the state. In fact the conditions of modern business life are so different from those of former centuries, that national systems of tax- ation are undergoing rapid changes and are constantly subject to revision so as to suit newer conditions of economic life. The expense of government is so influenced by the whims and private interests of citizens and office-hold- ers, that it has often proved difficult to balance budget. expenditures with receipts. Then, too, sudden emergencies or unusually expensive public works, might make an unexpected deficit. For this rea- son in modern states a budget is carefully prepared in ad- ^ For late (revised) studies of these two forms of taxation, see West, "The Inheritance Tax," 2d ed., 1908, Columbia Series; Ameri- can Economic Association Quarterly, Dec, 1908, Seligman, "Pro- gressive Taxation." ESSENTIAL POWERS OF THE STATE 69 vance, showing possible expenses and estimated receipts and indicating changes needed in taxation so as to avoid too large a deficit or surplus. In less scientific days, in case of special emergency, greater reliance was placed on forced loans, on the confiscation of the property of persons charged with disloyalty, of wealthy corporations like the church, or of unpopular foreigners like wealthy Jews. Fees from petitioners or from litigation furnished a large source of revenue, as also the income from the sale of oflSce, special privileges or monopolies, or from the debasement of the coinage. Under color also of such powers as maintenance, purveyance and emment domain, or the right of sei- zure in time of war, large additions to revenue could be made when necessary. All such irregular forms are passing out of use, and seizure of any sort is now regularly accompanied by a fair compensation to the owner. Aside from the difficulty involved in settling on the kind and subject of taxation, there are inherent difficul- Assess- *^^® ^^ devising efficient systems of assessment mentand and collectiou. The old-fashioned system of "farming" or leasing out the privilege of col- lecting taxes, so productive of tyrannical abuses, and its counterpart in feudal lordships and dues, have been superseded by elaborate schemes of assessment and col- lection by responsible governmental officials. The ideal of a fair and impartial assessment is exceedingly hard to realize, and in practice the burden of taxation both direct and indirect, is proportionately heavier on the average person of small property and income. Such evils will 70 THE DEVELOPMENT OF THE STATE slowly disappear as a more intelligent democracy dic- tates the policy and administration of government. Sovereign Powers in Exercise The state in the exercise of its powers has devoted most of its energy to war and to the maintenance of domestic peace and economic prosperity. Yet as it assumed authority over the family and the church, it deprived these of many powers formerly under their jurisdiction. From the family, for instance, it assumed regulation over such matters as kinship, marriage and in- heritance; and it is now gradually assuming many of the functions once exercised by the church, such as educa- tion, the administration of charity and the regulation of morality, health, art and amusements. The church it- self also has in modern times fallen under the jurisdiction of the state, and its organization, and at times even its theology, is often regulated more or less completely by law. In order therefore to have in mind the trend of gov- ernmental activity, some attention should be given to the development of each of these fields for the exercise of sovereign power. ^ I. The War Power of the State The original sovereign power of the state is that of war. Even now a state's chief business is to be ready for war and to wage it whenever national safety * Good illustrations of the early functioning of a state may be found in Stubb's "Constitutional History of England," vol. i, and in Gummere (s»e Bibliography), ESSENTIAL POWERS OF THE STATE 71 or national interests demand it. In modern times diplomacy is becoming increasingly important as a means whereby dangerous disputes may be adjusted peace^" and treaties for offense and defense negotiated. In a rude civilization a formal notification of war is not deemed necessary; each state seeks to attack its rival unawares and when the latter is poorly prepared. In more developed states a formal notifica- tion is common, though diplomatic negotiations usually supply the information long in advance of the formal proclamation. In theory no state declares war or makes peace without the consent of the dominant interests or classes within the state. In practice this power has to be confided to the head of the state in order that no time may be lost in case of emergency. The head of the state, however, is always in touch with the leaders in national affairs and is advised by them. These domi- nant interests vary with the economic development of the state. At first they were voiced by the elders and war leaders of the horde, then by the heads of families in early patriarchal times, at a still later stage by the heads of all important clans and families, together with men eminent for past services in war. When commer- cial states developed, the possession of large wealth, whether personal or landed, gave the owner a voice in council. To the voice of these has been added the will of the people as a whole, made known through their delegates. Rarely would a modern state venture to declare war or make peace without the hearty accord of pu])lic opinion formally or informally expressed. All able-bodied men by theory must serve in the army 72 THE DEVELOPMENT OF THE STATE or navy. If war is always imminent the theory becomes fact; all men are given a military training and a suf- ficient number kept in readiness for immediate ser- service vicc. If a State is so situated as not to in the f g^p y^^j. j^ (^Qgg j-^Q^ enforce military service army or ' -^ navy. aud depcuds on volunteers in cases of emer- gency. Occasionally a small standing army is main- tained as a nucleus about which a larger army may be formed. In tribal states petty wars were fought by volunteers who delighted in the excitement of battle; larger wars demanded the services of all the men of the tribe. In the stage of developing confederation or feu- dalism, each district sent its quota for a common war. In modern times the state keeps a permanent paid army in its service, and supplements the services of these by drafts of men levied from districts in proportion to population. States in times of stress have used slaves in war, but always under protest, fighting being considered the privilege and the duty of freemen. Convicts and criminals occasionally have been sentenced to serve as a punishment, but this custom is now condemned as derogatory to the service. Occasionally states have hired foreign mercenaries to fight in their wars, but this custom also is no longer favored. The burden of supplying ships and men for the navy used to fall on seaport communities onjy; gradually a permanent navy developed, supported by the state and supplemented by privateers and by vessels seized or bought at the outbreak of war. The use of privateers is now practically condemned by all leading nations. ESSENTIAL P0WP:RS OF THE STATE 73 Commercial states using the sea support large navies so as to protect their commerce in case of war. Positions of command regularly belong in old-fash- ioned systems to men of the higher social classes, with occasional exceptions in the case of men of decided talent who may rise from the ranks. The present tend- ency is to make all positions of command open to merit, and this system holds in democratic states. The training of men for war was in early times the duty of the older experienced warriors. At a later period the family and the community respectively trained their members. At the present time the state either directly trains its forces or fixes standards and supervises ad- ministrative districts in the performance of this duty. Scientific technical training is also furnished by the state for the officers of the army and navy. In earlier systems armies subsisted by foraging or plundering along the line of march, each man furnishing his own equipment, according to a set standard. In this case the wealth of a person determined the branch of service he entered; the wealthier served in the cavalry or in the heavy-armed troops, and the poorest as light- armed trooj^s. The expensiveness of modern equip- ment and the great size of armies compel states to furnish all supplies of weapons, equipment, food, med- icines and other necessaries. The branch of service entered is determined by skill and choice. The sci- ence of war has become so systematized that immense sums are annually expended in the building of mili- tary roads and fortifications and in the accumula- tion of all kinds of military and naval stores. Nat- 74 THE DEVELOPMENT OF THE STATE urally there is a definite system of rules and regu- lations which govern the military and naval forces of a nation, but in democratic states these codes are formulated by the lawmaking body so as to render the military subordinate to the civil department of gov- ernment. In earlier political life warring communities fought until the one or the other was exterminated or both, from exhaustion, were compelled to desist. Gradually a rude method of negotiation grew up through heralds, whose persons while in the perform- ance of their duties were sacred. Through these, treaties and agreements were made and sanctioned with much ceremony and the taking of oaths. Even in very early times formal treaties were made. One of the earliest ex- tant dates back to the thirteenth century B.C., being a treaty between Rameses II and the Kheta or Hittites.^ In the middle ages began the custom of sending perma- nent diplomatic agents to the courts of those nations with which the state had dealings; through these much in- formation was secured of great use to the respective states, and disputes settled without war. Then began consular systems whereby each state sends business agents to the chief business centers of other states, usually seaports, and through these secures information of great value for commercial interests. These agents also transact important details of administrative busi- ness for travelers and traders. The last important development has been the employ- ment of Boards of Arbitration, Joint Commissions, In- ' "Records of the Past," First Series, vol, iv, pp. 25-32. ESSENTIAL POWERS OF THE STATE 75 ternational Congresses and Tlie Hague Tribunal. These consider such matters as may be referred to them, hear arguments on all sides and settle amicably disputes that otherwise would frequently end in war. In western civilization the customs arising from this international intercourse did not attain an important Inter- stagc Until the sixteenth century, when the national development of national states and greater in- tercourse through the development of com- merce brought them into prominence. Grotius in his work, "De jure belli et pacis" ^ first systematized these customs by commenting on them and supplementing them from principles of Roman and natural law. Smce his day many learned treatises on these customs and prin- ciples have been set forth, resulting in a fairly well-de- fined code or set of rules and regulations for the guid- ance of nations in their intercourse one with the other. These are not law in the sense that they are customs, regulations or commands enforced by a supreme sover- eign authority. Though called international law, the term should be understood in the sense that the code is a collection of the customs observed by the greater states m their dealings with one another. No state is legally bound to obey these, but all states for expedi- ency's sake usually conform to them, though they do not hesitate to disregard or alter them in certain partic- ulars if it seems wise. Tlie early method of disposing of conquered communi- ties was that of devastation. Torture and death were the fate of the males, slavery the lot of the women « First published, 1625. 76 THE DEVELOPMENT OF THE STATE and children. At a later stage after a partial slaugh- ter, the remaining members of the conquered com- munity were enslaved and kept permanently in social Govern- Subordination, A third stage came when the mentof couQuered community was compelled to pay conquered •■■ "^ i. l j provinces, tribute to the conqueror, and to submit to his supremacy in governmental matters, but otherwise was allowed to retain its freedom and peculiar customs. ^ At the present time in wars between civilized states, the conqueror usually imposes on the conquered a heavy tax for war expenses, makes stipulations in regard to the causes of the war and may demand a cession of territory. In the last case there seems to be a tendency for the con- queror to compel such ceded territory to conform more or less completely to the civilization of the successful state, e. g., Poland, Alsace-Lorraine, the Dutch Repub- lics of South Africa, Finland, Porto Rico and the Phil- ippines. This last development is not in harmony with the principle of nationality which has obtained in west- ern civilization since the sixteenth century. This prin- ciple declares that every race having a civilization and interests peculiar to itself should also have autonomy in government. The attainment of the unity of Italy and German}^ in the nineteenth century and the periodic racial troubles in Austria-Hungary and southeast Eu- rope illustrate the principle. The theory of "dominant races" seems to be gaining ground at present. This the- ory, plainly stated, is that any powerful state may by * See, for example, "Roman System of Provincial Administra- tion," W. T. Arnold, 1879, London. Ccesar's "Wars" furnish many- illustrations of early methods. ESSExXTIAL POWERS OF THE STATE 77 open conquest or skilli'ul diplomacy subdue weaker and inferior races and states and compel them to assimilate their customs to those of the ruling state. A war for pure aggrandizement probably would not be tolerated by other great powers, but a dominant state seldom lacks an excuse for aggression. A consequence of this theory is that a weaker community which cannot or will not become assimilated disappears. As a rule if the conquered community is equal in quality to the con- queror, assimilation takes place at last, though with much bitterness and rancor. If such a community is inferior in quality, j'^et such that it can be utilized in economic life, it survives because of its industrial value and may perhaps very slowly amalgamate with the con- quering race. If such a community proves to be socially inferior and economically useless, its members slowly disappear, wasted by contact with a superior civilization whose vices and diseases find ready lodgment in a pop- ulation that has lost its self-respect and its reason for existence. This process of conquest and assimilation, harsh and cruel though it be, has nevertheless been in the past one of the greatest factors in civilization. A race developing only through natural increase tends to lose energy and vitality by inbreeding. Conquest in- volves more or less intermarriage between the con- querors and the conquered and a slow process of amal- gamation takes place. From this crossing of blood and mingling of civilizations a new generation ulti- mately arises, stronger and wiser than either of its parent stocks. Every important race surviving to- day must in its history have been repeatedly subject 78 THE DEVELOPMENT OF THE STATE to processes of amalgamation.* Peaceful amalgama- tion is prominent to-day through immigration. The racial safeguard in amalgamation is that a superior race seldom amalgamates with a race much inferior to itself. Extinction not absorption is the ultimate fate of the latter. The rapid development of international comity in modern times brings into discussion the question of the future probability of a world state, a world Future of federation. It seems undeniable that many centuries hence such a consummation is possi- ble. Development along such lines is already manifest, as illustrated (1) by the growing identity of social and economic interests brought about by constant inter- course through modern inventions, (2) by the develop- ment of mternational law, comity and arbitration, (3) by the development of common administration in such matters as postal service, (4) by the practical suprem- acy of four or five leading states over the world's terri- tory and (5) by the growing human itarianism of the age. All these seemingly point to a peaceable amalgamation of the human race under the supremacy of a developing confederation of leading states. On the other hand it is questionable whether these dominant nations will con- clude to divide the world's supremacy among them in an amicable manner. These states are economic rivals, ^ This theory has been best worked out by Ludwig Gumplowicz, "Der Rassenkampf," and "Grundriss der Sociologie." This latter volume has been translated by F. W. Moore, 1899, Annals, Phila. Note also article by Mayo- Smith, mentioned in list at end of Chapter I. ESSENTIAL POWERS OF THE STATE 79 and experience shows that economic rivalry is usually settled by war. It may be that the tendencies wliich make for peace will develop a peaceable federation or the submission of the rest to the hegemony of one, but the probabilities hardly point in that direction. West- ern civilization is characterized by a fierce, warlike, com- petitive spirit that brooks no rivals in a contest for eco- nomic supremacy. The most peaceable classes in any community are those engaged hi religious and in com- mercial life, but they regularly and heartily favor every war for supremacy. The cost of war, the growing liu- manitarianism of the age and the enormous loss of life involved in modern struggles are deterrent factors, but these sink away when the lust for gain and warring seizes by contagion an entire nation. Again, a world state or federation would be strong only as its subjects were homogeneous in civilization and fairly well amalgamated in blood, \\nien one reflects that by far the larger part of humanity live under back- ward civilizations and in tropical or semitropical lands, it becomes evident that amalgamation by blood would demand thousands of years not centuries, and that a mingling of such dissimilar civilizations is hardly possi- ble. If, however, dominant states should hold such populations in subjection, as England, for example, does India, and develop them in civilization as rap- idly as possible, a firm and lasting unity might be secured that ultimately would become democratic. It may be that the future has. some such solution in store for humanity. If so, then the dream of many Utopians may be realized, and humanity guided by a world policy 80 THE DEVELOPMENT OF THE STATE may systematically utilize social agencies for the highest possible development of the human race. Indications along such lines will be much clearer by the end of the twentieth century, for civilization having passed round the world is centering its energies in the western hemi- sphere and in the far East. The lands bordering on the Pacific will grow in importance during this century, and by the end of it the dense populations of China and India will probably have found their place in the politics of the modern world. II. The Preservation of Domestic Peace As the primary function of the state is the protection of the lives and property of the community through war, it is not strange that a similar function in in- regulation tcmal affairs should develop. State authority of crime. • i ^^ i i m such matters, however, grew much more slowly. Long before the state existed men had protected themselves and still felt abundantly able to do so i© or- dinary emergencies. In all civilizations, groups of men are found united in bonds of real or fictitious kinship for purposes of joint protection. ^ How instinctive this has become is seen at a glance by observing the numerous fraternal orders of developed civilization. These groups in early civilization were united for purposes of blood revenge, fine payments and mutual responsibility. The patriarchal family at a later stage answered the same purpose. The loosening of patriarchal family ties through commerce and industry brought about in city life the * For illustrations, see Hutton Webster, "Primitive Secret Socie- ties," 1908. ESSENTIAL POWERS OF THE STATE 81 development of the guild, ^ the guild for social and re- ligious purposes, the trades guild, the merchant guild, and akin to these the orders of knighthood and the broth- erhoods of the church. Such associations, found in all civilizations and in all times and places, devoted them- selves to the preservation of the peace by restraints placed on individual members, by discipline inflicted on disturbers of the peace, and by presenting a united front against aggressions of unruly members of the community. But besides associations for the preservation of the peace there were others organized for opposite purposes, associations composed of outlaws, robbers, Suppression '■ ' ' of criminals who had fled from home, men own- outawry. . mastcr, worthless fellows for whom no one would be responsible.^ Against such the united strength of the entire comnmnity was necessary. The state therefore developed the function of unifying the force of the community against armed associations of lawless men within its own borders. Similarly, armed resistance to the laws of the community in the form of rebellions, insurrections and riots, was suppressed through the power and strength of the state. In this way developed the right of the state to suppress such disturbances with a strong hand, if necessary suspending civil law for the time and exercising arbitrary war pow- ers. Ordinary breaches of the peace long remained outside •* For special studies of guilds, see articles, Yale Review, vol. i, pp. 200 and 275, F. W. Williams, "Chinese and Mediaeval Gilds," and vol. vii, pp. 24 and 197, W. E. Hopkins, "Ancient and Modern Hindu Gilds." ^ See e. g., The Cave of Adullam, I Samuel xxii, 2. 82 THE DEVELOPMENT OF THE STATE the jurisdiction of the state, and even now some of- fenses against the peace are popularly considered mat- ters to be settled personally, such as offenses against honor, chastity, reputation and the person. This may be illustrated by such survivals of private tti" peace °^ veugcance as the fisticuff brawl of humble life, the duel of socially higher classes, the use of lynch law administered by outraged individuals or com- munities, Ku-Klux organizations and the feuds still so common in backward countries or semi-patriarchal com- munities. Likewise certain social agencies are still accus- tomed to exercise slight powers of discipline over their membership as, for instance, the family, the school and the church. Another illustration is the system of ostracism practiced in social life against violators of customary rules of etiquette. All such offenses were once legally avenged by the persons offended, supported by the kinsmen of the fraternity or family. If one slew another, the friends of the murdered man slew the murderer or one of his kin. If injury less than life was inflicted, similar injuries were given in retaliation. This lex talionis, or principle of eye for eye, tooth for tooth, had one extremely inconvenient consequence: it was likely to develop into a blood feud. Blood feuds kept the whole community in turmoil, be- sides robbing the state of many of its best fighting men. Under sucK conditioru^ the state assumed the office of umpire, examined the facts in the case, turned over the guilty person to his prosecutors for punishment and for- bade the friends of the convicted person to carry the matter further. These, debarred from the privilege of avenging their kinsman, sought the privilege of redeena- ESSENTIAL POWERS OF THE STATE 83 ing his life by payments. Such a compromise in most cases proved eminently satisfactory to all parties. Bet- ter pay a fine than lose a friend, and on the other hand a fine received is some compensation for the loss of a friend, and perhaps more satisfactory than blood re- venge. The state was also satisfied, because men that kill in fight make good soldiers in war, and war material of that sort was too valuable to waste through useless bloodshedding. In some such way developed a system of fines graded for almost every possible offense against the person, from a life to a tooth or a lock of hair, and ofSs™ varying in amount with the social standing of the person assaulted.^ These fines were paid to the injured person, or to his kin or fraternity, but the state reserved a fraction of the fine for its services as um- pire. The income from such fines proved so remunerative to the state, that there was a constant tendency to usurp the function of the prosecutor, whose business it was to present the criminal for trial, and to claim an increas- ing share of the fines. The matter was settled at last by the state's assumption of the entire matter. WHien a crime takes place, the state arrests the accused, makes all investigations, prosecutes the case, inflicts the pun- ishment and collects the whole of the fine. The early pecuniary motive of the state has however overreached itself, for, in the development of punitive law, other forms of punishment, such as imprisonment, have been * For a good illustration of such a system, see John M. Stearns, "Germs and Development of the Laws of England," 1889, New York. 84 THE DEVELOPMENT OF THE STATE substituted for fines in many offenses, and the income of the state has correspondingly diminished, while the expense of administering punishment has enormously increased. Neither the injured person nor his kin now share in the fine but merely have the doubtful satisfac- tion of seeing punishment inflicted on the offender. By theory a civil process for damages is possible, but in prac- tice, useless. There are movements in some countries looking to the enactment of a law requiring the state to indemnify the injured person or his kin, on the theory that the state agrees to preserve the peace, and if it fails to do so in any case, it should pay a penalty for its neglect.^ The state in the development of its functions of arbi- tration and punishment, has tried many curious experi- .g ^j ments. The city of refuge represents an at- punish- tempt to distinguish between intentional and ™^° ■ unintentional murder. The use of the sanctu- ary is a device for the prevention of punishment in- flicted without proper consideration. The ordeal and the judicial combat endeavored to throw the responsi- bility of the decision on God. The system of compurga- tion allowed the state to decide prudently on the side that could present more able-bodied men ready to swear to anything to help out a friend (a system not unknown at this day). Torture was regularly applied on the the- ory that a man in great pain will tell the truth. Finally, excessively cruel and hideous forms of death were in- flicted on the guilty under the theory that others would be deterred from similar offenses. Such systems of pun- ' See 6. g., Ferri, Chapter III. ESSENTIAL POWERS OF THE STATE 85 ishnicnt now survive only in uncivilized communities, and modern ]3enology is founded on humane principles. A similar development of state authority took place in respect to offenses against property. For a long Regulation pcriod theft was considered to be purely a pri- agai^nT^ ^^^^ matter and was settled by methods of propeity. retaliation. The injured party would naturally seek to recover from the offender or his kin more than he had lost, so as to recompense him for his trouble. This brought about bad feeling, fighting and occasional loss of life. As in the case of personal violence, the state at first acted as umpire and settled guilt and dam- ages, taking its share of the latter. It then gradually assumed entire responsibility in the matter, and now merely returns to the robbed person his property if recovered. The modern state in exercising its jurisdiction over crime of all sorts is not satisfied merely to detect and punish the offender, but seeks to prevent the commission of crime (1) by carefully framing and publishing the penal law, in order that no one may plead as an excuse ignorance of the law, and (2) by the use of a permanent police force, which systematically patrols the community and seeks to prevent disorder and crime. Even more is accomplished in this direction by wise systems of educa^- tion and economic regulation. The next development took place when the state undertook to arbitrate in civil disputes. Disagreements in regard to property rights easily lead on to acts of violence. The state, therefore, in maintaining its func- tion of keeper of the peace, gradually assumed juris- 86 THE DEVELOPMENT OF THE STATE diction over such disputes by compelling the contend- ing parties to plead their causes before its magistrate „ , ^ and to submit to his decision. In such cases, Regulation ... . of civil however, the state seldom takes the initiative, ispu es. ^^^ ^.^^ actions are still in form disputes be- tween persons, while criminal actions are in form charges made by the state itself against individuals. In this development of governmental authority the process is practically uniform: in primitive life disputes ^^^ of all sorts are settled by private arrangements natural of the parties concerned, peaceably or vio- process. jgn^iy^ according to circumstances or the na- ture of the case. Then the state from motives of public policy assumes the office of voluntary umpire; at a later stage it enforces with the power of the state its decisions, and finally it either compels disputants to refer their grievances to its courts, or it assumes the responsibility of personally' investigating grievances and prosecuting and punishing offenders. This process may be illustrated by the modern strike.^ This is in form a private dispute between an employer and his men in regard to the economic policy of the firm or corporation. If the strike should become so impor- tant as to threaten violence or serious danger to public interests, the state may suggest the use of a board of arbitration, as was done in the coal strike of 1902. At a later period the state may insist that such disputes be referred to a board of arbitration and, finally, may then * For excellent discussions of the strike, see John Graham Brooks, 1' The Social Unrest," 1903, and F. J. Stimson, "Handbook to the Labor Law of the United States," 1896. ESSENTIAL POWERS OF THE STATE 87 enforce the decision of the board. In this way in mat- ters still left for private settlement the state may organize, as is so commonly the case, courts or boards of arbitration and conciliation, the use of which may be voluntary at first, but may ultimately be made com- pulsory as the state extends its jurisdiction over all dis- putes that threaten to disturb the public peace. SPECIAL REFERENCES Taxation: Dowell, Seligman, D. A. Wells. Police Power: Freund, and Russel. Law in Relation to Crime: Boies, Cutler, Ferrf, Hall; and Inderwick. War: Bloch. For American diplomacy, Hart, "Handbook"; John Bassett Moore. For European diplomacy, Hill. For a brief text-book on International law, Wilson and Tucker. CHAPTER V ESSENTIAL POWERS OF THE STATE (Continued) III. Economic Regulation It will, of course, be impossible in an elementary study to trace the development of all the power and activity of the state in the regulation and control of economic life. It will be sufficient, perhaps, to indicate in a general way what has been the attitude of the state toward the chief factors in economic progress. The Ownership of Land The possession of abundant territory is the foremost economic necessity for a state. From the land human beings derive their chief supply of food and originauy without land no permanent state can exist. From the earliest times, therefore, states have had to devote especial attention to the acquisition and defense of territory. Whatever claim a comnmnity might have to land depended at first entirely on posses- sion and use. The strong hand, nen^ed by the necessity of securing a livelihood, was the only form of title deed recognized. ^\Tiat a community needed for hunting, grazing or agricultural purposes it used, defending its right by main strength against intruders. If, at a later time, a community, necessitated by natural increase of 88 ESSENTIAL POWERS OF THE STATE 89 population, found itself restricted in food supplies, it would either increase its boundaries by war on weaker neighbors, sending out colonies of fighting men to win and hold the land, or would abandon its old location and seek a new one. In so doing it made no attempt to sell the old nor to buy the new. It seized whatever territory it needed, exterminating or driving before it the inhabi- tants of the land. The invasion of Canaan by the Israelites and the migration of the Helvetians as nar- rated by C&sar illustrate the process. Occasionally communities sought to acquire o\\Tier- ship in much more territory than it was possible to utilize. This might be due to forethought in anticipa- tion of future growth of population or to land hunger, the desire to own land irrespective of its immediate or even prospective utilization. ^ Manifestly such claims could be maintained only through force or in the absence of opposition. The same condition practically obtains at present. States define their boundary lines at times out of all proportion to the possible needs of their popu- lations. But it is fairly well understood in world poli- tics that a state asserting a claim to lands which it can- not possibly use, holds them only as long as it can defend them agamst other claimants eager to utilize the terri- tory. States in their relations one with another tacitly assume that the capacity to utilize furnishes a fairly good title against ownership without use. As a corollary to this arises the theory that the nation that can best use, has a better right to land than a nation which mis- ' See e. g., Caesar's account of the Suevi, Gallic War, Book IV, Chapter III, 90 THE DEVELOPMENT OF THE STATE uses, or only partly utilizes, its territory. In all such controversies, however, the decision between the two rival claimants is generally settled by force of arms, not by discussions of ethical standards. Illustrations of such conflicts may be found in our o'^ti history in our dealings with the Indians, with Spain and with Mexico. "~ Under a theory of ownership based on use, evidently no individual in a community could claim any particular portion of land as his own. As a member of use!^* "^ the community he shared with his fellows what all collectively had. In other words, he also had the use but not the ownership of land. In tribal states, therefore, one may expect to find that the tribe will claim hunting or grazing grounds as its private pos- session, and if nomad life is past, may have permanent possession with fairly well-defined borders, but yet its notion of ownership, both individual and communal, is still an ownership based on use. The same statement is practically true of highly developed patriarchal village life in agricultural communities. Village lands as a whole are held by the community, and each recognized member of it is entitled to his share in use, but he may not sell his portion nor dispose of it by will. The shares allotted to the members of the community were not neces- sarily equal, for the size of the allotment depended some- what on the social status of the person; the essential point, however, is, that each head of a family was en- titled to a share for the use of his family. Naturally, if a family died out, its right of use reverted to the com- munity. Similar theories of ownership were applied to mines ESSENTIAL POWERS OF THE STATE 91 found in the communal territory. These, also, were held and worked for the common benefit. When navi- gable waters became important the same theory owneTwp! ^^as applied to them. Members of the com- munity might use the waters as a privilege in- cident to their citizenship, but ownership was vested in the community, and individual use was subject always to communal regulation. Communal ownership evidently involved much man- agement and administration on the part of the members of the community. Conflicting claims of persons en- titled to a share in use had to be adjudicated, allotments made, customs declared, times for joint plowing and harvesting arranged, defense provided for and complete regulations for the other innumerable details of admin- istration. If the community was fomided on conquest, the management was probably vested in the conquering lord, his kinsmen and his immediate followers; if the community represented a peaceable growth from clan organization, then headship would naturally be vested hi the heads of families and in their chief or elder. The ruling body held periodical meetings so as to settle such matters as might demand attention. As long as life was simple, agriculture primitive, inventions few and commerce merely local, such a form of communal own- ership and management was emin^tly satisfactory. This is shown by the fact that the system developed throughout almost all the world and survives yet among the larger part of mankind, in the Russian mir and in the village communities of India and China. But in other localities many causes combined to break 92 THE DEVELOPMENT OF THE STATE do'^\Ti this system. If through contact with a wider en- vironment some men acquired more energy and greater The rise of ^claptabiHty than others, and these quaU- personai tics showed thcmselves m greater capacity ownership. . • ij. ^ i i i m agriculture, sucii persons would have a natural disinclination to accept neglected holdings at the next allotment. Only a permanent tenure in use would satisfy, and that step developed naturally among flourishing and populous communities. This tendency was strengthened in those communities which had per- manent boundaries by the homing instinct, so char- acteristic of all higher animal life. Men become at- tached to the place of their birth and prefer the old and the accustomed to the new, even though there may be a theoretical superiority in the latter. For this reason, also, periodical reassignments of land fell into disfavor. A further step leading on toward individual ownership was that of alienation. A family by migration, crime or debt might lose its share in the communal land, or an alien family under certain circumstances might gain a holding after a residence of a set period of years. Again, conflicting claims of kindred, arising, for example, through adoption or a father's personal preference, fre- quently must have involved transfers of right to land, or a conquered community might be compelled to trans- fer permanently ^ large share of its territory to members of the conquering tribes. Such possibilities must have familiarized communities with the thought of an owner- ship in land that could be alienated, either through communal action or at the wish of the family or its head. In later times emphasis on the personal wish of the head ESSENTIAL POWERS OF THE STATE 93 of a family, especially when voiced by a formal expression of his will, definitely completed the process. Henceforth a family, through its head, had a claim to ownership in land. It did not simply have the right of permanent tenure, but under certain contingencies it might «ven alienate its possessions. At a still later period, wherever democracy developed, the family as a legal unity tended to disintegrate. Under such circumstances even indi- viduals of the family might personally hold land in full ownership. This is our present theory of land holding. An individual may own land, use it or not use it at his pleasure, or may lease it or sell it as he prefers. Many argue that this tendency has gone too far, and assert that the community should never allow its citizens, and still less aliens, to hold land from use. Such an argu- ment is based on the fundamental proposition that the use of land is essential to life, and that each person who holds needed land out of use thereby defrauds to that extent his fellows from part of the opportunities of life. Such theories, for example, as socialism and the single tax favor communal o\Miership of land, each citizen having the right to use, but not to keep from use, an amount of land suited to the necessities of his family or business. Here, again, as in the case of the territorial claims of states, there is a conflict between an ownership based on a legal theory, and an ownership based on an asserted ethical right, the right of any individual to take possession of unused land if needed for his support and w^elfare. There are still many sur\'ivals in modern society of communal ownership. The theory of Eminent Domain 94 THE DEVELOPMENT OF THE STATE implies that the state has the primary right to the use of lands as against the claims of private individuals. Survivals Again, the waters of the sea-coast, navigable m»^^' streams and their shores are, with slight excep- ownerlhip. tious, communal. The same is true in many states of all waste lands, mining and water rights and of unclaimed or abandoned property. The family also still has ownership of all property left by its members who die intestate and divide it among themselves in accordance with rules laid down by law. Finally, the rapidly extending sphere of governmental ownership of natural monopolies seems to imply that land and mines, as essential means of livelihood, may again become com- munal, not individual, in ownership. The outcome of this clash of rival theories is, of course, still a matter of doubt. Arguments for a tenure based on use are theoretically strong. Land in the possession of the peo- ple as a whole is a far stronger guaranty of democracy than its monopolization by the few. In any case no one can safely deny that the permanent prosperity of any state is fundamentally involved in the wisdom or non- wisdom of its system of land tenures. Food Supplies When the population of any region tends by natural increase or through immigration to press too closely on its ordinary means of subsistence, states guided by intelligent leaders have been able to multiply food supplies by scientific devices. Such means now regu- larly form a large part of governmental activity. Even the early oriental states developed vast systems ESSENTIAL POWERS OF THE STATE 95 of drainage and irrigation, and facilitated transporta- tion by the building of roads and canals. Such works are still carried on m all important countries, either directly by the state or under its supervision and control. In this country we see further extensions of the same idea in the efforts of the government to aid the interests of scientific farming by the support of agricultural schools and by experiments in horticulture and stirpi- culture. Increasing attention is given to the preserva- tion of our forests and game, to the utilization of arid lands through irrigation and to the development of fisheries, the importance of which as a source of food supply is well shown by the international prominence of the fishing waters of Newfoundland, Alaska and Sag- halien. Kidd^ and other \vriters point to the time when the tropics wiU furnish nations of the temperate zones with vast food supplies, and these regions, therefore, will receive larger attention from states as they feel the neces- sity of multiplying food for their increasing populations. Colonization If population multiplies too rapidly and national boundaries cannot be enlarged peaceably or through war, then migration is and has always been the historic remedy. The spread of population from primitive cen- ters has often been traced. The colonizing systems of Phoenicia, Greece and Rome are known to all students of classical history, and the movements of Teutonic population in the early Christian centuries are part of our common knowledge. The invention of the compass, 1 '-' The Control of the Tropics." 96 THE DEVELOPMENT OF THE STATE the circumnavigation of Africa and the discovery of America gave a new impetus to colonization. Portugal and Spain led the way, then Holland, France and Eng- land. The policy at first followed was that of exploita- tion and trade; agricultural settlements came last and were considered least in importance. An era of ex- ploitation as such cannot permanently endure. A firm hold on newly discovered land depends finally on mining, trading and agricultural centers. The mother country protects and aids in developing such centers in return for trade privileges and an acknowledgment of suprem- acy. Political capacity on the part of the colony in time brings autonomy, either peaceably or by revolution. The utility of colonies is so manifest that every great state eagerly adds to its colonial possessions, searching the world for places in uncivilized or partly civilized lands suited for trading or colpnizing purposes. There it establishes a sphere of influence, sends its traders and missionaries and seeks to build up its interests on a per- manent basis. The population of the colony multiplies. The civilization of the ancestral home is reproduced in miniature, with such modifications as are compelled by differences in environment. This great colonizing era, which is still young though it has already lasted over four hundred years, is effecting profound changes in political development. The possession of immense areas of fertile land suitable for colonization makes an outlet for a surplus, but enterprising population, fosters commerce and manufactures and strengthens national prestige and power. Tropical areas not suited to settle- ment are made to furnish valuable material for foods and ESSENTIAL POWERS OF THE STATE 97 niaiiufactiires. In consequence, practically all the avail- able parts of the earth have come under the influence of western civilization, and the great nations are expanding their wealth and population in seeking to utilize the re- spective parts under their sway. The twentieth century is destined to see a mighty expansion of western popula- tion into available centers at present tliinly populated, and scientific achievement on the part of leading nations will accomplish in a few years for these regions what otherwise would require centuries of time and energy. Commerce The next great step in the economic function of the state came with the rise of commerce. As bartering be- ^^^ tween communities became increasingly fre- market cjuent with the growth of wants, the commun- ity had to develop roads and market places. Traders would not venture where robbery was inevi- table. Roads must be reasonably safe, and a place for barter sot aside whose neutrality would be guarantied. Such market places naturally were on the "marks" or boundaries or at the junction of much-traveled paths. Here by custom would gather traders and buyers from many communities, secured against robbery and attack by the custodians of the market place, who would exact their fees in return for the privileges they gave. Such a center readily grew into a trading village, different in kind from the ordinary farming village. Its customs came to be guarantied by the larger communities and these customs developed into the unwritten or wTitten charters of municipalities of later times. In order to 98 THE DEVELOPMENT OF THE STATE facilitate commerce some attention would have to be paid to the building of roads, which might be utilized also for military purposes. Along such roads passed posts or messages sent by merchants or by the state, as the necessity for frequent communications arose with the development of commerce and administration. If such roads terminated in seaport communities, harbor improvements also might be deemed advisable, and these might be made by interested individuals or by the community itself. As trading became important the necessity for some common medium of exchange constantly grew. It be- came inconvenient to exchange goods in kind, A medium o o j of ex- even though that system had developed to c ange. perfection by fixing a customary value on ev- erything tangible, on the exchange list, from a rude tool to a slave. At first some one staple article was selected and all other things were valued in that. Live stock, such as sheep or cattle formed such a medium. When metals were brought into use these came to be valuable media for exchange and were accepted by weight in re- turn for other goods. A great idea came into the busi- ness world when responsible communities or merchants began to stamp under seal a guarantied weight in speci- fied metals.i Such coins passed through definite devel- opment in respect to shape, edging, impressions and so- lidity of guaranty, and finally the entire matter of coin- age was removed from the hands of individuals and ^ For such studies note for example, Alexander Del Mar, "History of the Precious Metals," 1880; and "History of Money in Ancient Countries," 1885, George Bell & Sons, London. ESSENTIAL POWERS OF THE STATE 90 coiiiinuiiities and centered in the state. The national- izing of coinage systems and international agreements based on these clearly indicate a high and wide com- mercial development. In all such cases the metal so stamped is considered to be inherently worth the amount indicated by the stamp. Governments, tempted by the hope of gain or of borrowing money under false pre- tenses, have stamped as money material not intrinsically worth the amount indicated by the stamp. Such fiat money becomes in effect a note or promise to pay and is of value only in proportion to the ability of the state to give full face value on demand. Illustrations may be found in the debased coinage of medieval days and in token money and paper currency of modern times. Akin to this development is the present power of the state in fixing standard weights and measures. As long as wealth consists chiefly of goods in kind, the main problems of economic life center in the multiplica- tion of fertile lands and labor; but when through commerce wealth in the form of money begins to accumulate, a new set of problems arises. Money of course may be kept on hand in hidden places against a time of need, subject only to the danger of robbery, a danger, however, always imminent. It wc^ild manifestly be an advantage to the owner if some responsible party in return for the use of the money, would assume charge of it and return it on demand, or use it and pay interest for the privilege. Furthermore, when a merchant wishes * For a brief sketch of ancient banking, see Sidney Dean, editor- in-chief, "History of Banking and Banks," Chapter I, 1884, Pelham Studios, Boston. 100 THE DEVELOPMENT OF THE STATE to send money to some distant place in payment of goods bought or to be purchased, he can send it under guard to the place indicated, but at heavy expense and at great danger of robbery. He would be greatly advantaged if some wealthier merchant having branches in both places would accept the money in the one place and agree to pay a similar sum in the other place on demand, making a slight charge only for the transaction. From such needs as these developed a system of private banks, which greatly aided the development of commerce through facility of investment and exchange! The failure of such a bank to meet its obligations might, however, prove to be a great hardship to public as well as to pri- vate interests. Two governmental policies developed from this possibility, (1) close and efficient regulation of private banks so as to diminish the possibility of loss to innocent individuals and (2) the establishment of national banks, either like the Bank of England or the original United States Bank or like the national banking system of the United States as developed during the last half century. By such regulation of banking inter- ests the government brings stability and confidence into the monetaiy system of the community. Along similar principles the state undertakes in highly developed commercial communities to regulate for the public good great business interests like that state reg- q£ insurauce and corporations of all sorts, both ulation. ^ _ ' private and quasi-public. As an additional aid to commerce a modern state establishes a consular service which it places at the service of its citizens who are abroad or engaged in foreign commerce. It negoti- ESSENTIAL POWERS OF THE STATE 101 ates commercial treaties with other states so as to de- velop reciprocal commerce, it subsidizes steamship lines, improves harbors, lines the coast with lighthouses and life-saving stations, builds a navy to protect its shipping and seeks to safeguard the lives and property of its citi- zens in foreign countries. Manufacturing In simple primitive communities industrial life was represented by the manufacture of tools, weapons and household implements, and was almost entirely '^^^ personal, not communal. To be sure the com- artisan. ^ ' munity was interested in the development of tools and weapons and took a lively interest in seeing that each member had his quota, but the making of these was individual, and individual ownership began in no- tions associated with personal possession of tools, weap- ons, clothes and ornaments. The manufacture of weap- ons and ornaments probably fell to the lot of men; tools for primitive industry, weaving and household imple- ments of all sorts were probably invented by women, on whom devolved manual labor and domestic cares. ^ Each patriarchal household was the center of industry, and the comfort of its members depended on the skill and ingenuity all displayed. With the use of metals much more skill in the handling of tools was necessary. Then developed the smith, first of artisans and parent of many smithing trades. It is probable that at first skilled smiths wandered about from village to village, gypsy fashion, preserving the secrets of their trade and sup- ' See in Bibliography references under names, Ely, and Mason. 102 THE DEVELOPMENT OF THE STATE plying the demands for better and more efficient tools and weapons. From this parent trade developed in turn the various crafts of later commercial life, each the center of its peculiar industry, and the membership of each bound together in ties of guild relationship, modeled in organization after the clan. As long as these trade guilds, made up of masters and men, were useful and flex- ible, the state encouraged them with special privileges and recognition of their peculiar customs or charters. When, however, they became too rigid, and failed to rise to broader commercial life, they were suppressed, and freedom in industrial life was adopted as a policy. Un- der this modern system, after a long era of suppression, trade organizations once more developed in the form of trade unions and federations of trades and industries. The place of these in the state is gradually bemg settled by judicial decision and legislation. Industries in the larger sense received little attention from the state up to recent times. Monopolies might be granted so as to encourage some particular in- larger dustry, tariffs placed on imports so as to en- courage domestic manufactures and patent rights given in order to encourage ingenuity in inven- tion, but these ideas did not become definite scientific governmental policies until the nineteenth century. Now, if a state wishes to develop its own industries it does so by placing tariff duties on all competing goods entering the country. This is virtually an indirect tax on home consumption. If a state wishes to sell to the foreign trade its industrial products, it must reduce duties on those goods that come in exchange for such ESSENTIAL POWERS OF THE STATE 103 exports. Industries also are stimulated by patent laws which grant monopolies in the manufacture and sale of inventions. The ownership of such patents has been one of the greatest agencies in the development of mod- ern capitalism.! In all these forms of economic life, the agricultural, commercial and industrial, the state rarely interferes in Regulation the rcgulatiou of labor. Slavery and its modi- of labor. ^^j ioTUi of serfdom were the prevalent forms of labor dovni to the age of commerce. In the tran- sition from one to the other regulations of labor were increasingly made by the state, but only as it was nec- essary to define customary law in respect to personal status and property rights. Commercial and industrial life brought about a demand for a powerful umpire to mediate between the wealthy and the agricultural, in- dustrial population. This interference took the form of adjusting the status of the serf and the freedman in the early stage, and in the later stage, of the freeman who was not a landowner, a merchant nor a master crafts- man. As long as class distinctions obtain by constitu- tion, such regulation is necessary whenever a change in status takes place. In democracies, where all men by theory are equal, the state cannot legislate for or against any particular class but must treat all alike. While this is true of persons it is not true of occupations. Some occupations are distinctly beneficial to the state, others are harmful or likely to prove so under careless manage- ment. It is common for all states to encourage the first * For an excellent series of addresses on patents, see report of f Patent Centennial Celebration," 1892, Washington. 104 THE DEVELOPMENT OF THE STATE class by carefully safeguarding their interests; and to pro- hibit socially injurious occupations entirely, such as cer- tain forms of gambling ; and to discourage others, such as the liquor traffic, by compelling persons so engaged to submit to stern regulation and heavy license fees. IV. The Family in its Relation to the State The "patriarchal theory" of the origin of the state was considered satisfactory down to within a very few years. It assumed an original pair of human matriarchal bciugs, multiplying by successive generations *°" ^' into a clan, a union of these into a tribe and a union of tribes into a nation. This theory of late years has been considerably modified. Researches into the origin of the family show that the patriarchal family came quite late in human history and was preceded by a matriarchal stage in which the father played a relatively insignificant part, as the notion of paternity was unknown. The family of that stage is frequently known as the totem or matriar- chal family, in which form of family a mother supported \C\ her own children, aided by her uterine brothers and ma- ternal uncles. These would rank as fathers (protectors) and grandfathers to the children, who were not related to ~T their natural father nor to his children by other wives. Members of the same totem did not necessarily live in the same group. Each group might contain parts of Rise of the ^cvcral totems. A man passing from grou}) to patriarchal group would find totcm relations in all, and ^°^' ^' these were bound together by bonds of kinship and common worship. It was not the totem family that developed into the nation but the horde or group \r ESSENTIAL POWERS OF THE STATE 105 that contained parts of numerous totems. As popula- tion increased and the struggle for food supplies became keener, hordes held together more firmly for purposes of self-protection. As men came to understand the possi- bilities in the domestication of animals and in agricul- ture, there came a demand for slaves and for women as drudges in the household. Marriage by capture and by purchase became common, and wives so obtained were the property of the husband's famity. As a man of importance or prowess might easily have many women as slaves in his household, whose children by theory were all hi;g, it is evident that a patriarchal family meant a family quite different from its predeces- sor or from the modern monogamous family. While the patriarchal family was in process of forma- tion, the members of the horde- tribe, composed of several Relation of totems, might intermarry and after many gen- tolhe"*^*^* erations truly asserting in a general way their state. kinship and common descent, might proceed to regulate to some extent kinship and property rights. As the tribe broke up into smaller grojips which settled down definitely into pastoral and agricultural occupa- tions, such patriarchal groups would grow still more solidified and would grow into a clearly defined kinship group, tracing descent to a common ancestor, and bound together by close tics of blood and common ancestral worship. These groups, again, might fall apart into yet smaller groups as village communal life developed, which in turn would be made up of families approximating somewhat to the modern idea of a natural family. Several matters deserve repetition in this explanation 7/0 106 THE DEVELOPMENT OF THE STATE of family development. The totem family itself regu- lated kinship rights, settled disputes and acknowledged bonds of peculiar obligation among its own members. The embryo state, the horde, had no control over the family as such; it controlled only individuals, irrespec- tive of totem, who happened for the time being to be enrolled in the horde. The patriarchal family also regulated its own kinship rights and relationships and was responsible for the conduct of its members. Its fighting men as such were under the authority of the horde-tribe which represented the state. In this way from the totem family and from the horde developed four distinct unities: 1. The tribe, considering its members akin Groups in ' ° the com- through some remote or fictitious ancestor, and ™"^» y- regulating in a general way kinship rights and common worship. 2. The gens, a more closely related part of the tribe, having a common ancestor nearer than the joint reputed ancestor of all the gentes, and regulating more closely kinship rights and worship of the gentile ancestor. 3. The clan, a part of the gens, dating back theoretic- ally for at least four generations and practically iden- tical with the ancient village community. 4. The patriarchal family, consisting of a living head, his slaves, his subordinate kin and his immediate de- scendants and their offspring. With these developments agricultural life was in full swing, the authority of the tribe and gens was relatively lessening and the village might practi'cally be considered a state, as far as the state may be said to have existed in ESSENTIAL POWERS OF THE STATE 107 those times. In this case the sovereignty of the state is almost the same as the authority of the father, a pater- nal authority, however, very different from that of a modern family, in that patriarchal power was exerted over a much larger group, composed of many who only by fiction could be considered as related to him. Unions of clans typified by the geiis, and of gentes typified by the tribe, should in this stage be considered as confedera- tions, each union not having in itseK sovereignty over its communities, but exercising only such slight powers as custom had placed in its hands. Obviously, a state in the modern sense could develop only when a village community, or a loose confederation The later of Communities, devoting itself to commerce famir'^a^ aucl industry, became cosmopolitan and trans- the state, lated the authority of the father into the authority of a ruler, still the father of the people, but in much the same conventional way as the millions of Russians call the Czar their Little Father, to dis- tinguish him from the Great Father of all mankind. As this stage of statehood developed, the old patriarchal family slowly passed into the classic form, as a distinc- tion arose between the immediate natural family and the collection of slaves and servitors. The classical no- tion of patriarchal family in its fully developed form is best illustrated from the patria potestas of the Romans. Each head of the family enjoymg this power had a voice in the government of the larger community; as a pater he was supreme over his own household of wife, children and their descendants, and was lord or dominus over his household of slaves and retamers. As the notion of res 108 THE DEVELOPMENT OF THE STATE publica developed, private interests became more and more subordinated to the state, which, through a col- lective body of the most eminent patres in the commun- ity, gradually extended its authority. This authority took the form of interference in regard to the disposition of family property at the death of its head. It regu- lated succession, the testament or will, kinship rights and responsibilities and inflicted punishment for debt or crime when public policy seemed to demand it. In- creasing emphasis was placed on the rights of the natural as agamst the artificial family of the patriarchal system, and as humanitarian ideas crept in through the influence of Stoicism and Christianity the status and treatment of slaves were improved. Though many survivals of the patriarchal system per- sisted for centuries after the beginning of the Christian era, yet Christian domestic ideals and Ger- The ' ,*' modern mauic custouis slowly brought about changes amiiy. ^-^^^ ushcrcd in the monogamous family of modern times which traces descent through both parents. The church for a time almost supplanted the^tate in its regulation of the family, and had jurisdiction over mar- riage and divorce, testaments, kinship, education and morals. The rise of the modem state, brought about by changes in economic conditions and increase of general intelligence, deprived the church of many of its powers and especially freed the family from ecclesiastical con- trol by the state's gradual assumption of those regulative functions formerly exercised by the church. Marriage has become civil, divorce is granted, if at all, by the courts or by lawmaking bodies, kinship rights and the ESSENTIAL POWERS OF THE STATE 109 will are regulated by law, education is secular and largely supported by the state, which also acts in loco parentis in case of parental neglect, or incompetency or of complete orphanage. In other words, the family once anterior to, and intlependent of, the state, has grad- ually become by theory entirely subject to the supremacy of the state, which does not hesitate, when public policy seems to demand it, to regulate the domestic institution as fully and as effectively as it does economic institutions. V. The Relation of Church and State The influence of the state in matters religious presents a curious line of development. Any permanent phase of human activity will embody itself m a social The totem. ... , , . , , . mstitution, and the church is the mstitution through which religious activity formally expresses itself. In the animistic stage, religion, if that term may be applied to savage notions of the supernatural, cen- tered in totemistic worship. The older men of the totem represented the authority of the church. They regu- lated totem relationship with its system of rights and obligations, instructed and initiated the youth into the mysteries of the worship, interpreted the meaning of the supernatural and sought as medicine men and con- jurers to heal the physical and mental diseases of the people. Such a function contains in germ all that the church strove to become in later ages, and its early importance as a civilizing factor can hardly be overestimated.! ' For an excellent study of this type of society, see Spencer and Gillen, " The Native Tribes of Central Australia," 1899, London. 110 THE DEVELOPMENT OF THE STATE With the development of patriarchal society totemism disappeared and m its place came ancestor worship. The formal part of worship now became the worshi"'^ prerogative of heads of families, so far as an- cestral deities were concerned, but side by side with these arose a system of nature worship, partly a matter of common superstition and partly a cult with a definite priesthood. Supplementing these systems were seers, soothsayers and necromancers, who claimed a deeper insight into the divine will and mind than the more formal priesthood. The combined influence of these several priestly classes was overwhelming. The entire life of the community was dominated by them, and men became perforce religious in thought and action. The maturity of the patriarchal system marks the height of this influence. During this period church and Influence State Were for all practical purposes one in aim of the an(^[ in spirit. Rulers were themselves priests church in . , . , „ . -r» i • • patriarchal and excrcised priestly lunctions. Both msti- times. tutions v^re conservative, loved stability and taught submission to authority. The church deified the ruler either as himself a god or God's representative, exalted his priestly authority, educated his nobles to obedience, and kept the masses submissive by declaring rebellion to be impious. Consequently, the priesthood became a separate class, a social hierarchy, having large possessions of land, wealth and special privileges, and exercised an authority hardly second to that of the throne itself. Its leaders were the trusted advisers and assistants of the king. It had charge of higher educa- ESSENTIAL POWERS OF THE STATE 111 tion and instructed aspiring youth in medicine, sanita- tion, the known sciences, statecraft and divine wisdom. It regulated the morals of the people, condemning or ap- proving social customs, and punishing infringements of its standards. It mculcated the virtues of hospitality, charity and kindness toward the lowly. It sanctioned wholesome amusements and participated in them, devel- opmg for its own purposes the rhytlim of the song and the dance, as well as the stately march of the proces- sion and the use of musical instruments. Its connec- tion with family worship gave it influence there also, and tlirough its conservative attitude and educational power it was able to solidify into a static civilization the slowly developing forces of the patriarchal period. But this harmony of church and state was sometimes rudelj^ disturbed. The prophetic or inspirational side Beginnings ^^ religion, voiced by the seer and by the re- of the ligious reformer, was not infrequently in oppo- separation . . i i i of church sition to the status quo, and denoimced both and state, p^lcr and priest for their shortcomings. Then, too, as patriarchal states passed into the age of commer- cialism, the spirit of the newer age fought against the existing system. As intercourse with other countries developed, there came a knowledge of other divinities; worshipers of these resided within the borders of the state, and in many cases the worship itself was encour- aged and sanctioned. New influences and broader knowledge tended to destroy unquestioning belief in the older system, and material progress demanded liberal- ism in state policy. Competition of religious ideas and systems, and philosophizing slowly sapped beliefs in 112 THE DEVELOPMENT OF THE STATE local gods. Even though the forms of worship survived^ confidence in religious teaching and the efficacy of wor- ship disappeared. For the church, as a rule, is slow to adapt its teachings to the changing conditions of the age, its priesthood is a class apart and sees the signs of the times by refracted light. It is inherently conserva- tive and tends to emphasize the permanent and accepted features of life but not to understand the volcanic energy pent up and seeking expression. For such reasons it regularly fails to adapt itself readily to the newer environ- ment, loses its power in consequence and then after slow readjustments tends to regain part of the influence it has lost. At such crises the truer interests of society may de- mand that the state supersede the church in many of its Subordina- activitics. The state, in so doing, realizing the church to^ authority and prestige of the church over the the state. miuds and hearts of men, may continue to al- low it large powers and wealth, but by regulation of its organization and teachings makes it a useful ally rather than a rival for supremacy. It may, however, go farther than this; by depriving it of countenance and financial support, it may thereby thrust it into compe- tition with other social institutions dependent for sup- port on popular favor and approval. The period of the Renaissance practically illustrates this. . When the the- ological tendencies of the church became iron bands re- strictive of the growing life within, the state burst these asunder, encouraged science and invention, philosophy and secular education and ignored ecclesiastical teach- ings in respect to charity, crime, insanity, intemperance ESSENTIA!. POWERS OF THE STATE 113 and such social ethical (]iiostions. It sought to solve these by scientific investigation rather than by theologi- cal dogmatism. The result is that the church is no longer looked on as the final authority in such matters, but the state, making use of the teachings of science and sociology, has become an authority in fixing socio-ethical standards. On the other hand the church in adversity may turn away from the material aspect of ecclesiasticism and catch glimpses of a world mission, a world em- Separation , . . . of church pire dominated by religious ideals. The in- spiration of such an ideal might even carry the church to victory against the state and render its govern- ment theocratic. Such struggles of church and state have been common and victory has passed from one to the other. Sometimes as in the struggles of church and state in medieval and modern times, a truce has been declared and the respective powers of each d1?fined, e. g., the concordats so common in the history of the Roman Catholic church. Broadly speaking, however, when- ever a state passes into commercial-manufacturing life it tends to emancipate itself from sacerdotal authority and to favor a more or less complete separation of church and state. There seem to be four well-defined stages in the accomplishment of this object: 1 . The state and church separate in organization, per- sonnel and function, but work in hannony. 2. The state subordinates the church so effectively that it becomes virtually a department of governmental administration, dominated by the ruler and his ministers. 3. The church frees itself from governmental control 114 THE DEVELOPMENT OF THE STATE in spiritual matters, but is financially chiefly supported by the state, 4. The church becomes entirely separate from the state and is no longer supported from public funds. As already indicated, the chiu-ch in conflict with the state lost many of its historic functions. As long as it Increased was lu Sympathy with the state and was sup- iroTorthe ported by it, it mattered little which institution state. performed social service. But as the two separated and financial support was supplied more sparingly or withdrawn altogether, it became important from the state's standpoint that it, rather than the church, should perform functions so essential to social welfare. Financial weakness also made the church less able to perform her accustomed functions. Slowly but surely, therefore, one power after another passed from the church to the other social institutions or to the state; charity, medicine, amusements, scientific investigation, phflosophy, education, domestic regulation and morals. This change has come more fully in some states than in others, but broadly speaking the power of the church tends to confine itself to devotional and spiritual lines only, and other functions pass from its control. The church may still advance theories of disease and healing, or scientific and philosophic speculations, and may seek to regulate amusements, morals, domestic institutions and education, but such religious dicta are mere opin- ions, not authoritative decisions, and must stand if at all by their inherent reasonableness. The effect of all this is not necessarily to weaken the church. The older organization, it is true, may be sup- ESSENTIAL POWERS OF THE STATE 115 planted by a newer and more progressive one, but this should and does result in a deepening of spirituality and ^ , , a clearer philosophic insight into the meaning The church i r- o o independ- of Hfc. Frccd from the entanglements of ma- ^^^' terial power and wealth, it may devote itself to more important matters. It may liberalize its theology, spiritualize its teachings, humanize its ethical ideals and seek to influence men, not as formerly, by empha- sis on pains and penalties, but on the beauty of holi- ness and the ideals of human brotherhood. Experience seems to show that such a church exercises a deeper and truer sway over men's hearts and minds than an ecclesiastical organization wielding what may now be considered as governmental functions. SPECIAL REFERENCES Land and Property: Laveleye, Letourneau, Fustel, Simcox (vol. ii) ; American Journal of Sociology, vol. iv, November, 1898, T. Veblen, "The Beginnings of Ownership"; American Historical Review, vol. viii, p. 3, L. Gaillard, "The Origin of Property in Land." An excellent bibliog- raphy on economic subjects may be found in C. J. Bullock, "Introduction to the Study of Economics," Silver, Burdett &Co. Colonization: Ireland, Johnston, Keller, Morris, Reinsch; J. R. Seeley, "Expansion of England," Cambridge, 1883. The Family: Howard, "Matrimonial Institutions." Relation of Church to State: W. H. Abraham, "Church and State in England," 1905. Philip Schaff, "Church and State in the United States," 1888. Heinrich Geffcken, "Church and State" (general). Two volumes (trans, by Edward F. Taylor), 1877. For an Historical Study: Bryce, "Holy Roman Empire." PART THREE THE GOVERNMENT CHAPTER VI THE ORGANIZATION OF THE STATE As the state is the nation organized for the protection of life and property, there will evidently be in every state a definite political organization author- Definition . . ^ p of govern- izcd to cxercisc the sovereign powers of the "^° ■ state. This organization is called the govern- 77ient, and may be defined as that organization in which is vested by constitution the right to exercise sovereign powers. Classification of Governments Although every state has a governmental organiza- tion, there are wide variations in the kinds of organiza- tion in use. Many attempts have been made ciassifica- to classify these forms into a satisfactory *'°"" system. The Greek classification, usually as- signed to Ai'istotle,! is the best known of these. It divides governments into monarchies, aristocracies or democracies, according as the legal exercise of sovereign power is in the hands of one, few or many. This system is, however, obsolete, owing to numerous changes in the forms of government in modern times. It is impossible, for instance, to consider as similar the monarchies of » f Politics," Book III, Sec. 7. 119 120 THE DEVELOPMENT OF THE STATE Russia, China, Great Britain and Spain, or the repubhcs of France, Mexico, Switzerland and the United States of America. Sucli a classification does not classify. Furthermore, since the development of modem de- mocracy, the form of government is often radically different from its spirit. Great Britain by theory is an absolute monarchy, but is m fact a representative democracy, and Mexico, which is by theory a de- mocracy, is in fact a close aristocracy. This diver- gence between theory and fact and the development of newer forms of government since the time of Aiis- totle, such as systems of popular representation and of federation, make it difficult to devise a satisfactory classification. For convenience it may be well to classify govern- ments by form, as (1) unitary or (2) federative (compos- ite). In unitary forms all local bodies politic Classifica- . . tionby that unitedly make up the national body poli- ^°"°" tic, obtain their governmental power directly or indirectly from the national government and are con- sequently entirely under its control. In federative, or, as some prefer to say, composite forms, the several gov- ernmental units that unitedly make up the national body politic, have a constitutional right to govern themselves in local matters, and hence to that extent are not under the control of the national government. The numerous federal governments of modern times should be classi- fied under this head. Akin to this federative form of government hi which sovereignty mheres in the unity but not in the units, are unities of sovereign states organized for special purposes, such as confederations, THE ORGANIZATION OF THE STATE 121 treaty alliances or even international tribunals or unions, such as The Hague Tribunal for the settlement of inter- national disputes, or the Postal Union for the regulation of postal service throughout the civilized world. Be- sides this classification by form, governments may be classified as monarchies or as republics, by noting whether the head of the government be hereditary or elective; or, again, as centralized or decentralized, by noting whether the national government exercises a close supervision or control over the administrative systems of local bodies politic, as in France; or a slight, almost nominal, control, as in Switzerland or in the common- wealths of the United States. The English system repre- sents a type intermediate between these two extremes. A government, furthermore, may be called direct or indirect, according as the policy of the state is de- termined in the main by the electorate itself or by its representatives. In addition to a system of classification by form, how- ever, there should be a supplementary classification emphasizmg the spirit of government. The tion based govemmcnt may, for example, be characterized °"*.^*, as despotic, autocratic or constitutional; as spirit of * ' ^ _ govern- aHstocratic or democratic; as conservative, ™^° ■ liberal or radical. If emphasis be placed on the spirit of government, a practical system of classification can be obtained by noting the degree of democratic development in the nation. This may be indicated in several ways: (1) by noting the ratio of the electorate to the whole popula- tion, A system of unrestricted manhood suffrage would 122 THE DEVELOPMENT OF THE STATE approximately give one voter to every four and one half persons in the population. ^ As the ratio rises, the government is presumably less democratic. (2). If the government is representative, the basis of representa- tion in the membership of the lawmaking body may be noted. This basis may be hereditary right or a right based on office-holding or a right based on wealth; or localities irrespective of wealth or population may be represented equally; or equal masses of population may form the basis of representation. (3). Possibly the clearest idea of the spirit of government may be had by noting the body that has the legal right to alter at will the fundamental law of the land. Such a body may be called the "legal sovereign," 2 and may be composed of the electorate, as in Switzerland, or of a lawmaking body, as in Great Britain; or may be in the hands of an hereditary ruler, as in Russia. Under such a classifica- tion the ancient Greek terms might again be fomid use- ful, and governments be classified as in . spirit mo- narchical, aristocratic or democratic, according as the power of legal sovereignty is in the hands of one, few or many. In future years states will probably develop funda- mental likenesses through conscious and unconscious assimilation and imitation, and at that time a more satisfactory classification will be possible. Meanwhile, some formal system of classification such as that sug- gested above, supplemented by terms descriptive of the 1 In New Zealand with adult suffrage the ratio of voters to pop- ulation was (1905) 1 to 1.8, ^ See Chapter X. THE ORGANIZATION OF THE STATE 123 spirit of government will be found satisfactory enough for ordinary purposes. ^ The Federation The importance of the modern federation as a form of governmental organization makes it worthy of special mention. Confederations have been known from the earliest times, beginning with confederated hordes and tribes and passing on to confederations of village com- munities, city states and kingdoms.^ As a permanent form of political organization, however, the confedera- tion is weak and inefficient. There is no real unity, the parts are practically sovereign, and all act together only at times of great crises. Their many interests are so diverse that a firm and definite policy becomes impos- sible. Historically confederations end by falling apart into their constituent elem.ents, or come under the con- trol of some dominant member and gi'adually become unified in sovereignty. Yet in government there is real need for a form that will allow kindred communities having common inter- ests to retain their individuality and at the Contrasted . •' with con- same time have a permanent and clearly de- fined central organization, empowered to man- age on its own initiative all general economic interests. This device was developed in the United States of America by changing the old confederation of the Revo- • For chapters on classifications, see e. g., Willoughby, Chapter XIII, and Bluntschli, Book VI. ^ For a study of Greek confederations, see E. A. Freeman's, " Federal Government." 124 THE DEVELOPMENT OF THE STATE lutioii into the present federation. The distinction be- tween these two forms was not clearly perceived at first, but the result of the Civil War settled it for all time. In a confederation the several states composing the unity are individually sovereign, and are merely bound to- gether by a sort of treaty relationship, under the terms of which a joint organization is effected for the per- formance of specified functions delegated to it. As each state in the union remains sovereign it may legally se- cede at pleasure, influenced only by the fear of conse- quences in case it violates obligations existing between itself and the other states of the confederation. In a federation, however, this right of withdrawal is not claimed by the commonwealths in the union, which can only be dissolved by mutual consent. In such a union the sovereignty of the several states merges into the sovereignty of the totality and the commonwealths cease to be international states. They differ, however, in status from provinces or departments in that their autonomy is fully safeguarded by constitution. Fur- thermore, they are given by constitution a determining voice in the federal government and in the amendment and revision of the national constitution. In a federa- tion, therefore, the imity is permanent and definite, not dissolvable at the whim of one or several of its parts, but only by the united will of all. Its federal govern- ment exercises powers that cannot be hindered by in- dividual commonwealths, and that must be altered if at all by united action under the constitution. On the other hand, the commonwealths of the federation exer- cise sovereign powers in purely local matters without THE ORGANIZATION OF THE STATE 125 interference from the federal government, and each has a voice in- the settlement of all matters that concern the welfare of the union as a whole. The advantage of a federation is therefore obvious. By its emphasis on local autonomy it safeguards local interests and allows each commonwealth to Its utility. • 1 c • 1 1 11 govern itself as it pleases, and yet by the estab- lishment of a permanent central government empowered to manage without interference the general interests of the several commonwealths, it allows the development of an immense empire, which can utilize the strength and energy of all the parts for the common defense and general welfare. In this age, when the movement toward the formation of world empires is so marked, a well-organized federation with its dual form of govern- ment has a distinct advantage over rival empires. These are unwieldy because of their bulk or mechanical because of the immensity of general and petty interests con- trolled by a central organization. This fact is becoming increasingly recognized in political theories, and there is in consequence a strong tendency toward the forma- tion of federations. This is especially seen throughout the American continent and in the colonial system of Great Britain.^ As a federation necessitates a dual form of govern- mental organization, the three usual departments of government will in consequence be duplicated. Thus * Existing federations of importance are as follows: The United States of America, the United States of Mexico, Argentina, Vene- zuela, the German Empire, the Swiss Confederation, Austria- Hungary and the British colonial federations of Canada, Australia and that of South Africa. 126 THE DEVELOPMENT OF THE STATE in the United States of America the federal government is made up of a president, a congress and a judicial sys- The dual ^^™ Organized under the supreme court. But form of the forty-eight commonwealths also unitedly govern- represent a coordinate part of government, and ment. ^.j^-g jg jT^2ide up of the governors as executive, the legislatures as lawmaking body and the courts as supreme court in local jurisdiction. The national con- stitution is not the constitution for the federal govern- ment only, but for it and the combined commonwealths alike. The executive for the United States of America, therefore, is made up of the president and governors; ^ the lawmaking body is composed of congress and the legislatures, and the judicial system includes the su- preme courts of the commonwealths and the federal government. This may be illustrated by noting that the constitution is amended by the joint action of con- gress and the legislatures as the lawmaking body for the union as a whole. In popular discussions this fact is often obscured or confused, and the federal de- partment spoken of as synonymous with the United States of America, but a moment's reflection shows that this is a loose use of terms and without legal justi- fication. Other federations might be used similarly as illustra- tions. A federal government alone is never the com- plete government of its state. The commonwealths with their special governments unitedly form a coordi- ^ From the international standpoint the president only is recog- nized by foreign states, since the war and treaty powers are in his bands and the commonwealths as such have no international status. THE ORGANIZATION OF THE STATE 127 nate part of the government, and the two coordinate parts, federal and local, form the complete government of the state. The Departments and Functions of Government In modern states the government is usually divided into three departments: the executive, the judicial and Depart- the legislative. Historically, however, the last ^vwn- ^"^o ^^^ developments from the first, which is ment. fundamental. In governmental systems these divisions are often largely formal and not based on an exact logical separation of the three great govern- mental functions. The executive department, for in- stance, may exercise judicial powers through a series of administrative and naval and military courts, or it may formulate law under the name of decrees or ordinances. On the other hand, a lawmaking body, besides judicial powers over its own membership, or over certain classes of governmental officials, ^ may exercise large executive powers by dictating the personnel of executive or administrative organization. ^ A judicial department, also, by its power to interpret the law of the land, may in effect alter such law by legal fiction or by strained interpretations of the law itself. These several closely related divisions or departments of government unitedly exercise such sovereign powers of the state as may be intrusted to them by constitution. As the exercise of • By impeachment, for instance. ^ By dictating the personnel of the cabinet, or legislating in respect to appointments to the civil service. France and Great Britain are typical illustrations. 128 THE DEVELOPMENT OF THE STATE these powers is the work or function of government, such activities are usually called governmental func- tions. For theoretical purposes the functions of government may be divided into five classes, viz., the deliberative, Classes of legislative, executive, administrative and judi- mJntTi' ^i^^- These may be defined as follows: (a) functions. The deliberative function is to determine what is the will of the state, (b) The legislative func- tion is to formulate into law the will of the state, (c) The executive function is to see that the laws of the state are carried out. (d) The administrative function is to carry out the laws of the state, (e) The judicial func- tion is to interpret the law and to adjudicate its reme- dies and penalties. Each of these functions will now be briefly explained. (1) In every state there will always be one or more bodies authorized to discuss and settle on a policy, which will represent the desire and will of the state. This function is regularly exercised by the executive through a council in older forms of government, but is shared by the executive and legislative departments in modern states. At present the function of deliberation seems to be passing into the power of special bodies, nominally controlled by the executive or legislative department, or by both, but for all practical purposes separate and dis- tinct. As illustrations may be noted the development of a cabinet, after the English fashion, or of the perma- nent committees of American lawmaking bodies, whose chairmen virtually form an inner cabinet for the formu- lation of legislative policy; or even the rise of the con- THE ORGANIZATION OF THE STATE 129 stitutional convention/ in the commonwealths of the United States, dictating as it does in the constitution a legislative policy binding on the legislature. (2) This policy, when agreed on, is formulated into a command, either definitely expressed as law or decree or tacitly expressed and made known through actions of gov- ernmental officials. Judicial decisions, for example, are in effect formal notifications of what the law of the land is. (3) The executive function involves the exercise of oversight, coupled with the power to compel obedience to the law. Naturally this function is chiefly confided to the executive, but in part it may also be exercised by the legislative and judicial departments. (4) In every state there must be numerous bodies of officials set apart for the performance of the work and routine of governmental business. These bodies collec- tively make up the administration, which is usually placed under the direct authority of the executive but may be more immediately under the control of the lawmaking body. By law the control over judicial administration is regularly placed in the courts. There is a tendency in modern states to differentiate the organization of the administration from the executive department, leaving to this only a general power of supervision. (5) The judicial function is, of course, chiefly exer- cised by the judicial (le]5artment, if one be organized, or otherwise by the executive. But some judicial power is also usually exercised by the executive and legislative departments, even though there is in organization a formal judicial department. •See pages 214, 217-218. 130 THE DEVELOPMENT OF THE STATE Under modern conditions, therefore, even though in form a government may be organized into one, two or three departments, there will regularly be found distinct bodies of governmental officials respectively performing one or several of the fivefold functions. Warfare, the primary activity of the state, may be used as a simple illustration of this classification of governmental functions. The head of the army acting for the state in war, first deliberates on a policy or plan of action. The decision when made is announced in the form of a command. The proper officials at once pro- ceed to carry out the details of the plan under the over- sight and direction of the head. If a subordinate should disobey orders, he is brought to trial, his disobedience and the extent of his offense are shown and a proper penalty imposed. These fivefold functions are involved in every complete exercise of sovereignty, whether mani- fested in primitive or in modern times. One might naturally expect that there would be five distinct departments of government, each authorized to Thede- perform one of the five classes of functions; veiopment y^^^ -^^ practicc such a formal separation would of depart- '^ ^ ments. bc impossiblc. If the departments of govern- ment are traced historically, it will be found that in ancient states all of these functions were exercised by a body of elders or by a king aided by his council. The same body in other words formulated a policy, made it into a decree, carried out its injunctions, supervised the performance of it and settled finally all violations. At later stages of development these various functions separate or differentiate to some extent and are per- THE OROAXIZATIOX OF THE STATE 131 formed by different sets of officials. The deliberative function, for instance, may be exercised by a special body of persons who would personally advise the king or executive as his council. This deliberative power may be supplemented by adding the right to formulate its decisions into law (legislation) on approval of the king. Again, the decision of judicial questions may be left to picked men expert in the law, who sit on the king's seat and make decisions in his name. Or, lastly, the manage- ment of certain parts of the administration may be transferred to responsible and capable men, who would perform their functions with but slight control or inter- ference on the part of the executive. The modern gov- ernment in its formal organization usually consists of three great departments: the executive, the judicial and the legislative. But, as already mentioned, in ancient or old-fashioned states there is usually but one depart- ment, the executive, which performs all of the functions of government. Historically this department arises from the body of elders and chiefs found in early primitive associa- tions, such as the horde. These natural leaders The execu- tive de- guided the affairs of their savage communities, partment. virtually performing the usual functions of modern governments. They knew the customs and an- nounced them authoritatively, they led or chose a leader in war, administered routine business and adjudicated disputes. As the patriarchal stage developed and the horde passed into the tribe, this body of elders came to consist of the heads of families, who represented the wealth and importance of the several domestic groups in 132 THE DEVELOPMENT OF THE STATE matters of general interest. As bonds of closer unity developed, the head of the leading family began to assume greater prominence; and, as the ancestral head of the entire community, he gradually assumed the re- sponsibility of leadership and oversight, aided by a council made up of the heads of prominent families. As the tribal community grew in wealth and importance with the growth of agriculture and commerce or by means of successful war, this head became a king, ruling by the will of the gods and hereditary right. At a later stage he was himself considered a god, descended from gods, and even in life was worshiped as a divine person. Such a system of government would naturally develop into despotism on the part of the king and abject sub- missiveness on the part of the people. Evidently in a state of any wealth and importance, the king even though powerful would have to depend more and more on his council for advice and Limitations on royal f or the performance of governmental functions. power. Little by little, to these important officers were, as a matter of fact, delegated large powers in war, in judicial decisions, in religion and in general administra- tion. In great patriarchal states, therefore, the council became a deliberative body, which in the king's name formulated policy, transacted business and rendered decisions in disputed cases. Under such a system the theory of despotism might survive, but the thing itself would be hedged about with restrictions placed on it by the influential classes in charge of the government. Such a monarchy is aristocratic, the real power being exerted by privileged classes of clergy and nobility. THE ORGANIZATION OF THE STATE 133 If the middle and commercial classes should develop in importance through increased wealth and intelligence, then these also would have a growing share in ment of ad- govcmment. The older patrician classes wouVd ministra- rescrvc for their members the most importaiiC tive and _ _ legislative officcs and the most intimate connection with the king, but would share with the influential members of the newer class minor offices and would consult them in matters that directly affected their interests. In this development we have all the essentials for modern governmental organization: (1) There is a king at the head of the state, whose autocratic powers gradually pass to a council made up from patrician classes. This tendency may go so far that the king's power becomes merely nominal, in which case he may be removed altogether and an elected head or heads take his place as in the oligarchical aristocracies of ancient Greece and Rome. (2) Increase in the business assigned to the council compels a differentiation of work. A specialized form of work, involving much routine and permanent activity, is transferred to the charge of one or several members of the council, and becomes ultimately a department of ad- ministration. In this way are separated one after the other such functions as religion, justice, war, finance and taxation. At the same time the council as a whole, or the most influential members of it, remains as a delibera- tive body having oversight over public interests as a whole. This is the ancestor of the modern cabinet, which in some form or other is found in every govern- ment. As the business and activities of the state in- 134 THE DEVELOPMENT OF THE STATE crease, these several departments of administration grow in number and importance. Each itself differentiates into bureaus or divisions and the whole system becomes a hierarchy of carefully graded offices, a bureaucracy, nominally under the supervision of the head of the state. The principal departments are regularly represented in the council by their most important officers, who thus perform a double function, serving as heads of adminis- tration and as advisers to the king or president. In France there is a sharp distinction between the cabinet of ministers in their advisory capacity, and the same persons as a council of ministers serving in an admin- istrative capacity.^ Practically all continental European states have their administrations separately organized and regulated by a special code of administrative law and a special system of courts. (3) In times of rapid development there are many changes which involve increased taxation and modifica- tions of existing law. The council by experience learns the wisdom of consulting more and more the most in- fluential persons or interests affected by such changes. Such persons, or their representatives, thus have in con- nection with the king and council a voice in the determi- nation of new policies or modifications of old ones.^ As this system develops, it may evolve into a lawmaking body, as in England, the council forming an upper house or chamber; and representatives of the other interests > See Wilson's "State," p. 226, ed., 1898. ^ As modern illustrations, note the use of such bodies in Russia, Turkey and Persia, all developed within the first decade of the twentieth century. THE ORGANIZATION OF THE STATE 135 in the state forming a lower house. If progress in wealth and importance continues, this lower house may develop powers so large as virtually to deprive the upper house of its supremacy, i In this case the government passes into the hands of the middle classes and a con- servative democracy is the result, even though in form the state still remains a monarchy. This outline of governmental development illustrates in a general way the usual changes resulting from a progressive development from savage communal life down to the modern era with its democracy and growing complexity of political phenomena. Naturally there are many variations in detail in different parts of the world, but in a fundamental way the development outlined will hold true for all states in the line of progress. As Russia within the last few years has promulgated through the czar its Fundamental Laws,^ the essential The Funda- points of thesc may be stated as an illustration mental q£ ^ movcmcut from a pure autocracy to a Laws of I J Russia. constitutional monarchy. The czar is declared by law to be the supreme autocrat, his authority is ordered by God Himself, and his person is divine and inviolable. His enormously large executive powers in- cluding the right to determine foreign policy, to declare war or to conclude peace, are exercised in connection with a council of ministers whom he appoints or removes at pleasure, and one of whom must countersign his orders or decrees. The chairman or president of this ' This movement at the present time (1909) is best illustrated by the growing power of lower houses in Germany and in Japan. ^ See, in Bibliography, Dodd, "Modern Constitutions," vol. ii, pp. 182-195. 136 THE DEVELOPMENT OF THE STATE council is directly responsible to him and represents him in the national parliament. He reserves for himself the initiative in legislation in respect to fundamental laws, but shares with a bicameral bod}^ meeting annually other legislative powers, reserving, however, the right of veto. Furthermore, he appoints one half the member- ship of the upper house, the council of the empire, and provides for the election of the other half for a nine-year term by representatives of the great interests of the state, such as the provincial assemblies, the nobility, the church, the universities and bodies representative of industrial interests. The membership of the lower house, the duma, is elected for a five-year period by a four-class system, made up of landed proprietors, municipal voters, peasants and laborers, and so arranged as to give a preponderance of votes to the wealthier classes. In addition to this newer organization are (1) the ruling senate and (2) the holy synod; the first having judicial functions chiefly, and the authority to promulgate laws when properly passed by the parlia- ment and approved by the czar, and the second having jurisdiction over the religious affairs of the empire. In this brief outline we see over against a divinely appointed autocrat, the separation of divisions of gov- ernmental powers exercised respectively by a cabinet, a national church, a judicial organization, a lawmaking body and an electorate, the last two representing the latest additions to the governmental organization. Legal sovereignty is still vested in the czar, who also reserves final authority in administration, lawmaking and judicial decisions. THE ORGANIZATION OF THE STATE 137 The Separation or Differentiation of Powers The development of these several divisions of govern- mental powers has furnished to students of political philosophy two important theories, that of the separa- tion of powers and the check and balance theory. A brief account of these important principles may prove useful. When all power was centered in the hands of one de- partment there was no need to discuss theories in re- Deveiop- spcct to the Separation of powers, but when a ment of the differentiation really had taken place, then some ofsepara- explanation was necessary. Aristotle gave us ***"*• the first formal statement of it when he di- vided governmental functions into the deliberative, ad- ministrative and judicial, lawmaking in the modern sense being almost unknown in his day.^ His theory was of no practical use under the autocratic Macedonian and Roman empires but was revived during the Renais- sance and played some part in the political discussions of that period. In the eighteenth century Montesquieu in his study of the English constitution came to admire that system, and set forth in his ''Spirit of Laws" ^ the advantages of a separation of the executive, legislative and judicial powers. He argued that in order to secure justice, each set of powers should be placed in the con- trol of a different set of officials, in order that the same officials should not have the power to make and enforce 1 "Politics," Book IV, Chapter XIV. Bohn's Classical Library- Edition. 2 Book XI, Chapter VI. 138 THE DEVELOPMENT OF THE STATE the law, and to punish infractions of it. Rousseau in his "Social Contract" added the important principle that power over the fundamental law should always rest with the people, in order that the government as a whole might not become tyrannical. The theory of separa- tion has become a democratic principle, though its ap- plication varies considerably in different states. It is carried out most logically in the American national system, in which the three departments of govern- ment are by law coordinate in importance, and each is as independent of the others as is feasible with the unity of government. In other states there is often a formal but not a real separation, in that some one department tends to dominate the others. ^ The commonwealths of the United States of America in their constitutions formally separate the three de- partments, but by an illogical assignment of powers often fail to separate them in fact.^ In New York, for example, the executive has a great deal of control over legislation, while in Rhode Island the assembly controls almost all of the executive functions, and in addition elects the judiciary. The usual powers held by the three departments, re- spectively, are as follows: I. The executive department has (1) the power to ' Note, for example, the dominance of the lawmaking body in Great Britain and France. 2 See, as an example of formal separation, the Massachusetts constitution, Part I, Article XXX. "In the government of this commonwealth the legislative depart- ment shall never exercise the executive and judicial powers, or either of them ; the executive shall never exercise the legislative and THE ORGANIZATION OF THE STATE 139 represent the dignity and personality of the state; (2) war powers, inchiding management of the army and navy, and the power of declaring war and making peace ; (3) general oversight of the entire organization of The usual ^^^ government, involving the right to take powers of the initiative in action in case of sudden emerg- depart- cncy; (4) headship over the administration; ments. ^^^ ^j^^ powcr of appointment to all important offices under the state. II. The lawmaking department has (1) the power to decide what is and what should be the law of the land; (2) the power to determine the amount and kind of taxes to be levied and to control the levying and expenditure of these. Legislative bodies generally share with the executive the power to determine the policy of the state, both domestic and international, and of general over- sight over public welfare. III. The judicial department has (1) the power to interpret the law so as to apply its remedies and pen- alties in all cases submitted to the courts for decision; (2) in the United States of America the courts have the power to decide finally the meaning and authority of the law in all judicial cases that arise, even though such decisions practically involve the nullifying of laws or rules made by the legislative and executive de- partments. Manifestly it would be absurd to separate the three usual divisions of government so far as to make each judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them ; to the end it may be a government of laws and not of men." 140 THE DEVELOPMENT OF THE STATE entirely independent of the others. In order to avoid such a chaos of authority and to unify governmental powers, a system of checks and balances has developed in all modern governments, though worked out most carefully in the United States of America. Checks and rpj^^ theory of checks and balances goes back balances.' '' ° to ancient times, since it was fully discussed by Aristotle, Polybius and Cicero some two thousand years ago. The fundamental idea is that in a state there are always diverse interests finding expression in the govern- ment, and that no one of these should become so power- ful as to have the others completely at its mercy. This thought is applied later in connection with the theory of the separation of powers so as to develop a system whereby each separate division of government might be controlled by, and in return control, the other divisions. In this way each division checks the others if they become tyrannical, and is itself checked by similar powers held by the other divisions. Thus a bill of rights inserted in the fundamental law is a check on possible governmental tyranny against subjects; the power of removal for cause, and of pardon, in the hands of the executive, is a check on vicious judicial decisions. In the same way the veto power checks a legislature, and its power of impeachment may check abuses of power on the part of the execu- tive and the judiciary. In a federal system the consti- tution generally arranges an elaborate series of checks, so as to safeguard the commonwealths against the ^ See Montesquieu, "Spirit of Laws," Book XI, Chapter IV; Blackstone's 'Commentaries," Book I, Chapter II. THE ORGANIZATION OF THE STATE 141 federal government, and the government against the commonwealths. The theory of the separation of powers has, however, a larger application in modern times than is generally supposed. Government has become much more com- plex since the eighteenth century announced its inter- pretation of the theory, and complexity always involves added differentiation. Attention has already been called to the fact that administration is rapidly differentiating from the Thesepa- exccutive fuuction. Modern governmental ad- ration of ministrative svstems with their administrative adminis- tration, law, administrative courts and fixed tenure of office are virtually units in themselves and connected in a shadowy sort of wny only with the executive. It is a mere matter of time, therefore, before such states as France, for example, will speak of four de- partments of government, and name as a fourth the administration. Again, up to the nineteenth century, very few laws were made by la^vTuaking bodies and the few which were made were fundamental in importance, solwefgn -^or the last hundred years, however, law- making bodies, especially in the United States, have assiduously devoted themselves to the annual multiplication of laws mostly in respect to matters of small importance. Unwise and petty legislation is so characteristic of modern legislators that they seldom enjoy public confidence. In consequence, a special law- making body has developed, the Constitutional Con- vention, authorized in conjunction with the electorate 142 THE DEVELOPMENT OF THE STATE to make the fundamental law of the written constitution, Tliis has become a most efficient check on legislative incompetency, as the personnel of conventions is regu- larly high and the law they formulate serves as a check and regulation on statutory legislation. In the United States, therefore, lawmaking has differentiated into two parts : the fundamental law of the written constitution, and statutes or ordinances made by ordinary legislatures and local coimcils. For this reason it would be entirely proper to speak of another department of government, the legal sovereign, and to define the term as " that person or body of persons having the legal right to make, revise or amend the constitution of the state." ^ But this is not all; in the United States of America alone of all states, the supreme courts have final decision The su- ^s to the meaning of national or local constitu- preme tious, SO that all laws conflicting with the court as . ^ , . . final in- declared meanmg of the constitution are thereon- ''^ virtually pronounced by the courts to be null stitution. and void. As court dockets grow in length, there is a developing tendency to delegate to inferior courts of appeal for final settlement all cases that do not involve an authoritative interpretation of the constitu- tion. The time may not be far distant, therefore, when in the United States that will be practically the sole function of its supreme courts, and this change would make them in essence a department of gov- ernment separate and distinct from the ordinary judicial system. There is, however, a most important separation of 1 See Chapter X. THE ORGANIZATION OF THE STATE 143 power in development that regularly escapes the notice of political theorists. One of the most puzzling prob- lems in all political science is to ascertain what writers mean who speak of "ultimate sovereignty," "the loca- tion of sovereignty" or " popular sovereignty." As a rule, such writers become confused by trying to harmo- nize an ethical principle borrowed from natural electorate ^iglits and the social contract theory, to the effect that a people should control sovereign powers, with legal conditions entirely at variance with the principle. Outside of Switzerland it would be hard to show any state of which it can legally be said that the people possess full sovereign powers. In place, therefore, of ethical discussion as to whether the people should or should not rule, attention might better be fixed on a neglected department of government, viz., the electorate. The powers of the electorate are as truly governmental as are the powers of the usual three departments. Through the suffrage, it exercises the executive power of appointment, through the use of the initiative and the referendum it may exercise large and important lawmaking powers, and b}^ its right of jury- service it aids the judiciary in the settlement of civil and criminal cases. If the electorate should include all adult citizens, male and female, and by election appoint all important executive and administrative heads, all lawmakers, and all judges, and should have over these the right of in- struction, and of recall; and if it had, as in Oregon, Oklahoma and Switzerland the right of initiative and referendum even in respect to the constitution, then one 144 THE DEVELOPMENT OF THE STATE might properly say that the electorate voicing the will of the people, had in its hands the sovereign powers of the state. As a matter of fact, electorates, as a rule, have comparatively few powers and are made up of male citizens only, and seldom of all of these. In no legal sense, therefore, can it be asserted that the people are legally sovereign, unless by exception to the rule.^ If, however, it seems desirable to favor such a form of gov- ernment, attention must be fixed on the electorate, its membership enlarged by the extension of suffrage and its powers added to by increasing its control over law and administration. If, however, aristocracy is favored rather than democracy, its membership should be re- duced and its governmental powers minimized. If one were to define the term government more exact}}^ in harmony with this explanation of govern- A broader mental Organization and differentiation, it definition might be said to be the sum total of those of govern- ° ment. organizations that exercise or may exercise the sovereign powers of the state. Since all the sovereign powers of the state may be exercised through the following departments, singly or collectively, the government may be thus tabulated : 1 The executive, from which is differentiating the 2 Administrative. 3 The lawmaking department, from which should be distinguished the 4 Legal sovereign. ' In political ethics, of course, it may be argued that the people have a "right of revolution," but legally there is no such right, and revolutionists are technically rebels. THE ORGANIZATION OF THE STATE 145 5 The judicial system, from which is separating (in the United States) 6 A special court for the authoritative interpretation of the written constitution. 7 The electorate, which is steadily increasing its pow- ers at the expense of the three historic departments of government. Doubtless for many years to. come text-books and theorists will continue to discuss the threefold division of governmental organization, but in this age of govern- mental differentiation it is well-nigh impossible to get a clear understanding of government unless one considers the electorate as a fourth department. Furthermore, much more exactness in theorizing would be attained by separating, mentally at least, the legal sovereign from the other departments of government. The differentia- tion of administration from the executive is almost an accomplished fact on the continent of Europe. The re- maining specialization is peculiar to the United States of America and deserves special attention because of its political importance, for if the supreme court of the federal department ultimately devotes itself only to final interpretations of the constitution, the party affilia- tions of its bench will become a matter of increasing concern. SPECIAL REFERENCES General Studies of Development of State : Bluntschli and WOOLSEY. Comparisons of States: Bryce, Burgess (vol. ii), Dodd, Low, Lowell, W. Wilson; The "Statesman's Year Book." 146 THE DEVELOPMENT OF THE STATE Separation of Powers: Bondy; discussion in " Federalist " (Nos. 47-51 inclusive). The Federation: Hart, American Historical Association, 1896, pp. 391-454; E. C. Burnett, "The Government of Federal Territories in Europe." The general works referred to at end of Chapter III may also be consulted. CHAPTER VII THE EXECUTIVE DEPARTMENT AND ITS POWERS If we examine more closely the functions of the so- called executive department, we shall see that broadly speaking there are two distinct sets of functions: (1) The head of the executive department represents the unity and personality of the state in the conduct of ^ governmental functions, both domestic and in- Powers of " ' theexecu- tcmational. As the titular head of the state he acts as mouthpiece for the state in its inter- course with its subjects and with the representatives of foreign states. In performing the latter duty he con- ducts diplomatic negotiations, is in command of the army and navy, declares war, makes peace, negotiates treaties, receives and sends diplomatic embassies and appoints all officials who assist in these duties. As representative of the state in its intercourse with its subjects he from time to time makes announcements of policy, ijispects the workings of the governmental sys- tem and makes or recommends improvements. (2) The performance of governmental functions in- volves a vast mass of administrative machinery, com- plicated in its mechanism, and expensive and cumber- some in its workings. The head of the executive is also the head of the administration; as such, he appoints its officers, organizes its departments, assigns to each its 147 148 THE DEVELOPMENT OF THE STATE respective functions and oversees the working of the entire administration, enforcing, if necessary, his orders and the law of the land by means of the war and police powers placed in his hands. In this way he maintains peace at home and abroad, makes war, suppresses insur- rections if necessary, and supervises the entire workings of government so as to insure the prosperity and de- velopment of the state. Powers so enormous are too onerous and arduous for one man, and hence there have developed numerous de- vices intended either to lighten his burdens or to check his power. These will be explained in connection with discussions in regard to the development and powers of cabinets and of the judicial and lawmaking departments. Headship of the State All states develop in accord with the same laws, but there are variations in development owing to differing conditions. Yet the process is so similar that a type of governmental development can be set forth which is pnactically identical every where. The starting point is the body of older and wiser men found at the head of the group in all early systems of organization. This body may consist of men eligible because of age and con- sequent wider experience and knowledge; or of heads of smaller groups such as families or war bands; or of men who by natural talent have shown themselves worthy of a place in the council. Among these the oldest or the wisest or the head of the leading group or the most capable leader in battle would naturally gravitate to the headship, whether attained by right of birth, by EXECUTIVE depart:\ient and its powers 149 free choice or by force. In this council, with its head, we have the beginnings of modern poUtical or- ganization, the development of which will now be in- dicated. The head, as already suggested, might attain his su- premacy through force. History is filled with records of great leaders who by their ability in war Rise of have founded states and dynasties. Under monarchy. -^ these circumstances it is a natural tendency for such a leader to seek to hand on his power to the mem- bers of his own family, an ambition readily suggested by the hereditary rights of the fathers in a patriarchal sys- tem. Even if the head of a state were chosen by the free votes of the council, the natural fondness for power inherent in the human heart would tend to develop in- trigues for the perpetuation of power in the family. In this way there developed in all kinds of political groups hereditary rule, based on the analogy of the patriarchal system and appropriating from it its notion of divine right and authority. From the council were selected intimate advisers, personal attendants and assistants in the administration of business. As the wealth and power of the state increased, and leadership became kingship, these classes of officials developed definite functions as a court retinue, as an advisory cabinet and as heads of administrative departments. Among these offices came, gradations in importance as system and differentiation became necessary. This gave to the cabinet a chief or prime minister. All these offices at the beginning were under the control of the king, who might appoint or remove at pleasure. But the desire 150 THE DEVELOPMENT OF THE STATE for hereditary power influenced office-holders also. Many of the most important offices became hereditary, result- ing in the rise of a class of nobility, holding wealth and office by inherited right, and steadfastly supporting royal power as essential to their own. The rise of the church in importance developed a similar class among the superior priesthood, who also faithfully supported the king in return for his promotion of ecclesiastical in- terests. This furnishes us the type for an autocratic monarchy, whose head, ruling by hereditary and divine right, was deemed a mouthpiece and vicegerent of the gods, and who might himself become a god at his death. Changes of dynasty might take place, kingship founded on divine right might become a theocracy, the ranks of the nobility and of the priesthood might be recruited from capable men of lower ranks, but whatever the dif- ferences in detail, such autocratic monarchies developed in many parts of the world, ruling millions of people and inculcating into men's minds principles of law, order, submissiveness and respect for authority. Japan, Siam and Persia in the East, and Russia ^ in the West illus- trate the existing states of this sort. Kingship has played so important a part in the politi- cal history of the human race that the present tendencies in regard to that office are well worth noting, ^ower ^^ early political systems the king was merely 'primus inter pares and exerted an influence pro- portionate to the strength of his personality and his ability in action. In despotic-autocratic systems he was ' See Yale Review, vol. xiv, p. 117, "The Secret of Autocracy; the Absolutism of the Czar," A. P. Dennis. EXECUTIVE DEPARTMENT AND ITS POWERS 151 by theory supreme, irrespective of his capacity or per- sonahty. In practice, however, there were hmitations that often made the king a mere puppet. Etiquette and ceremony, rehgious requirements, customs and prece- dents of long standing, all fettered his individuahty and repressed his initiative. Again, the necessity of delegating to others the business of the state, and of depending on them or secret service for knowledge of conditions ham- pered him. The red tape of a bureaucratic system was omnipresent and secret influences were always at work to thwart or to dethrone him. Enervating luxury and sensual temptations were at his command, and it is not at all strange that autocracy tends to be a dreary record of tyranny, misrule, extortion and oppression. Again, the system conspired to make him ruler in name only, and to transfer the real power to others eager ,. . . for their own advancement. As a matter of Limited by constitu- fact, the power actually exerted by an auto- cratic king is not to be compared with the power exerted by the executive of a modern state. The one exerts power in a spasmodic, spectacular way, but the other, knowing just what he can and cannot constitution- ally do, exerts a powerful continuous influence within his sphere that far outweighs the irregular activities of a monarch theoretically autocratic but practically re- stricted on every hand in matters of importance. The movement, therefore, already outlined, whereby the larger part of the autocratic powers of modern rulers has been transferred to the other departments of government, does not imply that the executive head has really lost power. It means that his authority has been restricted to activ- 152 THE DEVELOPMENT OF THE STATE ity along certain definite lines, but within those bounds he may happen to exercise a totality of powers far in ex- cess of the amount of power exerted by his autocratic predecessors. This is even more true because of the re- markable extension of governmental activity within the last one hundred years. The executive power of the President of the United States of America i"s an excellent illustration of this principle. He exerts a far wider and more powerful influence than the Czar of Russia, and probably wields more authority than any other execu- tive on earth. Even the King of England, shorn ap- parently of all his authority, probably exerts a deeper influence over the affairs of the empire than does the czar, who, though by theory autocratic, is yet checked on every side by a powerful bureaucracy and is re- pressed by constant fear of assassination. The existing governments of the world well illustrate the various stages of royal authority and headship. Types of Tribal rule is common among the native races govern- q£ South America, Africa and northern Asia. mental ... headship. Patriarchal authority is well illustrated in the petty principalities of India; divinity in kingship is seen in Japan and Siarri, and to some extent in such states as Russia and Turkey. The empire of Austria-Hungary furnishes a good illustration of autocratic kingship tend- ing toward constitutionalism, Germany illustrates a stage further in this development, and Great Britain has developed constitutional kingship to its fullest extent. When kingship has been superseded by an elective head- ship, similar variations in power are possible. The President of Mexico is practically an autocrat ruling EXECUTIVE DEPARTMENT AND ITS POWERS 153 under the forms of a republic,^ the President of the United States of America, as ah'eady indicated, is per- haps the most powerful of modern rulers, yet his powers are delegated and named in the constitution, and he could easily be removed if he tried to become despotic. The President of France, like the English king, is a nominal ruler of few powers, though in form and by in- tention the office was made powerful; the President of Switzerland is merely the chairman of an executive com- mittee which administers executive functions under the direction of the federal assembly. It is evident that under present conditions the type toward which all modern states seem to be tending is a headship vested in an hereditary monarch or in an elected president, whose powers in either case will be carefully defined by con- stitution, and hedged about with numerous restrictions aiming to secure responsibility and efficient service in behalf of the citizen body. The Cabinet Changes in the executive department of government are clearly illustrated by the three great systems of cabinets existing in modern times. As the cradctype. business of the state increases in amount and complexity, numerous departments are formed, each devoting itself to some special line of administra- tive activity. Some of these departments will naturally be more important than others, and the heads of these must frequently consult with the head of the state in ' Note Yale Review, vol. xii, p. 231, R. L. Rowe, "Administrative Centralization in Mexico." 154 THE DEVELOPMENT OF THE STATE making important decisions. These influential heads form the nucleus about which the king will center his advisory council, formed by adding such persons as seem worthy on account of their wisdom and standing in the community. In such a system as this we have a council, able to give the king both general and special advice, whose members are appointed by him and are responsi- ble only to him. Such a council may divide into sections, in which case the cabinet will be the inner circle that regularly advises the king in the most important affairs of the kingdom. The Russian system of the nineteenth century well illustrates this first type of cabinet govern- ment. In Great Britain the dominant party in the house of commons names its party leader to the king, who must rj.^^ according to precedent appoint him as prime English minister.! The prime minister then recom- *^^** mends to the khig suitable men to head the various departments and selects from these the most im- portant to form a cabinet. This cabinet, led by the prime minister, formulates national, executive and legis- lative polic)'- and has in charge the general management of the empire. As long as the cabinet can control a majority in the house of commons it remains in power. If defeated on some fundamental question of policy it resigns, a new election takes place and the successful party as before assumes the reins of power. The third type of cabinet is that of the United States of America. A president, newly elected, receives the resignations of all administrative heads of departments. ' Technically, of course, there is no such office. EXECUTIVE DEPARTMENT AND ITS POWERS 155 He then with the approval of the senate fills the vacan- cies from the ranks of his own party, paying special atten- tion to those departments whose heads will The . . . ■, . American fomi liis cabmet. The president is himself re- ^^^^' sponsible for executive policy and administra- tion; this cabinet therefore meets at his call, discusses such busmess as he may submit to it, the president then forming his owii decisions irrespective of the expressed opinion of the cabinet. The influence of these heads of departments in formulating national policy is negative and is merged m the responsibility of the president. The chief functions of the cabinet officers are m the adminis- tration of their great departments, but even in these they are subordinate to the president who may overrule their policies if he so desires. The Russian and the American systems are alike in that the head of the state appoints his cabinet at will and uses these officers as his advisers and assistants. The English and American systems are alike in that executive power is based on popular election and depends for its .continuance on the votes of the electorate. In all three systems cabinet officers are heads of departments and hence exercise the double function of leaders in national policy and in administra-;-' tion. In France the cabinet has a double organization corresponding to this double function. Cabinets differ, however, in respect to their power in determining na- tional policy and in respect to the person or body to which they are responsible. The English cabinet is collect- ively responsible. In secret session the members decide on a common policy, sink their individual opinions and stand or fall imitedly. In Russia and the United States 156 THE DEVELOPMENT OF THE STATE of America, cabinet officers are responsible individually and the resignation of one does not affect the resignation of others. The English system with differences in detail is the one prevalent on the continent of Europe and in the great English colonies. Modifications of both the English and American systems are found among the Latin states of America. Divisions of Administration As states vary largely in the amount and kind of busi- ness to be administered, there is no close uniformity in administrative organization. The council of Separation " of church the primitive state, headed by its chief or chiefs, performed as a unit all kinds of gov- ernmental business. As the state developed wealth and power, a movement toward specialization and differentiation was inevitable. The most important development of this sort was the slow separation from executive authority of an organization devoted to the observance and maintenance of worship and religious rites. So far has this separation gone, that in a few states religious observances are no longer considered as a part of governmental business. In nearly all existing states, however, the support and encouragement of religion is classed as a state function; but the connection between church and state varies from a close unity as in Turkey or Russia, to an almost nominal connection as in Italy. The United States of America and the United States of Mexico best illustrate a real separation between these two great institutions. Tlie development next in importance was the differ- EXECUTIVE DEPARTMENT AND ITS POWERS 157 entiation that developed between the judicial business of the state and its other administrative powers. As the state assumed jurisdiction over violations of the Separation P^acc of the state and over disputes in re- ofthe gard to the ownership of private property, the depart- work dcvolviug on officials became so onerous, ™^'^** and at the same time was so important in that it affected the lives and property of the entire community, that it was gradually intrusted to special officials. These became expert in the law of the land and trained in the application of the law to the numerous cases of every sort likely to arise among contentious persons in a complex civilization. There developed, therefore, numerous courts exercising widely varying jurisdiction, but at first not coordinated nor especially efficient. The importance of their work was so thor- oughly realized that progressive states early developed efficiency in this branch of administration and move- ments toward democracy have regularly fought for system and justice in judicial administration. Although in practically all states the judicial system is organized apart from the ordinary administrative system, the executive has regularly striven vigorously to control the courts so as to enhance his power. The movement, however, in all democratic countries is toward a separa- tion between the two; the judiciary is freed as much as possible from executive control, and placed more and more under the control of the lawmaking body and the electorate, under the theory that thereby the rights of the people are more fully safeguarded. This formal separation has taken place most fully in English-Ameri- 158 THE DEVELOPMENT OF THE STATE can states, but close approximations to such systems may be found in other modern states. The third great development in differentiation was the gradual separation of a lawmaking body from the Separation couucil with its deliberative powers. This ma^ki^I'de- development will be traced more fully in a partment. Jater chapter/ but the importance of the change may be indicated from two standpoints: (1) Such lawmaking bodies in their present form aim to voice the will of the people as a whole^ and hence represent a democratic tendency. (2) Such bodies have introduced slowly a process of lawmaking hitherto unknown, and the result of the innovation has wonder- fully increased the possibility of progress. All ancient law was custom, and customs change slowly. Modern legislation assumes the right to abolish some customs, to alter others and to make new ones, in every case com- pelling the people to conform to the new law. This device furnishes at least the possibility of progress, even though in actual legislation many laws are so vicious, absurd and conflicting that at times much of legislation becomes a weariness to the soul. The development of an electorate is in effect a differ- entiation of the same sort as the foregoing. The move- ment toward democracy, in seeking ways and Separation . . . of an eiec- mcaus whcrcby it might check tendencies toward executive tyranny, hit on the happy expedient of bestowing on certain classes of citizens the power to make by election appointments to important offices. In this way the electorate appoints, more or less » Chapter IX. * Chapter X. EXECUTIVE DEPARTMENT AND ITS POWERS 159 completely, according to the strength of democracy in various states, officials to make laws, to have charge of executive functions and to serve on the judiciary as judges or as jury men. In more recent times there has developed a dread of legislative tyranny, and in con- sequence the electorate is demanding for itself direct rights in lawmaking. This is shown in the growing use of the initiative and referendum ^ and in popular con- trol over the making of the fundamental law. The ancient powers of the executive, therefore, once so enormous, have been steadily reduced in scope by transfers of power to the church, the judiciary, ministrative the lawmaking body and the electorate. The system. pesidue of powers is still centered in the execu- tive department, but in place of one great council ad- ministering all such powers, there have been formed numerous subordinate departments, unified in the cabinet and under the authority of the head of the state, but differentiated in function. These administrative de- partments bear different names in different states and are not always separated on quite the same lines. Broadly speaking, however, there will be departments to regulate international relationships, such as war and diplomacy ; to administer colonial possessions, if any, and state monopolies such as the postal service, railways, telegraphs and mines, and to regulate important divi- sions of economic life, such as commerce, agriculture and manufacturing. There will be departments also for the regulation and support of religion, education and ad- ministrative judicial business, for the management of 'See pages 220-228. 160 THE DEVELOPMENT OF THE STATE public finance and for the supervision or control of local administration. Each department in charge of any particular function may itself be specialized and include several subdivi- coardina- sions, such as the American bureaus and di- tionofad- yisious. The scvcral departments of admin- ministra- . . • i i tive istration may be so loosely supervised that divisions, gach is practically independent of the others and almost without supervision. On the other hand, they may be closely coordinated and strongly central- ized under the executive, as in the English cabinet system. The commonwealths of the United States of America furnish the best illustrations of a loosely coor- dinated, poorly supervised administrative system in state and city organization. Many departments, com- missions and boards have been organized with delegated powers, and these conduct their affairs almost without supervision and often with but slight thought of co5per- ation. There is, however, a strong tendency to cen- tralize these departments and to place them directly under executive control. ^ The management of administrative departments may be in the hands of a board or commission or in single heads. These may hold office for life, for a The civil ^^ ^j, g]^Qj.^ term or for an indefinite term service. => during good behavior. They may be appointed or elected, either by the electorate directly or indirectly through elected representatives of the people. They may have the power to appoint their subordinates at will, or these may be appointed in accord with definite * See "Our State Constitutions," Chapter V, by the author. EXECUTIVE DEPARTMENT AND ITS POWERS 161 rules and regulations, which may include a system of competitive t(»sts and assignment of office on the basis of capacity and merit. These departments, with their numerous officials and clerical forces, unitedly make up what is called the civil service. Narrowness and in- efficiency in its management and life tenure in office develop a bureaucracy, characterized by an overem- phasis of routine and details, to the neglect of larger interests. Political favoritism in appointments has also proved a fertile source of inefficiency and corruption. The problem of an honest, economic and efficient ad- ministration of government is the hardest problem now before political theorists and statesmen. There are, broadly speaking, two classes of office- holders : (1) Those who have discretionary powers in the per- formance of their executive, administrative, legislative and judicial functions, such as the heads of h^d^s ^^^ various important divisions and subdivi- sions of government and members of law- making bodies. (2) Those who have ministerial powers only, perform- ing their duties under definite instruction, such as a clerical or police force, and the minor officers of the army and na\'y. Besides these there are many persons hired by the government as menials or laborers, but these, not being engaged in governmental business, are not properly classed as officials. Or, again, office-holders may be classified into those who serve in the army and navy and are subject to special military and naval rules and regulations, and 162 THE DEVELOPMENT OF THE STATE those engaged in the civil service, that is, all govern- mental positions other than those in the army and navy. In continental Europe these are subject to a special system of administrative law. Office-holders may possess their offices by hereditary right or by appointment or election. An hereditary right to an office is based on the theory that om^^ °* every person who has large economic interests at stake should have in his hand sufficient political power to enable him to safeguard his interests. This principle had its rise in the patriarchal period, when land was the chief form of wealth and its chief defense lay in the military strength of its owner. Hence the rise of a class of landed nobility claiming office by hereditary right. As other forms of wealth developed, its possessors sought political power either through the purchase of landed estates or by allying themselves with political leaders who could protect them in their possessions. In modern times, law, backed by the power and authority of the state, seeks to secure to every man equal and ex- act justice. Under such a system it is unnecessary that the wealthy have special privileges in office-holding, and hereditary right, therefore, tends to fall into disuse. But if the theoiy of the law is not properly enforced, wealthy classes invariably seek, even by corrupt means if neces- sary, to control governmental machinery so as to secure their interests. If equal and just law is administered, it makes small difference whether the office-holder be rich or poor, or hold office for life or for a term of years. He is but a mouthpiece of the national will, which aims to secure impartial justice to all its citizens alike. EXECUTIVE DEPARTMENT AND ITS POWERS 163 Officials elected or appointed ^ are alike in that each represents, not his own interests, but the interests of the body that elects or appoints him. Yet under of'recfii* ^^^^ usual theory of representation, an elected representative is not legally bound to obey in- structions given him by his constituency. He may choose to obey them as a matter of expediency, influenced by the hope of reelection, but should he act otherwise, he cannot legally be called to account for his refusal to fol- low instructions. Thus, in the United States, a member of an electoral college may be instructed to vote for a certain candidate for the presidency, and he is under a moral obligation to do so, yet if, for some reason, satis- factory to himself, he should vote for another candidate, his vote would be legal and by no possibility could be altered. In the earlier half of our national history the contrary theory was often argued, and the legal right of con- stituencies to instruct their delegates was occasionally admitted, especially in the southern states. This as- pect survives in the notion that delegates to political conventions if instructed must obey instructions. In recent years there is a revival of the "right of recall," ^ ' The distinction between these two words is, that an official ap- pointed, is appointed always by some other official or body of officials. An official elected is always chosen by the electorate or by some elected body, representative of the electorate. A mayor or a president, for instance, appoints, but a city council or a legis- lature elects. ^ It is being revived, for example, in connection with the Com- mission system of municipal government and in some of those states using the initiative and referendum. See Bulletin No. 12, Wiscon- sin Legislative Reference Department. 164 THE DEVELOPMENT OF THE STATE SO prominent in our revolutionary history, whereby a constituency by a specified vote may cut short the term of office of some officer or delegate whose actions are not meeting with popular approval. Administrative Districts When, in historical development, the simple village community grows through confederation into a larger unity, the larger organization does not deprive gra^des"^ the Smaller ones of their administrative powers; it merely assumes the general functions incident to the larger interests involved. This, of course, may involve some supervision over the smaller organizations. If, at a later stage, through conquest or peaceable con- federation, a still larger unity should develop, the same statement would hold true. There would thus be a national unity exercising general national powers, smaller unities exercising general local powers, and still smaller unities exercising purely local powers. All states that have developed some importance will have these three classes of administrative bodies : the national, the local and the intermediate. The names most com- monly applied to the lowest division are the town or township and the commune. Within this there may be smaller administrative districts for purposes of con- venience merely. The intermediate organization is historically known as the province, in England and the United States of America as the county or shire, and in France at the present time as the department. This division also is frequently subdivided into smaller dis- tricts for convenience hi administration, in which case EXECUTIVE DEPARTMENT AND ITS POWERS 165 each subdivision will contain several townships or com- munes. ^ If these divisions become economically im- portant through commerce, manufactures and popula- tion, they are incorporated as municipalities or cities and form a grade by themselves. To\^'nships remain as subdivisions or wards of the city. Subdivisions of any sort are made for purposes of administration in such matters as conscription, education, charity, sanitation, policing and elections. If a state is made up by the unification of several states, these former states become important administrative areas mtermediate between the province and the na- tional area. The commonwealths of federative govern- ments are such, as, for instance, the commonwealths of the United States of America, the cantons of Switzer- land and the states of the German empire. Such, also, were the counties in Saxon England, the "hundreds" then representing the intermediate grade. In any de- veloped state, therefore, one may expect to find subor- dinate to the national area, townships or communes, provinces or counties, and cities. If the state is federa- tive, the commonwealths form an additional grade. Subdivisions of these several grades will be found in larger or smaller number according to convenience in administration. Naturally and historically these various subdivisions should exercise full local powers, subject only in general matters to the larger area. This is the modern theory of home rule now under discussion in American cities and * See, for instance, the French Arrondissement and Canton, or the Prussian Kreis. 166 THE DEVELOPMENT OF THE STATE in Ireland, Finland and Poland. As, however, states have developed policies of centralization, they have in- Home terpreted their general powers more broadly, "■"^t^' and have pressed their authority more and centraliza- ^ ... tion. more vigorously on subordinate administrative areas. This has usually been under plea of military necessity or of needed uniformity or of general welfare. As the strength of this tendency varies with conditions, the degree of cenirgjizat ion varie g^ iT^ p«^l^ articula r state accordi ng to the^ dojuin ant theories of militaris m, uniformity and general welfare. On the whole, three grades of centralization may be noted: (1) That in which the subordinate areas or bodies politic are clearly regulated and supervised directly h^ the national administration through its"own officials, as in France. (2) That in which the subordinate areas are regulated and supervised indirectly by the national administra- tion, as in England, where in many matters a uniform system is adopted, but the administration of it is left to the local administrative bodies. (3) That in which the subordinate areas practically regulate all their local affairs without much interference from the national administration, as in the relation of Great Britain to its autonomous colonies, and in the United States of America. No state conforms entirely to any one of these types; the most centralized government may allow large local powers in some matters and the most decentralized may employ large general powers in such affairs as war, diplomacy and taxation. The test is made by the theo- EXECUTIVE DEPARTMENT AND ITS POWERS 167 retical principle on which government acts, irrespective of whether at any particular time it seems expedient to use many or few powers of regulation. Just how much home rule should be left vested in the sub- ordinate divisions is a question of policy, largely to be determined by conditions. There must be taken into account on one side the general intelligence and public spirit of the communities themselves, and on the other the necessity for emphasis on broad general interests as against localism and incompetency. No theory is, in itself, always and everywhere true. Wisdom in rightly interpreting the conditions of the times must guide in settling on a policy of home rule or centralization. SPECIAL REFERENCES Executive Development : Anson. For England : Lowell. For the United States of America: Ford; Finley and Sanderson, "American Executive," 1900. Cabinets: For continental: Lowell. For English: Blauvelt and Torrens; "Select List of Books on the Cabinets of England and America," published by Library of Congress, 1903. Administration: Goodnow, Fairlie, Lowell, W. Wilson, CHAPTER VIII THE JUDICIAL DEPARTMENT The chief function of the judicial department is to interpret the law and to apply its penalties and remedies in all cases brought before the courts for their The judicial decision. This power is fundamental to the successful workings of government, which by nature is coercive and must have authority to enforce by penalty its decisions. Such a power is essentially executive and was originally wielded by the elders or in earlier states, by the king. In modern states judicial authority has differentiated into two great branches, one exercised chiefly by the executive department and the other by a separate department devoted to judicial functions only. This latter department is concerned chiefly with alleged infractions of the law by private persons and with disputes between private persons in regard to property rights. That part of the judicial function residing in the executive department is con- cerned mainly with the enforcement of discipline in the army and navy, in the civil service and in the settle- ment of disputes arising under administrative rules. As law in the primitive state was simply immemorial custom, binding on all persons alike, infractions of it were few and far between. The chief business of the state in those times was war, and the judicial funct^ion 168 THE JUDICIAL DEPARTMENT 160 of the state probably had its origin in proceedings against those who failed in the customary duties and obligations of war. The procedure in such cases was short Executive- * judicial and the punishment severe. This original ju- dicial power of the state survives in treason laws and in the power exercised by the executive department through its control over discipline in the army and navy. This power is not exercised arbi- trarily in modern states, but in accordance with con- stitutional or statutory provisions. Under this power courts martial may be authorized to enforce discipline by bringing offenders " to a more exemplary and speedy punishment than the usual forms of law will allow." ^ Another illustration of this judicial power may be observed in times of riot, insurrection or public danger, when the authority of courts martial may supersede the authority of the ordinary courts of the land in respect to cases involving the peace and safety of the state. The exercise of this power is carefully safe- guarded in modern states by legal provisions in regard to the time and manner of its exercise, and by holding responsible for the proper performance of their duties those who wield this extraordinary power. A third form of this kind of judicial function is seen in the arbitrary power exercised by courts in maintaining their dignity by punishing violations of judicial orders. This power to punish arbitrarily by fine or imprison- ment for " contempt of court" is a real power even at the present day as seen recently in the United States of America in the injunction cases affecting Debs (1895) and « First mutiny act, England, 1689. 170 THE DEVELOPMENT OF THE STATE Mitchell and Gompers (1908).^ Historically, of course, the court is merely a department of administration under the king and punishes for contempt of his com- mands. Lawmaking bodies in a similar way exercise such judicial powers in matters affecting their dignity, privileges or membership. In general it will be observed that monarchies contain many interesting survivals of broad judicial powers that still reside in king and council. Illustrations could be multiplied, but the judicial power exercised by privy council under the English Tudors and by the present house of lords, the descendant of the Saxon witan or the Norman great council, will readily suggest the application. An extension of this idea of executive judicial power, developed and maintained by the executive so as to strengthen its importance as against a judicial trative system proper, may be found in those states courts. ^^^^ instance, in practically all of the European continental states) that have a separate system of courts, known as administrative courts, for trying cases in which officers of the civil administration are charged with criminal or illegal acts committed in connection with the discharge of their official functions. The idea underlying such a system of courts is that civil officers in the discretionary performance of their public duties may not infrequently have occasion to violate the or- dinary law of the land. In such case they should not be tried in the ordinary courts, but by their superior offi- cers, who from their understanding of the situation can * See Stimson, Chapter IX, for discussion of the injunction in labor disputes. THE JUDICIAL DEPARTMENT 171 best decide as to the necessities of the case. This theory of official responsibihty does not find favor in English- speaking communities, which prefer to make official and private citizens alike responsible to the same law. The practical effect of an administrative system of courts is (1) to develop a simpler procedure and law for officials in respect to their administrative acts, (2) to mingle principles of abstract justice with notions of expediency and (3) to develop a bureaucracy of special privileges in part above and outside of the ordinary law of the land. As the French system of administrative courts is the model after which other continental states have pat- terned, a brief statement of its history and importance may be found useful. ^ In the centuries immediately preceding the revolution of 1789, the ordinary judicial bodies, the provincial French parlcmcnts, were not unified into a great na- trativT" tional system as were the courts in England, courts. while on the other hand the national adminis- tration was rapidly centralizing its powers and adding to them. Naturally, therefore, the administration vigorously resisted attempts on the part of the courts to exercise jurisdiction over the acts of its officials, and began the process of organizing special courts of its own. In the famous Declaration of Rights of 1789, the theory of Montesquieu in respect to the separation of powers was expressly included and emphasized; but in the fol- * For fuller explanations of the French system and numerous references, see Goodnow, "Comp. Adm. Law," vol. ii, chapter vi; and Lowell, "Cont. Parties," vol. i, pp. 47-68. These works also explain the administrative systems of other countries. 172 THE DEVELOPMENT OF THE STATE lowing year the assembly by law logically interpreted this to mean, in the light of French history, that the courts should never be allowed to interfere with acts of administrative officials done in the performance of their duties. Still, in order to safeguard citizens in their rights, provisions were carefully made for appeals from subordinate to higher administrative authorities. Since that time the place and importance of court, law and procedure have been carefully worked out into the present admirable system of an administrative judiciary. As at present organized, the center of the entire sys- tem, the court of last resort, is the judicial section of the council of state, which body is composed of the ministerial heads of the great departments of adminis- tration and of numerous permanent administrative offi- cials of high grade. Below the judicial section of this council are the prefectural councils, each made up of the prefect of the department as nominal president, and of councilors appointed and removed by the president of the republic. Prefects, and in the communes the mayors, serve as judges in certain petty cases. Within the de- partment there are other specialized courts, such as the superior council of public instruction, coordinate with the prefectural council but lacking its importance. These also are of course subordinated to the council of state. In France a sharp distinction is made between public and private law. As administrative officials in the per- formance of their official duties administer public law and apply it to cases arising in national administration, they under French theory should be free from the jurisdiction of the ordinary courts, which adjudicate THE JUDICIAL DEPARTMENT 173 only on the rights and duties of private individuals.^ They are, therefore, in fact placed under the authority French ^^ ^^^ administrative courts, which use a pro- adminis- ccdurc and law different from those of the ordi- nary system. These courts in rendering their decisions rely chiefly on precedent, based on the inter- pretation of statutory authority or ordinances issued by the administration. As public policy must be taken into account as well as principles of abstract justice, the courts naturally use a loose interpretation, a flexible procedure and notions of expediency. This is all the more possible since they are not really bound to follow the law too closely, for the reason that the final decision on appeal lies in the council of state, itself an admmis- trative body, and not subject to the general courts using the private law of the land. Still, as there is a large freedom in appeals, an ordinary citizen will, as a rule, obtain a just decision at small expense and with slight delay in the administrative courts. He may, however, not secure exact justice, or even justice at all, if the case assumes a political aspect and governmental policy seems to demand a partisan decision. This system of law is, of course, at variance with the English-American theory, which subjects every govern- mental official and his acts to the final juris- p^auek!^ diction of the general courts of the land. Yet there are approximations to the French system in, for example, the series of military and naval courts administering in separate courts a special law and pro- ^ By exception to the principle, criminal law, which is properly public law, is for the most part adjudicated by the ordinary courts. 174 THE DEVELOPMENT OF THE STATE cedure. In some of the departments of administration also, such as, e. g., the department of the treasury in the United States, there arc semi-judicial bodies to render decisions on disputed interpretations of law and ordi- nance. The rise of administrative commissions, national and local, such as commissions in regulation of interstate commerce or of quasi-public corporations holding fran- chises, authorized to render judicial decisions on matters intrusted to them, is another illustration of the same development. Yet though these are differentiated, they are not separated and given coordinate jurisdiction. They are subject to the law of the land, and their deci- sions may ultimately be brought for final review before the general courts of law.* An illustration of judicial power exercised by a law- making body is seen in the development of the im- judiciai peachment power. When the English parlia- powerin mcnt iu its earlier years was seeking to make the law- ,,.,.. ., , making the kmg s mmisters responsible to it, an enect- tody. j^g weapon was found in the bill of attainder. This bill simply named the offender, declared him guilty of high crimes and ordered his execution. It was an arbitrary method of removing an obnoxious minister without form of trial and was certainly effectual. At a later stage, as a concession to popular prejudice in favor of a trial, an obnoxious minister would be formally charged by one house with crime, tried by the other and declared guilty as a matter of course. This method * See T. R. Powell, "Conclusiveness of Administrative Determi- nations in the Federal Government," Am. Pol.Sc. Review, August, 1907, pp. 583-G07. THE JUDICIAL DEPARTMENT 175 also was effective. By the time public sentiment had risen to a height where it demanded a fair trial on impeachment/ ministers had been made responsible through elections and the reform of the parliamentary system. Under such conditions impeachment has be- come practically unnecessary. In the United States of America bills of attainder are forbidden by constitution and though impeachment is authorized, yet such a method of trial is so tedious, cumbersome and barren of results that it has virtually become obsolete. Public opinion, the courts, elections and compulsory resigna- tion from office furnish the usual methods whereby public officials are made responsible in the performance of their duties. Development of the Judicial Department These historic judicial powers residing in the execu- tive, and in the legislative as a development from the speciaiiza- cxecutivc, represent the original judicial powers judidai residing in the primitive government. In those business. timcs all other infractions of custom and dis- putes of all kinds were settled by private vengeance or compromise. As this system of vengeance passed under the jurisdiction of the state, the executive exercised this new judicial power also. But as the burden of adminis- tration grew with increasing jurisdiction, it became neces- sary to separate this judicial business from the ordinary * See article, " The Law of Impeachment," D. Y. Thomas, Am. Pol. Sc. Review, May, 1908. The process of seeking to make a ministry responsible to a parliament, or to its lower house, may be illustrated by such movements in Japan and Germany and in the earlier years of the Russian duma. 176 THE DEVELOPMENT OF THE STATE business of the executive and to delegate it to a separate set of officials, who devoted themselves to the knowledge of the law of the land and the principles of judicial ad- ministration. This separation, however, was for a long time largel}^ nominal. Though the distinction in regard to the kind of function was early established, the de- velopment of a distinct set of officials devoting them- selves to judicial business came much later. The same officials administered executive business as assistants of the king, sat in the council and advised him in matters of national policy, and in case of dispute declared what was in their opinion the law of the land. They would then as judges sit on the king's judgment seat, decide disputes and punish violations of the law. Such a sys- tem, however, best suits small states of comparatively simple administration. As civilization becomes complex and as states increase in population and wealth, thereby niultiplying personal and property rights, a further dif- ferentiation becomes inevitable. Judicial functions pass into the control of a specialized class, who by practice and training become expert in the law. The next development results from the rise of democ- racy. Judicial power practically affects the entire pop- ulation. Any person may at some time or ence of the othcr bc cliargcd with a violation of law or be judiciary, conccmed in the settlement of property rights. All, consequently, become interested in having the courts decide justly and honestly cases brought before them. Venal judges and corrupt decisions have always been denounced, and even-handed justice for all men sought as the ideal. For such reasons a developing democracy THE JUDICIAL DEPARTMENT 177 intuitively seeks to control the courts so as to insure greater justice. As it gains power and intelligence it is able to control more fully the organization of the judicial system, the appointments to ofhce and the quality of the law, and to remove one after the other the special privileges of favored classes so as to make all men equal in the eyes of the law (pares infer pares). Naturally enough, kings stoutly resisted this developing independ- ence of the judiciary, but in democratic communities they resisted in vain. In such states we find a judiciary and judicial department to all intents and purposes free from the domination of the executive, administering a law approved by representatives of the people, and rendering decisions with impartial purpose and theoret- ically without distinction of persons. In monarchies the king may still by theory be looked on as the head of the judicial system, but his power is nominal and is exercised chiefly by tempering judicial punishments with mercy through the exercise of the pardoning power, which is still held as an executive prerogative. The modern theory of law is strongly democratic in that the state aims to treat every man alike before the law. Ancient systems were founded on far Privileged (different principles. Even in primitive times, classes. f i i J when a rude democracy characterized the horde, the elders had special privileges, and women and children were too often considered as having no rights that a man was bound to respect. The caste system of India illus- trates the extreme development of special privileges ac- cording to social grade. The people are carefully di- vided into castes, and legal rights are based in accordance 178 THE DEVELOPMENT OF THE STATE with the quahty of the caste. Similar distinctions ex- isted and do yet exist in autocratic or aristocratic monarchies. Special privileges were held by the no- bility as the military-governing class, and by the clergy. Below these were freemen, freedmen and aliens, with rights as against one another but with small rights as against the nobility. At the bottom of the scale were slaves, having almost no status nor rights in the eyes of the law. Equality before the law under such a system was impossible. Crimes might be committed with im- punity by members of the higher classes that would bring condemnation and severe punishment if com- mitted by members of the lower classes. The testimony of the one far outweighed the testimony of the other. This brought about conflicting ethical standards and degradation of morals. As the influence of the common people developed, they fought vigorously for equality of rights for all freemen, and as slavery disappeared that meant for all men. Slowly the plebeians or commoners won rights and deprived the higher classes of special privileges, until with the full tide of democracy in the nineteenth century the virtual legal equality of man was accepted by many progressive states. There are still class distinctions based on social rank, wealth and birth, but these are rapidly disappearmg in judicial matters. As a matter of practice, even in democracies, courts make real distinctions almost unconsciously between the wealthy and the poor, between social leaders and social inferiors, between persons of respectability and responsibility and their opposites. All this is natural enough under the circumstances of modern life; but the THE JUDICIAL DEPARTMENT 179 democratic movement is slowly removing in modern states all legal distinctions between man and man, save those based on character and social utility. The judicial system of any modern state is complex and confusing to the layman, yet there are certain natural lines of development easy to follow clurt?^ °^ ^^^^^ readily suggest the ' clew for any given system. In criminal matters there will regu- larly be three grades of courts. In the first, or lowest, grade there will be found established in every small dis- trict of sufficient population a court whose jurisdiction is limited to the summary disposal of petty crimes or misdemeanors or to the commitment of the accused person to the court of next higher grade. This court will have jurisdiction over cases mvolvmg serious crimes and severe punishment. The third and highest court will be authorized to try special forms of important crime and to hear appeals from the lower courts. When a final decision is rendered, the only recourse left to the convicted criminal is a petition to the pardoning power, which may, from the standpoint of mercy, modify to some extent the amount of penalty inflicted by the courts. Kings formerly claimed the right to suspend or waive the appfication of the law in the case of particular persons charged with crime, but such powers are not consistent with a theory of equal justice. In civil cases a threefold classification is also common. There is a local court for petty cases, a court for disputes involvmg more important property rights and a supreme court for specified classes of important cases and for appeals. Inequitable decisions finally rendered by the civil 180 THE DEVELOPMENT OF THE STATE courts formerly might be appealed to the king as the fountain of justice, who would personally remedy the defects of the law by a special decision, or might system of delegate the power of investigation to a special equity. official or body of officials, who thereby became a court. In this way was developed in England the court of the Lord Chancellor and the system of equity law. In modern times an appeal for remedy in the form of a petition may be sent to the lawmaking body which, as the maker of law, may modify judicial decisions in individual cases, unless restrained by constitutional prohibitions. The best illustration of the process of introducing equity into custom can be obtained from a study of the development of Roman law. The harsh and crude cus- toms of the early law as codified in the XII Tables were slowly modified by eqviitable principles introduced by prsetor, commentator and emperor, until after a thousand years of constant modification (450 b.c. — Justinian's Codification, 529-534 a.d.) the civil law of Rome stood forth as, possibly, the most valuable contribution of Roman civilization to its modern successors in eastern Asia and Europe. The comparatively simple judicial organization out- lined above may become more complex by the multi- plication of administrative functions. Great Specialized jurisdic- masses of specialized business may be set apart and handled by special systems of courts pat- terned in general after the national system. If, for example, church and state be united, there may be a special series of ecclesiastical courts to consider cases THE JUDICIAL DEPARTMENT 181 involving ecclesiastical law and the clergy. Foreign commerce involves a system of admiralty courts and consular courts to exercise jurisdiction over cases arising on the seas or in foreign countries. There may be a special series of courts for the regulation of family rights as in courts of probate and of divorce, or courts for the separate trial of juveniles. Generally speaking, the de- velopment of a specialized line of judicial jurisdiction tends to result in the formation of a special court or series of courts for the settlement of such cases, or if not, then the grade of court that naturally would have juris- diction over such business may sit in several divisions, each presidmg over a particular kind of case. Again, complexity in organization may be increased by the multiplication of administrative areas beyond the ordmary areas of township, county and state. In this case the juristliction of the first and second grades of courts will probably be subdivided for the sake of con- venience so as to suit the needs of the additional areas. Or the development of a federation with its dual form of government will duplicate the judicial system of the state as a whole. Or, in addition to the ordinary na- tional systems of courts, there may be a territorial sys- tem, a colonial system or the system of a former state now subordinate. In such instances each system should be studied by itself and then the connecting links that bind together the several systems into one common judicial S3^stem. In addition to the several series of courts for the trial and settlement of cases, there is a complicated mechanism to supplement the work of the courts. In order to 182 THE DEVELOPMENT OF THE STATE bring cases properly before the courts there is a large bod)^ of persons acting as police officers or constables to The aid in carrying out its functions. As the state iystem as ^^^^ prosccutcs iu Criminal cases, there is a a whole. corps of prosccuting lawyers in the employment of the state, aided in their initial work in English coim- tries by the grand jury. Cases may be settled directly by a judge or a bench of judges, or a petit jury may be used to aid in the decision. Punishment in ancient states was administered on the spot, but in modem times long delays and imprisonment regularly follow the verdict. This involves a complex system of prison administration and places of detention. The entire procedure of judi- cial administration, from the formal charge and arrest to final conviction and punishment, is carefully worked out in modern judicial systems, and every effort made to give the accused a fair and speedy trial, with every possible opportunity to make his defense and if possible to prove his innocence. So detailed have these pre- cautions become that justice is often thwarted by over- emphasis on safeguards, resulting too frequently in con- tempt of law and mob violence. In democracies, a speedy procedure, impartially and rigidly administered, and the surety of punishment in case of guilt are the safest means of securing justice and respect for law. Legal Penalties In criminal matters, the essence of a judicial decision is the infliction of a proper penalty for violation of law. As the early jurisdiction of the state lay chiefly over military offenses, other offenses were visited with pen- THE JUDICIAL DEPARTMENT 183 alty by the social agencies of the time. Many of these still survive, but with considerably modified powers. Forms of ^ church, a school or a social organization punish- may discipline or punish its members, par- ents may within reason punish their minor children, public opinion may ostracize or otherwise punish offenders of social decorum, and individuals ov- casionally undertake to inflict punishment in return for private wrongs. By present theory the entire power of punishment inheres in the state as the keeper of the peace, though in deference to long-standing custom it may permit or delegate -the power of punishment to such agencies as those above mentioned. The infliction of penalty has passed through several well-defined stages, one or several of which can be traced The four in the history of each of the existing civiliza- punfsh-^ tions. Many curious survivals of ancient ™ent. stages of punishment may still be found even in the most highly developed civilization. (1) The first period is that of revenge. Penalty in all its forms was savage and cruel. Man's nervous system was in primitive times less highly organized and endured pain more easily; human sympathy was lacking and belief in the sacredness of human life hardly existed. Punishment was ruthless, often out of all proportion to the crime, and frequently involved the innocent with the guilty, under the ancient thcoiy of collective responsi- bility either of family, clan or fraternity. (2) As notions of justice developed in men's minds, the desire for revenge became modified into the principle of retaliation. Every offense was to be atoned for by a 184 THE DEVELOPMENT OF THE STATE similar punishment. It was the period of lex talionis, an eye for an eye, a tooth for a tooth, no more, no less.^ This system also was cruel, but yet in its attempt to secure justice it was an improvement over the vindictive system of the earlier stage. (3) With the rise of personal property there came a strong tendency to atone by the payment of a fine for all but the worst crimes, blood penalty being exacted only from the worst criminals or from those who were unable to pay fines. Under this system there was a carefully graded list of offenses, each valued at a particular fine, varying in amount with the social rank of the injured person. The fine in early times was paid partly to the injured and partly to the state. Confiscation of property is simply a variation of this form of punishment. With the development of slavery, punishment for crime might in default of fine result in the sale of the criminal, and perhaps of his family also, into slavery for a term of years or for life. As slavery disappeared, this form of punishment survived in sentences that condemned men to labor in mines or on governmental works, to serve in the army or navy, or as servants to private citizens who employed this convict labor on plantations or in various industries. (4) Another stage of punishment developed when the courts undertook to deter men from crime by the inflic- tion of cruel punishments. This was effected by im- prisonment in noisome dungeons, by burning, mutilation, whipping, branding and torture developed to its highest pitch by human ingenuity. Nothing in these days can * See Exodus xxi, 23-25. THE JUDICIAL DEPARTMENT 185 be said in justification of such a theory. Experience shows that severity of punishment does not deter men from committing crime. The infliction of it in pubhc even tends to multiply crimes owing to the fascination involved in such awful notoriety. Judges and jury would hesitate in modern times to inflict such punish- ments and they are regularly forbidden by law. They are still inflicted under lynch law at times when men are overcome by violent passions and vindictive emotions. In medieval Europe, as well as throughout the Orient, a belief in the efficacy of torture resulted in its use in the The use of case of persous strongly suspected of crime, InTthe against whom, however, there was insufficient ordeal.' evidence to convict, or whose evidence it was thought might inculpate others. These persons were put to the torture on the theory that persons suffering bodily anguish will tell the truth. The fact is, that as a rule they will tell anything their torturers wish them to con- fess. The use of torture was strengthened by the belief that, if only guilty persons could be brought to confess the truth, it would help in the salvation of their souls — a theological teaching that resulted in the damnation of more souls than it saved. A peculiar form of punish- ment developed in many parts of the world and in early Europe as the result of religious ideas. WTien men de- sired to do justice and yet realiz^ how imperfect judi- cial machinery was in the detection of crime, it occurred to them that the guilt or innocence of the accused might safely be left with God. In consequence there developed a system of ordeals, oaths and judicial combats, the out- ' See Lea in Bibliography. 186 THE DEVELOPMENT OF THE STATE come of which determined the punishment or acquittal of the accused. On the face of it such a system seems puerile, and it is; yet it had its utility in a credulous age where all men really believed that God would in every trial strengthen and protect the innocent and weaken the guilty. It failed when men lost faith in God's interven- tion in such matters, and devised ways and means of evading the chances of failure by bribery and trickery. The penal systems of the nineteenth century present a complex of many former stages. Hanging for murder is a form of lex talionis. Hanging for other Modern . penal crluies and solitary confinement, ami to deter systems. ^j^^ commitment of such crimes. The system of fines carefully graded to fit each offense is still in vogue but reserved for minor crimes. More serious offenses are usually punished by imprisonment, not so much to deter others from crime as to segregate criminals from social life. Nor are prisons as a rule horrible dungeons as formerly; they often furnish far better accommodations than those the average workingman enjoys. Prisoners are still compelled to work, but rather with the thought of utility to the prisoner than of actual gain derived from his labor. Modern penal systems are undergoing rapid trans- formations. Prevention and reformation are the watch- words of the new cen^ry. Careful study of the causes of crime, a better knowledge of psychology and of the respective influences of heredity and environment give grounds for hope that a large part of crime can be pre- vented and that many criminals can be reformed and made into useful citizens. It is argued that the irre- THE JUDICIAL DEPARTMENT 187 claimable should be kept imprisoned permanently for tlieir own sakes, and especially for the sake of society. Such theories are rapidly modifying the methods in use. Probation and right training in reform schools are tak- ing the plape of the fine and the prison, and habitual criminals are permanently imprisoned under indetermi- nate sentences that they may no longer have opportunity'' to commit other serious crimes. In short, society aims to give every person a fair chance, and to protect itself fully agamst those who refuse to avail themselves of it. SPECIAL REFERENCES Judiciary Systems: Anson, Inderwick, Baldwin. The Jury System: Lessek; American Historical Review, vol. viii, p. 4, C. H. Haskins, " The Early Norman Jury"; "American Historical Association," 1894, pp. 125-140, W. B. ScAiFE, "Some European Modifications of the Jury System"; Political Science Quarterly, vol. xix, p. 650, B. E. Howard, "Trial by Jury in Germany"; Matias Romero, "Mexico and the United States," pp. 401-428. Article on " The Anglo-Saxon and Roman Systems of Criminal Jurisprudence." CHAPTER IX THE LAWMAKING DEPARTMENT As the wealth and population of a state increase, it becomes more and more difficult to govern along auto- cratic lines. Numerous interests arise which Rise of a lawmaking do not reccive adequate attention from the °^^* rulers; men whose capacity and attamments deserve recognition are slighted, and the private inter- ests of ruling classes absorb most of their energy, to the neglect of public interests. Under such conditions there are historically several possibilities of action : (1) The status quo may be maintained and discontent suppressed by force, in which case the state would prob- ably slowly decay mitil absorbed by some rival after de- feat in war. (2) A system of decentralization may be encouraged, and each important province be allowed to regulate its own affairs subject to general supervision and tribute, the provinces being held together by nmtual interests. (3) The central authority may retain its power but gradually develop a system of representation whereby important interests and persons may receive due recog- nition. This last possibility involves a national application of the idea contained in the organization of a primitive horde or village community. All interests and pennons 188 THE LAWMAKING DEPARTMENT 189 of importance were included in the small gatherings of these early groups. Even in confederate tribal life the idea had survived in the periodic gatherings of heads of tribes and districts to administer general business. So in the assemblies of the city states of the classic period, every important citizen was able to make his influence felt in the assembly if he were so inclined. The difficulty was to apply the principle to a great national system, and no ancient state ever proved equal to the emergency. Local representation was common enough, and repre- sentation of privileged classes in great councils was known, but no system was devised whereby the interests of all the people might be represented in government. Through a series of events natural enough in them- selves, there developed in England during the thirteenth ^^^ century an assembly of delegates, who repre- Engiish sented the common people and petty nobility, par amen . ^^ distinguished from the usual assembly of the higher nobility and clergy. Such an assembly was by no means an anomaly at that time. A rude form of representation existed among the Scandinavian people as early as the ninth century. About the tenth century the Icelandic Althing ^ and the Tynwald of the Isle of Man 2 (which still survives) were established. These were made up of elected delegates who prepared laws, which were promulgated as the law of the land. Similar bodies may be traced in other countries of Europe, but they did ; not attain political importance. The English assembly 1 Constitution of Ulfliot, a.d. 930. See Bryce's "Studies," Essay V. * See Caine's "Little Manx Nation." 190 THE DEVELOPMENT OF THE STATE came when that country was breaking away from agri- culture and developing commerce and manufactures, and when kings, ever engaged in war or the suppression of re- bellion, were forced to rely more and more upon the sup- port of the common people and on taxes raised from urban centers. So constantly was the king in need of money grants and military support, that the first two hundred years of the history of the assembly of the commons marked an almost steady growth in its power and prestige. During the sixteenth century the historic council of nobles and clergy, who formed the house of lords, was relatively weak. This was due to its deple- tion in numbers owing to the civil wars and to the nationalization of the church, which deprived that body of much of its power and representation. In conse- quence the two houses during the Tudor period were fairly equal, and were firmly welded together into a parliament. The rapid development of commerce and manufactures under the Tudors and Stuarts (1485-1688) gradually transferred the balance of power from the lords to the commons as the representatives of these in- terests, and the rise of England to world supremacy in the nineteenth century made the commons supreme in governmental policy. The political importance of this development lies in the fact that it revolutionized men's notions of govern- importance mental machinery. The ancient principle of maldn^" govcming through privileged classes, basing body. their claims on noble birth and landed wealth, was superseded by a system of government through per- sons who represented all the important interests of the THE LAWMAKING DEPARTMENT 191 state, and who had influence in proportion to the weight of interests and the proportion of the population they represented. The economic advantages of such a system were so plainly manifest that other nations found it ex- pedient to imitate it, modifying the English system to suit their own peculiar needs. In this way developed the modern bicameral legislative body, the center and pivot of the modern democratic movement. Naturally enough, some of these systems of legislative representa- tion are not truly representative, but it must be under- stood that a true system of representation is an ideal toward which modern governmental organization ap- proximates. States are constantly experimenting with patented devices for the improvement of governmental machinery. Hence such suggestions as those for minor- ity or proportional representation, the use of the initia- tive and the referendum, improved primary and elec- tional laws and the regulation of political parties. It is not to be assumed that an ideal system of representation would be best under existing conditions. It would de- mand for its exercise a lively intelligent interest in public affairs by all the citizens, and that condition has hardly been yet attained in any state. For this reason a system in which the balance of power is in the hands of the wealthy and intelligent classes may prove more success- ful in some states than a strongly democratic system. Every state, however, should endeavor to increase the prosperity and intelligence of all its citizens, and to ex- pand its system of representation so as to include all persons who have a tangible and intelligent interest in the welfare of the state. 192 THE DEVELOPMENT OF THE STATE The chance development of the Enghsh council through social distinctions into two houses set the fashion for other states also. The confedera- The bicameral tion of the United States of America preferred sysem. ^ unicameral congress, and this was favored for a time by revolutionary France. This French sys- tem was imitated by several of the other Latin states and still survives in Central America and in Santo Do- mingo. The best argument for the bicameral system seems to consist in the opportunity thereby allowed for the balancing of varying interests and the consequent check on too hasty legislation. Historically, the prototype of the lawmaking body was the collective body of elders found in all early states. In Com osi- ^^^^ gathering met all persons of consequence in tion of the those petty communities. When the state had miking arisen to the dignity of a kingdom or empire, *'*"*y- the council consisted of royal princes, great nobles, heads of administration and religion, and of per- sons famous for their wisdom. ^ In classic times grew up a larger council, supplementing the work of the older body, and including in its ranks the warriors, freemen or citizenship of the state. The feudal councils of medieval monarchies emphasized the necessity of the representa- tion in the king's council of all important districts through their leading nobility. As municipalities be- came important through their wealth and population, these also were deemed worthy of representation, through delegates appointed or chosen by the corpora- ' The Vermont Constitution still assumes that legislators are " persons most noted for wisdom and virtue" ! Chapter II, Sec. 8. THE LAWMAKING DEPARTMENT 193 tions of the municipalities. The representation of shires or counties in the Enghsh system virtually meant at first representation of the lesser nobility. When modern democracy began, emphasis was placed on human be- ings, irrespective of rank, official position or wealth. These developments broadly illustrate the various fac- tors that have entered into the composition of lawmak- ing bodies. These bodies, in other words, are made up of heads of communities and men of personal capacity, persons of dignity who represent nobility of birth, large landed wealth or important offices in church or state; persons who represent the collective wealth of a locality or persons who represent collective bodies of men irre- spective of wealth. Monarchies regularly emphasize birth, social standing, office and wealth; democracies in- cline to emphasize persons and wealth. In modern monarchies the lawmaking body has its upper house made up of members of the nobility and of the chief dignitaries of administration and religion; its lower house will generally be composed of representa- tives from localities, on the basis of wealth or population, but as a rule discriminating against the poorer and illit- erate classes. Republics seek to embody in the upper house the larger interests of the state as against pettier interests in the lower house. In federations the com.- mon wealths are represented as such in the upper house, and population and wealth in the lower house. In the commonAvealths of the United States of America, the tendency is to make the upper house represent popula- tion areas about three times as large as those of the lower house. As a rule there is no fixed principle in regard to 194 THE DEVELOPMENT OF THE STATE the relative size of the two houses. The upper house is regularly, but not necessarily, smaller than the lower. Large bodies are so cumbersome that the tendency is to reduce the relative numbers in both houses, but many local factors modify this tendency. In monarchies, kings or emperors regularly initiate all bills through their ministers. Members by favor may make suggestions in the form of petitions. In Initiation constitutional monarchies all members have of bills.' the right to introduce bills and regularly do present bills of a local or private nature. It has, how- ever, become the practice to allow only partj'' leaders, or a responsible ministry, to present all bills of importance. Such bills are prepared with great care and represent the policy of those in power. In republics the members of either house may initiate bills. In some federations the commonwealths may have the right to introduce bills directly, as in Mexico, or in democracies the electorate may exercise the same privilege through the iniiiative. Besides these formal methods of initiating legislation, there are other ways whereby matters involving legisla- tion may come before the legislature : (1) The executive may make suggestions to the legis- lature requesting legislation along specified lines. Such suggestions are frequently made by administrative de- partments with the approval of the executive. (2) Committees or commissions are frequently author- ized to consider questions of policy and to recommend to the legislature suitable lines of action. (3) A citizen or body of citizens may exercise the ^ See pages 220-223. THE LAWMAKING DEPARTMENT 195 right of petition and request the legislature to grant re- lief in certain specified matters. The legislature is not bound to follow such suggestions, and may ignore them altogether or adopt them as may seem most expedient at the time. Whenever it may seem advisable, legisla- tures may authorize the holding of public hearings, at which all persons interested in the success or defeat of the proposed bill are invited to, be present and present their reasons. This device enables a lawmaking body to keep in closer touch with public opinion than otherwise would be possible. In the development of lawmaking powers, certain privi- leges have become fundamental in theory. A house Privileges J^ust have the right to decide disputes in re- ofiegisia- gard to its membership, such as contested tures and legisia- elections. It may delegate the decision of such *°''®' contests to the courts, as in England, but the final power must reside in the house. It must be able to punish its members for unseemly conduct, to coerce others to obey its lawful orders, and to maintain its dignity by punishment for contempt. Its members, even when going and coming, must be free from arrest except for serious crimes; they must be allowed freedom of debate without fear of future accountability, and their dignity as representatives must be fully secured. Each house must also have the right to make its own regula- tions and its rules of procedure. These rules vary greatly in different bodies, but are always important. They provide for reading of bills, discussions, amendments and passage, carefully specify- ing each step with the purpose of allowing no bill to 196 THE DEVELOPMENT OF THE STATE pass until each member of the house has full knov/ledge of its contents and opportunity to express an opinion for or against the bill. To this end bills are Rules of j.gg^(-j several times, debated either before a com- procedure. ' mittee or in the presence of the house, thrown open to amendment, and when finally submitted for passage each member must be allowed full freedom in voting. If comparative!}^ few bills are presented in a session, procedure is simple. As, however, the number of bills increases with democracy and growth in national importance, pressure for time compels modification in the system. This may be (1) in the form of restrictions on debate by limitations on the time allowed for it, and by the use of the closure and the previous question, or (2) by making a distinction between bills which affect the public as a whole and those which relate to private persons, localities and details of administration. His- torically, legislatures have handled all kinds of bills and passed them by the same kind of procedure, TJie result is that the larger part of legislative activity may be spent on what is really administration. Lawmaking bodies, through their control over finances, have to spend much time in devising efficient ways and means of raising and expending moneys and in the supervision of expenditures. English-American systems, through their fondness for working out the details of legislation, pass numerous laws designed to suit particular cases or special emer- gencies; matters usually left in other states to the or- dinance power of the executive or to some department of administration. Such bodies, therefore, besides having real legislative functions in the formulation of policy THE LAWMAKING DEPARTMENT 197 through law, also exercise a vast ordinance or adminis- trative power which is liable to be used in a perfunctory or inefficient manner. By far the larger part of the un- popularity of modern legislatures is due to the evils arising from this confusion of legislative and adminis- trative functions. In modern days the pressure of busi- ness is compelling a different procedure for private or local bills so that the time of the whole house need not be wasted. Such bills may be referred to committees, whose decision will be accepted as a matter of course; or classes of private bills may be assigned to an adminis- trative or judicial body for settlement in accordance with some principle laid down by the legislature. Such a distinction is important because the number of private bills introduced is always large, usually more in number than public bills, and public interests have to be neg- lected when so much attention is given to matters of small public importance.^ When legislative business becomes too large entirely to be handled by#he houses even with the above regu- ^^^ lations, then a committee system is inevitable, committee It may (1) take a form like that of the English ^''^ ^™' cabinet, which is practically a legislative com- mittee for the formulation of policy, the preparation of important bills and advocacy of them before the houses. Or (2), as in the French system, committees may be ap- pointed by the lawmaking bodies to consider, modify and report on ministerial bills and such others as may be referred to them,^ or (3), lacking a cabinet system for ' See "Our State Constitutions," pp. 46-54. 2 See Lowell, vol. i, pp. 111-117. 198 THE DEVELOPMENT OF THE STATE the initiation of bills, as in the United States of America, all bills may be referred to standing committees of the respective houses, which are authorized to investigate them thoroughly and to make recommendations. This committee system has become so important in the United States of America that it has almost usurped the deliber- ative function of the lawmaking bodies. All bills when entered in the houses are promptly referred to com- mittees, which derive their importance from the nature of the business intrusted to them. Most of these bills are pigeonholed and are never reported, a few may be reported adversely or without recommendation, and others, after investigation, public hearings, amendments and perhaps complete revisions in committee, are re- ported favorably. The pressure of time is usually so great that debate seldom arises over the reports except when the subject is of great importance and involves political interests. These committees are so arranged that the dominant party controls the results of their de- cisions. The chairmen of the chief committees are also leaders of that party and form a sort of inner circle, not unlike the English cabinet, for formulation of policy. Some one person is selected as head leader and placed either in the chair of the house with autocratic powers, or in the chairmanship of one of the principal committees and authorized to guide the party on the floor of the house. The committee system is open to many objec- tions, based chiefly on its secrecy of procedure and its ])ractical usurpation of legislative functions, yet it is plainly useful and under present conditions necessary. Time may remedy its defects or substitute in part a THE LAWMAKING DEPARTMENT 199 system that may insure greater responsibility and sus- ceptibility to public opinion. The passage of bills by a legislature does not always imply that such bills at once become laws. There are usually general or special provisions specifying power!'" at what times the bills shall take effect. In ad- dition to this almost all states place in the executive's hands the veto power. This may be abso- lute or suspensive. In the first case an executive's veto kills the bill and the labor of the legislature has been in vain. In the second case the bill is sent back for re- consideration. If on reconsideration the bill again passes, no further veto is interposed. The absolute veto is used only in monarchical systems. The use of the English cabinet system virtually makes this veto obso- lete, for all bills submitted to the king for signature have been approved by his cabinet, and under such cir- cumstances the king would not venture to oppose the combined wishes of his cabinet and lawmaking body. In some states, also, before bills are finally passed, they must be submitted to the electorate for approval or re- jection. This form of veto, known as the referendum, is found only in countries where democratic influences are powerful. When the English house of commons began to exert its powers, it was almost entirely under the control of the Formula- exccutive, who sent his ministers into the 1'°"°^. house and tried to dictate or influence its de- legislative policy. cisions. This was the reason why the house fought so vigorously to control the appointment of the king's ministers, When this had been accomplished, the 200 THE DEVELOPMENT OF THE STATE house was thereby able to dictate to the king his pohcy. It is inconceivable that a wise king would refuse to accept the advice of a ministr}^ who represented the will of a dominant parliament. There are, therefore, two great monarchical systems for the formulation of govern- mental and legislative policy: (1) the will of an auto- cratic king expressed through his ministers, or (2) the will of a parliament expressed through a ministry forced on the king. The essence of the distinction is best ob- tained by noting whether the ministiy is responsible to the king only, or to the parliament. A system like that of Germany or Austria-Hungary balances between the two. In the United States of America, owing to the use of separated coordinated departments, the English system ^^^ was not feasible. How legislative policy should American bc formulatcd uudcr such conditions was a sys em. problem. At first the president, aided by prominent members of the congress, dictated this policy, and this system might have become permanent had the president's views regularly harmonized with the opinions of congress. This, however, was seldom true after 1824, and in consequence each house developed a system of voicing its policy through a legislative caucus. The members of the dominant party in either house meet in private session, formulate a policy and intrust the exe- cution of it to their natural leaders, who, as chairmen of the principal committees, are able to control legislation. In the house these powers are centered in the speaker, who, subject always to the approval of his party follow- ing, directs the machinery of the house toward the THE LAWMAKING DEPARTMENT 201 accomplishment of the policy outlined by the caucus. The system is practically the same in both houses, except that in the senate, as the presiding officer is by constitu- tion the Vice-President of the United States of America and is not subject to the control of the senate, the chair- men of the principal committees unitedly guide the sen- ate's policy. In the American system, therefore, legis- lative policy is voiced through party caucuses under the guidance of their leaders, who act as chairmen of im- portant committees and thus control legislation. As the president has the veto power, if he and the two houses of legislation are of the same political party, frequent conferences will be held so as to settle on some common policy. If they are not of the same party, then important legislation is either not passed or is passed by a series of compromises after numerous joint conferences have been held. A legislative body, therefore, in formulating its policy will either name the executive's council and work through them, or will work through its own leaders and then seek to harmonize its policy as far as possible with that of the .executive department. In the study of any state which has a legislative department, therefore, one should note carefully the respective powers of the two departments in the formulation of policy, and should see how harmony of purpose is attained. When the two departments are evenly balanced in power, conflicts for supremacy may arise, as in Germany and Japan. In Mexico the two departments are theoretically coordinate, but in reality the executive dictates legislative policj^ France uses the English cabinet system in form, but the 202 THE DEVELOPMENT OF THE STATE legislative leaders of the chamber of deputies dictate the policy to be followed by the cabinet much more fully than do the leaders in the English house of commons. In tribal communities, popular assemblies made up of warriors or freemen usually have merely the power of Powers of asscnt or dissent to proposals submitted by the thepopu- smaller council of leaders. The large powers lar assem- "^ '■ biy. exerted by the popular assemblies of Athens and Rome are familiar to all students of the classics. When the English house of commons began its existence in the thirteenth century its powers were extremely meager. It met simply to advise the king in regard to the amount of taxes its members would be willing to have assessed on their constituencies. But the com- mercial instinct of quid pro quo soon led these delegates to a series of bargainings, whereby each grant of money on their part resulted in the gain of privileges extorted from the king and nobility. Each class naturally legis- lates for its own interests, and, during the regime of king and nobles, commoners had secured only the crumbs. But on the other hand, as they came into power they se- cured for themselves more and greater concessions, until they won as their right supremacy in legislation and in governmental policy. This really amounts to a revolu- tion in governmental systems. In place of an auto- cratic monarch, the fountain of law and justice, sur- rounded by nobility and clergy as bulwarks of the throne, aiding him by advice, arms and spiritual terrors, there has developed an autocratic assembly which allows the king to remain in office during good behavior, but reserves the privilege of beheading or removing him at THE LAWMAKING DEPARTMENT 203 will, and which forces him to accept as his cabinet its own leaders and to formulate a policy in governmental matters only after consultation with, and approval of, the cabinet. It is evident that such a body, though nomi- nally legislative, is more than that, for, through its lead- ers and by its lawmaking and constituent powers, it guides and controls the entire business of the state, executive and judicial as well as legislative. This rise of a popular assembly into power depends, as already explained, on the development of large commercial and manufacturing interests. The spirit of an autocratic monarchy seems to find its best expression in a state which relies chiefly on agriculture. The stability and uniformity of that life seem best to suit the conservative instincts of king and nobility. Commercialism tends to introduce a more flexible executive system; it weakens belief in the divine right of king and nobility and demands leaders in sympathy with commercialism and capable of readjust- ing the political system to the changing conditions of the age. This change may be brought about conservatively by depriving king and nobility of political power, but re- taining them as social "survivals" or ornaments; or, more radically, by substituting in their stead elective officials, who may be removed from office at stated times or whenever necessity requires. So important a change as this is not easily accom- plished and seldom without revolution. The history of all commercial states, ancient or modern, illustrates the principle. In England the process began by attempts on the part of the house of commons to compel the king either to accept ministers named by it or to consent 204 TilE DEVELOPMENT OF THE STATE that ministers named b)^ him be responsible to the house. Bills of impeachment and bills of attainder Changes "^'^^'^ weapons used by the house in the attain- through ment of its object. The Puritan revolution gie of and the revolution of 1688 definitely fixed the interests. principle and applied it to kings as well as to ministers. The rise and development of the premiership in the eighteenth and nineteenth centuries worked out a sj^stem whereby the real work of government might be done by the house, while retaining the forms and appear- ance of an autocratic monarchy. The United States of America at the adoption of its constitution went one step farther when it refused to establish kingship and no- bility, and in their stead established an elective head assisted by ministers appointed or elected for definite terms, all subject to removal on impeachment by the lawmaking body. Naturally these same principles apply to the struggle for supremacy which generally arises be- tween the two houses of legislation. In monarchies they represent distinct sets of interests, not always harmoni- ous. Each desires to have the final voice in decisions, and victoiy ultimately goes to that one which represents more truly the broader interests of the nation. In democracies the two houses tend to represent practically the same kinds of interests, and full cooperation is hindered only by natural rivalries based on beliefs as to the respective importance of the two houses. The numerous functions of modern lawmaking bodies may be broadly classed under four heads, though there are many differences in detail and in the scope of powers exercised under each head. THE LAWMAKING DEPARTMENT 205 (1) They have the right to declare and to formulate the law of the land, removing what has become obso- ^ ,. lete, making clear what is ambiguous, and Functions > o o j of legisia- supplying new laws to suit the changing con- ditions of social life. This flexibility intro- duced into law has enabled states to adapt themselves readily to altering conditions, a thing well-nigh impossi- ble under ancient theories of fixed and unchanging law. (2) They have the right to decide on the amount of tax to be levied for governmental purposes, the goods or other property on which it should be levied and to con- trol the levjdng and expenditure of such taxes by re- serving the right to hold responsible and to instruct, or even to appoint, all important officers in charge of public funds. This "power over the purse" has been the most effective agency in enabling the lawmaking body to con- trol the other departments of government. (3) Lawmaking bodies have slowly won or are winning the right to dictate the policy of the state in international affairs. This historic power of the executive is passing under the control of the legislative department, which leaves to the executive the form of power, but exercises the substance of it through its control over finance and over the ministry or cabinet of the executive. (4) The lawmaking body in many other ways is now able to exert power not primarily legislative. It may exercise judicial functions in deciding cases of contested election, or in trying its own members or officers of the other departments of government. In its usurpation of powers properly executive it may appoint, or assist in the appointment, of officials, make treaties, declare war^ 206 THE DEVELOPMENT OF THE STATE regulate the army, navy and civil service, appoint and supervise administrative commissions and regulate more or less completely the policy and administration of the other departments of government. These classes of functions show clearly the importance of lawmaking bodies in political development. Almost unknown in western civilization down to the nineteenth century, except in England and her American colonies, they have suddenly pushed to the front as agencies for economic and democratic development, and have reached perhaps the acme of their powers. Their natural limita- tions are now becoming manifest, and at present they do not enjoy the confidence formerly placed in them. It remains to be seen whether by internal changes they will become more efficient and regain lost confidence, or be superseded by more trustworthy governmental agencies. 1 SPECIAL REFERENCES Lawmaking Bodies: Anson (vol. i), Lowell, James West Moore, Pike, Porritt, Reinsch, and Smith. Organization and Procedure: Follett, Ilbert, Lowell, McConachie; Political Science Quarterly, vol. ix, p. 246, J. F. Jameson, "Origin of Standing Committees." Lawmaking: Clarke, "The Science of Law"; Proceedings Am. Pol. Sc. Assn., 1907, pp. 69-140, "The Making and Revision of Law." * For example, by the constitutional convention in the making of fundamental law, and by the electorate through its use of tlie initiative and the referendum. CHAPTER X THE LEGAL SOVEREIGN AND THE ELECTORATE The Legal Sovereign If one were carefully to observe in any given state the several divisions of government, and to note the funda- A constitu- mental powers respectively exercised by each, tionim- ^j^(| ^Y^Q manner of such exercise, he would plied in the organiza- thereby become familiar with the fundamental g'°g"y law, or the constitution of the state. Every state. state, whether democratic or autocratic, has a constitution. This is not the same as saying that every state has a constitutional form of government, which would imply that the rights of the people are fairly well secured by law against possible governmental tyranny. It is, however, obvious that every state, no matter how despotic or autocratic it may be, has a form of organiza- tion, made up of several departments exercising sover- eign powers, and has a well-defined customary way of exercising such powers. Such constitutions may not be written, and in most states are not, yet jurists familiar with any given state could readily write out the constitu- tion of that state, whether it be an autocracy, a federa- tion or a democracy. Evidently, then, every state from the moment when it begins its existence has a constitu- tion, which may be defined as that fundamental law or body of laws, written or unwritten, in which may be 207 208 THE DEVELOPMENT OF THE STATE found (a) the form of the organization of the state, (6) the extent of power intrusted to the various agencies of the state, and (c) the manner in which these powers are to be exercised. Such a. constitution regularly voices the will of the dominant part of the community, i. e., that part which contains the strength, wealth and intelligence The con- , i i • stitutionas of the uatiou. The persons who compose this tativ?oT dominant part will not necessarily themselves dominant f omiulate the fundamental law of the state, but by formal appointment or tacit consent they will permit some person or body of persons to order the framework of the organization of the state and the powers to be exercised by its several agencies. In a well-ordered state the constitution will fully and exactly voice the wish and will of the entire community, but generally that is rather the ideal than the rule. In prac- tice the constitution will represent, as already said, the will of the dominant part of the community, often to the neglect and even to the injury of the interests of the other members of the body politic. The aim of democracy is to develop a constitutional system voiced in the compo- sition of the lawmaking body that will allow all the in- terests of the nation to be adequately provided for in the constitution. The Russian parliament, mentioned on page 136, in the composition of the upper house, and in the electorate which determines the membership of the lower house, affords an illustration of an aristocratic system of representation. Bluntschli, in his "Theory of the State," ^ explains his notion of the representation 1 Book VI, Chapter XXIII. LEGAL SOVEREIGN AND THE ELECTORATE 209 of interests; and modern democratic movements toward some system of minority or proportional representation illustrate another aspect of this question. ^ As a state in the exercise of its sovereignty may have occasion from time to time to amend or even to revise entirely its constitution, so as to adapt its life The legal ^^ ncwcr conditions, there must be in ev.ery sovereign. ' »' state a person or body of persons recognized as having the legal right to perform such a function. This agency of the state voicing its will in the enuncia- tion of its fundamental law, is the legal sovereign. The legal sovereign, then, in the exercise of its power decides the form of the organization of the state, assigns powers to the other departments of government, prohibits the exercise of some powers and designates the manner in which the several powers assigned must be exercised. It may even specify the manner in which it will exercise its own powers, but such specifications must be con- sidered as constitutional guaranties, not as limitations on its activity. In other words, the legal sovereign voicing as it does the absolute sovereignty of the state cannot legally bind itself not to exercise any part of sovereignty. It may give a formal pledge in the nature of a limitation of its powers, but the binding force is moral, not legal, for a legal sovereign unable to perform its sovereign function would be limited in its powers, and hence not the repository of the most fundamental of sovereign powers. » See reference to J. R. Commons, at end of chapter, and Bulletin No. 14, Proportional Representation, Wisconsin L'^gislative De- partment. 210 THE DEVELOPMENT OF THE STATE In exercising this great power the legal sovereign should represent the will of the nation, and, as a rule, will more or less fully voice the desires of the people as a whole. As, however, states are constantly changing the conditions that determine their development, a legal sovereign designed in one age to express the will of the body politic, may in a later age fail to represent cor- rectly that will. In such a case if the legal sovereign of its own accord fails to modify its composition so as to suit newer conditions, a revolution will probably take place after a period of dissatisfaction and agitation. This is the so-called Right of Revolution, the right of a community which finds itself hindered in development by existing forms, to overthrow these and substitute others more in accordance with the will of the com- munity. Such a right must of course be justified on moral grounds; legally speaking all revolutions are rebellions and in violation of law. ^ In old-fashioned monarchies the legal sovereignty will naturally be found vested absolutely in the king, or in , the king and his council, under the theory Location of " . legal that these truly represent the larger interests sovereignty. ^^ ^^^^ state. lu such cascs the king, or the king and his council, may alter at will the fundamental law of the land. The inertia of custom and the fear of revolution or assassination may deter the king from making unpopular alterations, but if any changes at all are legally to be made, he is the proper agency to decide on and to enunciate them. If in such a state a repre- sentative council or a legislature should develop, this * But for a legal basis for rebellion, see Article 61, Magna Charta. LEGAL SOVEREIGN AND THE ELECTORATE 21 1' body may gain the right to share in the exercise of this power, and the three bodies, king, council and legisla- ture would then form the legal sovereign, as in England. In a similar manner the powers of the legal sovereign may pass entirely from the head of the state to the law- making body, as in France, or to the lawmaking body and the electorate, as in Switzerland. If the state be completely democratic, the electorate alone would ex- ercise that power. This stage has almost been reached in Switzerland, through the use of the initiative and the referendum, and in some of the commonwealths of the United States of America through the use of the constitutional convention. In a federative form of government, the federal lawmaking body, combined with the lawmaking bodies of the federated common- wealths, may constitute the legal sovereign, as in the national system of the United States of America. In respect to legal sovereignties located in lawmaking bodies, as in Great Britain, France and the United States, it might properly be maintained that the electorate also should be considered as legally a part of the legal sov- ereign, so far as it has the right to determine by election the membership of the parliament or legislative body. This would certainly be true if the electorate had also the right of instruction and of recall. If, however, the lawmaking body, when elected, has full discretion in respect to its policy, irrespective of instructions from constituencies, it may be better, on the whole, to con- sider that body for all practical purposes as the legal sovereign. In an absolute form of government the personal sov- 212 THE DEVELOPMENT OF THE STATE ereign will also be the legal sovereign, but the double aspect of the sovereign under such conditions is clear. Similarly if a legislature happens to be also the legal sovereign, it is always possible to distinguish between the legislature as a constituent and as a legislative body. 1 Likewise, in a democracy the electorate is the legal sovereign only when it directly exercises the powers of the legal sovereign. In the national system of the United States of America, e. g., the electorate is not legally sovereign, for the constitution vests the power of amendment in the national congress and the legisla- tures of the commonwealths. The electorate may re- quest these to pass amendments, but has no power to command them so to do. Theoretically, these lawmak- ing bodies might at their discretion change the republic into an empire or into a socialistic form of government, without consulting at all the wishes of the electorate. The same illustration might apply in the case of Great Britain. The legal sovereign is the king in parliament, and action taken by this body is legally final, irre- spective of the wishes of the electorate. In a study of the practical workings of government, one may see that an autocrat ruler will make no im- portant change in the constitution without first con- sulting his advisoiy officers; that the will of the king in parliament may be virtually expressed by the leadership of a dominant political party in the house of commons; that American lawmaking bodies will carefully consult * In the United States the president, for example, may veto acts of congress, but he has no veto power over amendments to the constitution passed by congress. LEGAL SOVEREIGN AND THE ELECTORATE 213 popular wishes before passing constitutional amend- ments; and that countless other restrictive influences are brought to bear on the personnel composing the legal sovereign. Such matters of practical politics must be carefully studied before one can fully understand the political system of a state, but after all there is a wide difference in idea between the legal right to accomplish constitutional changes, and the sum total of all the factors and motives that may enter into the formulation of such changes. The legal sovereign often has a revolutionary origin, and may frequently undergo changes in composition. For instance, the legal sovereign in the Ameri- The legal . ' , , . . sovereign cau colouics bcfore 1776 was the kmg in parlia- sometTmes i^^^i^t. ^ The Declaration of Independence and revoiu- the action of the colonies made these from the American standpoint, free and independent states, held together loosely in a confederation. These states in congress assembled agreed to adopt a con- stitution, pro\udcd all the states gave their consent. ^Vhen this had been accomplished, by 1781, the legal sovereign of the confederation was the several states acting formally through the congress, ^^^len revision became urgent, the Convention of 1787, knowing the impossibility of securing unanimous consent to the pro- posed constitution, suggested that it go into effect provided nine of the thirteen states gave their consent. The adoption of this suggestion and its accomplishment amounted virtually to a peaceful revolution and the establishment of a new legal sovereign. The constitu- ' Or, as argued by some, the king in council. 214 THE DEVELOPMENT OF THE STATE tion adopted, however, provided that future alterations should be made by the joint consent of congress and of the legislatures of the states, or of conventions especially called for that purpose.^ This constituted, therefore, a new legal sovereign, so that at the present time no legal amendment or revision of the national constitution is possible, except by the joint action of these lawmaking bodies. In the several commonwealths of the United States of America Rousseau's theory that the people should The con- legally be secured against governmental tyr- conven-^^ auuy has found full development. The early t'on. practice of the states was to assume that the legislature or assembly had constituent powers also, but this ran counter to the rising tide of democracy. The importance of a written constitution embodying a fun- damental law superior to the statutes of a legislature, was soon recognized. In order that the electorate voic- ing popular interests might more completely control this law, the constitutional convention was brought into use and developed. This agency, elected directly by the voters and submitting its work to them for approval, has proved remarkably efficacious in securing popular rights. The effect of it is, that whereas in the national system legal sovereignty inheres in the lawmaking bodies of the federal government and the states, in most of the commonwealths themselves the fundamental law is con- trolled by the electorate, through the convention and the referendum. In consequence, the real development ' By a vote of two thirds of each house of congress, and three fourths of the states. Article V. LEGAL SOVEREIGN AND THE ELECTORATE 215 of American democracy should be studied, not so much in the national system as in the local systems of the states, which illustrate much more clearly the virtues and defects of a popular democracy. The Electorate In primitive horde life there was a sort of rude de- mocracy. Though control was practically in the hands of the elders, yet these did not form an heredi- opmenf' ^^^^ class. Each had attained the honor through merit or the wisdom of age. Every young man, so to speak, had in possibility a " marshal's baton" in his grasp. The same idea holds in the tribal democracy of pastoral life. A nomadic, warring stage of existence is not suited to hereditary aristocratic government. Power goes to the one who best can wield it. In patriarchal agricultural life the situation was some- what different. Class distinctions based on birth and wealth had developed. Hence arose a leisure class trained in a more generous environment than that of the common man. They were keener and more intelligent, and were dominating in personality. Power naturally belonged to them. Yet after all they were in close touch with the freemen of the community. All were akin and trod the routine of life together; hence the leaders truly represented the ideas and interests of the entire community as well as though they had been elected representatives. But when the era of commerce began, and the population of the community multiplied through the influx of aliens and merchants, the hereditary heads of the community would not adequately represent 216 THE DEVELOPMENT OF THE STATE the differing interests of the growing city or city state. Hence a demand for representation, not of persons as in modern democracy, but of interests and locahties. Such demands and their satisfaction are ilhistrated by the reform legislation of Solon and of Servius Tullius, who arranged that wealth and occupation should have a share in governmental power. The culmination of this move- ment in classic times is best known through the struggle of the plebeians against the patricians in Rome, which finally resulted in the bestowal on every citizen of a voice, however slight, in the affairs of government. This voice was expressed by formal vote cast on stated days. ^ When citizens, as such, meet in a formal way, and at a set time, and in a definite place and manner, express their choice by vote for representatives or for governmental measures, they form in effect an electorate, which term may be defined as that body of citizens legally authorized to participate in the exercise of some of the sovereign powers of the state. Feudalism and medievalism minimized the necessity for this demo- cratic device, except in the commercial centers of Italy and Germany, but with the fifteenth and sixteenth cen- turies the rising tide of democracy once again brought the notion of an electorate to the front. Its philosophic expression was in the famous social contract theory. In religion it voiced itself in the teaching that before God all men are equal and responsible. Its economic equiva- lent was voiced by Adam Smith in free competition and laissez-jaire. ' For an excellent brief study of these movements, see 1' The State," by Woodrow Wilson, pp. 64-120. LEGAL SOVEREIGN AND THE ELECTORATE 217 In England a national electorate formally came into existence when municipal corporations and county or shire courts were authorized to send delegates suft-age. '^^^ should assist the council in advising the king. The membership of these corporate bodies was small and not truly representative at first, but as their delegates gained power in parliament there came a gradual enlargement of the elective franchise, until at the present time about one person in six has the suffrage, which is practically manhood suffrage. This enlargement took place chiefly by reducing the property qualification necessary for suffrage and by removing disabilities based on racial and religious distinctions. Wherever there develops a virtual equality of economic opportunity and conditions, emphasis tends to be placed on human equality. Hence manhood suffrage came much earlier in countries under the influence of Ameri- can and French democratic ideas, and the more radical democratic world has even admitted women to the same suffrage privileges as men, as, for instance, in six of the commonwealths ^ of the United States of America and in most of Australasia. When both sexes exercise the suffrage the terms adult, or general, suffrage are used. 2 It is important to note that wherever an electorate exists it becomes ipso facto as truly a part of the govern- ment as any other department exercising political powers. The powers which an electorate may exert vary considerably in extent in different states, but the 1 Colorado, Idaho, Wyoming, Utah, Washington and California. ' The term universal is often incorrectly used for either manhood, or for adult suffrage. 218 THE DEVELOPMENT OF THE STATE tendency in democracies is to bestow increasingly larger powers, as citizens attain greater intelligence and politi- The eiec- ^^^ Capacity. The powers usually assigned are toratea executivc. That is, the electorate may be govern- i • i • t i • i mental authorizcd to appomt candidates to certain des- agency. ignated offices through forms of election. These offices may be (1) executive or administrative, as in the election of a president, a governor, a mayor or the head of an administrative department; or (2) judicial, as in the case of judges elected by popular vote, the prevailing system in the commonwealths of the United States of America; or (3) legislative, as in the election of delegates to lawmaking bodies. Occasionally the electorate is authorized to aid directly in legislation through the initiative and the referendum. At times, also, the elec- torate secures the right to assist, through delegates chosen by lot, in judicial decisions by the performance of jury service. These are direct powers and are important in proportion to their extent. . If, e. g., an electorate should directly appoint by election all important officers of the three historic departments of government, and should have a deciding voice in the formulation of the constitu- tion, its power would be enormous. If, also, the elec- torate were composed of all adults in the nation, the people might well be said to be exercising full sovereign powers. Electorates, however, rarely have so much power as- signed to them and seldom include all capable adult persons. Theories of social welfare may result in mod- ifications of the principle of manhood suffrage by intro- ducing restrictions intended to discriminate in favor of LEGAL SOVEREIGN AND THE ELECTORATE 219 the more intelligent and reputable classes. Such discrim- inations may be made by requiring a minimum standard Restrictions ^^ cducation or intelligence, by emphasis on on the economic capacity as shown by the possession powers of „ , , , • e i elector- 01 taxable property or the pursuit oi an honor- ***^' able occupation, by disfranchisement of the pauperized and the criminal part of the popidation and by restrictions based on sex, religion or service in certain branches of governmental administration. In some states special suffrage privileges are given to graduates of universities, to married men and to fathers of families. ^ In aristocracies there may be an electorate composed of a small class of nobles or of persons of wealth. In any so-called democracy it is always important to note (1) the restrictions on suffrage, and (2) the direct powers placed in the hands of the electorate. The restrictions may be so great and the power so slight that the system is really a close oligarchy, as is the case in practically all of the states in Latin America. The most ancient method for the formulation of a de- cision through suffrage is that known to-day as viva voce. A question is submitted to the assem- Methods of i^j^g^ voters for their approval or rejection, and by word of mouth, show of hands or other sign they signify their decision. Ancient familiar examples of this may be found in Hebraic history, the Homeric Ecclesia and the Germanic Assembly of Tacitus. Mod- ern examples are seen in the town meeting and in ordi- ' As types of these, note suffrage provisions in the constitution of Belgium, Article 48, and of Mexico, Article 34. Dodd, .'Modern Constitutions." 220 THE DEVELOPMENT OF THE STATE nary social organizations. The present usual form of suffrage is through the secret ballot. This device was regularly employed by the Athenians and the Romans, was revived in the period of the Renaissance and is now in use in an improved form in practically all modern states. The Enghsh baUot act, superseding the ancient method of election, was not adopted mitil 1872. The improved method in use throughout the United States of America, popularly known as the Australian ballot system, was adopted in the last decade of the nineteenth century. A Newer Democracy Underlying the great political movements of the time there is manifestly a rising tide of democracy, not repre- sentative in type, but tending always toward a direct participation of the electorate in the formulation of fundamental policy. Naturally one would expect imder such conditions a vigorous governmental activity in re- spect to general welfare. As illustrations of both of these aspects of the newer democratic spirit the growing use of the initiative and the referendum will be noted, and the governmental activities of the Dominion of New Zealand, where apparently the Mecca of radical democ- racy has been established. Historically speaking, the initiation of projects of policy belongs to the executive, who has the right not simply to suggest, but to order a policy. Naturally this power is shared with his council, and in practice may pass from him to it. With the rise of a lawmaking body a new problem presents itself in the query as to whether LEGAL SOVEREIGN AND THE ELECTORATE 221 its members also shall be allowed the privilege of initia- ting law. The English solution was that the members Historical of the newly organized parliament offered their develop- suggestions in the form of advice or as a pe- ment of the ~^ ^ ^ modern titiou. In Russia, under the present system, anVref-^ the czar reserves the right to initiate all funda- erendum.* mentals, but permits members of his parliament to initiate matters of minor consequence, provided these be submitted to him for approval or rejection. Another stage of development is noted in a modern system like that of the national government of the United States of America. Under this system the presi- dent and his cabinet, in the form of the president's mes- sage, suggest to the lawmaking body a policy of legis- lation, but the initiation of these suggestions, or of any other suggestions whatsoever, is optional with the mem- bership of the congress. "UTiatever policy, however, this body may adopt, as testified by the passing of bills, must be referred to the executive for approval or disapproval, by his use of the veto power. The present English sys- tem, so frequently imitated in other states, lies halfway between this and the earliest system. The members of the king's council, the cabinet, are at the same time members of the lawmaking body, and are both legisla- tive leaders and authorized royal advisers. As leaders they dominate the initiation of a policy to be passed as legislation, and as advisers they voice the king's will; so ' By initiative is meant the right of the electorate to propose laws, and to demand that these be submitted to the voters for approval or rejection. By referendum is meant the right of the electorate to demand that legislation passed by a representative body be sub- mitted to the voters for final approval or rejection. 222 THE DEVELOPMENT OF THE STATE that, while bills are formally referred to him for ap- proval, consent is given as a matter of course. The next step of development is especially impor- tant and needs careful consideration. With the growth The re re- ^^ dcmocracy there develops an electorate, and sentative the question arises as to its relationship to the lawmaking, or policy-fixing, body. If this is answered by authorizing the electorate to elect the mem- bers of the lawmaking body, then a system of repre- sentative government is established. This system is strengthened if at the same time the voters may deter- mine the choice of the head of the state, or the personnel of his cabinet. Given such a representative system, the problem then arises as to the best methods of securing a true expression of the will of the electorate through its representatives. It will be impossible to trace in detail the many devices to this end, but the most important of these may at least be mentioned. In the first place, devices in respect to elections ^ de- velop one by one; a limit is placed to the duration of the term of office, and careful provisions are made for nominations, balloting and the counting of votes. There is possibly a system of minority or proportional repre- sentation, and, in general, a supervision of the mechan- ism of party machinery. Then arises the question whether representatives may be instructed, and how, if anyone should prove recreant to his trust, he may be deprived of his office and recalled to private life. Fol- * For discussion and numerous references, see Bulletins Nos. 3 and 13, Wisconsin Legislative Department, "Corrupt Practices at Elec- tions, and Primary Elections." LEGAL SOVEREIGN AND THE ELECTORATE 223 lowing closely comes the notion that lawmakers may be instructed by placing over them a fundamental law, formulated by a special body in close touch with the electorate, and containing essentially a policy for a generation at least. Again, the electorate may assert its right to suggest by 'petition, or to advise by public hearings, what in its opinion should be the policy of the state, and finally may assert its right to have laws re- ferred to the voters for their approval or rejection, and may even authorize these to initiate a bill or a consti- tutional amendment, and to have it referred to the law- i making body or to the voters for approval or disapproval. If such a development were supplemented by a similar growth of the representative character of the electorate, as voicing the wish and will of the people, by removing, for example, distinctions based on rank, property or sex, a condition might easily be reached in which the electorate would be practically identified with the people, barring minors and incompetents, and would be legally exercising the fundamental powers of the state by its right to initiate and determine the policy of the state. Evidently, therefore, a state in working out its govern- mental system along democratic lines, has the option of seeking to build up either a truly representative system closely in touch with the popular will, or of inclining more and more toward a direct democracy by the use of such devices as the initiative and the referendum. ^ As this last alternative finds its storm center in Switzerland and in the United States, a brief statement ' For references, see " The Initiative and Referendum," Bulletin No. 21, Wisconsin Reference Department. 224 THE DEVELOPMENT OF THE STATE in regard to these experiments may well be given. Remembering that the early Swiss cantons were small ^ . rural commmiities, clannish and conservative Swiss _ _ _ ' direct by disposition, it would seem natural enough emocracy. ^j^^^ ^j^^^ should usc the direct democratic system of the village, with its elders as a council. But when administration grew in importance and com- plexity there slowly developed a system whereby the initiation of a policy was delegated to suitable bodies, although subject to popular approval on reference. In this way the electorate checked or balanced the power delegated to its magistrates. In federal affairs the con- stitution of 1848 gave formal voice to this system, and its later amendments have made still more emphatic popular control over fundamental and statutory law. Under the present constitution there is an optional referendum in respect to statutes passed by the Federal Assembly and a compulsory referendum in amendments or revisions of the constitutions. For constitutional purposes the initiative also is authorized but is sparingly used.^ In the cantons or commonwealths, likewise, these provisions have gained ground, until it is said (1902), that "All the cantons possess the initiative, either in constitutional or legislative matters, or both; and all, except Freiburg, some form either compulsory or op- tional, or both, of the referendum." ^ Opinions differ widely in respect to the utility of the system, even among the Swiss themselves. To some ' But five times in the ten years following its adoption in 1891 ; four of the measures initiated were rejected at the polls. ^Rejiort A. S. Hardy to department of state. '.'House Docu- ments," vol. i, p. 991, Fifty-seventh Congress, second session. LEGAL SOVEREIGN AND THE ELECTORATE 225 • it means the rule of an unreflecting mob, moved by impulse and prejudice, and dominated by motives of immediate utility or expediency. Others argue for it as a great device for popular education on political ques- tions, and seek to show that in result the voters seem to be at least conservative rather than radical, erring occasionally through ignorance, but on the whole mani- festing an intuitive common-sense appreciation of ques- tions submitted, if these are not too technical nor too detailed. It seems obvious that the experiment is being tried under most favorable conditions. Switzerland is a neutralized state, its people are thrifty and intelligent, and in close touch with modern civilization. Certainly neither the federal government nor the cantons show any disposition to repeal the system, and it is probable that with experience and deepening intelligence that state may yet devise a workable system of direct democ- racy cooperating with a well-ordered, representative form of government. In the federal government of the United States neither the initiative nor the referendum is in use, though there jjijg^t are occasional movements looking toward the democ- introduction of the referendum into the federal racy in the , i i i /. n • United system. In the commonwealths the followmg ^****^' classes of legislation find illustration: (1) In practically all of them the referendum is used in purely local matters, usually in the form of statutory author- ization of local bodies politic to decide for themselves, whether or not some local bill, or a local application of some general statute, shall go into effect. In the same 226 THE DEVELOPMENT OF THE STATE « manner there is in many states a local initiative in use, as, for example, when the voters of a locality petition for the submission of the question of license or no license. (2) Again, in many cases a state constitution may authorize its legislature to refer to the voters of the state some particular kind of general legislation, such as, for example, a proposition to issue a bond series, or to adopt prohibition or woman suffrage. Such general referendums, to be constitutional, must be authorized by the state constitution. (3) Beginning in 1898 with South Dakota, several states ^ by constitution have au- thorized the use of the initiative and referendum in general state legislation. So far Oregon has made the most effective use of this device. (4) Starting with Massachusetts in 1779-1780, new or revised constitu- tions and amendments are now regularly referred to the electorate for approval or rejection. Delaware alone of all the states does not submit amendments, and some states, especially in the South, promulgate constitutions on the authority of the convention, according to the usual custom in our early national history. Since 1890, e. g., five states ^ have, without the use of the referendum, adopted revised constitutions. (5) The most radical change of this sort was made by the adoption of the initiative in amendments to the constitution, started by Oregon in 1902, and taken up by Oklahoma, in its new constitution, 1907, and by Missouri in 1908. (6) A legislature may authorize a referendum so as to obtain ^ Among these the most complete systems are fomid in Oregon, Oklahoma, Missouri, California and Arizona. '^ Mississippi, South Carolina, Delaware, Louisiana, Virginia. LEGAL SOVEREIGN AND THE ELECTORATE 227 from the electorate advice as to whether or not a pro- posed bill, or a particular candidate, has popular ap- proval. This is a form of instruction, but it is not legally binding on the legislature. Party primaries may use the same system so as to suggest suitable candidates for office. 1 In this connection it may be noted that the purely local use of the initiative and referendum, especially the latter, the occasional use of the referendum in general legislation, and its use in the adoption, revision or amend- ment of state constitutions are familiar, long-tried and well-established methods of legislating with the aid of the electorate. The general use of the mitiative and referendum in statutory legislation, and the use of the initiative in amendments to the constitution are new to the American system, obviously borrowed from Switzer- land, and are still on trial in popular estimation. Few states have so far ventured on the experiment, and these with one exception are west of the Mississippi, where a more radical type of democracy prevails than can be found farther east. The advisory referendum is new, and may develop into a legalized method of giving in- structions to delegates or representatives. Evidently no dogmatic statement in respect to the outcome of this tendency toward direct democracy can safely be made at present. The western states, with fewer precedents and more democratic conditions, can experiment with new devices in governniental machinery, the very thought of which would horrify the conservative East. * Illinois, Texas, Oregon and Massachusetts among others have made use of this form of referendum. 228 THE DEVELOPMENT OF THE STATE If, however, these experiments prove useful, they will undoubtedly be taken up in milder forms by other commonwealths. In this way real improvements will slowly work into the governments of the several states and ultimately become the law of the land. It may be observed that, so far as the initiative and referendum are concerned, there seem to be no backward steps. Wherever the system is on trial, it seems to be gaining rather than losing ground. New Zealand is by no means a great state, nor even in itself a colony ^ of international importance, yet within KewZea- its bordcrs most of the radical experiments in iToHdcai democracy thai Utopians have dreamed of for laboratory, geucratious are at present being carried on. This group of islands is comparatively small, having an area about that of Colorado or Nevada. Its population, all told, is less than a million, not so many as may be found within the borders of Connecticut. The chief occupations of its people are farming and grazing, sup- plemented by manufactures and mining. It has its commerce and is in close touch with its neighbors in Aus- tralia, twelve hundred miles away, and with the mother country, which by the prestige of its flag shields its off- spring from many international complications and bur- dens. In this remote corner of the earth, freed from the fear of \.ar. with natural riches and a population over ninety-eight per cent British by birth or descent, with the suffrage in the hand of every adult man or woman, and a flexible system of government, virtually autonomous, English individualism is free to work out ' It is, since 1907, the Dominion of New Zealand. LEGAL SOVEREIGN AND THE ELECTORATE 229 a form of democratic activity which, if it proves success- ful, will become a sort of ideal to which other democra- cies in future may seek to attain. Without commenting on the success or failure of its numerous experiments in legislation, in respect to which references for reading will be found at the end of this chapter, attention may be directed to what may be called the newer democracy. Adult suffrage is allowed a free hand by careful provisions for free nominations, the Australian alphabetical secret ballot, effective cor- rupt practices acts and a half holiday for workers on election day. Civil service rules, non-partisan politics and official responsibility help toward honest adminis- tration. The government owns its railroads, manufac- turing its owTi cars and locomotives; it owns steamship lines, telegraphs, telephones, coal mines and savings banks, a parcels post, a national bank and a loan office which lends money on easy terms and low interest to the citizens. It plans for ultimate state ownership of lands, helped on by a lease system and a graduated land tax. There is a government insurance company com- peting with private insurance companies and a govern- mental management of trust estates. All these and other similar undertakings illustrate the bewildering variety of activities carried on by the state. It arbi- trates disputes of all sorts, guaranties land titles, sim- plifies law, furnishes legal advice and service free or at low rates, serves as tourist agent for travelers, estab- lishes model farms and teaches scientific farming. It uses the probation system for juveniles, colonizes its unemployed, starting them in business as farmers, pro- 230 THE DEVELOPMENT OF THE STATE vides pensions for the aged and is seeking to abolish pauperism altogether. It serves as selling agent for its farmers, keeps their goods when necessary in cold stor- age and sells them in London, charging only commission at cost. It aims to establish a minimum wage, a short- hour day and guaranties work for all through its labor department. It has eliminated sweat shops, carefully regulates the labor of women and children and has effi- cient sanitation laws for manufacturing establishments and shops. It directly employs its own force in the construction and maintenance of public works, and stimulates industry on the part of its workers by cooper- ative methods. It is abolishing the slums by inducing urbanites to move toward the outskirts and into the country, and by helping workingmen to build homes by loans at low interest. Education is emphasized and is for the most part free. There is no state church, and no state aid is given to any religious body. The govern- ment seeks definitely to equalize opportunity for all, to diffuse wealth and to discourage the rise of millionaire fortunes. Its ideal is a land of plenty without pauper- ism or excessive luxury, where healthy bodies and well- trained minds may become normal and furnish the basis for continued prosperity. Whether this experiment in democracy will succeed is still a problem. Certainly the economic and racial conditions of New Zealand are favorable, and its safety from international complication seems assured. If its government plans wisely on the basis of a carefully pre- pared and well-balanced budget, and strengthens in every possible way the morality and intelligence of its LEGAL SOVEREIGN AND THE ELECTORATE 231 citizens, there seems no inherent reason why it may not become "Newest England" in a large and prophetic sense. After a survey of political evolution and differentia- tion, he would have a difficult task who should try to The contri- Gstimatc witli any completeness the relative butions of contribution of the world's great historic states nations to ,..,..,. . . political to political Civilization. Yet it would be easy civilization, g^ough to scc that in India, in Egypt, on the plains of China and of Mesopotamia and in the cities and harbors of Asia Minor, there developed great patri- archal and commercial empires which fixed the funda- mental type of state for civilized man; and that, not- w^ithstanding the rise and fall of dynasties and races, the petty states of early Europe inherited from the East and the South all that was really valuable of a decadent civilization. In Phoenicia, the most modem of ancient Asiatic governments, and in Carthage its great colony, in Greece and in Rome, centered the contributions of preceding ages, as each, one after the other, assumed prominence and made its own offering to the common stock. From the first three came that emphasis on commerce and colonization, which makes a modern Englishman feel perfectly at home as he reads of the expansion policy of these nations; Athens, in addition, taught philosophers how to reason about the principles of government and to work toward higher and better standards of political life. The genius of Rome lay by contrast in its emphasis on law and administration. By the aid of Greek phi- losophy it enlarged its customary law into a code that 232 THE DEVELOPMENT OF THE STATE will stand for many future centuries, as the high-water mark of attainment in respect to civil rights. By its administrative and centralizing capacity it developed a system of political organization that finds its best ex- pression to-day in the imperialistic hierarchy of the Roman Catholic church, and in the highly centralized governmental organization of France. From England in later centuries came an efficient judicial system, a suc- cessful colonial policy and a parliament working out through a joint cabinet an harmonious cooperation of governmental and civic interests. France, a true daughter of the Roman empire, as shown by its capacity in war, in law and in administration, came to the front in the eighteenth century, set fire to the dry tinder of European politics and intoxicated the political world with the inspiration derived from the "Marseillaise," the pursuit of glory, and the ideals of democracy contained in the motto, Liberty, Equality and Fraternity. This influence spread through western and southern Europe, passed to the Latin colonies in South America, rivalmg there the competing influences of Spain and the United States, and even affected in the latter country the policies of such democratic leaders as Jefferson and Monroe. Germany and Japan are adding their contributions to the world-state in the form of applications of scientific principles to governmental functions and organization, thereby overcoming natural handicaps. The United States also is no mean factor in the modern political world. From it has come the federation, the written constitution, a humanitarianism cosmopolitan in its scope and a wide application of the principles of democ- LEGAL SOVEREIGN AND THE ELECTORATE 233 racy. This development has been greatly aided by its freedom from military necessities, its system of general education and the inventive capacity of its people, de- voted to the development of a large, well-watered, fertile land rich in fuels and minerals. Through these the nation, with its composite racial population, is deeply impressing its governmental type on the political sys- tems of the world, and has by no means yet reached the height of its powers. ^ Add to all these the many ex- periments being made in odd corners of the earth, such as in Australasia, Finland, Scandinavia and Switzer- land, and the conviction might readily grow that the state, in its governmental functioning and organization, is still plastic, is still adapting itself to newer conditions and by steady improvement is becoming unquestionably the great agency through which humanity will continue to accomplish its ends of social development. From this discussion of the organization of the state, it seems clear that the present trend of government in the progressive part of western civilization citizenship. ^^ toward dcmocracy, and, therefore, toward an increasing emphasis on law and on the rights and obligations of citizenship. A brief exposition of each of these subjects will make more evident the spirit, and the conditions essential to the development of an intelligent democracy. ' Note, e. g., " The Americanization of the World," 1901, W, T. Stead. 234 THE DEVELOPMENT OF THE STATE SPECIAL REFERENCES Legal Sovereign: General works (Chapter III) under topics; "Sovereignty " and " Location of Sovereignty." Constitution: References Chapter XII. Electorate: References Chapters XIII-XV. Ballot: American Historical Review, vol. v, p. 3, A. M. WoLFSON, "The Ballot and Other Forms of Voting in the Italian Communes"; Papers of American Historical Asso- ciaiion, vol. v, pp. 163-186, Douglas Campbell, "Origin of American Institutions, as Illustrated in the History of the Written Ballot." New Zealand: H. D. Lloyd, "Newest England," 1901; Frank Parsons, "The Story of New Zealand," 1904, Philadelphia. Miscellaneous: F. A. Dallinger, "Nominations for Elective Office," 1897; Carl R. Fish, "Civil Service and the Patron- age," 1905; J. R. Commons, "Proportional Representation," 1907; C. E. Merriam, "Primary Elections," 1908. PART FOUR LAW AND CITIZENSHIP CHAPTER XI CLASSIFICATION OF LAW In any community there will develop set and custom- ary ways of carrying on social activities. Persons soon realize that time is saved and friction avoided The meaning by Conforming their actions to social standards and routine. Such customs develop in all ages and in all kinds of social life, whether economic, domestic or religious. They form a sort of unwritten code, enforced by parental and ecclesiastical authority or by the pressure of public opinion. Some of these customs, however, may become so important for general welfare that stronger pressure than social authority or opinion must be brought to bear on those members of the community who incline to acts in violation of social standards. Whenever a community in its collective capacity, presumably acting through its body of elders, its government, undertakes to apply such pressure, by fixing penalty for violation, then such customs cease to be purely social and become political. In other words they become the lain of the land. They are virtually commands, ordering or prohibiting certain actions, and disobedience is followed by the infliction of a penalty fixed by the governing body of the community. As the sphere of governmental activity widens, other social cus- 237 238 THE DEVELOPMENT OF THE STATE toms become of general importance, enforceable under penalty by the state. Throughout the entire history of the state, laws have developed in this manner from customs. These, arising from social intercourse, are at first largely personal and local; some in process of time develop general importance, and when really essential, are enforced through government for the sake of the general welfare. Law, therefore, may be defined as the formulated will of the state, enforced by the sovereign power of the state. This will may be formu- lated in customs having a legal sanction, or in com- mands written or unwritten. If all law were purely social custom, violations would be few and punishment rare; but other sources have , . contributed to the multiplication of laws and The multi- '■_ plication of these have greatly complicated the legal sys- ^^^' tem. Broadly speaking, there are four such causes: In the first place, civilization has been marked by a constant series of wars, conquests and amalgama- tions of races. Conquerors and conquered settle down in the same community; their differing customs clash and compel ultimate compromise, but meanwhile the domi- nant race enforces what seems to the conquered a harsh and arbitrary law which they hate and violate whenever possible. Again, the origin of private property multi- plied enormously the possibilities of disobedience to law. Social philosophers have tended to decry private prop- erty as the root of all evil; Plato in his " Republic " and Sir Thomas More, in his " Utopia," for instance, charge to its existence nearly all the evils of social life. It is cer- tainly hard to find a sound ethical basis for the ex- CLASSIFICATION OF LAW 239 tremes of wealth — excessive riches and abject poverty. Many persons, therefore, have always found it easy to justify to themselves theft and robbery. This is as true to-day as it ever was. The largest part of criminal law is aimed at such crimes, and much social friction arises in consequence. In the third place, society, through the institution of private property, has regularly tended to develop classes, superior and inferior, governing and governed. The class in possession of governmental power naturally arranges the social and economic system chiefly to suit its own interests, and seeks to compel obedience to its mandates even by harsh measures if necessary. Class legislation, therefore, giving special privileges to a favored part of the community, is obnox- ious to the others, who violate its injunctions without compunction whenever possible. Lastly, legislation by lawmaking bodies has not always been wise and judi- cious. It may be too paternal, may interfere too much with personal comforts and rights, and may irritate by petty exactions and overofRciousness. To the governed, an aggravation of the legal system lay in the fact that for long periods a knowledge of the law and of its procedure was considered to be a privilege of the ruling class, who thereby were able to hold hidden terrors over their unwilling subjects. The history of the ten tables of Roman law illustrates this point. The injustice of inflicting penalty under such conditions is obvious. Ignorance of the law excuses no one, to be sure, but if ignorance is compulsory we feel that it should excuse. For this reason civilized communities have regularly demanded that enforceable law be proclaimed. 240 THE DEVELOPMENT OF THE STATE The demand "That every man may know the law"^ has been satisfied in most modern states, even though the complexity of civic Mfe is such that few men can understand it when announced. A favorite dream of social Utopians has been that law be made so simple that even the unlearned man may understand. - That re- form is still for the future. The customs that first passed into law were probably those concerned with crime against the community as a whole, the beginnings of modern treason laws. ueasoiT °^ ^ ^^^^ against treason is primarily based on the notion of service owed to a community by its members, or on the allegiance due from a subject to a ruler. Law against treason in some form or other is found even in crude and primitive communities. Severe penalty was inflicted on those who failed in military service or obedience, or who conspired against the com- munity or its head. As kingship developed, treason be- came personal. It was a crime against the head as the embodiment of the state. When kingship was hedged about with notions of divinity, it became not simply traitorous but impious to lay hands on the "Lord's anointed," and spiritual as well as temporal punishment was meted out to the offender. Torture, confiscation of property, corruption of blood and ecclesiastical censures were rigorously inflicted on malcontents. The idea of treason was extended so as to protect members of the king's family or his chief officers, and so as to include 'Note for example, explanation in Jenks, "Law and Politics," pp. 10-11. ^'See for illustrations More's "Utopia," p. 135, Morley edition, and Gardiner's "Constitutional Documents," p. 240, Section 6. CLASSIFICATION OF LAW 241 even words or criticism that might seem to imply hos- tihty to the king and his government. ^ In modern states, as autocracy and the divinity of kingship become obsolete, treason consists in action against the state as well as against the king. Punish- ment of the latter class of offenses becomes more humane as kings lose their importance in the political system. In republics treason against the head of the state or his officers is no longer recognized as a special crime; offenses of that sort are treated under ordinary criminal law. Treason now is a crime only when directed against the state. Furthermore, as freedom of speech is essential to democracies, the tendency is to consider as treason only armed rebellion and not criticism of the state or its officials. These several varieties of treason laws can easily be illustrated by comparing the systems in states differing in political development, such as China, Russia, Germany, Great Britain and the United States of America. As already mentioned, acts of violence and theft were long considered to be private matters, of no concern to ^ . . . the state, and were settled in accord with the Criminal ' and civil social customs of the Community. Regulation, therefore, was social, domestic, religious but not civil. As the state began to enlarge its importance and to regulate all disputes that tended to disturb the peace of the community, necessarily it had to adopt a code of law as the basal principles for decisions. The customs of the community based on primitive customs • See, for example, Feilden's "Constitutional History," pp. 3-7. ^ See Chap, iv, pages 80-87. 242 THE DEVELOPMENT OF THE STATE and prohibitions (the tabu) supplied such a code, sub- ject to such modifications as from time to time became necessary. In this way developed ordinary criminal law, which names the various prohibitions enforced by the state, and specifies the penalties to be inflicted in case of violation of the law. ^ In the same manner developed rules and regulations in regard to property rights. When property became private, not communal, regulation of rights became in- creasingly important. Disputes in regard to ownership often led to violence, and in its function as the guar- antor of peace, the state had to assume an increasingly larger share in the settlement of disputes in regard to property rights. This jurisdiction, however, is not so marked as that exercised in criminal matters. In case of crime the state assumes charge of the matter and treats the offense as one committed against the entire community. The state prosecutes, not the injured per- son, and the state bears the expense of investigation and inflicts the penalty. A civil dispute, on the other hand, is in form private. It is a dispute between individuals, who voluntarily bring their contention before the state as an umpire, which will decide in accord with well-es- tablished law, and enforce its decision at the expense of the parties concerned. An important historic form of law is the decree or ordinance. This is supplementary to the law of the land and is formulated through the executive and the departments of administration. If in a state there is no ' See article Popular Science Monthly, vol. xvi, p. 438, by W. W. Billson, " The Origin of Criminal Law." CLASSIFICATION OF LAW 243 lawmaking body, the power of the executive to issue decrees or ordinances is most important, supplying as it does the place of the legislature. In statutory wdhiance. legislation no law can fully cover all possible details, and hence there regularly rests in the administration the power to make supplementary rules and regulations for the guidance of the several adminis- trative departments. These rules are readily changed or modified to suit conditions. They are the hy-laws of social organizations. The ordinance power of adminis- trative departments is always large, but is especially emphasized in states not of the Anglo-American type.^ Legislation in those countries is expressed in a concise and terse manner, and its details are left to be worked out by the administration under the guidance of the executive. This naturally enlarges greatly the impor- tance of administrative departments. In Anglo-Ameri- can countries, on the other hand, legislation is detailed and verbose to the last degree, in that the legislature seeks to anticipate every possible emergency. The ordinance power of the administration is correspondingly reduced. Such ordinances of administrative bodies are related to administrative law proper as statutes are to the consti- tution. They elaborate the fundamentals of the higher law and supplement it. City councils being practically administrative bodies issue their decisions as ordinances, and as cities are known as municipalities, these ordi- nances are frequently referred to as municipal ordinances. * For a thorough comparative study of administrative systems in Europe, see Goodnow's "Comparative Administrative Law," vol. i, "Organization," vol. ii, "Legal Relations." 244 THE DEVELOPMENT OF THE STATE Differentiation in government has resulted in a cor- responding differentiation in law. The fundamental .... law of the land, or law of the constitution, is Admims- ' _ _ _ trative the basis for all law, but derived from this is '^' the ordinary law of the land, the civil law, which applies to all citizens or quasi-citizens in their civic capacity. Side by side with this is the law regu- latmg those who serve in the army and navy. It is a form of administrative law and applies ordinarily to those only who are actively engaged in military and naval services. Yet in times of war or insurrection, the provisions of the civil law may be suspended as far as is necessary, and the more expeditious rules of war em- ployed so as to secure the peace and safety of the state. The method by which this may be done is part of con- stitutional law. The state, besides employing the services of those in the army and navy, has many per- sons engaged in the ordinary administration of govern- mental affairs. These unitedly make up the civil service, as distinguished from the military and naval service. The rules and regulations governing the organization and powers of the civil service form the administrative law. This division of law is a formal one in English- American systems, but has attained a much higher development in the states of continental Europe. In France, for instance, where this law has reached its fullest develop- ment, there is a special series of administrative courts, independent of the civil courts, having jurisdiction broadly of all cases involving acts of officials of the civil service, and cases arising under administrative law. The argument in favor of such a system is that it insures CLASSIFICATION OF LAW 245 a more scientific, expeditious and impartial decision than would result if the case were intrusted to the ordinary courts.^ In the English-American system there are special courts for the consideration of administrative disputes, but their decisions are subject to revision by the civil courts, which also have jurisdiction over civil officers. These courts make no distinction between ad- ministrative and civil law.^ It has already been said that every state has a body of fundamental law known as its constitution. This term may then be defined as that fundamental tioniria'w ^^^^ ^^ body of laws, written or unwritten, in which may be found (a) the form of the organ- ization of the state, (6) the extent of power intrusted to the various agencies of the state and (c) the manner in which these powers are to be exercised. Utopian con- stitutions may be worked out by social philosophers as ideals in political development. In Greek classic times philosophers not infrequently undertook to write out on request, model constitutions for particular states; and Aristotle, in preparation for his famous work on "Poli- tics" gathered together, it is said, the constitutions of some two hundred and fifty states. In other words, he had prepared for him a statement of the fundamentals of the governmental systems of these several states. Simi- larly the constitution of any state can be studied and set forth by any competent person familiar with the political system of the state in question. ' See pages 170-174. ' For studies of American administration, see Bibliography under names Fairlie and Goodnow. 246 THE DEVELOPMENT OF THE STATE A confusion, however, arises in modern times owing to the introduction of the written constitution. This formal document theoretically contains such fimda- mentals only, as should be found in constitutions. In fact, however, for reasons unnecessary to explain here, written constitutions seldom if ever contain all the funda- mentals, and may embody many matters of minor im- portance. In the United States of America, for instance, the national written constitution would give an intelli- gent foreigner a somewhat vague comprehension of our constitutional system. He would need to supplement his knowledge by such information as is contained in Bryce,! and in some treatise on the constitutional law of the land. On the other hand, if he desired to under- stand the constitutional system of one of the common- wealths by a study of its written constitution, he would be overwhelmed by the mass of petty detail of local and temporary importance contained therein. Yet these "vsTitten formal documents, from the legal standpoint, must be treated as the fundamental law of the state or commonwealth, with which no custom, ordinance nor statute should conflict. In states, therefore, having written constitutions there is the possibility, and even the necessity, of two lines of constitutional study — namely, the study of the written document as the technical, fundamental law, and the study of the con- stitution as it really is, that is, made up partly from the written and partly from the unwritten fundamental law of the land. This complication, while unfortunate, is after all not in practice serious. Familiarity with the * "American Commonwealth." CLASSIFICATION OF LAW 247 notion of a constitution enables one readily to add to the written document whatever is needed, subtracting from it at the same time whatever is petty and local in character. The rise of a separate body for legislative purposes in governmental systems results in a form of law known as the statute or the act. This is presumed statute. always to harmonize with the fundamental or constitutional law, applying its principles to the changing conditions of political life. In federations there will be a dual series of statutes or acts : those of the national lawmaking body and those of the several com- monwealths of the federated state. In the development of English-American law an im- portant distinction has arisen between common and equity law. A decision based on custom may prove to be in itseK unjust. A moral or just custom of one age may prove to be the reverse a few generations later. If a state aims to secure justice it may rectify unjust decisions by authorizing some person, as the king, to correct the error in a particular case. This is the basis of the pardoning power of the executive, who by its exercise may temper justice with mercy, or at any rate with expediency. A special form of this power developed in England when the king authorized the lord chancellor, who in those days was regularly an ecclesiastic and the king's spiritual adviser, to soften the rigors and to amend the defects of the common law by the introduction of equitable principles. These he derived from his knowledge of Roman and oanon law and classic philosophy. From these there de- Equity law. 248 THE DEVELOPMENT OF THE STATE veloped a sj'stem of equity law, which for centuries flourished side by side with the common or customary law of the land. As the decisions of equity courts are in effect orders of the king or executive, they are tech- nically known as decrees, not as decisions. These two systems of law, with their separate courts and procedure, are slowly amalgamating, and in certain of the common- wealths of the United States of America have been merged into one definite system.^ When the church played an important part in polit- ical life, and had jurisdiction over many matters now exercised by the state, it evolved from custom ia^°" certain rules and principles that became the basis of an ecclesiastical law. Such law is still politically important in those states closely identified with the church. The Christian church in its connection with the Roman empire worked out, largely from Roman law, a canon law, regulating ecclesiastical polity and activity. The influence of this law is still felt in such functions as have passed from ecclesiastical to political control, as, for instance, marriage, divorce and relation- ships. Canon law itself has at the present time small political importance. In the same manner can be traced in the law of the land many survivals of other codes that once were private rather than public, such as, for in- stance, once centered in paternal authority, or in the law-merchant and guild customs of economic life. States in their intercourse one with another have too often lived in a condition of continuous war, the only ' For a list of these, see "Our State Constitutions," pp. 39, 40, by the author. CLASSIFICATION OF LAW 249 peace being that which follows devastation. But civi- lized states prefer peace, and in the pursuit of it have developed a system of rules and regulations national kuowu as international law. This is not law in '^*' the sense that it is enforceable by the state. It is a collection of customs, ethical standards and rules agreed on by general consent. Its chief principles are founded on the practices of great states, and enforce- ment depends on the pressure of opinion and the fear of war in case of violation. Its modern development dates from the time of Grotius (1583-1645), who, in his " De jure belli ac pacis," set forth its principles, derived from analogies in Roman and natural law, and from the practices of nations. Akin to international law in origin is admiralty law, which deals with cases, civil and criminal, that arise in connection with commerce on the high seas and prize cases in time of war. Obviously, customs arising on land could hardly apply to such matters, and a system of law has been developed from principles of ancient maritime codes, Roman law and analogies derived from common law. There is an important distinction between what is known as public and as private law. Whenever the in- _, terests of the state as such are involved, the Public and _ ^ ' private law bearing on such interests is part of the **^" public law. WTienever the interests at stake are primarily individual, the law is private law. Inter- national law, so far as it concerns the interests of states, is public; but so far as it concerns the interests of indi- viduals who happen to be subjects of different states, it 250 THE DEVELOPMENT OF THE STATE is private. The law regulating the property rights of individuals is private; but criminal law is a branch of public law, as also are the branches of administrative and constitutional law. In other words, public law is that in which the state is itself directly and primarily concerned, while private law regulates the relations of individuals one to the other. A distinction is sometimes made between international law, which is, technically speaking, not law but custom, and that law which affects the internal interests of the state. This is often referred to as municipal law. Municipal public law and munici- pal private law are both the law of the land in that they are both sanctioned and enforced by the state. Inter- national public law, as already explained, is sanctioned and enforced only by international public opinion, guid- ing itself by the customs and precedents of states. A common law system, such as that employed by Eng- lish-speaking peoples, is based on custom as determined by precedent and judicial decision. Roman law in its development was also a common law system. The codification of Roman law under Justinian suggested to modern states the idea that the law of the land should be embodied in a definite code systematically arranged and formally written, as the final authority for judicial decisions. The respective merits of these two systems of law are still a matter of debate. The code system is in use throughout the civil- ized world except in English-American countries. In the commonwealths of the United States of America there are approximations to the use of a code in (a) the consolidated statute, that is, the incorporation into one Codifica- tion. CLASSIFICATION OF LAW 251 general enactment of all the statutes relating to a par- ticular branch of the law, and (6) in the codification of particular branches of public, but rarely private, law. SPECIAL REFERENCES Law through the Executive: Anson, Fairlie, Goodnow, Lowell. Roman Law: Morey, Sohm; Bryce, "Studies." Constitutional Law: Ridges (England), American commenta- tors such as Storey, Cooley, Kent, Foster, and Tucker. For a short discussion: Emlin McClain, "Constitutional Law in the United States," 1905. For a statement of the Constitutional provisions of twenty-two important States: DODD. Codification: Clarke. Brief Statement of International Law: Wilson and TuCKEH. Brief Studies of General Law: Holland and Lee. CHAPTER XII LAWMAKING OR LEGISLATION The Growth of Law It is hardly necessary to say again that laws in the beginnings of political life were not made at all in the modern sense ; they grew out of well-recognized Unchang- gugtoms and long-standing habits of mind. mg law. *=> " Naturally, in savage or nomadic life many cus- toms would seem even more ancient than they were to men whose memory of things seldom went back of three generations. When codes of laws were memorized and handed down by tradition, as so frequently was the case, or when the invention of the art of writing supplemented the memory of man, far greater fixity and conservatism were possible in both law and custom. Hence ancient political systems of the patriarchal type always assumed that the law of the land was permanent and immutable, like the " law of the Medes and Persians, which altereth not," ^ or the ancient and long-standing customs of Eng- land, tracing back to a "time whereof the memory of man runneth not to the contrary." ^ Founded on tradi- tional custom as ancient law was, and in a static civili- zation, it seemed changeless and divine. Only impious ' Daniel vi, 8. ' See Blackstone's "Commentaries," Introduction, Section 3. 252 LAWMAKING OR LEGISLATION 253 hands would dare to alter sacred customs ordained and sanctioned by the gods. But no set of customs is suffi- cient to meet the minute requirements of everyday life, and hence there has regularly been a sort of necessity for a periodic modification of the old and introduction of the new. There are several processes whereby such changes were accomplished. A- fundamental and prolific source of change arises from conquest. The history of civilization is one long Chan series of conquests and compulsory amalgama- through tions. Every subjugation implies modification conquest. ^^ custom. Neither party can maintain its own customs intact. Some are ruthlessly suppressed, others modified and others, again, slowly assimilate through unconscious imitation. Similarity of environment also tends to produce uniformity of custom. Such processes are always going on in human experience, and numerous illustrations of it in modern times will readily suggest themselves. ^ Again, no matter how static a civilization may be, no generation has just the same environment as its prede- change cessor, nor do its people interpret customs ex- i^wp^eta- ^ctly as did their ancestors. Hence by a slow tion- and gradual process changes creep into the law, unheeded and unknown except as comparisons can be made at intervals of several generations. This tendency may be supplemented by formal interpretation of the law and by the aid of the legal fiction. Judges in all ages, in their anxiety to satisfy their sense of justice, will strain the meaning of the law on the assumption that the law ' For instance, in India, in Alsace-Lorraine. 254 THE DEVELOPMENT OF THE STATE intends to do right but happens at times to be somewhat unfortmiate in its phraseology. This beUef in the in- herent justice of the law leads in all ages to the intro- duction of legal fictions, so marked in their influence in the development of Roman and English law. The fic- tion assumes a thing to be true in law which is plainly not true or is probably false. The end always must be justice, not injury, so as to satisfy the spirit of the law. Numerous illustrations of legal fiction still survive in modern legal systems, but its importance as a modifier of law has been superseded by legislation.^ Akin to interpretation is the influence exerted by learned commentators of the law. Every legal system, The influ- whether secular or religious, develops a body of *°"°^ learned men who devote themselves to a close commen- tators, philosophic study of the law. The judge seeks to apply a principle to a case, but the jurist seeks to ascertain the principle involved in the law, and to har- monize it with broad ethical principles. They may, of course, go too far in their search for principles and may find them on the point of a needle or in the crossing of a i, but such casuists do not exert a permanent influence. A jurist, however, who with reason and lucidity shows the inner meaning of law in its relation to a larger sphere of life, is always listened to with deference and his opinions gradually influence the reasoning of other jurists and judges. In this w^ay the profound wisdom of eminent Roman and Anglo-American commentators deeply influ- enced the development of those systems, as their ideas ^ See S. E. Baldwin, "The Decadence of the Legal Fiction," Chapter VIII in "Modern PoUtical Institutions." LAWMAKING OR LEGISLATION 255 became slowly atssiniilated to the legal knowledge of their times. Codifications of customs have proved to be a great source of innovation, and many of them have been im- The influ- portant in the development of civilization. Tlie *''"°* oldest extant is that of Hammurabi,^ dating codifica- " tions. back to 2285-2242 B.C. The codification of Hebraic custom contained in the pentateuch is familiar to most of Christendom, The Orient has many codes, a knowledge of which is becoming increasingly common in western civilization. The twelve tables of Roman law and the codification of Justinian mark two great epochs in legal history. Teutonic and Celtic codifications are numerous and form important landmarks in early Euro- pean history.2 In more modern times the code of Na- poleon and the recently adopted codes of Germany and Japan are tj^pical in character and importance. Codifi- cations arise from several causes, chief of which is the conflict of rival interests and resultant compromises. In the process of subjugation the conflicting customs of con- querors and conquered may result in a codification of customs in order that each may know the other's law; ultimately a compromise may formulate a statement of what law shall be enforced in the community. Class struggle or revolution within a state may in a similar manner result in a compromise that may be formally ex- pressed in a definite code, at times partaking almost of the nature of a treaty between warring parties, as, for * See Harper in Bibliography. ^ See for illustrations, Jenks, "Law and Politics in the Middle Agea." 256 THE DEVELOPMENT OF THE STATE instance, the ten tables of Rome and the Magna Charta. * Codifications may also be due to important changes in the internal conditions of the communit}^, or to a scientific desire for a clearer statement of existing law, especially when it is complicated by a conflicting mass of interpre- tations due to the lapse of centuries. The invention, also, of the art of writing seemed to result in codifications of law as an aid to memory. Codifications are important in the history of legisla- tion because they are in efi'ect real legislation. No codi- Codifica- fication can be an exact statement of all the of°k^is^a-^ customs at that time enforceable by the state, tioa. Some will be omitted from the written state- ment, changes may be made inadvertently or intention- ally and perhaps even important provisions added. In former times the fact that a thing was written gave sanctity to it in general estimation. A written code, therefore, becomes a sort of sacred law, not to be tam- pered with by profane hands, each word of which has a weighty meaning. Development, therefore, inevitably takes place through interpretation, aided by the legal fiction, and this process may go on for centuries. Roman law, for instance, at the height of its development was theoretically supposed to be identical with the law of the twelve tables, just as the English common law of to- day is supposed to be the same in theory as that formu- lated centuries ago in the Magna Charta and the judicial decisions of the thirteenth century. The so-called " wor- ship of the constitution" in the United States of America presents the same phenomenon. This document has in » Note, for instance, Section 61 of Magna Charta. LAWMAKING OR LEGISLATION 257 form changed but slightly in the last hundred years, but its makers would have difficulty in understanding its modern meaning as reached through interpretation. Similar illustrations might be made from the numerous creeds that regularly develop from varying interpreta- tions of inspired writings. In other words, the phrase- ology of the code becomes a reservoir of an infinity of meanings, and each generation selects from the store- house such interpretations as suit the conditions and ideals of the times. In all these possibilities of change in existing law, the underlying assumption was that the law was the same, Lawmak- unchangiug, inherently divine and fundamental "le to civic welfare. But there developed in the through . 1 • 11 the ex- executive a power that practically amounted ecutive. ^Q ^j^g formulation of new law. As head of the state, the foimtain of justice and the brain of his people, the king was supposed to watch over the interests of the community and secure its welfare. In so doing he issued decrees, ordinances, proclamations calling atten- tion to the law, supplying its details and making application of it to existing conditions. In this work he was, of course, aided by his council, which, by the wisdom and experience of its members, gained influence in governmental policy. The decisions of king and coun- cil plainly could not and would not always conform to the strict letter of the law. New conditions demand new theories, and under color of the old the king would decree the new. An entirely new condition would necessitate an entirely new law, itself divhic in origin as emanating from a divinely appomted ruler. In this way executives 258 THE DEVELOPMENT OF THE STATE gradually assumed the right to modify ancient customs and make new law when need demanded. The same theory would apply to the assemblies of democratic city states. These were not supposed to alter Lawmak- the existing constitution, but in practice, in ing through ^^^^^^ ^g would Call the exercise of police power, ancient i x 7 assembues. they ofteu initiated new legal principles which would themselves seem to be, before many years had elapsed, ancient and long-standing customs. In modern systems the royal council, as already explained, has de- veloped into a legislative body whose acts when approved by the executive become law. But the ordinance power of the latter department still survives and is exercised in all states. In relative importance it yields to legislation, which it is supposed merely to supplement. If necessity, however, should demand, this ordinance power of the ex- ecutive becomes of the utmost importance; in times of crisis, in the form of war power, police power or preroga- tive, it may temporarily even supersede the ordinary law of the land. The Roman dictatorship furnishes a pe- culiar form of such temporary despotic power in the executive, and also illustrates the fact that legal irre- sponsibility during the crisis is regularly followed by accountability with the return of peace. Modern legislation is not the result of a system care- fully plaimed in advance and put into operation by wise statesmen. Rather, it is an accidental growth u^tiltion. ^^^ t^® result of numerous petty matters of small consequence in themselves. When the English crown in the thirteenth century summoned un- willing delegates from the shires and boroughs to meet LAWMAKING OR LEGISLATION 259 him for the discussion of money grants, it was merely a tactful device to obtain larger grants in a more expedi- tious manner. It was a small thing to give in return some slight favor petitioned for by the delegates. To be sure, these petitions began to come as a matter of course when the delegates met in session, and the re- quests were increasing in importance, but promises were easily made when much-needed money was in sight. It was a little more serious when royal promises had to be fulfilled before the grants were made, but it was hard to refuse under the circumstances. Yet a century or two of this sort of thing set precedents for later centuries, and it was natural enough that a body of delegates repre- senting constituencies rapidly increasing in wealth, in- telligence and importance should enlarge from time to time the scope of their petitions. When the issue was fairly joined in the seventeenth century, and the Stuart kings awoke to the fact that the house of commons did not really believe in royal supremacy and divine right, matters had gone too far to be checked. The beheading of Charles I and the dethronement of James II taught the Crown that a petition of the House was a command, couched in respectful terms. In this humble way de- veloped modern legislation, a most powerful and effective device for the abolition of the obsolete and the establish- ment of the new, as France learned in the eighteenth century. Modern legislation does not profess to be a mere inter- pretation of the law, but boldly proclaims that it aims to formulate new law. The introduction of this method of lawmaking is the deathblow to enlargement of law 260 THE DEVELOPMENT OF THE STATE by legal fiction, interpretation, equity principles or royal ordinance. Circumlocution becomes no longer neces- ^jjg sary, for a legislature has but to pass a statute making of embodying needed changes and the thing is done. The older devices are of use only when legislation is impossible. In times of sudden crisis ordinance power comes to the front. With a written constitution virtually impossible of amendment by legis- lation, as is the constitution of the United States of America, interpretation must be relied on. But these devices rapidly pass into disuse as legislatures obtain control of lawmaking and meet frequently for the con- sideration of possible changes. To be sure, there are natural limitations to this apparent omnipotence of legis- latures. After all, only those laws can be enforced which conform to the customs and practical ideals of social life. New law must suit conditions or it proves ineffective. An unscientific law may involve some alteration in hu- man nature and a statesman will hesitate long before he attempts that. Then, too, incompetency and corrup- tion on the part of legislatures inevitably result in a lessening of their powers, and consequent increase in the powers of the other departments of government. Yet, after all is said, modern legislation is a most powerful ad- dition to governmental machinery, and when rightly utilized can become productive of much good in the state. These several tendencies in legislation point to a time when legislation will be far more scientific than it is at present. American lawmaking bodies formulate entirely too many rules for petty and routine matters, which might more wisely be left to administrative bodies. LAWMAKING OR LEGISLATION 261 JVIuch hasty legislation could be vastly improved if legis- lators were more familiar with the experiments and ex- o • ^^ periences of other lawmaking bodies. Bureaus Scientific '^ ^ legisia- for the study of comparative legislation, like that of New York, the legislative reference bu- reau developed by Wisconsin and commissions appointed for the special study of important topics are steps in this direction. But really scientific legislation is as yet an ideal to be attained. The fault found with legislatures is chiefly due to their failure to satisfy the ideals aroused by the optimistic democracy of the eighteenth century. We all have to adni^t the truth of Spencer's denunciation of the "Sins of Legislators" ^ and of the perennial criticisms of American legislation. There is a vigorous demand that legislation be wiser, and that it emphasize permanent general interests through a knowledge of the laws of human nature and social development. Jeremy Ben- tham (1748-1832) voiced this demand for the nineteenth century in his "Theory of Legislation." ^ Sociological studies will make possible for the twentieth century a still wiser theory. ^ Legislation is too largely prohibitive in kind, aiming to suppress by threats certain supposed evil tendencies in human nature. The doctrine of human depravity is not so popular as formerty, and the question arises whether threats of punishment are really efficacious in * See "Man Versus the State." Also discussion of this topic by- Ritchie (BibHography). 2 Edition, 1871. London. ' See for a suggestion, Ward's "Applied Sociology," pp. 337-339- 262 THE DEVELOPMENT OF THE STATE preventing crime. Men are more easily influenced to do right than intimidated from wrong. The principles used in horticulture and stirpiculture indicate the method to be followed in scientific legislation; we should assume that there is much potential perfectibility in human na- ture. Social conditions should be so adjusted as to assist in the development of this; evil tendencies will thereby atrophy from disuse. Preventive, probative and re- formative methods are cheaper and wiser in the long run than punitive. The principle of self-interest can be ap- pealed to in such a way as to foster respect for law, not disregard of it. The beginnings of such legislation may already be seen in laws already formulated, and illus- trations are not hard to find. The necessity of raising taxes without too much friction has sharpened legislative ingenuity so that there are many scientific elaborations of laws in regard to taxation. The taxation of luxuries as against necessities, for example, or a slight discount for prompt payment, illustrate this. The probation sys- tem for petty offenses and the reduction of terms of imprisonment for good behavior prove efficacious in re- ducing crime. If illegitimacy is common through the heavy expense of a formal religious marriage, the legali- zation of a civil marriage at nominal cost largely reduces the per cent. ^ A wise divorce law proves a great aid to social morality, and the Gothenburg license system, through the elimination of private profits, considerably reduces intemperance. The American device of reduc- ing the cost and difficulty of securing a patent power- » This finds many illustrations in the experience of Latin-American governments. LAWMAKING OR LEGISLATION 263 fully stimulates invention. The reduction of the cost of postage is a well-known instance of an aid to commercial and industrial expansion. Many governments stimulate local administrative efficiency by offering to pay part of the expense if a set standard is maintained, i Other illustrations will readily suggest themselves. The success already achieved along such lines gives hope that legislatures may in time become intelligent enough to formulate such legislation regularly. Plato said 2 that perfect government would come when wise men legislate or legislators become wise. An unintelli- gent democracy is like a rudderless ship, for scientific government above all things requires an intelligent pub- lic opinion; but this condition depends on the growth of general scientific knowledge, political intelhgence and civic patriotism. When legislation has been passed by a lawmaking body and sanctioned by the executive, its provisions presumably must be observed throughout the kStfon. state. But such legislation may be in violation of the letter and spirit of the constitution. Under such conditions a department of government or a citizen conceivably might refuse to enforce or to obey the law. Government would soon become a farce unless conflicting interpretations could be settled. The con- stitution may itself specify w^hat department shall finally decide on the legality of a law; but, failing that, in auto- cratic monarchies whatever the king sanctions is the law > England, for example. * " States will prosper when kings become philosophers, or phi- losophers kings." 264 THE DEVELOPMENT OF THE STATE and must be enforced and obeyed. In constitutional monarchies the will of the legislature, approved or even, perhaps, if disapproved by the king, is the deciding fac- tor. In the United States of America, however, both the legislative and executive departments may agree as to the legality of a law and yet when it is brought before the courts as the law bearing on. a case it may be decided to be unconstitutional and hence null and void. This decision is final and is generally respected by the other two departments of government.^ This enormous power placed in the hands of the American judiciary is justified only by the prominence of the judiciary in the English- American systems and the confidence felt in the impar- tiality of its decisions. The system is not imitated by other states, which prefer to rely on decisions made by either the executive or the legislative departments. The Written Constitution Even in the revolutionary period of the United States of America the evils of a too powerful legislature were recognized, and steps taken to provide a rem- edy. The chief device evolved for this purpose was the written constitution, which represents a new development in legislation. The origin of this idea seems to be twofold: (1) In all confederations, ancient and modern, there is need of a sort of formal compact, which may or may not * The executive, however, has on several occasions ignored such decisions and enforced its own interpretation of the constitution. See for discussion of this point Willoughby, .'The Supreme Court," Chapter VII. LAWMAKING OR LEGISLATION 265 be written, in which will be set forth the aim and organi- zation of the unity and the powers intrusted to it. The same principle is seen in the charters, granted by king, proprietor or trading company to those colonists who settled along the Atlantic coast. The idea also is found in the constitution of the New England colonies adopted by the confederation of 1643-1683, and in the abortive union of the Albany convention in 1754. The essence of this notion is the treaty. Parties somewhat suspicious of one another's motives, yet desirous of securing them- selves as much as possible against common dangers and stimulated by the hope of unitary power and importance, form agreements and, for the sake of greater security, place them in wTiting. This idea is plainly seen in the American constitutions of 1781 and 1789, and finds modern expression in such documents as those of the German empire and Australia. Naturally, the contract theory of the eighteenth centuiy powerfully stimulated the formation of such compacts or contracts in the American colonies. ^ (2) The second notion involved in the written consti- tution is that of a check on the powers or possible des- As a check po^i^m of government. This idea also derived on despot- much of Its Strength from the famous contract theory of modern times. Its early develop- ment in this country may be traced to the Mayflower agreement (1620) and to the Fundamental Orders of Connecticut (1638). The idea can be traced in England from the revolution of the seventeenth century under Cromwell. At that time the radical wing of the revolu- tionary party insisted that there should be adopted a 266 THE DEVELOPMENT OF THE STATE fundamental law, paramount over parliament, contain- ing in it provisions safeguarding the rights and liberties of Englishmen. This demand culminated in the adop- tion of the first written constitution, the Instrument of Government, which was put into operation in 1653, but was soon modified and finally disappeared at the Restor- ation. ^ This idea of a fundamental law, however, con- tinued to be discussed in political writings and was well known in America through the works of Harrington and Sydney. It found its way into the early constitutions, chiefly in the form of bills of rights. Then, as the tyr- anny of legislatures became manifest, Massachusetts hit on the happy expedient of summoning a convention made up of elected delegates, not members of the legis- lature, authorized to draw up a constitution which would secure popular liberty. By maldng the constitution alterable, not at the wish of the legislature only, but through a convention voicing the wishes of the elector- ate, there was secured a law, above the legislature, which could be amended only with the joint consent of legisla- ture, convention and people. From that time the con- stitutional convention has been a popular instrument whereby checks and restrictions of all sorts may be- placed through the constitution on the powers of the several departments of government. Since the American revolution, the written constitu- tion has become increasingly important as a factor in political development. Its use in political systems is constantly growing, whether in the form of a treaty •See Borgeaud, "Rise of Modern Democracy," and Gardiner's, '.'Constitutional Documents." LAWMAKING OR LEGISLATION 267 compact or a regulation of governmental powers or of both combined. It passed to France in the revolution- its ow- ^^^ period, and spreading from these two great ingim- centers of political influence, the written con- por ance. g^jj^ution has bccome the form of fundamental law throughout all of Latin America, in Japan and in most of the states of Europe. The written constitution may, as in France, consist of a very few fundamental provisions, too important to be treated as ordinary legis- lation, or may consist of a practically complete state- ment of fundamentals, as in the United States of Amer- ica. In the American system several points are usually emphasized : (1) The constitution regularly specifies what powers may be used by the usual departments of government and by the electorate. Any powers not so assigned or implied from those assigned are reserved powers, and can only be brought into use by an amendment to the constitution. The advantage of this system is obvious. If the government had full sovereign powers it might easily become autocratic and despotic. But if the con- stitution specifies just what powers the government may use, it is equivalent to a sort of guaranty that the govern- ment will be on its good behavior. No department of government by theory should transgress the bounds set for it; such action would be illegal and revolutionary. (2) The inconvenience of reserving powers that can- not be used by the government in case of necessity is met by providing in the constitution a set procedure in accord with which amendments or even complete re- visions may be made. The length of time needed to 268 THE DEVELOPMENT OF THE STATE make such alterations gives opportunity for discussion, and the necessity of the change, therefore, must become clearly manifest. If in time of war or great danger a reserved power must at once be brought into use, and the crisis does not allow time to make the necessary amendments, then probably the government would, un- der the war or police power, exert any authority needed, and after the crisis would presumably revert to former conditions. Then, if necessary, the constitution may be amended at leisure, ^ From one standpoint the most important part of a written constitution is the provision regulating its amendment and revision. If such a provision mTnts." i^ lacking, then the written constitution hardly differs from a statute and presumably can be amended, revised or repealed by the ordinary channels of legislation, ^ In the early American written constitutions such an omission was common, but as the importance of a written fundamental law became manifest, provisions were in- serted which authorized the ordinary lawmaking bodies by special procedure to make amendments. This special procedure involved greater deliberation and a larger vote for the passage of amendments, under the theory that a fundamental law should be changed as little and as sel- dom as possible. As popular democracy developed in the United States of America, it was held that not * Lincoln's emancipation proclamation, followed by the thirteenth amendment, is a good illustration of this process. ' Italy, for example, see Lowell, "Continental Europe," vol, i, pp. 150-151, LAWMAKING OR LEGISLATION 269 merely the representatives of the people but the people themselves should have a direct voice in the making of fundamental law. This brought about the submission of amendments by referendum to the electorate for their approval or rejection. Experience also showed that legislatures were not always eager to initiate amendments especially if such amendments tended to deprive them of power; hence came the further provision that constitu- tions should be made and revised, not by legislatures, but by a convention especially called for that purpose. As it might be possible for a legislature to refuse to call a convention, or to arrange its composition in such way as to defeat popular demands,^ provisions were later in- serted in some constitutions that a convention should be called at stated intervals, or that a referendum be submitted asking whether a convention should or should not be called, and providing also that, if called, the membership should be arranged on the basis of popula- tion. By such devices the convention has in many com- monwealths of the United States of America come to be an agency through which the electorate may (1) outline the framework of government and delegate powers to the several departments, and (2) issue mandates to their delegates in the legislature instructing them to pass needed legislation. In this way the constitutional con- vention has become a most efficient means of enabling popular demands to control legislation. This tendency toward democratic influence has been aided by a lessen- ing of the rigidity of the process of amendment so as to • The Connecticut convention of 1901 is an illustration of this point. See " Our State Constitutions," pp. 88-89. 270 THE DEVELOPMENT OF THE STATE allow constitutional provisions to be inserted with com- parative ease. As a rule, in the commonwealths an amendment may now be passed by a two-thirds vote of both houses of the legislature and a majority vote of those voters voting thereon when submitted by refer- endum. ^ By contrast, the amending clause of the na- tional constitution is so rigid that the document is prac- tically unalterable. Only three amendments have been made since 1800, and these were forced through during the period of reconstruction. A written constitution regularly has a preamble or statement of reasons and purposes, an enacting and a ratifying clause and a schedule or section em- its devel- . . . , opmentin bracmg provisions ot temporary importance, states^'*^^ The constitution proper may contain, in ad- dition to the fundamentals of government, a statement of personal rights in life and property guar- antied to citizens. Such rights thereby become binding on the government and prove a safeguard against tyranny. In the American system the best formal statements of such rights may be found in the constitu- tions of Massachusetts and Virginia. The length of con- stitutions naturally will vary with conditions. The bare framework of government can be set forth in a few hundred words, but it may be elaborated in detail for prudential reasons, so as virtually to include everything seemingly important. Details of organization, long series of limitations on governmental powers and man- dates of all sorts may lengthen out the document inter- minably. The Louisiana constitution of 1898, for ex- * See Chapters II and III, "Our State Constitutions." LAWMAKING OR LEGISLATION 271 ample, consists of about forty thousand words. The constitution of the new state of Oklahoma is nearly a third larger. This tendency is not due to a failure to appreciate the distinction between fundamental and or- dinary law, but is due to a widespread distrust of the legislatures. These bodies now find themselves limited in power and restricted and regulated in every possible way by constitutional provisions which they cannot over- ride. This tendency, if it continues, will result in mak- ing the convention the really important legislative body, leaving to assemblies the power merely to work out in detail the principles set forth in the constitution. In other words, it will become a sort of department of ad- ministration especially set apart for the formulation of ordinances. In the making of a written constitution, the constitu- tional convention, an especial body chosen for that pur- pose, is usually employed. But there are ex- ve'ntio'n" ccptious. England makes no distinction in procedure between constitutional and ordinary, legislation. The same body acts on either kind indiffer- ently. In France the bicameral assembly meets as a unicameral national assembly and with special procedure acts on constitutional changes. These are not submitted to referendum. In the national system of the United States of America changes are effected by the lawmaking bodies of the federation and the commonwealths. Such changes, however, are not subject to executive veto, as in the case of ordinary legislation. These illustrations indicate possibilities in the practice of states, but, broadly speaking, the convention, made up of popularly elected 272 THE DEVELOPMENT OF THE STATE delegates, chosen for the special purpose, is the usual modern agency for effecting changes in constitutions. Two theories have developed in respect to the powers of the constitutional convention. (1) The convention as an agent of the state is a body of limited powers, and must submit its work to the electorate for approval or rejection. (2) The convention is the embodied sovereignty of the people, acting for the people and in the name of the people in formulating a just system of government. Hence the convention is for the time being the people itself, unfettered by legislative injunctions and promul- gating the constitution when made on its own authority, without reference even to the people. The second theory was especially prominent in the earlier history of the Latin-American states and in the commonwealths of the United States of America. It was necessarily so in order to counteract the autocracy of legislatures or executives. It is, however, gradually yielding to the other more conservative theory. The convention, as such, is one of the several agencies of the state, called into existence by law and subject to con- stitutional and, to some extent, even legislative regula- tion. It has the usual powers of the lawmaking body over its membership and procedure, and has its only function in the revision or making of the fundamental law. The constitution, however, when completed is not submitted to the legislature for approval, but directly to the electorate through the proper officers of the state. ^ ' For a discussion of differing systems, see Borgeaud, and Jameson. LAWMAKING OR LEGISLATION 273 SPECIAL REFERENCES Ancient Law: Harper (Editor), Lee, Maine. Saxon and Germanic Law: Stearns (see p. 83), Jenks; Henry Adams and others, "Essays in Anglo-Saxon Law," 1876. Russian Law: Kovalevsky. The Written Constitution: Borgeaud; Bryce, "Studies"; Dealey, Judson, Stimson. Also "Select List of Books on the Constitution of the United States," 1903, Library of Congress. Constitutional Convention: Jameson; Bryce, "American Com- monwealth," vol. i, note to Chapter III in Appendix. CHAPTER XIII RIGHTS AND POLITICAL PARTIES Rights Under the State In the development of democracy the question of rights has played a most important part. There are two distinct questions involved in the discussion: ri"htT°^ (1) the theory under which a person may claim rights at all, and (2) the particular rights a person may claim under the state. Historically, rights originate in society, not in the state, and consequently are mjoral in their nature; but as the state gains power and attains supremacy in social life, a person may legally claim before the law only such rights as the state is willing to grant and to maintain. In well-regulated democracies the state willingly guaranties to its citizens all rights necessary for individual and social develop- ment; but in tyrannical and badly managed states, such rights may be denied or ignored; in which case citizens, lacking the essentials for a manly and honorable exist- ence, may become inert, cowardly and base. From the beginnings of history'-, therefore, there can be traced in all energetic communities a demand on the part of the people that their rights be recognized by the state and guarantied to them by proper governmental regulation and supervision. In primitive hordes and in tribal organizations all members of the community enjoyed, 274 RIGHTS AND POLITICAL PARTIES 275 theoretically, at least, equal rights and equal protection. Under patriarchal organizations distinctions in amount and quality developed along three lines: (1) the social subordination of women to men, (2) the introduction of slavery and (3) social distinctions based on kinship, wealth and education. The culmination of this tendency in autocratic monarchies resulted in a system in which the monarch theoretically acknowledged no rights in his subjects save such as depended on his will and whim. In practice this despotic will was restricted by long- standing customs, by social institutions and by the ne- cessity of securing the good will and support of the dominant part of the community, whether army, church or nobility. The history of tyrannical despots shows, however, to what lengths such a king may go when dominated by evil passions. Reaction against tyranny resulted in a counter movement, in which men, basing their arguments on special privileges, long-standing cus- tom, principles of justice and divine sanction, demanded a reorganization of government so as to secure to them their most cherished rights. Political democracy is the outcome of this movement. Its development in any state can be traced by noting historically how one right after another is secured, guarantied and made part of the unwritten or written constitution of the state, and how these privileges, at first the prerogative of the few, gradually were won by the many and finally come to be looked on as the inherent right of all. These rights were not won by the people from their governments without many struggles, and English- American history marks by its revolutions these struggles, which resulted in such 276 THE DEVELOPMENT OF THE STATE guaranties of rights as may be found in Magna Charta, in the several bills of rights of the seventeenth century, the bills of rights of the American colonies and in their constitutions and the numerous constitutional guaran- ties of the nineteenth century in both countries. In- fluenced by these movements came the revolutions of France, with its Declaration of Rights and its series of written constitutions. The joint influence of these several centers of constitutional agitation is plainly marked in the fundamental laws of Latin America. ^ These rights are all derived from the one inherent fund- amental right, the right to life. All other rights pale into The insignificance in comparison with the right of menfai Gvcry mau to live out to the full the life im- right. parted to him. Ethically speaking, every per- son who fulfils his social obligations should be allowed to enjoy the privileges of life under the guaranty of the state. This fundamental right differentiates into numer- ous individual rights, more or less carefully defined, secured and guarantied, according to the degree of development of intelligent democracy in political com- munities. Every citizen, for instance, should have his life safeguarded and secured from harm by the military, police and judicial power of the state. In order to feed his body he must be allowed to engage freely in economic occupations, and should have the aid of the state in multiplying and strengthening his economic opportuni- ties and in safeguarding his property. In order to per- * For illustration of this, see article by the author on "The Spanish Source of the Mexican Constitution of 1824," Texas State Historical Quarterly, January, 1900. RIGHTS AND POLITICAL PARTIES 277 petuate his race he must be allowed the privilege of marriage and parenthood and be protected in his family- rights. In order to develop to the utmost the higher part of his nature, he must be allowed the privilege of freedom of conscience and of worship, the privilege of thinking freely and expressing his thoughts openly, and he should be aided to attain such development by gov- ernmental encouragement of education and a free press. Finally, in order that he may maintain his rights and the better fulfill his obligations, he should be given a voice in the government. Rights won by the energy and self-sacrifice of one generation may readily be lost by their descendants. Constant vigilance and civic pa- triotism o.re the only safeguards of liberty, and no governmental guaranty of rights can be effective unless made so by an active citizen body who stoutly defend and augment the work of their fathers. Such guaranties evidently depend not so much on a form of organization as on a general intelligent under- How standing of the forces at work in political life, sl^e-^*"^^ If all men should attain maturity in intellectual guarded. development, public opinion, working through a democratically organized government, would be amply sufficient for all purposes. But human beings are only partly intelligent. Peoples even of the highest civiliza- tion betray on occasion their savage ancestry. Under such conditions men often fail to see a question in its truer meaning, and form partial and distorted opinions in re- gard to public policy. Hence there regularly exist in political communities factions and parties, each favoring a policy that in its opinion is essential to public welfare. 278 THE DEVELOPMENT OF THE STATE The existence of these factions or parties provokes dis- cussion, and out of discussion may arise wisdom and con- viction. In our present stage of civihzation, therefore, political parties have an important function; through them rights are won or lost, and policies good or bad adopted. They become an agency through which the citizen body works, in order to attain what at the time seems expedient and best. For this reason an outline of their development and organization becomes nec- essary. Political Parties In despotisms such differences of opinion find no formal expression, and tend to degenerate into intrigues for place and power. In old-fashioned mon- The party ^j-gi^^gg ^j-^^j^ aristocracics a ruling class has system. <-' power, and maintains it permanently unless overthrown by war or revolution. Under such systems assassinations and armed rebellion are the chief means whereby an unpopular government may be overthrown. A great advance was made when the principle of elec- tion was definitely established in governmental organi- zations; war chiefs and rulers were thus chosen almost from the beginnings of political life. A still greater ad- vance was made when elections became frequent and affected not simply the head of the state but all offi- cers of importance. This development, so well known through Greek and Roman government, has proved to be a powerful agent in securing stability and peace. For when the system of election has become a familiar device in political life, if a body of citizens become hi- RIGHTS AND POLITICAL PARTIES 279 censed at the policy of those in power, instead of rushing to arms as formerly and risking all on their success or failure in war, they enter on a political campaign and seek to overcome their opponents at the ballot. If suc- cessful, the defeated party resigns power to the victors and awaits an opportunity to regain supremacy at the next election. Such a system has obvious advantages over the old method of rebellion or assassination. It can be at its best, however, only when all really impor- tant interests can thus express their opinions, otherwise revolutions will alternate with elections. It is essential also that the electorate be fairly intelligent, so as to de- cide wisely in regard to opposing policies, and also that they have a proper regard for law, so as to use honest methods in elections and to be willing to abide by the result. Evidently, therefore, an efficient party system can be found efficacious only when all interests are properly represented and when the electorate is made up The basis of intelligent and law-abiding citizens. The of success. o o evils SO prevalent in the elections of democra- cies are not inherent in democracy, but are due to the neglect of fundamental principles; interests are not properly represented, large numbers of the electorate are often illiterate and ignorant of political issues, and party managers too often violate every law of political ethics in their eagerness for victory. Yet "bossism" in poli- tics is, after all, merely a passing phase of a period of transition. The so-called practical politician is often the veriest tyro in actual knowledge of political princi- ples. His policy is crude and shortsighted. Perma- 280 THE DEVELOPMENT OF THE STATE nent success is based only on a fostering of economic interests of all the people and on a strengthening of their intelligence and morality. Corrupt politicians may seem to succeed for a time, but they ultimately earn for themselves only contempt and dishonor. All experience shows that honor in the political annals of any country is"*paid only to those men who despise tri(5kery and dis- honesty and who labor intelligently for the larger in- terests of their fellow-citizens. Obviously, therefore, the true policy of government should be to encourage by its laws intelligence and honesty in government. Corruption and betrayal of trust should be sternly punished, electional systems should be so adjusted as to favor honest voters and to encourage free expression of intelligent opinion. No wise democracy can afford to allow the primary, the convention, the ballot and the count to be so manip- ulated as to thwart the will of the electorate. The machinery of government should not be adjusted for self-destruction but for the accomplishment of the best work in the most economical manner. An intelligently educated citizen body with guarantied civil and political rights and with proper facilities for the expression of its will, may always be depended on to assert its privileges and express its will. Democracy demands energy, in- telligence and aggressiveness for its maintenance, and these must be purposively fostered by the state as an indispensable condition of its own prosperity. The modern party system originated in England through the cleavage brought about by the revolution of 1688 and the separation of interests that arose be- RIGHTS AND POLITICAL PARTIES 281 tween the supporters of the new dynasty and those who favored the old. The real interests of the kingdom were, however, so poorly represented in parliament that par- ties were really made up of combinations of p"^es°^ factions, voicing petty or personal interests rather than the general interests of the state. The reform of parliamentary representation, which be- gan with the Act of 1832, allowed the truer interests of the kingdom to be represented with a fair degree of ac- curacy. The result was the development of the English party system, which has been imitated with more or less success in most of the advanced nations of modern times. In the United States of America the higher develop- ment of political life and the early rise of definite issues, such as those of the union, the tariff and slavery, resulted quite early in the formation of clearly defined political issues and the development of political parties so thoroughly organized that they seem to represent the highest possible type of political combination. Differ- ences in systems of party organization can be seen by noting the main features of the three chief types at present existent : (1) The English party system is a loosely organized aristocratic organization. The leaders of each party, The three who, if the party be in power, form the minis- types of try of the king, virtually dictate the platform organiza- and policy of the party. The local organiza- *'""• tions of the party control their own districts but seek to harmonize their policy with that of the na- tional leaders. These, through a national council, may 282 THE DEVELOPMENT OF THE STATE assist the local organizations in their campaign by send- ing speakers and " literature." The leaders of the party successful at the polls assume the reins of government, formulate its policy and remain in power as long as they can control a majority vote in the house of commons. An adverse vote on some question of importance results in their resignation, followed by a new election. (2) In France there is practically no national organi- zation of parties except such as exist by tacit under- standing. Each electional district carries on its own campaign without dictation or assistance from a na- tional organisation. Each candidate issues his own platform and, aided by his friends, advocates his own election. Elected members assemble in groups or fac- tions according to general unanimity of feeling, and that group of kindred factions having a majority of votes will name the ministry and assist it in the formulation of national policy. (3) In the United States of America national elections occur at definite intervals of two and four years. Each party manages its campaign through a central or na- tional committee. This committee is named by a na- tional convention made up of delegates from the com- monwealths. These are appointed by state conventions made up of elected delegates chosen in the first instance by the voters of the districts or towmships of the com- monwealth. In this way the national committee is theoretically supposed to voice the wishes and policy of the party voters themselves, and in its work uses as its agents the various local organizations existing in the several commonwealths. The national convention like- RIGHTS AND POLITICAL PARTIES 283 wise formulates the national platform and names the presidential candidates. The congressional candidates are named by conventions in the commonwealths. For that reason the national parties become also state parties, and press their organization down to the primaries so as to control the several sets of delegates who ultimately will name the congressional candidates. These three types of political party organization repre- sent practically the several systems of organization in use among developed nations. The American type is the most complex and the most highly organized and cen- tralized, but the powers actually exercised by the or- ganization are delegated by the voters themselves, who by theor}^ indirectly name all leaders and policies. The French system shows the national party organization to be an artificial unity, made up frequently of discordant parts not fully in sympathy with their elected leaders in the ministry. The real power lies in the local district and its elected member, who is a party in himself and merely confederates at will with like-minded fellow- members. The English system by contrast is aristocratic and takes its tone from the will of its natural leaders, who have pushed themselves to the front and dictate policy to the districts. The opinions of local leaders, however, must always be taken into account, in order that there may be cheerful and enthusiastic cooperation on their part with the national leadership and policy. Parties are properly social organizations and not part of the legal machinery of the government. They originate or disband at the will of their members and not 284 THE DEVELOPMENT OF THE STATE in accord with a law of the state. But so important are these organizations in modern states that governments regularly seek to regulate them. The extent of mental this regulation is worthy of notice. The state regulation. ^^ ^ ^,^|^ specifies the time, place and manner of conducting elections, and in some of the American com- monwealths even regulates the primary or caucus. ^ It may regulate the sj^stem of nominations, fix the form of the ballot and provide officers to supervise the polls and to count the ballots. It may even bear the expense of conducting primaries and the polls, and may legislate against corruption and bribery and limit the amount of legitimate expenses. By law it defines what persons may exercise suffrage privileges at the polls, and may also define suffrage rights at the primary. Voting has even been made compulsory in certain communities, but with small success.^ Obviously the extent of regulation will vary con- siderably in different states, but the necessity of some regulation is so manifest that no state which allows political parties to exist at all permits them to act without any regulation whatsoever. The system is an excellent illustration of the fact that any social organi- zation, whose interests become of general importance, must submit to governmental regulation for the wel- fare of the state. * The primary is the initial gathering of party voters to decide on candidates or measures. Tiie term caucus is often used in the sense of a primary, but is more properly a gathering of party leaders or representatives for the formulation of a party policy. * For illustration, see Lowell, "Continental Parties," vol. ii, p. 273. RIGHTS AND POLITICAL PARTIES 285 The issues that separate poHtical parties are generally economic. The state is so important a factor in con- serving and strengthening economic interests iss!i7s. ^^^^ these eagerly seek to have a dominant voice in governmental policy. Parties as a rule tend to identify themselves with one or several kindred interests so as to secure the support of those engaged in such economic occupations. There will regularly be representation of such interests, for example, as those of land, commerce, manufacturing, mining and fishing; or there may be a representation of economic classes, such as labor parties or agrarians; or, again, some economic policy that will affect numerous classes may be under discussion, as socialism or the tariff or questions of coin- age. Occasionally there may be special issues of tem- porary importance involving questions of religion, mo- rality, education or some particular phase of international policy. But these issues are not lasting nor are they broad enough to form the basis for a permanent na- tional organization. Again, entirely independent of the particular issues at stake, a party ma}' gain strength by posing as a representative of conservatism, favoring a policy averse to change and thus securing the support of those who prefer known ills to possible dangers. On the other hand, a radical aggressive party may win support by advocacy of fundamental changes, on the ground that such are in the line of progress. As a rule, it will be found that the issues involved in an election turn either on an economic question or on the maintenance of the status quo. 286 THE DEVELOPMENT OF THE STATE SPECIAL REFERENCES Rights: Burgess (voL i, Liberty), Gooch. Lieber's works still afford excellent discussions on this subject: Francis LiEBER, "Political Ethics," two volumes, 1838, Boston; "Civil Liberty and Self-government," two volumes, 1853, Philadelphia. See also, Georg Jellinek, "Declaration of the Rights of Man and of Citizens," 1901. For French political development: Frank M. Anderson, "Constitu- tions and Documents," 1789-1907, published 1908, Min- neapolis. Political Parties: Ostrogorski (English and American), Jeph- SON (Enghsh), Lowell (Continental), Macy (American). CHAPTER XIV CITIZENSHIP Resident within a state are regularly two classes of persons, citizens and aliens. The citizens of a state are those persons who are domiciled within the anTaUens. ^^^^^ ^^^ ^^^ ^^^^^ subject to Its Sovereignty. Aliens are those persons resident in a state who owe allegiance to another state. Briefly, it may be said that the rights and obligations of aliens are fixed by the laws of the land in which they are resident, including in the term laivs those treaty regulations made with other states fixing the status of their citizens. In general, civilized states grant to aliens full protection of life and property, conditioned on their obedience to the law of the land. They are seldom allowed political privileges, such as office-holding or suf- frage, and are regularly exempt from military service, but they may be required to pay the usual taxes assessed on property. In law there are two classes of citizens : (a) citizens by birth, and (6) naturalized citizens who were born under foreign sovereignty. Corporations or artifi- duzenl"^ cial persons are sometimes called quasi-citizens. A corporation is an organization authorized by law to act as a single person for the purpose of transact- ing business or holding and transmitting property. The 287 288 THE DEVELOPMENT OF THE STATE duration of its life is regulated by law and is usually specified in its charter; its rights and obligations are civil, not political. Naturalized citizens are regularly granted the same status as native-born citizens, but certain high offices may be withheld from them. Native-born citizens only, for example, may aspire to the presidency of the United States of America. No alien may claim naturalization as a right. It is a privilege which may be granted or refused to him by the land of his residence at its own discretion. As the allegiance of every person is owed to the land of his birth, states usually regu- late by treaty the relations which their naturalized citi- zens bear to the country of their former allegiance, if these should happen to travel or temporarily reside in it. Generally speaking, it is true that citizens by birth have superior rights in a state in comparison with cor- porations and naturalized citizens. It must not be in- ferred, however, that all native-born citizens are equal m rights. In democracies the theory is that all persons are equal before the law, should equally enjoy the pro- tection of the law and should have the same rights and owe the same obligations. In practice, however, ex- ceptions are regularly made in the case of persons under guardianship, such as immature children and persons of unsound mind. For historical reasons a similar clis- crimmation is made against women, who seldom enjoy so large civil and political privileges as men nor owe the same obligations. To-day, however, in some countries discriminations in political rights based on sex have been CITIZENSHIP 289 removed. 1 Again, intelligence is so essential a qualifi- cation in democracies that illiterate persons are often denied political privileges. For a somewhat similar rea- son these privileges are sometimes refused to persons who do not possess a fixed minimum of taxable property, the assumption being that a man incapable of acquiring property lacks proper intelligence. Naturally, also, in all states full rights of citizenship are refused to persons convicted of crime and subject to punishment. In states having aristocratic or monarchical govern- ments there are other discriminations based on class dis- tinctions. Ignoring those arising from social and re- ligious codes we find in such countries classes varying considerably in their respective rights and obligations. Among these may be mentioned (1) the governing classes, including royalty, nobility and priesthood, and (2) the economic classes, including merchants and traders, ar- tisans and mechanics, farmers and peasants, serfs and slaves. The extent of variation found in the sum of rights and obligations depends on local conditions, and the system of each state must be studied separately. The Rights of Citizenship There is an important distinction to be made be- tween ethical and legal rights. Political philosophers on reflection often conclude that all men are entitled to such rights as will enable them to develop to their highest capacity. The American Declaration of Independence, * New Zealand, for instance, four of the six commonwealths of Australia, Finland, and six western states in the Lmteu Jjtates have enfranchised women. 290 THE DEVELOPMENT OF THE STATE for example, asserts that "all men are created equal, that they are endowed by their Creator with certain ^ ^. , , inalienable Rights, that amons; these are Life, Ethical and . . legal Liberty and the pursuit of Happiness." In ^^^ ^^' these days, also, men talk about the "right to the land," the "right to a living wage" and the "right to work." These are "natural"' rights in the sense that they voice ethical and economic ideals toward which men may strive. But they are not legal rights unless they are recognized by the law of the land and are secured to citizens through the courts or other governmental agencies. In a progressive state legal rights will approx- imate toward rights claimed by idealists, but as legal rights, on the whole, represent the practice of the com- munity, there will always be a distinction between them and the rights demanded in ethical systems. Rights, therefore, in the legal sense, are not inherent in the in- dividual, but arise from and depend on the law of the land. Legal rights may be divided into two kinds, civil and political. Civil rights are concerned with the protection of life and property. Political rights enable rights their possessor to share in the exercise of gov- ernmental powers. From the international standpoint all persons enjoy- ing full citizenship are recognized by modern states as having the right of expatriation, that is, a citizen may voluntarily renounce or abandon his allegiance to the land of his birth. On the other hand, a citizen may travel in foreign countries and claim protection for life and property from his state. Within the bounds of his CITIZENSHIP 291 state a citizen has the right to demand that his hfe and property be protected against foreign foes, against riot and insurrection and against assault and robbery. Even if a citizen merely suspects that his life or property fe endangered, he has a right to demand that the state take proper precautions so as to safeguard him. Property must not be understood in the sense of material goods only, it includes intangible property, such as claims and rights arismg from inheritance and contracts. Under this head also comes the protection afforded to one's rights in family. The law secures to him his share in in- heritances, grants him freedom in contracting marriage and secures him in his marital and parental rights. The sanctity of his home is guarded and severe punishment visited on violation of chastity. This protection of life and property is afforded by the state through its war and police powers and the several agencies associated with these. These agencies must be made efficient, for the proper protection of life and property is fundamental to the stability of any state. It inspires confidence, stimu- lates devotion to government and encourages industry and frugality. In modern times the influence of democracy is deeply affecting the policy of the state in respect to life and General property. lu addition to protection, emphasis Tnd hTp- ^^ ^^^ placed on development. Life should be piness. broadened and made happier, and opportunities should be furnished so as to allow larger possibilities in the acquisition of property. Hence citizens have the right to migrate freely, to acquire and hold property, to engage in any honorable occupation, to form business 292 THE DEVELOPMENT OF THE STATE contracts with their fellows and to demand govern- mental assistance in the general economic field. This aid the state may furnish through the building of roads, bridges, canals, irrigating works and systems of trans- portation. It may encourage commerce and manufac- tures by subsidies, tariffs and technical instruction. It may furnish facilities for business transactions through a postal service and through banks and a stable means of exchange; it may develop agriculture by scientific investigation and experiment. These functions which seem optional are really necessary, are demanded by citizens and are practically extensions of rights, since citizens insist in their demands that the state promote "general welfare." In the same way the right to life now involves the "pursuit of happiness." Happiness implies liberty of mind and freedom for mental development. In conse- quence, in most modern states, citizens are at liberty to think freely and may express their thoughts openly in conversation, in print or on the public platform. They may assemble freely in public or in private, and have the right to petition the government on any subject whatsoever. In matters of religion they may follow their consciences without interference from the state and may organize whatever agencies they wish for in- tellectual improvement. In fact, the demand for general and broad education is essentially a right at the present time, since few modern states venture to deny the right of their citizens to secure a liberal education at either private or public expense. Many of these rights are historic, tracing back to an- CITIZENSHIP 293 cestral customs and to codifications of these, such as that contained in the Magna Charta. Others represent later struggles for political liberty, such as the Eng- riSiu"'^* lish bills of rights of the seventeenth century. The most famous modern statements of rights came in the eighteenth century through the revolutions in the American colonies and in France, and were formu- lated in the declaration of independence, in the bills of rights contained in the revolutionary constitutions of Virginia, Massachusetts and Pennsylvania, and in the French declaration of the rights of man, issued by the national assembly in 1789.^ The. best short summary, though not complete, of well-recognized legal rights is contained in the amendments to the constitution of the United States of America. In practice, the exercise of rights is subject to reason- able regulation. A citizen may speak freely, but he must not slander nor libel his fellows; he may onTights"^ criticise governmental policy, but he must not incite to violence; he may worship God as he pleases, provided he is not immoral in his religious prac- tices; he may engage in any business he pleases, pro- vided it is not unlawful; he may enter any profession, provided he has the requisite skill; he may marry whom he wishes, provided the woman gives consent and he has no other wife. Such regulations are often specified in the laws; in other cases they are worked out by the courts, which act on the principle that the law allows to every citizen the utmost freedom consistent with the rights of others and the general welfare. ' See reference at end of Chapter XIII. 294 THE DEVELOPMENT OF THE STATE Rights, as already said, are based on the law of the land and secured through governmental agencies. But if the citizen body as a whole has no voice in dghtr^' the making of laws, and if the government is controlled by a comparatively small per cent of the citizens, there would be no real assurance that general rights of life and property would be safeguarded. Experience shows that a small class in control of the law and its administration too easily inclines to neglect general interests, especially when these are in conflict with its own private interests. For such reasons there have been from time immemorial demands such as these : (1) That ofRce be considered not a private right but a public trust, to be administered by responsible persons, who may be called to account for violations of law. (2) That the law be definite, and open to the knowledge of all. (3) That the citizen body have a determining voice in the making of law, either directly or through repre- sentatives. (4) That the electorate or body of voters include the largest possible per cent of the entire citizen body. (5) That the judicial system be so administered as to secure to all citizens their rights. These demands are now acknowledged in democracies and in consequence a large proportion of the citizen body have the political right of suffrage. This power has been wielded so effectively that other important politi- cal rights have been secured one by one. In addition to the right of manhood suffrage, there is : (1) The right of every voter to aspire to any office in the state. (2) The right to fill offices through election or through elected representatives, and the right to hold all CITIZENSHIP 295 officials responsible for inefficiency and misconduct in office. (3) The right to determine directly or through representatives the fundamental law of the land, whether expressed in a written or unwritten constitution; and, in addition, the right to formulate all other legislation. (4) The right to discuss freely and to criticise openly governmental measures, policies and officials. (5) In English-speaking countries, the right to assist in the settlement of judicial cases by jury service. In these rights the essential point is that the citizens themselves directly participate in the exercise of govern- mental functions, or name from their ranks those who shall perform these activities in the name and for the welfare of the people. President Lincoln ably voiced the democratic ideal in his famous Gettysburg speech, in expressing his determination that "government of the people, by the people, and for the people shall not perish from the earth." Naturally, the complete attainment of this ideal is possible only in high civilization, but all modern nations tend to enlarge more and more the political rights of their citizens. These rights have sometimes been attained in advance of a general capacity to use them wisely, with the result that inefficiency and corruption become common. Ex- perience, however, which is always the best teacher, brings home the lesson of misgovernment in heavy taxa- tion, excessive death rates and economic disorders. Democracies, therefore, tend to emphasize at the present time character and intelligence as prerequisites for suf- frage; with the proviso, however, that the state furnish free general education and further morality, so as to de- 296 THE DEVELOPMENT OF THE STATE velop its citizens into persons capable of an intelligent exercise of the suffrage. Compulsory education and an efficient system of schools are the safest guaranties of a democratic suffrage. Should these not be in evidence, a more aristocratic form is preferable until political in- telligence becomes common. The Duties of Citizenship The fundamental duty of all citizens is obedience, allegiance and fidelity to the state. The state voices the unity, the will, the collective interests of the Allegiance. . . entn-e community. Its commands, therefore, nmst be obeyed, its interests are superior to private in- terests, and, in general, no ties should be considered more binding than those that bind citizens to their country. The duty of allegiance implies the duty of service. This may involve service in war, or in the maintenance of domestic peace, or service in public office, or on public works, such as roads, bridges, build- ings and fortifications. Every capable citizen in theory may be summoned to serve in the army or navy of his country. This may in- volve compulsory service for a stated term of years, as in France or Germany; or, as in Great Britain and the United States of America, in addition to a small standing army, citizens may be encouraged to form volunteer forces, and by training in times of peace become a nu- cleus for the larger army needed in war. In case of necessity, however, every citizen capable of bearing arms may be summoned to war and is in duty bound to ser\e CITIZENSHIP 297 his country to the best of his abiUty. On a smaller scale citizens may be summoned to assist the authorities in the suppression of riots or rebellion, or to aid in the arrest of disturbers of the peace. The same principle applies in respect to service in office. Inasmuch, however, as offices now are regularly salaried and are honorable, office-holding seems to be a privilege rather than an obligation. Yet if the burdens of office should outweigh its emoluments, the state could compel its subjects to assume office. This is exemplified by jury service, which is shunned and yet is compulsory. Service on public works is no longer common, though still known. In many rural communities of the United States of America, service for several days in the year on the public roads is often required. In case of urgent need, however, the state can always demand the services of its citizens, and in times of war or sudden disaster private citizens are forced into service and compelled to labor without pay. This was illustrated in San Francisco and in Italy after the earthquakes, where citizens were compelled under penalty to assist the sol- diery in subduing the conflagrations. Taxation largely takes the place of compulsory service in modern states. When citizens become free it is often detrimental to their interests for them to per- Taxation.' . i i i • m • form state service and neglect then' own affairs. Hence they readily grant a small per cent of their in- come in lieu of service. This proves advantageous to the state also, for with money it can hire willing workers, always more efficient than compulsory service. In mod- * See pages 65-69. 298 THE DEVELOPMENT OF THE STATE ern states, therefore, the government through taxation secures means to support a well-trained permanent army and navy, capable officials and skilled labor for public works. As the citizens themselves fix their own tax rates in democracies, settle the items for expenditure and supervise the auditing of accounts, friction is thereby avoided. Government and people harmoniously cooper- ate in furthering general interests, for all recognize that joint success is individual benefit and that the injury of any part becomes the detriment of the whole. One implication from this power of the state to demand service and tax is that it may deprive its subjects of their property at will. This theoretical power, however, is rarely exercised in modern times. The state may, if necessary, take away or even destroy property without compensation; and this is frequently done in times of war, conflagration, famine or pestilence. But if the general safety is not involved, our modern theory of rights demands that the state pay full value for all property confiscated for public purposes. Hence in the United States of America, for instance, though the state under the so-called power of eminent domain, may take land and other property for public use, the law provides that it pay adequate compensation to the owners, the amount of which is left to be determined by the courts. Political writers fully recognize that the power of tax- ation is the very heart of modern governmental systems. Arbitrary and unequal taxation discourages enterprise and economic energy; antiquated methods of taxation are ruinous to progress. The best thought and wisest administration must be given to this department. At CITIZENSHIP 299 the same time corruption is most likely to flourish where the "spoils" are. For such reasons the modern battles of democracy have regularly raged about prin- tance of ciplcs of taxatiou. In England the struggle taxation, j^^^ j^^^^^ ^^^ ^j^^ " coutrol of the pursc"; in the American colonies, that there be " no taxation with- out representation"; and in general, that all taxation be for public, never for private, interests. The motive in such struggles is not necessaril}'- mercenary ; experience show^s that when the citizen body as a whole controls the tax rate and expenditures, public policy loses its military aspects and attention is concentrated on the upbuilding of internal improvements and systems of general educa- tion. In place of war come art, science and happiness. When such conditions exist, patriotism ceases to be a duty and becomes a pleasure. A citizen realizes that his welfare and that of his kinsmen and friends are in- volved in the welfare of the state. The natural love for the land of one's birth is strengthened by an appreciation of its helpfulness in securing happiness and prosperity. Patriotism is, therefore, intensified in devotion and gov- ernment grows in efficiency, since officials know that they can rely on popular support, and citizens understand that the government has their best interests at heart. SPECIAL REFERENCES Citizenship : In addition to references at end of preceding chapter; Brewer, Hadley, Maccunn, Scherger, Shaler. Naturalization: Frederick Van Dyne, "Naturalization in the United States," 1907, Rochester; American Historical Revieiv, vol. ix, p. 2, A. H. Carpenter, "Naturalization in England and the American Colonies." CHAPTER XV MODERN DEMOCRACY Its Development If by the term people is meant the collective mass of population domiciled within a state, the relation of such people to the state is obvious ; they are its sub- ^eo le jects, owing it obedience and allegiance. But they are not mere subjects; they are citizens also, for they have rights as well as obligations. After all, the only justification for the existence of a sovereign state must be found in its helpfulness and utility to its people. It owes to its citizens protection and aid in their struggle for betterment in life. Every citizen may de- mand that much from his state, and should rightly feel aggrieved if it fails to do its part. Yet the failure of the state to do its part has been the problem of the ages and will probably remain so for many years to come. States do not satisfy the demands of their subjects in these re- spects, and indeed governments have seldom admitted that they were in duty bound so to do. The reason for this difference of opinion is not far to seek. Govern- ments have regularly been aristocratic in the sense that the power of the state has rested in comparatively few hands. The members of this ruling class always assume that they have a sort of inherent if not divine right to 300 MODERN DEMOCRACY 301 rule, either because of the quahty of their birth or their wealth or their intelligence. As rulers, they also assume that they are entitled to the best and largest share of the comforts of life, and that this share should first be se- cured before much thought be given to the well-being of the other members of the community. This attitude of mind is observable in all parts of the world and in all kinds of civilization. The wise and the strong naturally win the rewards of life, and it is assumed that the weak and the lowly should be content with bare subsistence. On the other hand, the democratic ideal of citizen- ship has always had advocates. Whether " all men are The -deal Created equal" or not, seems not so important ofdemoc- as the question whether all men can be made ^^'^^' equal; and, if so, whether they should not be given the opportunity to become so. Religion has en- deavored to answer by assuring men of their equality in heaven or in God's sight, but men rather tend to prefer their equality on earth, possibly so as to be the better prepared for it in the other world. The state has so regularly favored inequality that some theorists ^ hold that equality will become possible only when the state is abolished. Believers in the utility of the state, who also advocate equality, argue that it can best be ob- tained through the proper utilization of governmental age-ncies. Whether governments will remain aristo- cratic or ultimately become democratic is, however, a question for future settlement. For a proper under- standing of the tendency in development and the con- ditions that affect this tendency, however, a short sketch ' Anarchists and individualists. 302 THE DEVELOPMENT OF THE STATE of the development of the democratic idea may be of service. In primitive hordes and in the early patriarchal period, so far as their systems can be understood to-day, there prevailed in their political organizations a rude mocracy!' ^"^^'^ ^^ dcmocracy, based on the right of every adult male to participate in important decisions. Numerous illustrations of this exist to-day among savage tribes and in village communal life as observed in Russia, India and China. Women generally had civil rights in life, property and family, and at times even had political rights when heads of families. ^ There was, however, a growing tendency for a woman to merge her legal per- sonality into that of brother, father or husband. Like- wise the development of a body of elders composed of heads of families and powerful chieftains tended to de- velop a class of persons having peculiar privileges and unusually large governmental powers. Through war came slavery and a consequent servile class without rights, mere human beasts of the field. The multipli- cation of wealth in the form of flocks, herds, slaves and landed interests accentuated and fixed social distinc- tions. Thus developed a system in which privileged classes, noble, learned and wealthy men exercised all political power, forming the electorate of their respective states. Below these were citizens, freemen, having no political rights, but with fairly well-defined civil rights of life, property and family. These, however, were not carefully safeguarded against the tyranny or despotism of the ruling class. At the bottom of the scale were * In the Russian mir, for instance. MODERN DEMOCRACY 303 freedmen and resident aliens having a few civil rights, and a vast mass of slaves with practically no rights what- soever. The next stage of development came with the rise of commerce and industries. Through these developed from the lower classes wealthy, brainy men, Commer- -^ ' -^ ' ciaide- too important to be ignored in the govern- mocracy. jjicntal systcm, who slowly acquired larger civil rights and some share in political power. If this form of wealth and influence increased so as to over- balance in importance landed wealth, it became the really efficient factor in the state, sharing powers equally with the older privileged classes, and developing thereby a sort of democracy, a democracy, however, in which the mass of the population — slaves, freedmen and resident aliens — had no voice. ^ In those days popular democracy in the modern sense would have been impossible. Citizenship regularly im- plied racial kinship; there was no system of naturaliza- tion except through the awkward method of adoption. Furthermore, slavery was looked on as a natural and proper condition for inferior and conquered races, and no theorist was rash enough to suggest that such persons should be freed and have governmental powers placed in their hands. Consequently, when the states of the classical period placed the suffrage into the hands of those who were citizens by right of birth, even though these numbered a minority of the population, they be- lieved that they had the most liberal possible form of ' The reforms of Solon in Athens and the rise of the Equites in Rome are illustrations. 304 THE DEVELOPMENT OF THE STATE government, and in their theories set up their systems as the ideal of poHtical development. Many causes contributed to the development of a larger idea of democracy. The Stoic and the Christian teaching of human rights, individuality and Popular brotherhood, and the extension of Roman cit- democracy. ' zenship throughout the civilized world tended to dignify the individual and to discountenance slavery, especially as this institution was losing its economic im- portance through the rise of a system of vassalage. The economic development of western medieval Europe along lines of commerce and manufactures emphasized the need of a more energetic laborer than the slave or the serf, as a necessary factor in this development; and the increase of general intelligence through the printing press and commercial intercommunication hel}ied to bring about a condition in which the privileged classes became relatively less useful to the state and began to lose their monopoly of political, social and intellectual priv- ileges. ^Yhim slavery and its modified form, serfdom, had disappeared from the larger part of Europe, and when militarism and dogmatic authority had yielded place to commercialism and intellectual flexibility, modern democracy became possible and slowly be- gan to push its way into the governmental systems of Europe. It is well to note that the democratic movement hitherto outlined is fundamentally not along humani- tarian lines. It is simply the desire of the more capable part of the masses, who were called into a life of larger activity through economic need of intelligent labor, to MODERN DEMOCRACY 305 secure for themselves a share in governmental power. Their interests demanded it, and they were willing to fight for it if necessary. But every advance they made afforded a larger place for those immediately below them. As long as there was an increasing demand for more intelligent labor, the supply was forthcoming; and as it came, it sought after political power. This power was, of course, the means to an end. Men desired to be secured in their rights and possessions, and knew that these would be safer as they gained a larger voice in government. The rapid development of machinery in the eighteenth and nineteenth centuries stimulated a demand for labor ^ ^ of any sort, and all men became important in equality industrial countries. The free farming lands of man. ^^ ^^^ American colonies also called for workers and gave men opportunity to show enterprise and in- telligence in the cultivation of the soil. Throughout this period, therefore, developed a strong emphasis on man as man; all alike, it was argued, should have oppor- tunities to attain wealth and power. Stoic philosophy is the form of the theory of natural rights, and Chris- tianity with its ancient emphasis on equality and fra- ternity again came to the front in support of this new condition. The result was a new sort of democracy. Heretofore political power had developed pari passu with economic capacity, but then began a tendency to give political power irrespective of economic capacity. If men were created equal, as the theory was, they ought to have political equality at least, on the assumption that, by the aid of the ballot, eveiy man could win his 306 THE DEVELOPMENT OF THE STATE proper place in the social S3^steni. These two theories of democracy are still in conflict. The one argues that the possession of political power should be based on an intelligent economic capacity; the other argues that every adult, even every woman, should have the ballot, in order to win rights and build up a capable personality. From the first come laws demanding intelligence tested by an educational qualification, and economic capacity tested by the possession of taxable property. From the other come demands that the ballot be placed in the hands of every person, including the enfranchised slave, the illiterate, the property less and even subjects in colonial possessions. In this development of democracy the working of two principles is evident: (1) An economic condition that de- mands in its workers capacity and intelligence of democ- will tend to bestow political rights on such men; ^^^^' (2) broad, ethical, idealistic principles, like that of human brotherhood, may influence a community in such a way that a government may create by law a condition of political equality and then purposively strive to raise the social and economic standards of its people, that they may exercise with efficiency the political powers placed in their hands. We may, therefore, distinguish three historical forms of democracy: (1) Tribal or com- munal democracy, common among all savage and bar- barian peoples and prevalent in the earlier forms of village life, (2) Conservative democracy, based on eco- nomic capacity and intelligence, and found generally among commercial communities. (3) Radical democ- racy, dominated by ideals of human equality, seeking to MODERN DEMOCRACY 307 bestow political privileges irrespective of race, sex or social conditions. The materialistic democracy of the second class easily develops ideals of the third class through its emphasis on broad knowledge and intellectual capacity. Every commercial era is regularly accompanied by Utopian dreams of a still broader civilization, when every man will count as one and all men alike, irrespective of birth, will have opportunity to develop the best that is within them, and to attain any station to which their capacity entitles them to aspire. Along such lines dreamed Plato in commercial Athens, the Christians and Stoics under Roman sway, Sir Thomas More in the Tudor period, the Levellers of Cromwell's time and the philosophers of the Social Contract during the last three centuries. The social dreams of agricultural communities are anarchistic, like Tolstoi's, but commercial communities develop so- cialistic Utopias like those of Edward Bellamy i and Laurence Gronlund.^ It should be evident, therefore, that democracy is not merely a political system ; it is a condition for human de- velopment, an ideal of social life and a philosophic atti- tude of mind in regard to the larger interests of humanity as a whole. In its larger and truer aspects it implies the possibility of the attainment of higher civilization. In its political aspect it is merely the means whereby men attain real democracy; for the ballot in the hands of an intelligent electorate is an Aladdin's lamp, which, rightly used, will lay at its feet the social treasures of the world. ' "Looking Backward" and "Equality." * "Cooperative Commonweal tJi" and "The New Economy." 308 THE DEVELOPMENT OF THE STATE No one is yet prepared to prophesy the outcome of this movement toward a radical humanitarian form Modern of dcmocracy. In quiet nooks of civilization, experi- s\ich. as Finland, Sweden and Switzerland, in ments. the " Wild West" of the United States, and on the fringes of civilization in Australasia, may be found the vanguard and fighting line of a newer democracy. Casting precedent to the winds, the governments in these localities are pressing to a logical conclusion the teaching that all political power should be exercised directly by the people themselves. In these experimental labora- tories they seem to be trying every conceivable political policy. The electorates, made up of every adult man, and for the most part of every adult woman, are dictating the principles of the fundamental law and are working out startling policies of reform. By building up through careful investigation a scientific system of legal regula- tion, they hope to restrain the monopolistic tendencies of capital and to elevate standards of living for th,e " sub- merged tenth" and the "depressed classes." For these purposes the state does not hesitate, in one place or an- other, to authorize, as necessity demands, governmental ownership of lands, mines, waters and the usual agencies for transportation; nor to embark in all sorts of business enterprises, even to the extent of lending money at low rates of interest to its citizens and serving as "middle man" for them in the disposal of their products. These regions seem more anxious to abolish pauperism and crime than to multiply millionaires; apparently they listen more readily to the demands of labor than to the allurements of capital, and, strangely enough, seem more MODERN DEMOCRACY 309 interested in the health and education of children than in their exploitation in the industries. Yet, after all, these commonwealths combined form but a petty fraction of human society, and on the face of it there seems no possibility that such iridescent visions of democracy can ever dominate the idealism of western civilization as a whole. Progress as a rule goes on halt- ing feet and with leaden step. And yet, if ever " young men see visions," there may come in their hearts an en- thusiasm for a newer civilization founded on justice and intelligence. Then these seemingly rash and well-nigh chimerical experiments in democracy may pass into his- tory as the silver lining of the clouds that hid a brighter day for mankind. The Trend of Democracy From this bare outline are evident the rude beginnings of democracy in the horde and the tribe, its practical Modern disappearance under static patriarchal mon- democratic archics, its reappearance with the rise of com- merce and modern industrialism and its strug- gle for rights — rights of life, person, family and property, the right to have a voice in government and the right to combine in a political party so as to advocate a political policy. Generally speaking, five great influences have contributed toward this end: (1) A marvelous development in the use of machinery, which began in the last half of the eighteenth century in England and which has completely revolutionized the entire economic life of civilization. (2) The social contract theories of the English-Ameri- 310 THE DEVELOPMENT OF THE STATE can revolutions and the political influences that followed from the establishment of the American republic. (3) The powerful changes in political systems brought about by the French theories of equality and fraternity and the influences arising from the French revolution. (4) The great religious movements of the eighteenth and nineteenth centuries, which stimulated social vir- tues and emphasized the common brotherhood of hu- manity. (5) The rise of a system of free common and higher education and a remarkable multiplication of scientific knowledge. Economic changes gave the conditions, religion and education stimulated and trained the mind and political theories taught men how to hold fast and to strengthen by political devices what had been won for civilization. But these great influences show that real democracy comes through increased mentality and implies a highly Democracy dcvclopcd civilizatiou. For this reason it af- on^educa- ^^^^^ ^^^ whole of social life, not simply the tion. political aspect of it. It means that in eco- nomic life no man should be born into a condition of economic slavery; not that every person should be fed and supported at public expense, but that he should have opportunity to develop his capacity for work in whatever field seems best suited to his personality. This involves a far vaster and wiser system of education than any that yet exists. Plato, in his '' Republic," rightly assumed that the chief object of government was the proper training of its citizens. No governmental ex- penditure brings such tangible returns as that for edu- MODERN DEMOCRACY 311 cation. Educational systems are yet in their infancy and largely mechanical and unscientific in their operations; but perfection cannot be attained in a day nor through a corps of poorly trained, wretchedly paid teachers. The Japanese have shown that scientific training is the chief guaranty of victory in warfare. Material re- sources and a mere form of equality will never bring about national supremacy; nor does success ultimately lie with military prestige and fighting capacity. Broad knowledge, scientific training and technical efficiency are needed in order to develop a people able to accom- plish any task placed before them. Democracy ulti- mately depends on that kind of training, and economic supremacy in the twentieth century will be attained by that state which spends its treasures most freely in the wise education of its citizens. The influence of the modern spirit of democracy is well illustrated in the broader national aspects of the Democracy day. Ancicut statcs, in their relations one to and inter- ^^iQ other, wcrc uarrow and intolerant. Thev national ' ^ _ policies. were suspicious of one another's motives, treacherous in their dealings and considered war to be their natural condition. Since the development of the democratic spirit, international law and diplomacy have brought about a different attitude of mind. Commer- cial needs and treaties necessitate joint agreements among states, which meet in international congresses, discuss matters of general interest and agree on broad principles of policy. Joint action is taken whenever pos- sible, rival interests adjusted and harmonized by arbi- tration and mediation- wars are kept from spreading 312 THE DEVELOPMENT OF THE STATE by careful diplomacy, and the terms of peace dictated by a conquering state must meet with the moral ap- ])roval of other interested states. Through the process of naturalization citizenship assumes a new form. By joint agreement of states a person now may witli- draw from his parent state, forswear allegiance to it and secure citizenship in the state of his choice. If in his new home he prefers to retain his natural citizenship, he will be as carefully safeguarded in his rights, though an alien, as any citizen of the land. This great privilege, now so freely granted, is rapidly breaking down narrow racial barriers, as citizens of many states, persons of different races, mingle in social and business life, ex- change ideas, intermarry and develop a cosmopolitan race and civilization that ultimately may banish entirely the spirit of suspicion and war. In their internal policy states rely less on the clinched fist and more on the gray matter of the brain. Intelli- gence at home is a guaranty of success abroad. Service in consular and diplomatic administration increasingly depends on trained and proven capacity. The quality of the personnel of the civil service is steadily rising through administrative requirements; improvements in governmental machinery are eagerly sought and tried, and legislation is losing much of its former crudeness and becoming scientific. The spirit of democracy also implies a kindlier and more sympathetic religion and higher standards in moral life. This is shown by the growing humanitarianism of religion, and the rise of numerous agencies for the allevi- ation and banishment of human suffering. Criminal MODERN DEMOCRACY 313 codes are becoming humane, cities are vigorously push- ing the betterment of vicious conditions in social life, Democracy ^^^ labor Organizations countenanced by the and the state are working earnestly for the social interests of and ccouomic improvement of their mem- humamty. ]jqyq Intellectual development, freed from the incubus of dogmatism, has broadened out into an attempt to understand the whole of life, and through its achievements in science has made modern civilization progress by leaps and bounds. The spiritual and the esthetic side of life has been deepened by a truer insight into ideals of harmony and beauty, derived from a wider experience and knowledge of physical and mental phenom- ena. Life for the average man has become a happier, broader and more generous existence than that endured by his fathers. We realize now the futility of the old belief that goodness and wisdom are innate only in the pri\'ileged classes. By throwing open the opportunities and prizes of the world to all men, irrespective of birth, latent energy and capacity have come to the front. One needs but to investigate the pedigree of the greatest men of modern times to see that a few centuries ago the ancestors of such men were probably slaves and serfs. Had old-fashioned conditions persisted, the great achievers of modern civilization would in most cases be humble laborers on the estates of some robber baron. After all, the real aim of social life is not to develop a small class of highly developed persons of special privi- leges, but rather to attain the real aim of the state, the development of an energetic, intelligent, citizen body and high standards of social life. 314 THE DEVELOPMENT OF THE STATE SPECIAL REFERENCES General Works on Democracy: Bradford, Giddings, Lecky; American Historical Review, vol. i, p. 1, William M, Sloane, "History and Democracy"; H. D. Lloyd, "New- est England," 1900, New York; Frank Parsons, "The Story of New Zealand," 1904, Philadelphia; J. Allen Smith, "Spirit of American Government," 1907; W. E. Smythe, "Constructive Democracy," 1905; Political Science Quarterly, vol. x, p. 404, J. W. Burgess, "Ideal of the American Commonwealth"; Political Science Quarterly, vol. xiii, p. 514, Jesse Macy, "Twentieth Century Democ- racy"; American Journal of Sociology, vol. vi, p. 307, P. M. Maurenbrecher, "The Moral and Social Tasks of World Politics." BIBLIOGRAPHY The following list includes many of the more important books in English that bear on the general and special topics of this work. Others of equal importance might well be included, did space permit. In most of these works, however, references and bibliographies may be found, and the student or reader wiU be at no loss for supplementary reading. At the end of each chapter reference is made to a few of those that bear directly on the subject under dis- cussion. Adams, Brooks The Law of Civilization and Decay. 1897. The New Empire. 1902. Anson, William R. Law and Custom of the Constitution. Volume I, Parlia- ment ; Volume II, the Crown. 1886. Baden-Powell, B. H. Origin and Growth of Village Communities in India. 1899. Bagehot, Walter Physics and Politics. New edition. 1902. Baldwin, Simeon E. The American Judiciary. 1905. Blauvelt, Mary Taylor The Development of Cabinet Government in England. 1902. Bluntschli, Johann Kasper The Theory of the State. Second edition. 1892. 313 316 BIBLIOGRAPHY Bloch, I. S. The Future of War. Translated by R. C. Long. 1899. Boies, Henry M. The Science of Penology. 1901. BoNDY, William The Separation of Governmental Powers. Columbia College Studies, Volume V. BoRGEAUD, Charles Rise of Modern Democracy. 1894. Adoption and Amendment of Constitutions. 1895. BosANQUET, Bernard The Philosophical Theory of the State. 1899. Bourne, H. R. Fox The Romance of Trade. London. Bradford, Gamaliel The Lesson of Popular Government. Two volumes. 1899. Brewer, David J. American Citizenship. 1902. Bryce, James The Holy Roman Empire. Revised edition. 1904. The American Commonwealth. Two volumes. Third edition. 1900. Studies in History and Jurisprudence. Two volumes. 1901-4. BiJCHER, Carl Industrial Evolution. Translated by S. Morley Wickett. 1901. Buckle, Henry Thomas History of Civilization in England. Two volumes. 1857-61. London. Burgess, John W. Political Science and Constitutional Law. Two volumes. (Sovereignty and Liberty. Government.) 1890. Caine, Hall The Little Manx Nation. 1891. New York. BIBLIOGRAPHY 317 Carlyle, a. J. History of Mediaeval Political Theory in the West. 1903. Clarke, R, Floyd The Science of Law and Lawmaking. 1898. Crozier, John Beattie Civilization and Progress. Third edition. 1892. Lon- don. Cunningham, W. Modern Civilization in Some of its Economic Aspects. 1896. Western Civilization (ancient times). 1898. Western Civihzation (mediaeval and modern times). 1900. Cutler, James Elbert LyTich Law (in the United States). 1905. Day, Clive ' A History of Commerce. 1907. Dealey, James Quayle Our State Constitutions. March, 1907. Supplement to Annals. Philadelphia. DoDD, Walter Fairleigh Modern Constitutions. Two volumes. 1909. DowELL, Stephen History of Taxation and Taxes in England. Four volumes. 1884. Dunning, William Archibald Political Theories (ancient and mediaeval). Two volumes. 1902. 1905. Ely, Richard T. Studies in the Evolution of Industrial Society. 1903. Fairlie, John A. The National Administration of the United States of America. 1905. Ferri, Enrico Criminal Sociology. Translation. 1896. Figgis, John N. From Gerson to Grotius. 1907. 318 BIBLIOGRAPHY FOLLETT, M. P. The Speaker of the House of Representatives. 1896. Ford, Henry Jones Rise and Growth of American Politics. 1898. Fowler, W, Warde The City State. Reprinted, 1902. Freund, Ernst The Police Power. 1904. Chicago. Empire and Sovereignty. Chicago University decennial publications. Volume IV. 1903. FUSTEL DE CoULANGES The Ancient City. 1874. Boston. Origin of Property in Land. Translated by Margaret Ashley. Second edition. 1892. Gardiner, S. R. Constitutional Documents of the Puritan Revolution. 1889. Oxford. Giddings, Frank Henry The Principles of Sociology, Second edition. 1896. Democrac}'^ and Empire. 1900. Gierke, Otto Political Theories of the Middle Ages. Translated by F. W. Maitland. 1900. GoMME, George Laurence The Village Community. 1890. GoocH, G. P. History of English Democratic Ideas in the Seventeenth Century. 1898. Goodnow, Frank J. Comparative Administrative Law. Two volumes. 1893. Principles of the Administrative Law of the United States. 1905. Graham, William English Political Philosophy. 1899. London. Greenidge, a. H. J. Greek Constitutional History. 1896. BIBLIOGRAPHY 319 GuMMERE, Francis B. Germanic Origins. 1892. Hadley, Arthur Twining Education of the American Citizen. 1901. Freedom and Responsibility. 1903. Hall, Arthur C. Crime in its Relations to Social Progress. Columbia College Studies. Volume XV. Harper, R. F. (editor) The Code of Hammurabi. 1904. Chicago. Hart, Albert Bushnell Introduction to the Study of Federal Government. 1891. Handbook of the History, Diplomacy, and Government of the United States. 1901. Cambridge, Mass. Hearn, W. E. The Aryan Household. 1879. London. Hill, David Jayne History of European Diplomacy. 1905. Holland, Thomas Erskine Jurisprudence. Tenth edition. 1906. Oxford. Hourwich, Isaac A. The Economics of a Russian Village. See Columbia College Studies, Volume II. Howard, George Elliott History of Matrimonial Institutions. Three volumes. 1904. Ilbert, Courtenay Legislative Methods and Forms. 1901. Oxford. Inderwick, F. a. The King's Peace. 1895. Ingram, John Kells History of Slavery and Serfdom. 1895. London. Ireland, Allyne Tropical Colonization. 1899. Jameson, John Alexander The Constitutional Convention. Fourth edition. 1887. Chicago. 320 BIBLIOGRAPHY Jellinek, Georg Declaration of the Rights of Man and of Citizens. Trans- lated by Max Farrand. 1901. Jenks, Edward Law and Politics in the Middle Ages. 1898. Jephson, Henry The Platform. Two volumes. 1892. Johnston, Harry H. The Colonization of Africa. 1899. Cambridge. JuDSON, Harry Pratt The Essential Elements of a Written Constitution, Chicago University decennial publications. Volume IV. 1903. Keller, Albert Galloway . Homeric Society. 1902. Colonization. 1908. KiDD, Benjamin The Control of the Tropics. 1898. Principles of Western Civilization. 1902. Kovalevsky, Maxime Modern Customs and Ancient Laws of Russia. 1891. London. Laveleye, Emile de Primitive Property. 1878. Lea, Henry C. Superstition and Force. Third edition. 1878. Phila- delphia. Lecky, William E. H. Democracy and Liberty. Two volumes. 1896. Lee, Guy Carleton History of Jurisprudence. 1900. Lesser, M. A. History of the Development of the Jury System. 1894. Rochester, N. Y. Letourneau, Charles Property, its Origin and Development. 1892. BIBLIOGRAPHY 321 Lilly, William Samuel First Principles in Politics. 1899. LORIA, ACHILLE The Economic Foundations of Society. Translated by Lindley M. Keasbey. 1899. Low, Sidney The Governance of England. 1904. Lowell, A. Lawrence Governments and Parties in Continental Europe. Two volumes. 1897. ■ The Government of England. Two volumes. 1908. Macy, Jesse Party Organization and Machinery. 1904. Maine, Henry James Sumner Ancient Law. 1870. Village Communities. 1871. London. Early History of Institutions. 1875. Malthus, T. R. Essay on the Principle of Population. 1895. Mason, Otis Tufton Woman's Share in Primitive Culture. 1894. The Origins of Invention. 1895. Primitive Travel and Transportation. 1896. Govern- ment Printing Office. Washington. McCONACHIE, LaUROS G. Congressional Committees. 1898. Maccunn, John Ethics of Citizenship. Third edition. 1896. McKechnie, William Sharp The State and the Individual. 1896. Glasgow. Mackenzie, John Stuart Introduction to Social Philosophy, Second revised edi- tion. 1895. Merriam, C. Edward American Political Theories. 1903. History of the Theory of Sovereignty Since Rousseau. Columbia College Studies. Volume XII. Primary Elections. 1908. 322 BIBLIOGRAPHY Michel, Henry L'idee de I'etat. (Social and political theories in France since the Revolution.) Troisieme edition. 1898. Paris. Moore, James West The American Congress. 1895. Moore, John Bassett American Diplomacy. 1905. New York, Morey, William C. Outlines of Roman Law. 1884. Morgan, Lewis H. Ancient Society. 1878. MoRisoN, George S. The New Epoch (as developed by the manufacture of power). 1903. Morris, Henry C. History of Colonization. Two volumes. 1900. Munro, Dana Carleton Source Book of Roman History. 1904. NiTTi, Francesco S. Population and the Social System. 1894. OSTROGORSKI, M. Democracy, and the Organization of Political Parties. Translated by F. Clark. Two volumes. 1902. Patten, Simon N. Development of English Thought. 1899. The New Basis of Civilization. 1907. Pike, Luke Owen Constitutional History of the House of Lords. 1894. Pollock, Frederick Introduction of the History of the Science of Politics. Reprinted, 1893. PoRRiTT, Edward The Unreformed House of Commons. (Parliamentary representation before 1832.) Two volumes. 1903. Reinsch, Paul Colonial Government. 1902. American Legislatures. 1907. BIBLIOGRAPHY 323 Ridges, Edward Wavei.l The Constitutional Law of England. 1905. Ritchie, David G. Principles of State Interference. 1891. Robertson, John M. Introduction to English Politics. (A study of political evolution.) 1900. London. Rogers, James E. Thorold Economic Interpretation of History. 1888. Rousseau, Jean Jacques The Social Contract. Translated by Rose M. Harrington. 1893. RussEL, Alfred The Police Power of the State. 1900. Chicago. Russell, R. First Conditions of Human Prosperity. 1904. Strength and Diet. 1905. ScHERGER, George L. Evolution of Modern Liberty. 1904. Seebohm, Frederic The English Village Community. Fourth edition. 1890. London. Tribal System in Wales. 1895. Tribal Custom in Anglo-Saxon Law. 1902. Seligman, Edwin R. A. Essays in Taxation. 1895. Economic InteqDretation of History. 1903. Shaler, Nathaniel Southgate The Citizen. 1904. New York. Man and the Earth. 1905. New York. Sidgwick, Henry Development of European Polity. 1903. SiMCOX, E. J. Primitive Civilizations. Two volumes. 1894. Small, Albion W. General Sociology. 1905. 324 BIBLIOGRAPHY Smith, G. Baknett History of the English Parliament, Two volumes. 1892. London. SoHM, Rudolf Institutes of Roman Law. Translated by J. C. Ledlie. 1892. Oxford. Spencer, Herbert Principles of Sociology. Three volumes. 1897. Social Statics, with Man versus the State. Revised, 1901. Stangeland, Charles E. Pre-Malthusian Doctrines of Population. Columbia College Studies. Volume XXI. Stimson, F. J. Handbook to the Labor Laws of the United States. 1896. Law of the Federal and State Constitutions. 1908. Stuckenberg, J. H. W. Sociology. Two volumes. 1903. Torrens, W. M. History of Cabinets. Two volumes. 1894. London. USSHER, R. Neo-Malthusianism. 1898. London. Veblen, Thorstein B. Theory of the Leisure Class. (An economic study of the evolution of institutions.) 1899. Ward, C. Osborne The Ancient Lowly. (History of the proletariat.) Two volumes. 1900. Washington. Ward, Lester Frank Pure Sociology. 1903. Applied Sociology. 1906. Wallace, Alfred Russel The Wonderful Century; its Successes and its Failures. 1898. New York. Wallis, Louis An Examination of Society. 1903. Columbus, Ohio. Wells, David Ames Theory and Practice of Taxation. 1900. BIBLIOGRAPHY 325 WiLLOUGHBY, W. W. The Supreme Court of the United States. 1890. Balti- more. The Nature of the State. 1896. Political Theories of the Ancient World. 1903. Wilson, George Grafton, and George F. Tucker International Law. Second edition. 1902. Wilson, Woodrow The State. Revised edition. 1898. Boston. WooLSEY, Theodore D, Political Science. Two volumes. Second edition. 1886. The A. L. A. catalogue, which contains the titles of 8,000 vol- umes suitable for a popular library, includes many other works for general reference. This was issued by the Government Print- ing Office, Washington, October, 1904. Numerous articles in the following will be found useful: Cyclopaedia of Political Science, edited by John Joseph Lalor, in three volumes, 1882-4, Chicago, and Dictionary of Political Economy, edited by R. H. Inglis Palgrave, in three volvunes, 1894-9. The chief American magazines devoted primarily to the dis- cussion of political principles are : Political Science Quarterly, edited by the faculty of Columbia University, and issued from March, 1886. American Political Science Review, published quarterly by the American Political Science Association since November, 1906. Yale Review, edited by the professors in poUtical science and history, and issued quarterly since May, 1892. Annals of the American Academy of Political and Social Science, issued bi-monthly from July, 1890. The Annual Reports of the American Historical Association. Organized, 1884. American Historical Review, issued quarterly from October, 1895. 326 BIBLIOGRAPHY American Journal of Sociology, issued bi-monthly from July, 1895. The publications of the American Economic Association, from March, 1886. American Journal of International Law, issued quarterly by the American Society of International Law from January, 1907. For articles in general periodic literature Poole's Index is, of course, the standard guide. INDEX Abraham, W. H., 115. Act, The, 247. Adams, Cyrus C, 25. Administration, 39-40, 121, 129- 134, 147-149, 153-167, 170- ■ 174, 181, 232, 242-245. Departments of, 130-134, 147-149, 159-160. Districts of, 121, 164-167, 181, 263. Divisions of, 156-164. Separation of, 129, 133-143. Administrative courts, 134, 170- 174. law, 134, 171-174, 243-245. system, French, 171-173, 232, 244-245. See Civil Service, Office, Responsibility. Adoption, 303. Africa, 19, 20, 76, 96, 128. Age, Patriarchal, see Patriarchal. Primitive, see Primitive. Age of beginnings, 28-29. See Primitive. Agriculture, 16, 21, 27, 33-38, 43. developed through science, 94-95, 292. Aim of democracy, see Ideals. Aliens, 31, 34, 39, 93, 178, 215, 287, 303. Allegiance, 40, 54, 58, 240, 288, 290, 296. Allotments, 90-92. Althing of Iceland, 189. Amalgamation of races, 77-80, 122, 238, 253. Amendments to written consti- tutions, see Constitution and Legal Sovereign. America, Continent of, 21, 40, 46, 96. See Latin States of. American Commonwealths, see Commonwealths, parallels, 173-174, 245. party system, 282-283. revolution, 264-267. supreme court, 142, 145-146, 264. Ancestor worship, 17, 32, 34, 105-107, 110. Anderson, Frank M., 286. Anglo-Saxon, see English-Ameri- can, Saxon. Animism, 17, 28, 32, 109. Appointment, Power of, 139, 143, 147, 158-159, 177, 218. Arbitration, Boards of, 74, 86- 87, 311. Areas of administration, see Districts of. Aristocratic, Aristocracy, 119- 122, 132-133, 144. See Classes. Aristotle, 51, 119, 137, 140, 245. Army and na\T, 72, 101, 298. Rules regulating the, 73-74, 161, 168-169, 244. Arnold, W. T., 76, 327 328 INDEX Artisan, The, 101-102. Asia, 19-20, 27. Assessment of taxes, 69. Assimilation of civilizations, see Amalgamation. Australasia, 217, 233. See New Zealand. Australia, 12.3, 220, 228, 265, 289, 308. Austria-Hungary, 76, 125, 152, 200. Authority, 17, 29, 32-33, 35, 40, 58, 107. Autocracy, 135-136, 188, 241. See Despotism. Autocratic ruler, 56, 150-153, 202-203. type of cabinet, 153-154. Autonomy, 35-36, 47. Local, 36, 120-121, 124-125, 165-167, 188. Billson, W. W., 242. Blackstone's Commentaries, 140, 252. Blood revenge, 80, 82. Bluntschli, J. K., 208. Body of citizens, see Citizens, politic, 30, 54, 57. politic. National, 54, 120. Borgeaud, Charles, 266, 272. "Bossism" in politics, 279-280. See Corruption. Brooks, John Graham, 86. Bryce, James, 115, 189, 246, 273. Budget, The, 68-69, 230. Bureaucracy, 134, 151-152, 161, 171. *See Administration. Bureaus for the study of legisla- tion, 261. Burgess, J. W., 314. Burnett, E. C, 146. Baldwin, S. E., 254. Ballot, The, 220, 307. .See Elec- tions. Band, The war, see Warfare. Bank, The. .59, 99-100. Bartering, The system of, 19, 37, 97-98. Belgium, 219. Bellamy, Edward, 307. Bentham, Jeremy, 261. Bible, The, referred to, 20, 81 , 184. Bicameral system, 136, 191. Bill of attainder, 174-175, 204. Bills, Initiation of. .sve Initiation. of rights, see Rights. Private, special or local, 196- 198. Public, 196-198. Cabinet, The, 133, 15,3-156, 197, 199-200, 221. ,Sfee Elders. Caesar, 24, 76, 89. Caine, Hall, 189. Campbell, Douglas, 234. Cannibalism, 22, 31-32. Canon law, 248. Canton, The French, 165. The Swiss, 165, 224. Carpenter, A. H., 299. Castes, 177. See Classes. Caucus, The, 200-201, 284. Centralization, Centralized, 39- 40, 47, 121, 125, 166-167. See Autocracy. Charters, 265. Checks and balances, 137, 140, 192, 224. INDEX 329 China, 27, 35, 80. Church, The, 13, 81, 114-115, 248. in relation to the state, see Relation of. Roman Catholic, 113, 232. See Ecclesiastical. Cicero, 140. Citizens, 56, 158, 191, 278, 280, 287, 294. Classes of, 287-289. ■ Duties of, 296-299. Naturalized, 288. Rights of, 274-277, 280, 289- 296. Who are? 54, 300. Citizenship, 39, Chap. XIV, 303- 304, 312. City, The, 21,38-39. 5ee Urban. of refuge, 84. state, The, 19, 39-40, 46, 189. Civil disputes, Regulation of, 85-87, 168, 179, 242. law, 180, 242, 244. rights, 35, 242, 250, 290-293. service, 127, 160-164, 168, 171-173, 244. See Office. Civilization, 14-18, 21, 26, 37- 47, 52, 310-313. Fundamental bases of, 21, 310-311. Growth of, 14-18, 42. Material, 26, 41-47, 101-103. Political, see Political. Progress of, 17-18, 42, 313. Static, 35, 61, 111, 252-253. • Urban, 26, 37-41, 313. See Primitive. Clan, The, 29, 34-36, 46, 102, 104, 106-107. Class distinctions, 32, 67, 103, 178, 215, 239, 275, 289. The leisure, 24, 32, 215. Classes, Privileged, 22-25, 71, 73, 110, 132-133, 162, 177- 179, 190, 193, 300-304, 313. See Aristocratic, Caste. Closm-e, The, 196. Codes of law, 75, 237, 241-242, 251. Codification, 39, 250-251, 255- 257. Coinage, 69, 98-99. College, The electoral, 163. Colonization, 47, 52, 89, 95-97. Combat, The judicial, 84, 185. Commands, 37, 129, 237, 259. Commentators, The influence of, 180, 254. Commerce, 16, 18, 20-21, 24, 26-27, 37^7, 97-101. Commercialism, 111, 203. Commissions, 74, 160, 174, 194. Committees of lawmaking bodies, 128, 194, 197-199. Common law, 247, 250, 256. Commons, English house of, 202-204, 258-259. See Par- liament. Commons, J. R., 209, 234. Commonwealths, The American, 124, 126, 138, 160, 193, 214, 225-228, 246, 248, 270, 272. Communal ownership, 91-94. Communes, The, 54. Community, The village, see Village. Compass, The, 21, 40, 95. Composite forms of government, 120. See Federative. 330 INDEX Compurgation, 84. Conditions that affect develojv ment, 18-25. Confederation, The, 36, 40, 72, 78, 107, 120, 123, 189, 213, 264. contrasted with federation, 47, 123-125. Confiscation of property, 66, 69, 184, 240. Connecticut, 265, 269. Conquest, Effects of, 76-78, 253. Conservatism, 35, 45, 110-112, 285. Constitution. Definition of a, 207-208, 245. Every state has a, 207, 245. The written, 124, 207, 246- 247, 260, 264-272. A check on despotism, 56, 265-266, 275. Amendments to, 124, 212- 214, 223-227, 266-270. Interpretation of, 139, 142, 260. Length of, 270-271. Origin of, 189, 264-266. Usual provisions of, 270. The vmwritten, 207, 246. Constitutions of the common- wealths, see Common- wealths. Constitutional Convention, The, 129, 141, 206, 211, 213- 215, 266, 271-272. As agent of electorate, 214, 269-270. Powers of, 272. Constitutional forms of govern- ment, 56-57, 207. Constitutional law, 245-247. Consular service, 74, 181, 312. Contempt, Power to punish for, 169, 195. Continental Europe, see Europe. Contract, The social, 59, 143, 216, 265, 307, 309. Rousseau's Social, 59, 138, 214. Convention, The constitutional, see Constitutional. The party, 282-283. Coordinate parts of government, 126-127, 138, 160, 174. Corporations, 287. Corruption in government, 161- 162, 176, 260, 279-280, 284. Council of the king, 39, 130-136, 153-156, 199-200, 257. See Cabinet, Elders. The prefectural, 172. County, The, 164. Court, The American supreme, 142, 145-146, 264. Courts, Administrative, 134, 170-174. Grades of, 179. martial, 169. See Martial law. Specialized, 157, 172, 180^ 182. Crime, 63, 80-87, 308. See Punishment. Criminal law, 239, 241-242, 250, 313. Custom, 35, 158, 180, 210. Customs as law, 75, 97, 103, 131, 237-238, 241, 249, 252-253, 258, 260. Czar, The, 107, 135, 136, 152, 221. INDEX ■331 Dallingcr, F. A., 234. Dean, Sidney, Editor, 99. Decentralization, see Auton- omy. Decisions, Judicial, 129, 131, 173-174, 182, 248. Declaration of Independence, 213, 289. Declaration of Rights, The French, 171, 276, 286, 293. Decree, The, 242-243, 248. See Ordinance. Definitions, 51, 53-55, 63-64, 119, 128, 142, 207, 221, 238, 245, 284, 287. Deliberative function. The, 128- 132. Del Mar, Alexander, 98. Democracies, 119-123, 193, 204. Democracy, 45, 52, 59, 120-122, 138, 157, 215, 220-230, 233, 268-269, 275-276, 279-280, 295, 299, Chap. XV. Conservative, 306-307. dependent on education, see Education. Development of, 45, 120-121, 138, 302-307. Direct, 121, 223, 269. Ideals of, see Ideals. Newer, 220-230, 308. Modern, 120, Chap. XV. Popular, 122, 157, 215, 268, 295, 303-306. Radical, 121, 220, 306-309. Trend of, 309-313. Tribal, 302-303, 306. Dennis, A. P., 150. Department, The executive, see Executive. Department, The French, 54,164. The judicial, see Judicial. The lawmaking, see Lawmak- ing, of administration, see Admin- istration. Departments of government, see Government. Separation of, see Separation. Despotism, 60, 132, 275. See Au- tonomy, Constitution, Mon- archy. Devastation, 20, 75, 249. Development, see under respec- tive headings. Dictatorship in Rome, 258. Differentiation of powers, see Separation of. Diplomacy, 29, 46, 53, 71, 74- 75, 77, 147, 312. Direct democracy, see Democ- racy. Discretionary powers, 161, 170, 173. Disputes, Regulation of, see Civil, Criminal. Distinctions in classes, see Class, in law, 168. Districts of administration, 121, 164-167, 181. Divine right, 110, 132, 150, 152, 240, 257, 259, 300. Divisions of administration, 156- 164. Divorce, 60, 108, 181, 262. Dodd, W. F., 135, 219, 251. Dogmatism, 304, 313. Domain, see Eminent domain. Domestication of animals, 16, 19, 31, 43, 105. 332 INDEX Domicile, 54, 287. Dominant, see Interests, Races. Dominus, 108. Duma, The Russian, 136, 175. Duties, see Obligations. East, The, see Orient. Ecclesiastical courts, 180, 240. interests, 37, 58, 79, 113-115. law, 181. iSee Church, Religion. Economic conditions. Influence of, 18-24, 306, 309-310. issues of parties, 284-285. periods of development, Chap. II. regulation, 88-104. Education, 18, 23, 60, 85, 109- 111. Democracy dependent on, 289, 295-296, 310-311. The right to secure an, 292. Eighteenth century, The, 21, 41, 43, 44, 204, 232, 261, 304, 309, 310. Elders, The body of, 29, 35, 39, 71, 91, 109-110, 130-131, 148-149, 192, 215. See Council of the king. Elections, 191, 222, 229, 278- 285. See Ballot, Primary. Electoral college, The American, 163. Electorate, The, 136, Chap. X, 211-212, 222, 269, 279, 294, 302, 308. a governmental agency, 57, 143-144, 217-218. defined, 55, 216. Electorate, Restrictions on pow- ers of, 143-144, 218-219. Separation of an, 158-159. Emancipation proclamation, The, 268. Eminent domain, 63, 69, 93, 298. Empire, Centralized, 47. Confederated, 36, 46. Spiritual, 46, 115. World, 41, 46, 125. Empires, 19-20. England, 21, 44, 66, 79, 96, ISO, 221, 263, 271, 309. See Great Britain. English-American, 24, 173-174, 196, 243, 245, 247, 250, 254, 275, 309. English parliament, see Parlia- ment, party system, 281-282. type of cabinet, 154. Equality in law, 103, 162, 176- 179. of man, 216-217, 290, 301, 305-306. Equites of Rome, 303. Equity law, 180, 247, 260. Esthetic development, 28, 111, 313. Ethical principles, 143, 238- See Ideals, Morals, rights, see Rights. Etiquette, 82, 183. Europe, 19-21, 40-41, 46, 76, 134, 170, 185, 267. Executive department, 126-132, 138-139, Chap. VII, 169- 170, 194, 257. Judicial powers of the, 127, 169-170. INDEX 333 Executive department, Law- making powers of the, 194, 257. Powers of the, 138-139, 147- 148, 159. Expatriation, The right of, 290. Experiments of democracy, Rad- ical, see Radical. Exploitation, 20, 47, 96. Family, The, 13, 16, 27-28, 32, 34, 37, 70, 80, 94, 104-109. Matriarchal, 16, 28, 32, 104- 106. Modern, 16, 34, 105, 108-109. Patriarchal, 16, 28, 32, 80, 101, 104-108. Relations with the state, 70, 104-109. Totemistic, 104-106. Farming of taxes, The, 69. Federalist, The, 146. Federation, The, 47, 52, 120- 127, 181, 193, 247. contrasted with confedera- tion, 47, 123-125. dual in form, 125-127. Importance of, 47, 125. Federations, The chief, 125. Fetter, Frank A., 25. Feud, The, 82. Feudalism, 40, 69, 72, 192, 216. Fines, A system of, 80, 184. Finland, 76, 233. Finlay and Sanderson, 167. Fish, Carl R., 234. Fisheries, Importance of, 95. Flexibility necessary for prog- ress, 18, 112, 304. in government, 205, 233. Flocks and herds, 16, 31, 33, 38, 67, 302. Food supplies, Importance of, 14-16, 19, 22, 30-34, 41, 43-44, 58, 94-95, 105. Force, The rule of, 30, 88-90, 149. France, 41, 47, 96, 120-121, 134, 141, 153, 166, 171-173, 192, 197, 232, 267, 271, 276. See French. Fraternities, Social, 80-81, 83. Fraternity, 115, 232, 304, 310. Freedman, 103, 178, 303. Freedom, 241, 277, 291-293. Freeman, E. A., 123. Freemen, 72, 103, 178, 215, 302. French ideals, 232, 310. party system, 282. French system of administra- tion, 171-173, 232, 244-245. Friction, Social, 239. Functions of government, 45, 52, 56, 59, 128-130. Definition of five forms of, 128-131. Fundamental laws, 141, 207, 220, 223, 245-246, 257, 266. Gaillard, L., 115. Gardiner, S. R., 240, 266. Geffcken, Heinrich, 115. General welfare, see Welfare. Gens, Gentes, 106-107. Germanic, Germany, 24, 46, 76, 108, 125, 135, 232, 255, 265. God, 84, 107, 110, 135, 185-186, 293, 301. See Divine right. Government, Part III, 265-268, 280. 334 INDEX Government, Classifications of, 47, 52, 60, 119-123. Definitions of, 119, 144. Departments of, see the several departments. Federal, see Federation. Functions of, see Functions. Limitations on, 56-57, 64, 265-268. Governmental agency. The elec- torate a, see Electorate. Goodnow, Frank J., 171, 243. Grants of money, 205, 259. Great Britain, 41, 47, 120-122, 152, 156, 166, 211-212. See England. Greece, 19-22, 39, 41, 46, 59, 95, 123, 231, 245. See Homeric. Greek classification of govern- ment, 119. Gronlund, Lawrence, 307. Grotius, Hugo, 75, 249. Groups, Natural, 13, 58, 80-81. Guaranties, Constitutional, 64, 209. Guilds, The, 81, 102, 248. See Labor. Gumplowicz, Ludwig, 78. Habeas Corpus, 64. Hammurabi, Code of, 255. Happiness, The pursuit of, 60, 290-292, 299. Hardy, A. S., 224. Haskins, C. H., 187. Headship of the state, 71, 121, 132, 148-153. See King. Hearings, Public, 195, 198, 223. Hebraic, see Israelite. Heralds, 74. Hereditary right or rule, 34, 149-150, 162. Hierarchy, 110, 134. Holy Roman empire, 40. Homeric period, 36, 219. Home rule, 41, 165-167 Homing instinct, 92. Hopkins, W. E., 81. Horde, The, 19, 29, 32, 36-37, 46, 104-106, 123, 188, 215, 302. Horde-tribe, The, 105-106. Howard, B. E., 187. Humanitarian, 78-79, 108, 304, 312. Hunting stage. The, 16, 26-30. Ideals of democracy, 61, 70, 229, 232, 261, 295, 301, 306- 307, 312-313. Ideals of social perfection, 17, 25, 46, 113, 262. See Uto- pian. Ignorance of the law, 85, 239. Impeachment, 127, 175, 204. India, 19, 27, 35, 79-80, 152, 177, 231. Individualism, 17, 33, 57, 61, 228, 301. Industrial civilization, see Civil- ization. Industries, The larger, 102, 103. Infanticide, 22. Inheritance, 291. Inheritance tax. The, 59, 68. Initiation of bills, 136, 194-195, 220-225. Initiative, 194, 221, 224. INDEX 335 Initiative and referendum, 143, 159, 191, 206, 218, 220-228. defined, 221. Historical development of, 220-222. Use in Switzerland, 224-225; in the United States, 225- 228. See Referendum. Institutions, Social, see Social. Instruction, The right of, 143, 162, 211, 227, 269. Instrument of Government, 266. Interests, The struggle of, 34, 188-191, 202, 255, 281, 304-306. Dominant, 71, 162, 208. See Races. International law, 29, 46, 53, 75, 78, 249-250. International policies, 311-313. Interpretation, Laws changed through, 253, 254, 260. Interpretation of the Constitu- tion, 139, 142, 260. Inventions, Inventors, 23, 31, 42-45, 78, 102, 233, 256, 263. Ireland, 41. Israelites, 36, 41, 69, 89, 255. Issues, Party, see Party. Jameson, John A., 272. J. Franklin, 206. Japan, 135, 232, 255, 267, 311. Jenks, Edward, 240, 255. Judges, 157, 184, 253-254. Judicial department, The, Chap. VIII. Development of, 175-182. Judicial Department, The, Func- tions of, 168. Separation of, 127, 157. Judicial powers of the execu- tive, 127, 169-170. of the legislative, 127, 170, 174-175. Judiciary, Independence of the, 157, 176-177, 264. Jurisprudence, 52. Jurisdiction, Specialized, 180- 182. Jurists, 180, 207, 254. Jury, The, 182, 184. service, 143, 218, 295, 297. Justice, Abstract principles of, 171-173, 253-254. Justinian, 180, 250, 255. Kidd, Benj., 95. King, The, 36, 39, 110, 150-152, 170, 179, 240, 257. See Headship. King's council. The, see Council. seat, The, 176. Kinship, 16, 34-36, 91-93, 104- 108. Racial, 106-107. Ku-Klux, 82. Labor, 21, 24, 34-35, 43-44, 45, 64, 99, 308. Organizations of, 102, 313. See Guild. Regulations of, 102-104. Laboratories, Political, 228-230, 308. Laissez-faire, 216. Land, 16, 29, 33, 66-67, 88, 94. Law of the, see Law. 336 INDEX Latin states of America, 153, 192, 219, 232, 262, 267, 272, 276. Law, Chap. XI. Administrative, 134, 171-174, 243-245. Admiralty, 249. and Citizenship, Part IV. arising from custom, see Cus- toms. Codification of, see Codifica- tion. defined, 238. Divine, see Divine rule. How changes are made, 253- 263. Kinds of, see Chap. XI. Lynch, 82, 185. -merchant, 248. Natural, 75. of the land, 139, 157, 174, 176, 237, 244, 252. Unchanging, 205, 252-253. See Constitution, Fundamen- tal, Roman. Laws, Multiplication of, see Multiplication. of Russia, Fundamental, see Russia. Lawmaking department, Chap. IX. Judicial powers of the, see Judicial. Legal fiction, 37, 127, 253-254, 260. Legal rights, see Rights. Civil, see Civil. Political, see Political. Legal sovereign. Chap. X, 122, 141-142. defined, 142, 209. Legal sovereign, in origin some- times revolutionary, 213- 214. Relations with the electorate, 211-212. Legal sovereignty, 136. Location of, 210-213. Legislation, Chap. XII, 239, 243, 256. Legahty of, 263-264. Modern, 258-260. Scientific, 261-263, 312. through ancient councils or assemblies. 258. through the executive, see Executive. Legislative bodies. Committees of, see Committees. Composition of, 192-194. Decline of, 197, 206, 271. Development of, 188-191. Functions of, 204-206. Importance of, 158, 206. Powers of, 139. Privileges of, 195-196. Legislative policy, Formulation of, 128-129, 197-202. Legislators, Privileges of, 195- 196. Leisure class. The, 24, 32, 215. Levelers, The, 307. Lex talionis, 82, 184. 186. Library of congress, 167, 273. License system. The, 68, 104, 262. Lieber, Francis, 286. "Life and property," 55-60, 63, 80, 119, 157, 276-277. Limitations on government, 265-268. on legislatures, 266, 269, 272. INDEX 337 Lincoln, President, 268, 295. Lloyd, H. D., 234. Lord Chancellor of England, 180, 247. Lowell, A. Lawrence, 167, 171, 268, 284. Luxury, 19, 151. Lynnh law, 82, 185. Machinery, 15, 21, 24, 27, 305, 309. Governmental, 190-191, 260, 280, 283, 312. Importance to civilization of, 41-44. Macy, Jesse, 314. McClain, Emhn, 251. Magna Charta, 210, 256, 276, 293. Malthusian theory, see Popula- tion. Manufactures, 16, 21, 101-104. Market, The, 21, 38, 97-98. Marriage, 59, 108, 262, 293. Martial law, 64, 81. See Courts martial. Massachusetts, 138, 226-227, 266, 270. Matriarchal civilization, see Family. Maurenbrecher, P. M., 314. Mayo-Smith, R., 25, 78. Medium of exchange, 38, 98-99. Mentality, Human, 14, 17-25, 44-45, 310. Mentality of a people, 24-25, 30-32, 38, 60, 277. Merriam, C. E., 234. Metals, 15, 18-21, 27, 98, 101. Metronymic, 16. Mexican constitution of 1824, 276. Mexico, 21, 90, 120, 125, 152, 156, 201, 219. See Latin states. Militarism, 58, 74, 166, 305. Mines, 19, 38, 44, 90, 94, 96. Minister, Prime, see Prime. Ministerial powers, 161. Ministry, see Cabinet. Misdemeanors, 179. Monarchy, The, 36, 39-40, 119- 123, 135, 170, 193, 204, 263-264, 274-275. Rise of, 148-153. Money, 38, 98-100, 190. Monopolies, 102-103, 308. Montesquieu, 137, 140, 171. Morals, 17, 30, 60, 111, 178, 274, 312. See Ethical, Ideals. More's Utopia, 238, 240, 307. Morgan, Lewis H., 36. Multiplication of laws, 141, 196- 198, 238-240. Municipalities, 97, 165, 193. Municipal law, 250. ordinances, 243. Nadaillac, The Marquis of, 25. Nation, 29, 46, 54, 104. National states, 40-41, 45-47, 75. See also Nationality, Principle of, 41, 76. Naturalization, 288, 303, 312. Natural rights, see Rights. Navy, The, see Army. "Newest England," 231, 234. New Zealand, Dominion of, 122, 220, 228-231. Political laboratory in, 228- 230. 338 INDEX Nineteenth century, The, 44, 190, 204, 276, 305. NobiHty, The, 131-132, 189. See Classes. Norman Great Council, 170. Nullification of law, 139. Obligations of citizenship, 37, 58, 296-299. Office and Office-holders, 56, 67-69, 160-164, 294, 297. See Civil Service, Responsi- bility, Tenure. Oklahoma, 143, 226, 271. Opinion, Public, 29, 56-57, 71, 183, 195, 263. Opportunity, Stimulus of eco- nomic, 23-24, 43. Ordeal, The, 84, 185-186. Ordinance, The, 142, 243, 257- 258, 260. See Decree. Oregon, 143, 226. Organization of the state. Chap. VI. Orient, Oriental, 19, 36, 80, 94, 185, 255. Outlawry, 81. Oversight, Power of, 129, 139, 147-148. Papacy, The, 40, 46. Pardoning power. The, 177, 179, 247. Parlements, The French, 171. Parliament, The English, 189- 190, 217. See Commons. Parsons, Frank, 234. Parties, Political, Chap. XIII, 57, 154, 191, 198, 309. Parties, Governmental regula- tion of, 222, 283-284. Issues of, 284-285. Origin of, 277, 280-281. Three types of, 281-283. Patents, 102-103, 262. Pater, 107-108. Patriarchal civilization, 22, 24, 27, 32-37, 46, 131, 215, 252, 275, 302. family. The, see Family. Patriotism, 263, 299. Patten, S. N., 25. Peace, 63-64, 80-87, 183. Penology, Modern, 85, 186-187. Penalties, Legal, 182-187. Peon, The, 24. People, The, defined, 54, 300. Mentality of a, see Men- tality. Period of. The, see the several terms. Permanency, 16, 17, 29, 30, 32-37. Persia, 19, 20, 134. Personal ownership, 16, 28, 92- 93, 101. Petitions, 194-195, 221, 223, 259, 293. Philosophy, 15, 17, 24, 38, 51- 52, 111-115, 231. Phoenicia, 20, 95, 231. Physical conditions. Influence of, 18-24. Plato's Republic, 238, 263, 307, 310. Poland, 41, 76. Police power, The, 63-65, 258. See Sovereignty, War power. Policies, International, 311-313. INDEX 339 PoUcy, 128, 139, 154-155, 167, 173, 205, 280. Formulation of legislative, see , Legislative. Political capacity, 45. civilization. Development of, 18, Chap. II, 29, 39-41, 45-47, 231-233. parties, see Parties, rights, 290, 294-296. science defined, 51. Political science, Field of, 51-52. General divisions of, 52-53. in relation to sociology, 53. PoUtical theories and theorists, 52, 59, 60-61, 137, 161, 231, 303. PoUtics, The art of, 52. Practical, 213. Polybius, 140. Popular democracy, see Democ- racy. Population, 18-25, 38-39, 43- 44, 96, 122. Malthusian theory of, 41-42. Postal, 78, 98, 121, 263, 292. Powell, T. R., 174. Power, Kinds of, 63-65. Limitations on legislative, see Legislative, of appointment, see Appoint- ment, of sovereignty, see Sover- eignty. The veto, see Veto. Powers of the state, Essential, Chaps. IV, V. Powers, Separation of, see Sep- aration. Precedent, 173, 269, 308. Prefectural councils, 172. President of the United States, 126, 152-155, 200, 212, 221, 288. Previous question, The, 196. Priesthood, The, 110-112, 132, 150. Priestly class. The, 28, 109-112. Primary, The, 191, 227, 280, 284. Prime Minister, The, 149, 154, 204. See Cabinet. Primitive civilization, 13, 26-30, 33, 42-43, 86, 177, 274. See Civilization. Privateers, Use of, 72. Private law, 168, 172, 249, 250. Privileged classes, see Classes. Privileges of legislators and legislatures, see each term. Procedure, Rules of, in law, 29, 171, 173, 182, 239. in legislation, 195-199, 267. Products, Taxable, 67. Progress, 42, 309. See Flexi- bility. Prohibitions of law. The, 242, 261-262. Property, 16, 67, 238-239, 291, 298. Prophetic function, 110-111. Province, The, 40, 54, 164, 188. Provinces, Government of con- quered, 75-76. Psychical conditions. Influence of, 18-25. Public law, 168, 172, 249-250. opinion, see Opinion, welfare, see Welfare. Punishment, 83-85, 182-187, 261. See Crime. 340 INDEX "Race Suicide," 22. Races, 17, 23, 27, 45. Dominant, 15, 17, 24, 45, 76- 78. See Amalgamation. Radical experiments of democ- racy, see Laboratories. Ratio of voting population, 121- 122, 294. Rebellion, 63, 65, 81, 110, 277. See Revolution. Recall, The right of, 143, 163, 294. Referendum, 221, 269-270. See Initiative and referendum. Relation of church and state, 37, 70, 108-115, 156. See Re- ligion. Religion, 17, 28, 32, 34-35, 53, 185, 216, 261, 285, 292, 301, 310, 312. See Church. Remedies of the law, 139, 168. Renaissance, The period of the, 59, 112, 137, 220. Representation, 57, 120-122, 163, 188-194, 215-216. Local, 122, 189, 216. of privileged classes, 162, 189, 215. Proportional or minority, 191, 209, 222. Responsibility of officials, 56, 153-156, 175, 294. See Office. Res publica, 108. Retaliation, 183, 184. Revolution, Right of, 57, 144, 210. Revolutions, 203-204, 259, 264- 267, 280. Rights, Chap. XIII. Rights, Bill or Bills of, 56, 266, 270-276, 293. Civil, see Civil, depend on capacity, 277. . Ethical, 274, 276, 289-290. Fundamental, 276-277. Historical, 275-276, 293. Legal, 274, 289-291. Limitations on, 293. Natural, 143, 290. of aliens, 287. Origin of, 274, 276. Political, 290, 294-296. safeguarded, 277-278. Roads, 38, 97-98. Robber barons, 21, 313. Roman administration, 232. law, 75, 180, 232, 247-249, 250, 254-255. Rome, 19, 20, 36, 39-41, 46, 59, 66, 95, 216, 231. Romero, Matias, 187. Rousseau's Social Contract, 59, 138, 214. Royal power, 132-136, 150, 153. Rule, Home, see Home. Rules for army and navy, see Army. Russia, 27, 35, 41, 91, 107, 134- 136, 154-156, 208, 221. The Fundamental Laws of, 135-136. Sacerdotal, see Priestly. Savage civilization, 17, 22, 24, 27. See Primitive. Saxon, 165, 170, 273. Scaife, W. B., 187. Schaff, Philip, 115. INDEX 341 Science, Scientific, 20, 24, 44, 73, 94-95, 97, 102, 111- 114, 260, 311, 313. Scientific legislation, 260-262. Secession, 124. Seeley, J. R., 115. Self-interest, The principle of, 262. Senate of Russia, The ruling, 136. Serfdom, 103, 304. Separation of administration, 129, 133-1.34. of church and state, see Re- lation of. of governmental powers, 130- 146, 156, 159. Service, 39, 63-65, 296-297. Civil, see Civil, in army and navy, 65, 66, 71- 74, 184, 296. Jury, see Jury. Servius TuUius, 216. Shire, The, 164, 193. Single-tax, The, 93. Slavery, Slaves, 32-34, 72, 75, 76, 103, 105, 179, 184, 275, 302-304. Sloane, Wm. M., 314. Smith, Adam, 216. Smith, J. Allen, 314. Smythe, W. E., 314. Social Development, Chap. I, 39, 261-262. Social and Political Develop- ment, Part I. institutions, 13-14, 18, 26, 30-37, 39, 51, 109, 112. life, 14, 17, 22, 29, 58, 313. utility, 13, 179. Socialism, 93, 307. Sociology, 14, 17, 53, 113. Solon, 216, 303. Sovereign, The personal, 211- 212. Sovereign powers in exercise, 70-115, 119, 144-145. Sovereignty of the state, Part II, 30, 40, 46, 107. Chap. III. as supreme authority, 55, 57. defined, 55. identified with essential pow- ers, 63. Legal, see Legal Sovereign. Popular, 143. Ultimate, 142. Spain, 47, 90, 96. Speaker, The, 200-201. Spencer and Gillen, 109. Spencer, Herbert, 261. Sphere of influence, 96. Stages in the development of the state. Chap. II. Standard of living, 22-23. State, The, 14, 28, 30, 32, 33, 37, 51, 61, 88, 106. defined, 54. Development of. Chap. II, 47, 58. Embryonic, 29-30, 58, 106. Essential powers of. Chap. IV. Importance of, 51, 300. Organization of. Chap. VI. Social institutions as related to, see Church, Family. Statesman's Yearbook, The, 146. Statesmen, Wise, 51, 61-62, 161, 258. 342 INDEX Static civilization, 35, 61, 111, 252-253. Statute, The, 142, 247. Stearns, John M., 83. Stimson, F. J., 86, 170. Stoicism, 108, 304-305, 307. Strike, The, 86. Stubbs, Bishop, 70. Subjects, 54, 55, 64, 67, 300. Suffrage, The, 143, 217-219, 284, 294, 303. Adult, 143, 217, 218, 228, 302, 308. Manhood, 121, 122, 217, 294. Prerequisites for, 288, 289, 295, 306. Ratio in, see Ratio. Woman's, see Women. Supreme Court, The American, see Court. Suzerainty, 36. Switzerland, 121, 122, 143, 153, 223-225. Synod, The Holy, 136. Tables of Roman law, The twelve, 180, 239, 255, 256. Tabu, The, 29, 242. Tariff duties, 59, 68, 102. Taxation, 190, 297-299. Control over, 139. Forms of, 65-70. Improved methods of, 65, 262, 298-299. Power of, 63-65. Tenure of office, 160-164. See Office. Teutonic and Teutons, 95, 255. Theological, Theologian, 17, 112, 115, 257. Theories, Political, 41, 125, 167, 310. Thirteenth century, The, 189, 256, 258. Tool, Importance of the, 15, 28, 31-32, 42-44, 101. Torture, The use of, 84, 184- 186, 240. Totem, The, 104-106, 109-110. Tourgee, Albion W., 25. Town or Township, The, 54, 164-166. Trade, 19-21. routes, 19-21, 37-38. unions, 102. Trades, The, 16. Treason, 169, 240-241. Treaties, The making of, 74, 126. Treaty, The, 74, 255, 265-267. An early, 74. Trend of democracy, see Democ- racy. Tribal democracy, see Democ- racy, organization, 90, 274. Tribe, The, 29, 31-34, 36, 46, 104-106, 123, 215. Tribunal, The Hague, 74, 121. Tropics, The, 23, 79, 95-96. Tudor period. The, 170, 190. Turkey, 134. Twentieth century. The, 80, 97, 311. Tynwald, The, 189. Tyranny, 153-156. See Des' potism. Umpire, The state as, 84-87, 242. Unitary forms of government 121-123. INDEX 343 United States of America, 21, 47, 52, 66, 121, 123-126, 154- 156, 163, 166, 175, 192, 198- 201,211-212, 221, 232-233, 246, 257. See also America. United States of Mexico, see Mexico. Unity, The feeling of political, 18, 29-30, 36-37, 40-41, 120, 124-125. Urban civilization, 26, 37-41, 313. *See Civilization. Utility, 17, 30, 96, 186. Utilization of the materials and the power of nature, 14, 15, 26-27, 42^4. Utopians, 79, 228, 240, 245, 307. See More, Ideals. VanDyne, Frederick, 299. Veblen, T., 115. Vermont constitution quoted, 192. Veto power, The, 136, 140, 199, 271. Village community. The, 34-36, 38-40, 46, 90, 91, 106, 123, 188, 302. Visions of democracy, 309. Voting, 219-220. War, 20, 22, 31, 36. Future of, 78-80. Rules of, see Army. War band. The, 57. See Horde. Warfare, 32-34, 57-58, 76-77, 130, 249. War power of the state, 63-65, 70-80, 126, 139, 208. Ward, Lester F., 25, 261. Waters, Navigable, 91, 94. Wealth, 31, 32, 38, 44-46, 99- 100, 122, 162, 302-305. Webster, Hutton, 80. Weights and measures, 99. Welfare, General, 56, 63, 166, 191, 220, 238, 277, 280, 292. Western civilization, 24, 41, 44, 75-76, 79, 97, 233. Will of the state. The, 128, • 238. Will, The written, 93, 108-109. Williams, F. W., 81. Willoughby, W. W., 37, 41, 52, 62, 123, 264. Wilson, Woodrow, 134, 216. Wisconsin Legislative Reference Department, 261. Bulletins of, 163, 209, 222- 223. Wolfeson, A. M., 234. Woman Suffrage, 217, 289, 306. Women, 31-32, 34, 75, 101, 105, 177, 276, 288-289, 302. World politics, 45, 52, 89. state. Movements toward a, 78-80, 311-313. Worship, 109-115. Ancestor, see Ancestor. Written constitution. The, see Constitution. 12 UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. RECEIV LD-UR JUL 8r 7-4 4-9 ECTDIWIW- A 5EP.0.8J988 H. A-6 e^ rm L9-25to-7,'63(D8618s8)444 3 1158 01288 2048 mnYOx- "--^ / = University Research Library