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.-?^ax ^ 

3tliara, Nctn Qortt 






Cornell University Library 

Principles of political science. 

3 1924 031 322 963 

Cornell University 

The original of tliis bool< is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 






of the Indian Educational Service; Principal an4 Professor of 

Political Economy and Political Philosophy, Krishnagar College, 

Bengal; Fellow of Calcutta Utiiversity. 







All rights reserved. 


rpHIS book is written primarily for students of Indian 
X universities. The course coveired ia substantially 
that prescribed by Calcutta University. To bring the 
subjects abreast of recent developments, in several 
instances additional material has been incorporated. 
Most of the qualities peculiar to the arrangement and 
scope of the book are to be ascribed to the primaiy end 
for which the book was undertaken. I venture to hope 
that the volume may be useful also to students outside 
India, and to any who wish to acquire a general 
knowledge of political theoiry and practice. 

In the text of the book classical quotations and un- 
translated quotations from modem books the language of 
which is other than English have been studiously avoided. 
English is the medium of university instruction in India, 
and the Indian student, as a rule, is unacquainted witlh 
any other modem European language. Latin and 
Greek are likewise unknown to the Indian student, whose 
classics are Sanskrit and Arabic or Fetrsian. Through- 
out the book a knowledge .of Logic and History has been 
assumed. Students of Political Economy and Political 
Science in India normally are expected to have passed 
the Intermediate Examinations in these subjects. 

In the publication of this book I have had to contend 
with diflEiculties which have made it impossible to 
co-ordilnate the different sections of the book. Firstly, 
the book has been in the press, or rather presses, 
close on one year. The post-war difficulties of 
printing in India have been acute, and the work 
has been mn off in sections. Throughout the 
book I have tried to make the information as 
up-to-date as possible, but the lapse of time since the 


earlier parts were, printed hag prevented the incorporation 
of up-to-date information sucli as has been 
possible to add in the later portions. During 1920 
Jjolitical eVentsi have imoved much more quickly than 
nave my printing facilities. Secondly, two presses, 
each with its own idiosyncracies, have been engaged on 
the work. Writers who know Indian presses wiU readily 
appreciate this difficulty. The author in India is not 
only author; he is responsible for all the work of the 
press except the actual type! setting. And there is many 
a slip between the final proof and the printed form. 

As this book is meant to be a text-book for the* earlier 
stages of political • and economic studies 1 have not 
elaborated what may be called abnormal theories. 
A fair impersonal presentation of modem political 
theory has been my endeavour. Originally I meant to 
include several chapters on the history of political theory, 
but the book ran the danger of being overcrowded, so 
wherever possible I have incorporated historical sections 
in the individual subjects. The treatmient of some 
subjects, e.g , the Government of Britain, and the 
Government of India, has been much more detailed than 
a first course of political studies! usually demands. Such 
detailed treatment is due to the nature of the course 
prescribed in India. Uepetition of detail, e.g., under the 
Executive (Chapter XVI) and under the individual 
governments _ (Oh&,pters XXI — XXVII) is alsa due to 
local exigencies.. The chapter on the Goivernment of 
ETapan, though not essential according to our local 
(syllabus, is added to enable Indian students to know in 
outline the system of government in an eastern empire 
which for many years has created the deepest interest 
in India. 

^ The bibliography appended is intended as an initial 
guide to Indian colleges wishing to start Political and 
Econiotmic studies. The list has been compiled with 
Reference to the sums usually available for such ptiirposes. 
In the moulding of ideas which have led to the 
writing, of this book my obligations have been many. 
These are best summarised when I say that I owe much 


to most of tke authors whose hooks I recom- 
mend in my library list, and whose- theories 
or facts are specifically mentioned in the 
1;ext. For more immediate help I am indebted to 
my late colleagues in Presidency College, Calcutta, the 
present Professors of Political' Economy and Political 
Philosophy — Mr. J. C. Coyajee and Babu Panchanon Das 
Mukherji. To the latter in particular I am grateful for 
many suggestions and criticisms. To Mr. J. C Kydd, 
Professor! of Politi ,al Economy and Political Philosophy 
in the Scottish Churches College, Calcutta, I am also 
much obliged for valuable help. Throughout the whole 
book, from its earlier to its later stages, for criticism, for 
help in reading proofs and for the compilation of the 
index, I owe more than I can express to my wife, whose 
ready co-operation has so frequently softened the 
exasperation to which plinting in India so frequently 



February, 1921. 


CHAPTER I.— Introductory 

1. The Name and Scope of the Science ... ... 1 

2. The Methods of the Science ... ... ... 5 

3. The Relation of Political .Science to Allied Sciences ... 12 

CHAPTER n.— The Nature of the State 

1. Definition of the State ... ... ... 18 

2. The Essential Elements of the State ... ... 21 

3. Stat^ Government, Nation, Nationality ... ... 28 

4. The Elements of NationaJitj- ... ... ... .32 

5. Nationality aa a Factor in PraoticSJ Politics ... ... 40 

6. One Nationality, one State ... ... ... 45 

7. The Organic Nature of the State ... ... ... 48 

CHAPTER III.— The Origin or the State 

1. General Remarks ... ... ... ... 5S 

2. Historical Formations ... ... ... ... 59 

3. Speculative Theoriesi : The Social Contract Theory ... 63 

4. History of the Social Contract Theory ... ... 65 

5. Criticism of the Social Contract Theory ... ... 79 

CHAPTER IV.— The Origin or the State— (Contd.) 

6. The Theory of Divine Origin ... ... ... 85 

7. The Theory of Force ... • ... -• ••• 92 

8. The Historical or Evolutionary Theory ... ... 97 

9. Conclusion ... ... •■. •■• ••■ "^ 

CHAPTER V. — The Sovereignty or the State 

1. The Various' Aspects of Sovereignty ... ... 113 

2. Characteristics of Spvereignty ... ... ... 124 

3. Austin's Theory of Sovereignty ... . ... ... 151 


CHAPTER VI. -Liberty 

1. General Meanings oi Liberty ... ... ... 137 

2. Natural Liberty : The Law of Nature ... ... 138 

3. Natural Eights : The Meaning of Rights ... ... 153 

4. Eights Against the Stata ... ... ... 158 


5. Civil Liberty ... ... ... ... igl 

6. Particular Rights ... ... ... ... 165 

7. Political Liberty ... ... ... ... 181 

8. National Liberty ... ... ... ... 185 


1. Definition ... ... ... ... ... 185 

2. The Sources of Law ... ... ... ... 187 

3. The Various Kinds of Law ... ... ... 195 

4. Development of Modern Law in the West ... ... 197 

5. Law in British India ... ... ... ' ... 2D1 

5. Law and Morality ... ... ... ... 206 

7. International Law ... ... ... ... 208 

8. History of International Law ... ... ... 212 

9. The Sources of iQiemational Law ... ... 215 

10. The League of Nations ... ... ... 217 

11. The Universal State ... ... ... ... 224 

CHAPTER IX.— Citizenship 

1. The Meaning of Citizen ... ... ... 231 

2. The Acquisition of Citizenship ... ... ... 235 

3. Thi Duties of Citizenship ... ... ... 2.'58 

CHAPTER X.— The Constitution of the State 

1. Definition and Classification ... ... ... 24-1 

2. The Merits and Demerits of Constitutional Types ... 251 

3. Creation and Amendment of Constitutions ... ... 254 

CHAPTER XI. — The Form of Government 

1. Classifications of Plato aad Airistotle ... ... 260 

2. OtliieT Claseifications ... ... ... ... 2^5 

3. Monarchy, Aristocracy and Democracy ... ... 271 

4. Cabinet or Responsible Government and Presidential or 

Non-Responsible Government ... ... ... 280 



CHAPTER Xn.— Theoby of the Separation op Powers 

1. Statement of the Theory ... ... .„ 287 

2. Criticism of the Theory ... ... ... 294 

CHAPTER Xm. — The Electorate and LEGiSLAnrEE 

1. Theories of Representation ... ... . . 301 

2. Electoral Districts ... ... . 30g 

3. Methods of Voting and Problems of Suffrage ... 313 

4. Indirect Election ... ... ... ... 326 

5. Length of Office and Instructed Representation ... 328 

6. The Qualifications of Repiesentativ^s ... 333 

7. The Legislature ... ... ... ... 335 

8. Modem Methods of Direct Legislation ... ... 343 

CHAPTER XIV.— The Executive and Jttdiciabt 
A. — The Executive. 

1. The Meaning and Appoiniimient of the Executive ... 349 

2. Plural and Single ExecutiTCB ... ... ... 355 

3. The Tenure and Organisation of the Executive ... 361 

4. The Civil Service ... ... ... ... 367 

B. — The Judiciary. 

1. Meaning of Judiciary and Jddicial Appointment ... 369 

2. Organisation of the Judiciary ... ... ... 373 

3. The Relations betwleen the Judiciary and the Legislature 

and between tAie Judiciary and the Executive ... 379 

4. Administrative Law ... ... ... ... 381 

CHAPTER XV. — ^Partt Government 

1. The Meaning of Political Party : Party Division and the 

M€irit.s and Demerits of the Party System ... 385 

2. The Modern Party Systepi ... ... ... 392 

CHAPTER XVI— Federal Government 

1. The Various Types of Union between States : Inter- 

national Alliances : International Administrative 

Unions., Personal Unions, Real Unions ... ... 404 

2. Confederation ... ... ■■• ... 407 

3. Federalism ... ••• ••• — ^16 


CHAPTEK XVn.— Local Government ... ... 430 

CHAPTER XA^n. — The Government of Dependencies 

1. Dependencies and Colonies ... -. ... 449 

2. Survey of Colonial Policy ... ... ... 447 

3. Classification and Government of the British Dominions 454 

4. Imperial Federation ... ... ... 461 

CHAPTER XIX.— The End of the State 

1. Individualism ... ... ... ... 470 

2. Criticism of the Individualistic Theory ... ... 476 

CHAPTER XX.— The End of the State.— (Coatd.) 

3. Socialism ... ... ... ... ... 485 

4. Oriticism of Socialism ... ... ... ... 493 

6. The True End of the State ... ... .. 604 

6. Classification of Government Functions ... ... 513 

CHAPTER XXI.— The Government op Britain 

1. Historical ... ... ... ... ... 517 

2. The Present S^^stem of Government in the United 

Kingdom ... ... ... ... 533 

3. Local Gfovernment ... ... ... ... 552 

CHAPTER XXII.— The Govbrnmbnt of India 

1. Historical ... ... ... ... .,_ 572 

2. The Crown and Secretairy of State ... ... gog 

CHAPTER XXni— The Government of India.— (Contd.) 

3. The Central Govemmient ... ... 517 


4. System of Government in the Provinces 

6. System of Geneiral .Administration 

6. Judicial System 

7. Local Government 

8. The Native Stetes 


CHAPTER XXIV.— The Government of Fbance 

1. Historical ... ... ... ... 690 

2. The Preaeiit Government of France ... ... 700 

3. LocaJ Governmenit in France ... .. ... 710 

CHAPTER XXV. — The Government of the United States of 

1. Historical ... ... ... ... ... 714 

2. The Federal Government of tine United States .. 724 
6. The Government of the States ... .. ... 738 

4. Local Government in the United States ... ... 747 

CHAPTER XXVI. — The Government or Germany 

L Historical ... ... ■■. ••. ... 753 

2. The Government of the Geiman Empire ... ... 7£9 

3. The Government of Prussia ... ... ... 774 

4. Germany after lihe War ... ... ... 778 

CHAPTER XXVII.— The Govern.ment or Japan 

1. Historical ... ... ... ■•■ •■• 783 

2. The Present System of Oovernmeut ... ... 793 


1. The IfAME Alto Scope of the Science. 

Political Science deals with the state and government. 
Within its scope are included so many subjects lihat 

writers have found considerable difficulty in 
I?ihe^'"* ^^'l^'^^ a name sufficiently wide to cover its 
soienoe. content. Political Science has now been widely 

accepted as the general designation for the 
science of the state and government, but several other 
names have been suggested. This is not without reason, 
for in a science which is oldei* than Aristotle, the develop- 
ments have naturally been very wide and far-reaching; 
indeed, several of the subjects with which we deal in this 
book have really developed into independent sciences. 
Political Science is one of the many sciences of society, 
and, as we shall see presently, it is impossible to draw 
absolute lines of demarcation between one branch of 
social science and another. The term is now a generally 
accepted one, indicating certain definite lines of study, 
all of which revolve round one centre, — the State. 

Some writers, especially the earlier writers on the 
subject, use simply the word Politics as a title for the 
Politics, science. This word is derived from the Greek 
word polls, meaning a city, with its derivatives 
polifes, a citizen, and the adjective politihos, civic. Other 
writers, using the word Politics as a general designation, 
subdivide the Science into two broad divisions, viz., 
Political Philosophy, Theoretic or Deductive Politics, 
and Historical, Appliied or Inductive Politics. Sir 


Frederick Pollock, for example, the well-known Englisli 
writer on the subject, divides the science thus: — 

Theoretical Politics. Applied Politics. 

A. Theory of the State. A. The State (actual 

, forms of Govern- 

B. Theory of Government. B. Government (the 

working of Gov- 
ernments, Admini- 
stration, etc.)., 

C. Theoty of Legislation. C. Laws and Legisla- 

, lation (Procedure, 

Courts, etc.). 

D. Theory of the State as D. The State personified 

an artificial person. (Diplomacy, Peace, 

War, International 

Th« first qf these divisions. Theoretical Politics, 
is concerned with the fundameatal characteristics of the 
state, without particular reference to the activities of 
government or the means by which the ends of the 
state are attained. The second division, Practical 
Politics, deals with the actual working of governments 
and the various institutions of political life. This 
division is both useful and exhaustive. It covers the 
whole field of Political Science, and were the name 
Political Science substituted for Politics the division 
would be universally acceptable. To t^ie use of 
the word Politics, however, there is a well-grounded 
objection. Used in its original Greek sense the 
word is unobjecticiiable, but modem usage has 
given it a new content, which makes it useless as a 
designation for our science. The term Politics nowa- 
days refers to the current problems of government, 
which as often as not are more economic in character 
than political in the scientific sense. When we speak 



of a man as interested in politics, we mean, that lie is 
interested in the current problems of the day, in tari£E 
questions, in labour questions, in the relations of the 
executive to the legislature, in any question, in fact, 
which requires, or is supposed to require, the attention of 
the law-makers of the country. Similarly a "politician " 
IS not a student of Political Science, but a member of this 
or that political party. The words politics and 
politician, therefore, are so wide in application and 
indiscriminate in use that once and for all they had 
better be rejected as names for our science and 
students of our science. The etymological meaning 
is not the current meaning, and it is beitter in) this case 
to bow to cuirent usage than to etymoltogy, just 
as the sist^t -science^ Economics, has done. The 
word Economics etymologicallj^ means household 
management, now known as Domestic Economy: the 
study of wealth is now definitely known as Political 
Economy or Economics. 

Another name which is sometimes used is Political 
Philosophy. This term is a most useful one if used for 

a specific purpose, but it is too narrow to 
Phi'iosoptiy include the whole field covered by our subject. 

Political Philosophy deals with the funda- 
mental problems of the nature of the state, citizenship, 
questions of duty and right, and political ideals. This 
forms part of our subject. In the opinion pf some English 
political thinkers this is the main part of Political 
Science. Sidgwick, for example, declares that the study 
of Political Science, or as he caUs it Politics, "iscon- 
cerned primarily with constructing, on the basis of 
certain psychological premises, the system of relations 
which ought to be established among the' persons govern- 
ing, and between them and the governed, in a society 
composed of civilized men, as we kn6w them." Another 
considerable part of our subject is historical and descrip- 
tive—the Applied Politics' oif Sir Frederick Pollock's 
division. This latter section, though closely conceme3 
«vith Political Philosophy, would be out of place in a pure 


Political Philosopliy course. Political Philosophy is in 
a sense prior to Political Science, for the fundamental 
assumptions of the former are a basis to the latter. 
Political Philosophy, in its turn, has to use mucli of the 
laaterial Supplied by Political Science. Ko definite 
line can be drawn between them, but according to modem 
usage Political Science has a certain definiteness ot 
meaning which Political Philosophy has not yet attained. 
French writers sometimes use the plural form, the 
Political Sciences, which is correct insomuch as the 

various phenomena of the state and government 
The really may be studied separately. Thus 

Sciences. Sociology, Political Economy, Constitutional 

Law and Public Administration, all deal 
with phenomena closely connected with the state. 
These are special soisnoes, dealing with distinct 
branches of enguiry. Political Science too, as we under- 
stand it, deals with a particular subject in a general 
way. All these sciences. Political Science included, are 
social sciences'; they deal' with the relations of men in 
society, and as eacli man is essentially connected with 
the state, eaph social science is. to some extent a political 
science. It is possible, however, to separate the various 
branches of enquiry. Political Economy deals with 
wealth ; Sociology with the forms of social union, social 
laws and ideals ; Political Science with the state and 
gfovemnient. No absolute separation is possible. In 
Political Science we touch on problems which really 
belong to the domain of Sociology, Political Economy, 
Jurisprudence, and Constitutional Law. Political 
Science deals with the general problems of the state and 
government ; these others deal with special problems. 

Both reason and usage, therefore, justify the name 
Political' Science. Its central subject is the, state, and 

the scop3 of the science is determined by the 
Political enquiries that arise in connection witb the 
its'Voope. state. These enquiries may broadly be classed 

under^ the state as' it is; the state as it 
has been; the state as it ought to be. To discuss 


the state as it is implies an analysis of tte meaning 
of the state, 'its origin and its essential attributes. 
The various working manifestations of the state, 
that is, the principles and practice of existing govern- 
ments naturally fall under this head. Under the state 
as it has been is included a historical survey of the 
working of governments, or the historical development 
of the state and of ideas concerning the state. The 
state as it ought to be includes the analysis of the 
functions of government, and a determination of- the 
principles on which governments may best be conducted. 

2. The Methods of the Science. 

Aristotle, the greatest writer on Political Science the 
world has had, called Political Science the master or 

supreme science. Several modem critics, 
Is poiitioai however, refuse to Political Science the right 
loienoe " ^^ even the name science. They say that the 
at all? subject-matter of the science is so varied, 

and in many cases so inexact, that proper 
scientific methods cannot be applied to it. Tie 
arguments of such critics apply equally to all the social 
sciences. Social, political and economic problems deal 
with the complex actions and motives of men, actions 
' for which it is often admittedly difficult to fine general 
laws. The exactness of Physios and Chemistry is absent 
from the social sciences. It is impossible to deal with 
problems of man in the clear-cut way by which we can 
deal with problems of matter. It is easy to analyse a 
chemical compound and to say exactly what it is. 
Experiments, too, in these natural sciences enable laws 
to be tested with accuracy and in variousi ways. While 
we may agree that the exactness of the natural sciences 
is impossible of attainment in the social sciences 
nevertheless social problems can be treated with the 
same scientific methods as Chemistry or Physics. The 
results, indeed, may not be so accurate or so easily tested, 
but, as we shall see, the various subjects with which we 
deal present a systematised mass of material which is 


capable of being treated by ordinary scientific metbods. 
We sball be able; to see that general laws can be deduced 
from given material, and that these laws are useful in 
actual problems of government. To say that the only 
real sciences are those which have exact results) with 
the dogmatic proof of experiment, is to deny the 
possibility of Ethiics, Political Economy, Political 
Sicience, Sociofegy and Metaphysics being sciences. The 
chief disproof ,oi the contention is that they are recog- 
nised as sciences by thinking men. They are rapidly 
expanding, and as time goes on, their suitability for the 
application of scientific methods is amply demonstrated. 
It is true that in Political Science there are. many 
difficulties which do not occur in, say, Chemistry or 
Physics. In the ]^atural Sciences it is possible^ 
piffiouities by observation and experionent to obtain 
science.' uniform and exact laws. One chemical 
element is exac'^ly the same all the world 
over ; any variations in its composition can be tested and 
explained. In Political Science it is difficult to find 
uniform and unvarying laws. The material is 
constantly varying. Actions and reactions take place 
in various and often unforeseen ways. A man 
IS a member not only of a state, but of a, host ofi other 
social groups — a municipality, a church, a trade-union, 
a stock-exchange, a university, a caste or a family. To 
understand his actions in one phase of his life often 
requires a knowledge of the social groups influencing, 
or influenced by him. Social and political relations 
aris constantly changing, and what may be true 
of them to-day may not be true a century hence. 
In all matters concerning man, too, there are 
unconscious assumptions in the mind, which, formed 
before the mind consciously reacts to them, often 
give a bias to our judgments. It not infrequently 
happens in social sciences, like Political Economy and 
Political Science, ihid at the outset of our study we 
cannot lay down the final limits bf the sub.iect-naatter. 
The methods of enquiry are frequently best explained by 


using them, and observing their results when applied to 
coiicrete problems. Complete and final answers to 
questions in social science can be given only when the 
science is ended. Historically, we find that a body of 
systematic knowledge is built up before reflexion 
analyses its presuppositions. What is historically a late 
development of the science is logically the first and 
fundamental qilestion, so that the methods are often 
best understood by an analysis of the actual scope of the 

Though the experimental method as applied in 
Physics and Chemistry is inapplicable, nevertheless there 
Experi- '* ^ wide field of experimentation of a definite 
mental kind in Political Science. The Political 
Methods. Scientist cannot select one community here 
pnd another there and experiment with democracy 
in the one and socialism in the other. Even if 
he could, his results would be influenced by various 
kinds of unpredictable causes such as wars, revolutions, 
strikes and religious movements. The source of the 
experiments of Political Science is history : they 
rest on observation and experience. Every change 
in the form of government, eVery new law passed, every 
war, is an experiment in Political Science. These are 
materials for political science just as, say', carbon is 
material for Chemistry Most of these events do not 
take place as conscious experiments: they simplv 
tappen. In the modem world, however, political 
experiments are made, definitely based on reasoning 
provided by Political Science. Two notable examples 
may be quoted — one, the grant by the English 
Parliament of responsible government to Canada in 
accordance with the recommendations contained in Lord 
Durham's Report of 1839 ; the other, the recent grant by 
Parliament of constitutional reforms on the basis of the 
recommendations of the Montagu-Chelmsford Report. 
In these cases the conclusions are definitely grounded 
on bases provided by Political Science, and, therefore, 
conscious political experiiBents are made or proposed. 


The chief method of experimentation in Political 
Science is thus, the Historical Method. Properly to 
understand political institutions, we must 
The Histor- study them in their ori^n, their growth and 
ioai Method, development. History not only explains insti- 
tutions, hut it helps us to make certain 
deductions for future guidance. It is the pivot 
round which both the inductive and the deductive 
processes of Political Science work. 

The historical method, of which the best modern 
English exponents are Seeley and Preeman, is mainly 
inductive. By it generalisations are made from 
view*ot''the *^® observation and study of historical facts. 
m' tii"d''^' Mo^c than any other method, it gives positive 
° ■ results. Philosophical political scientists do 

not give it the same importance as the Historical 
School. Sidgwick, for example, gives this method a 
secondary position, for two reasons. First, hp holds that 
history cannot determine the ultimate standard of good 
and bad, or of right and wrong in political life. The 
goodness or badness of the political institutions which 
history shows us is determined on other grounds than 
historical, i.e., ethical or philosophical. Second, the 
study of history only in a very limited way can enable 
us to choose means for the attainment of the end of 
political life, for not only is it difficult to ascertain the 
complete bearing of past events with accuracy, but also 
each age has its own problems and difficulties, all of 
which are relative to the times in which they occurred. 

Sidgwick's objections are quite justifiable in the case 
of the indiscriminate use of historical material, But the 
Political' Scientist must exercise careful judgment in his 
analysis and selection of - material. History itself, 
moreover, is becoming more and more. exact as time, goes 
on, so that the objection regarding accuracy loses its 
meaning. History, too, enables us to judge the goodness 
or badness of actions, though it does not provide us with 
our actual ethical standards. As in all scientific 


methods, tLe greatest care must be used in the applica- 
tion of the historical method. Otherwise it may 
degenerate into what Bluntschli, the well-known 
German writer, calls "mere empiricism," which means 
tpo great adherence to historical facts, without due 
regard to causes and effects, and rigid conservatism, on 
the ground that what has been in the past must be now 
»nd for the future. 

The Historical Method is supplemented by the 
Comparative Method, a method which is as old as 
compar- Aristotle. This method tells us that in 
atjve order to find out the lav/s which underlie 

Method. them we must compare the various events of 
the world's history. . 'Similar events may occur under 
very different political conditions, or vike versa, similar 
political conditions may lead to very different 
political events. Revolutions, for example, have 
happened at all times and under various conditions. By 
the Comparative Method we sift out what is common, 
and try to find common causes and consequences. A 
modem example is the recent Russian Revolution. 
Political Scientists compare it with the English Great 
Rebellion and the French Revolution, trying not only 
to explain what has happened but to lay down rules for 
the future guidance of the Russians. 

The Comparative Method must be used with great 
care. In trying to find general principles underlying 
historical events, many elements of difference have to be 
examined. The social system, the economic conditions, 
the temperament of the people concerned, their capacity 
for political life, their moral standard, their qualities of 
obedience or law-abidingness all must be taken into 
account. A comparison of the United Sitates and India, 
for example, as regards democracy would be useless 
were not the fundamental difference of caste thoroughly 
analysed, with its bearings on political phenoinena. 

In the Comparative Method the ordinary processes of 
indudtive logic must be followed. These are (o) the 
Method of Single Agreement, by which, among a number 


ot instances of political phenomena, we find one element 
in common. This element, extracted by a process of 
elimination, whereby irrelevant antecedents are dis- 
pensed with, is the cause. The chief difficulty of this 
method is the possible existence of a plurality of causes. 
To cope with this we must vary the circumstances as 
much as possible by multiplying' the instances, (b) The 
Method of ^Sinprle Difference, in which, given a certain 
political phenomenon, if an instance in which this 
phenomenon occurs and an instance in which it does not 
occur have every circumstance in common save one,"thait 
one circumstance, in which the two differ, occurring in 
the first phenomenon, is the cause, (c) Double Method 
of Agreement , or; as John Stuart Mill calls it. Joint 
Method of Agreement and Difference. If varioua 
examples in which a political phenomenon occurs have 
only one element in common, while various similar 
instances in which it does not occur are marked by the 
absence of this element, then the element present in one 
and absent in the other is the cause or an integral part 
thereof, of the phenomenon, (d) The Method of Residiies, 
according to which, after we have subtracted from tho 
given political phenomena such parts as are already 
known to be cause and e^ect, the i'emnant may be 
judged to be the effect of the remaining causes, (e) Method 
of Concomitant Variations, whereby if a phenomenon 
varies in any manner whenever another phenomenon 
varies in another manner, then they somehow are 
connected by cause and effect. 

These methods, applicable in a natural science like 
Chemistry are equally applicable in Political Science, 
though the results- are not so accurate. Parti- 
°^*' cular care in Political Science is required in the 
case of one inductive method, viz., Analogy, where two 
things, because they resemble each other in ceTtaiii 
points, may be regarded as resembling each other in' all 
other points, though no definite cause can be found for 
such resemblance. Analogy is very useful in Political 
Science, but it miist never be forgotten that analogy is 


not proof. It gives probability, not certaiinty, and the 
difficulty of its application in Political Science is all tHe- 
more marked because of the vast number ot 
circumstances surrounding any given instance. 

These inductive methods are useful so far, but they 
must be used in conjunction with wh^t Bluntschli calls- 
^^^ the Philosophical Method. The truly Philoso- 

Phliosophioaiphical, Deductive or a priori method of which 
•thod. ilousseau, Mill and Sidgwick are exponents, 
starts from some abstract original idea , about human 
nature and draws deductions from that idea as to the 
nature of the state, its aims, its functions and its future. 
It then attempts to harmonise its theories with the- 
actual facts of history. The danger of this method is 
that the user, as Plato in his Republic or More in his 
Utopia, often allows his imagination to run riot and he- 
forms theories which have little or no foundation in 
historical facts. The result is that the method 
degenerates into what Bluntschli calls mere Ideology, 
which pays little or no attention to facts. This is parti- 
cularly dangerous in practice, as may be seen from the- 
French Eevolution, the leaders of which were the un- 
reasoning followers of those who, like Eousseau, preached" 
the doctrine of Liberty, Equality and Fraternity. A 
modern example is the Russian Revolution, where- 
abstractions preached by dreamers led to a collapse of the 
governmental system and to anarchy and mob-rule- 
unparalleled in history. 

, The two methods, historical and philosophical, do not 
conflict : they rather supplement and correct one another. 

The genuine historian as such is compelleid ta 
Method*"* recognise the value of philosophy, and the trxie 

philosopher must equally t^e the counsel of 
history. The experiences and phenomena of hjstory 
must be. illumined with the light of ideas. The best 
method thus arises out of the blending of the Philoso- 
phical and the Historical Methods. Aristotle and' 
Burke are notable exponents of this method. 


These are the inethodgr of Political Science. Difficulty 
Bometimes arises in the methodology yoi Political 
Science from confusing with methods the points 
andp'oints "^ view from which the science may be studied. 
"Of View. Certain writers, chiefly French and German, 
give as methods the Sociological, Biological, 
Psychological, and Juridical. These are not methods, 
but points of view. To study the state from the Socio- 
logical point of view means to apply the theory of 
evolution to political phenomena ; the Biological Method 
tries to interpret the state and its organisation by 
comparing it with, the living body, with brain, nerves', 
muscles, etc. ; the Psychological tries to explain political 
phenomena, through psychological laws; and the 
Juridical fegairds political society as a collection of laws, 
rights, and duties, without reference to the many other 
social forces influencing man in his relations with 

Not only, therefpre, is Political Science a science with 
material as definite as that of Chemistry, Physics or 
GeologJ; but it is a science where the recog- 
nised methods of these sciences can he 
regularly applied. Because slight shades of difference 
may vitiate a whole conclusion, as a science it is more 
difficult than the Natural Sciences. The diffici^lty in the 
application of these methods arises from the innumerable 
elements, undefined and undefinable, whiolii occur in any 
science of man. Much patience in comparing details,, 
much care in applying inductive methods, much mental 
balance in making judgments, all these are necessary in 
Political Science. It is a science ' which taxes the 
scientific mind to the utmost ; and its conclusions, no less 
than the discoveries of Chemistry, vitally affect the daily 
lives of the inhabitantsi of the globe. 

•8 The Relations of Political Science to Allied 


Man is a 'social being, and his various social activities 
anay be studied separately. His political life is only one 


part of liis total social life, but as every human being 
lives within a state, the science of the state is necessarily 
connedted with the other social sciences. 

The various sciences dealing with man as a social 
entity are called the social sciences, and the most f>unda- 
sooioioEy cental of them all is Sociology. Sociology la- 
the general social science. It deals with, 
the fundamental facts of social life, and, as political 
life is only a part ' of the sum-total of social 
life, Sociology is wider than Political Science. 
Sociology is the study of the elementary principles- 
of social union. It is not the sum of the various 
social sciences but the fundamental science of which, 
io use the term of a well-known American writer. 
Prof essor ■ Q-iddings, . they are "differenHations." la 
Political Science we must assume the facts and laws of 
human association, which facts and laws it is the duty 
pi Sociology to study and determine. The exact 
boundaries of the two sciences cannot be rigidly defined. 
They occasionally overlap; but there is a clear general 
distinction. Sociology is the Science of Society ; Political 
Science is the Science of the Sfete, or political society. 
Sociology studies man as a political being, and, as 
political organisation is a special kind of social 
organisation, Political Science is a more specialised 
science than Sociology. 

Political Science, as we have already seen, is inti- 
mately connected with History. Sir John Seeley, a 
well-known English writer on History and 
History. Pohtical Science, has expressed the relation-- 
ship in a classic couplet : — 

History without Political Science has no fruit, 
Political Science without history has no root. 

History is a record of events ; it teUs the how and why 
of happiness. It is an account not only of events but of 
conditions and causes. Historj' provides theraw material' 


•of Political Science. Not every type of history, towever, 
is used by Political Science.' The histtory of language, of 
customs, of battles, of art, of lit;erature, for example, have 
no direct hearing on Political Science. Political Science is 
■oonceraed mainly, wijth political history and the history of 
Tthe particular institutions which form the subject-matter 
of the science. These institutions tan be properlj' 
understood only in their historical setting. History 
explains them by tracing their gro-vrth and explaining 
-their changes in structure. Political Science, using 'this 
material, takes a wider view. It tries to find general 
■causes and laws. Political Science, as we shall see, has 
a definitely historical section. In a treatise on Political 
Science we must trace the history of various institu- 
iions, not for the sake of history but to enable us to 
iorm the conclusionw of our science. Insomuch as 
history not merely records events but analyses causes 
and points out tendencies it overlaps Political Science. 
Political Science, howiever,. goes further. It uses 
historical facts tq discover general laws and principles ; 
it selects, analyses and systematises the facts of histoi-y 
in order ito extract the permanent principles of political 
life. Political Science, further, is teleological, that is 
io say, it deals with the state as it ought to be, whereas 
history deals with what has been. 

The general line of demarcation between Political 
Science and Political Economy or Economics is clear. 
Political Science is the science of the state : 
'Economy. Eeononaics is the science of wealth. 
Economics deals with the production, con- 
sumption, distribution and exchange of wealth, 
subjects which form a body of material quite distinct 
from that of Political Scierice. Obviously, however, 
■government is closely concerned with economic matters^ 
A glance at the prevailing questions before modem 
legislatures will show that a very large number, such as 
disputes betw'een labour anft capital, and the imposi- 
tion of tariffs, are Concerned with industrial and 
icommeroial matters. All economic activities are carried 


ou within ,the state on conditions laid down by the state 
in laws, and the prevailing theoriesi of state or of 
government functions profoundly affect the economic life 
of a country. It is a matter of first-rate importance to 
the producer of wealth, for example, to be able to judge 
whether the prevailing tendencies are individualistic or 
socialistic. Questions of individualism and socialism, 
indeed, illustrate better than any other the interaction 
of Political Science and Economics. As a rule they are 
treated fully in text-books oi both Economics and Poli- 
tical Scjence, the political and" economic arguments alike 
being set forth whether the book is meant as a text-book 
in Economics or Political Science. The two sciences, 
while each has its distinct subject-matter, are thus 
closely related. Political movements are profoundly 
influenced by economic causes: economic life is condi- 
tioned by political institutions and ideas. So close is the 
connexion that scientific writers of a century ago 
regarded Economics as a branch of Political Science. 
Ifowadays we separate the sciences, regarding both as 
differentiations of the more general science of Sociology. 
Political Science, the science of political order, is 
also closely connected with Ethics, the scieace of moral 
order . On general grounds the line of 
division is clear. Ethics is the science of 
conduct or morality. Ethics deals with the Tightness 
and wrongness of man's conduct, and of the ideals 
•towards which man is working. Each maa must live in 
a state, therefore both Tightness and wrongness of 
conduct, and the moral ideal, must be concerned with 
the state. The political ideal cannot be divorced from 
the ethiear ideal. We cannot conceive a perfect state 
where wrong ethical ideals prevail. The ethical and 
the political must in this case coincide. The science of 
Ethics is therefore prior to Political Science. We must 
settle the basis of right and wrong before we discuss 


political inatitutions and ideals. Ethics is a study of 
human motives, an analysis of intention, of desires and 
of the moral end, and this moral end is the ultimate 
justification of Political Science. Both sciences are 
teleological, and in their ideals they must 5e in agree- 
ment; but the main body of material is distinct. 

The close inter-relation of these Various sciences 
with Political Science is shown by the place universities 
have given it in curricula. Sometimes it is established 
f»s a subject by itself, independent of other subjects ; 
sometimes it is given as a half-subject with Political 
Economj^ ; sometimes it is included in the Histbry course ; 
sometimes in the Philosophy course, and as an optional 
or compulsory subject it is included as a rule in the 
Honours courses of all these subjects. 

As time goes on more and more subjects closely con- 
nected with the state tend to develop into independent 
sciences. Public Administration, for example, 
soUfnoes. which examines the principles and practice 
of governments, and Comparative Politics, 
which, hy the comparative method, examines the 
■various kinds of governments, trying to deduce 
general laws therefrom, both promise to become independ- 
ent sciences. With other sciences already recognised 
as such Political .Science has more oil less close 
relations. Jurisprudence, or the science of law, is 
intimately concerned with the state ; Anthropology, the 
science which deals with the existence, development 
and interpretation of customs, dress, superstition, 
religious festivals, and social institutions generally; 
Ethnology, the science of races; and Religion, especially 
the comparative study of Religion, which shows the 
effect on political institutions of religious beliefs and 
observances' — all these sciences In a greater or lesser 
degree are related to Political Science. 



Diagramatically the relation of Political Science to the 
other social sciences may be shown in a general way 
thus : — 


^ P4 

i =8 

.a CO 




-S s* 

o o 

o eg g g) 









O o 


•J3 BO 


.2 S 





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2 " 



1. Definition of the State. 

Before attempting to define tlie word " state " as used 
in Political Science, we must first dismiss a certain 
number of verbal ambiguities which arise 
Different chiefly from the inexactness of every-day 
ofsta'te** language. The word is often used indis- 
criminately to express a general tendency or 
idea. Thus in phrases like state control, state railways, 
state education, it indicates the collective action of the 
community through government as contrasted with 
individual management. In "state regulation" and 
'"state management " the word S'tate is used where strict- 
ly speaking, government should be used. In the phrase 
"church and state" the organisation of civil power as 
distinguished from religious power is indicated. 
Again, we speak of the Native States of India, the 
State of Prussia in Germany, the State of New 
York in the United SItates of America, the_ State 
Victoria in the Australian Commonwealth. Not one 
of these uses is scientifically correct. One of the 
essential characteristics of a state is sovereignty, a 
characteristic lacking in everyone of these so-called 
states. Unfortunately no general name has found 
acceptance even in Political Science for these "states" 
all of which ^are only units or parts of a state in the 
scientific sense of the term. The word "piovince" 
might be usefully employed, but as yet it has not found 
favour, and at present the double use of the word state 
continues in both scientific books and popular language. 
At the outset of his studies in Political Science the 
student is warned to note this confusion. Finally, v/e 
have to bear in mind that there is the juristic meaning 
ot state, in International and^ Constitutional Law, which 


regard the state as au artificial person with definite 
rights and duties, as dietinguiated from the natural 
person or ordinary citizen. 

We have already seen that Political Science is a 
particular branch of the science of society, or sociology. 
Deflnition Society is composed of a number of individuals 
of th« living together and entering- into relations 

with one another* The state is a type 
of society regarded from a definite point fof view. 
Social relations varjr, and of these political relations 
form one class: it is with these that we are 
concerned in Political Science. The political life 
of man lends tjolour to and borrows colour from his 
other social activities. The political relation, however, 
does not either sum up or control the other social 
relations of man. Political order is one of several orders 
— social, _ moral, religious — and its distinguishing 
characteristic is the state, with its visible human 
institutions of laws and government. 

Definitions of the state are as numerous as are the 
books written on the subject. Quoted below are a 
number of modern definitions, given by writers from 
various points of view. The first two are by well- 
known English lawyers — Holland and Phillimoie. 

HoUaad defines the state thus : — 

*' A numerous assemblage of humaui beings, generally 
occupying a certain territory, amongst whom the will 
of the majority, or of an ascertainable class of persons, 
is by the strength of such a majority, or class, made 
to prevail against any of their number who oppose it." 

Phillimore says that the state is 

"A people permanently occupying a fixed territory, 
bound together by common laws, habits, and customs 
into one body politic, exercising through the medium of 
an organised government ind^endent sovereignty and 
control ovp]' all persons and things within its boundaries, 
capable of making war and peace and of entering into 
all international relations with the coanmunities of 
the globe." 


Bluntschli,' the German writer, says: — 

"The state is a combination or association of men, 
in the form of government and governed, on a definite 
territorj"-, united together into a moral organised 
masculine personality, or, more shortly, the state is the 
politically organised national person of a definite 

Sidgwick, the well-known English writer on 
Philosophy, Political Econonjy and Political Science, 
says that the state is a "political society or community, 
ie., a body of human beings deriving its corporate 
unity from the fsct that its members acknowledge 
permanent obedience to the same government, which 
xepresents the society in any transactions that it may 
carry on as a body with other political societies." This 
government, he says, is independent, in the sense that 
it is not in habitual obedience to any forei^ individual 
or body or the government of a larger whole. _ 

Professor Burgess, of Columbia University, New 
York, one of the greatest! modern authorities, says that 
the state is a "particular portion of mankind viewed 
as an organised unit." Willoughby, another recognised 
American authority, says that the state exists " wher- 
ever there can be discovered in any community of men 
a supreme authority exercising a control over the social 
actions of individuals and groups of individuals, and 
itself subject .to no such regulation." President 
Woodi-ow Wilson says simply that the state " is a people 
organised for law within a definite territory." 

These definitions do not agree in, all details. Some 
of them are given from particular standpoints, and are 
open to criticism on certain points. They contain, 
however, all the essential ideas necessary to the 
definition of the state. The state is a concept of 
Political Science and a moral reality which exists where 
a number of people, living on a definite territory, are 
unified under a government which in internal matters 
is the organ for expressing their sovereignty, and in 
external matters is independent of other governments. 


2. The Essential Elements of the State. 

The essential elements of the state are thus : first, 
a number of people, or population; second, a definite 
place of residence, or territory ; third, an organisation 
Unifying the people, or government; and, fourth, svipre- 
maoy in internal matters and independence of external 
control, or sovereignty. 

1. It is obvious that to have a state, which is a human 
institution, a population of some kind is necessary. N"o 
t. Popui- state can exist in an uninhabited land ; nor 
ation. can there be any state if there is no population 

beyond a single family. The family may be a centre 
round which the state grows, but till there is a series of 
families there can be no state. It iS impossible to fix a 
definite number of men for a state. In the modem world 
we are familiar with states in which the populations vary 
from five millions to three hundred millions. Huge states 
of the modem type were quite outside the range of the 
old Greek ideas, where the city-state was the working 
ideal. The city-state, in population, was about the 
size of a smaU modern municipality. The idea of 
Aristotle, the philosopher of the city-state, was that 
neither ten nor a hundred thousand could form a good 
8t&,te : they were both extremes. Many centuries after 
Aristotle, Rousseau, the Ereiich philosopher, wlio lived 
when vast states of many millions existed, thought ten 
thousand the ideal number. Both these writers con- 
sidered small numbers essential to good government. 
In the modern world other principles, such as federalism, 
empire and nationality, are the determining factors in 
the size of the state, while the perfection of government 
which Aristotle and Rousseau thought attainable 
only with very limited ' numbers is now secured 
by what is known as local government. In the modem 
>^orld the population of states varies greatly, from the 
flew thousands of Monaco to the many millions of 
Russia and the United States. 'No limit, either 
theoretical or practical, can be laid down in this respect. 


2. Without a fixed territory tliere can be no, state. 
Tile Jews, for example, did not form a state till taey 
definitely settled in Palestine. Consrersely, 
the Huns of Attila, in spite of their prowess 
and their leaders, broke up because they had no real 
fixed territory. Tfomadic. tribes, which wander from one 
part of a country to another, cannot form a state. 

As in population, so in -territory, no limit can be laid 
down. States exist to-day with areas , varying from 
eight square miles, , as in , Monaco, to about nine million 
square miles, as in Russia. Small states, though they 
benefit by being compact and easily governed, are at a 
great disadvantage in matters of defence and lesoiirces 
as compared with larger states. TJnless guaranteed by 
larger states, small states are liable to invasion and 
annihilation by greater and more powerful states, as 
shown by the fate of Belgium in the Great War. In 
very small states like Monaco and Guatemala, the 
resources are insufficient to give their citizens the fulness 
of life and development which larger states, can afford. 
Their disadvantages are similar to those of small scale 
as compared with large scale production. 

The older writers on Political Science almost 
universally condemned large states because of their 
unwieldiness. To govern well a wide stretch of territory- 
appeared quite impossible to them. Two things* have 
completely altered that point of view — first, the rapid 
development in transit — trains, steamships, the telegraph 
and aeroplanes — and second, the development of local 
self-government — in the wider sense, as in the British 
Dominions with responsible government, and the 
" states " of a federal union, and in the narrower 
sense, as in municipalities, counties and districts. 
Wo principle can be laid down as to size of , a 
state. Size, moreover, is no index of. the greatness of 
a state. Russia, a huge state in respect of size, is not 
so great as the smaller France. Great Britain is. vastly 
more powerful than many states ten times her sizev 
There are many other elements connected with territory 


which make for greatness : climate, the temperament of 
the people, geographical configuration, and natural 
resources are all-important factors in deciding both the 
size and the greatness of a state. 

That climate has an important effect on the develop- 
ment of states may be judged from the fact that the 
Climate ^lig'test political development of the world 
has been reached in the temperate zones. 
Extremes of both heat and cold affect the physical 
and mental constitution of the individual and also 
the natural resources of a country. Extreme , cold, 
as in the Arojlic regions, makes the struggle for 
existence against nature so hard that political life is 
only a secondary consideration. Extreme heat, as in the 
tropics, leads to luxuriant vegetation, ample and easily 
obtainable food, and the enervation of the people. 
Climatic extremes, -whether of heat or cold, tend to 
produce a fatalistic outlook on life which weakens the 
mainsprings of personal effort. The most energetic 
political life in the world for these reasons has been led 
in the temperate zones, though with the growth of 
education, and the advancing control of mind over 
matter, the peoples living in the areas of climartie 
extremes may develop as surely as. though more sltowly 
than those in temperate zones. 

Geographical configuration is also important in'fixins 
the areas of states, as well as giving a peculiar cast to 
Geoo^raph- *^^ character of particular peoples. A glance 
ioai Con- at a map of the world will show how the 
guration. ^reas of many states are fixed by 
boundaries provided by nature, such as the sea, 
mountain chains aind rivers. Geographic unity is an 
important predisposing cause to political unity as shown 
by Great Britain, where neighbouring nations clearly 
marked off from the rest of the world joined to mkke one 
state. One of the chief bases of the future' unity of 
India is the complete self-containedness of the country, 
bounded as it is by the sea and the greatest mountain 
ranges in the world. In the past the many states or 


subdiTisions contained in India were marked out by 
natural boundaries, such as mountain ranges, rivers 
and deserts. 

Geographical conditions have also had much influence 
on the creation of states. In the valleys of the N"ile and 
the EuphrateSj for example, the early Egyptians and 
Assyrians pitched their camps where nature provided . 
the best conditions for a settled life. Geography also 
helps to determine the activities of peoples. Rome, for 
example, became the greatest empire in the old world 
largely because of her geographical position, which 
gave her access to. other countries by. sea. The 
maritime activity of Britain is explained by the 
very favourable geographical position she . occupies 
in Europe. England, France, Spain and Portugal, 
from their natural positions, have been the greatest 
discoverers, colonisers and empire-builders of the 
modem world. The geographical position of states also 
largely determines the policy of their governments. 
England, the United States and Japan are at present the 
greatest mercantile nations of the world. They all have 
powerful navies, to protect not only their shores, buf 
their mercantile fleets. The very existence of England 
depends on her sea trade; hence arises the necessity 
of the very powerful British navy, i Germany on 
the other hand, vised to be bounded on three sides by 
powerful states, with no natural defences. Germany 
therefore was a military state, and the necessity for 
defence compelled her neighbours also to support large 
armies. Germany also has a fairly large sea-board, and 
her ambitions were to dominate the world. She therer 
fore built a powerful navy, but her geographical 
position, especially in relation to Britain, made that ' 
navy of little value in the Great War. 

Where nature provides defences the energies of the 
people can be turned into the channels of peace, not of , 
war. The best defences are the sea and mountain 
ranges though with the new aerial war natural defences 
are becoming less important. With the advance of 


invention in transportation, irrigation and drainage, 
geographical oonfiguration as a factor in development 
is becoming of less importance as compared to the 
ingenuity of man. 

Resources, in cereals, minerals, etc., have frequently 
determined the size of states. National strength in th*" 
Resources modem world rests on national wealth, and 
such wealth depends on the character of the 
people and the produce of the land. Desire for national 
expansion often arises because of the lack of some import- 
ant mineral, such as coal or iron. In modern warfare, the 
possession of these minerals is indispensable for both 
defence and attack. The resources of a country also 
determine its economic activity, and economic activity 
reacts quickly on t)olitical life. Discoveries of new 
wealth lead to immigration, exhaustion of ,old wealth to 
■emigration. Wealth excites covetousness, covetousness , 
leads to wars of plunder by the stronger on the weakei. 

Besides geography and iiatural resources, the chief 
influence in deciding the size of states has been policy. 

.. Rulers, from personal ambition or a patriotic 

idea of aggrandising their own nation, have, 
through conquest, treaties, or occupation enlarged the 
boundaries of their own states, usually at the expense of 
other states. The many elements which enter into 
I'olicy, such as empire, nationality, and desire for 
natural resources are matters for the student of bistory. 
The whole range of political history is a commentarv 
on them. 

3. For the existence of a state, government is 
necessary. Government is the organisation of the state, 
the machinery through which the .state will is 
•mont**'^'' expressed. A people settled on a definite 
territory cannot constitute a state till 
some political organisation has' been fonned. The 
organisation may vary in kind and complexity. 
Government is the organisation which shows that the 
■essential relation of command and obedience has been 
■established. Wherever that is confirmed, whether it is 


iu a vast organisation like that of the United States, or 
in the simple tribal government of the Aiistraliain 
aborigines, there government exists. The government 
is the organisation of the state, the organ of unity, the 
organ whereby the common purposes which underlie that 
unity are definitely translated into practical reality. It 
is the fbcus of the common purposes of the people. As 
Professor Giddings says, the state is the " chief purposive- 
organisation of civil society." Government is the out- 
ward manifestation of the state, and as such, is the 
organisation of the common purposes of the people. It 
is the organ of the community. 

4. Tlie fourth characteristic of the state is sove- 
reignty. This is the supreme element of statehood. It 
differentiates the state from all other social 
eignity"!" organisations. Other associations exist which 
can claim a number of people vi^ith separate 
territoi-j' and a governmental organisation, but there ia 
only one association which has all these elements and 
sovereignty. That association is the state. Sovereignty 
in general terms, means supremacy. The state is 
supreme in both internsfl and external matters. This 
sovereignty is expressed through government, which is 
supreme in internal matters, and independent as regards 
external governments. The subject of sovereignty is- 
discussed separately in a later chapter. 

Population, territory, government sovereignty — arp 
thus the essential characteristics of^the state. Several 
Other other " essential " characteristics are given bv 

charaot- writers, but most of them are implied in th° 
ei-istics. above four. Professor Burgess, for example. 

gives all-comprehensiveness, exclusiveness and 
permanence as peculiar characteristics of tihe state, 
with sovereignty as the most essential principle. 
All-comprehensiveness means that the state embraces 
all persons and associations of persons within the- 
given territory. Exclusiveness means that there- 
can be one and only one organisation of the state. Both 
these are essential to government and sovereignty. 


as we iiave explained. Perznanence means that whateTei' 
th,e form of government may be, tlie state always 
continues to exist. Governments cHange from time tO' 
time ; at one period- government may be monarchical in 
form, at another democratic. One government may be 
subdued by another or disappear by being absorbed by 
another; but mankind must continue to live within 
a state. The state is essential to the being and well- 
being alike of man. As Aristotlie said, it arises- 
from the mere necessities of man's existence and' 
c:ontinues to exist for the sake of the good life,, 
or for the well-being of man. Permanence there- 
fore does not mean that this or that state con- 
tinues for ever. So long as this or that state- 
sa.tisfies the above criteria of the state it does continue 
permanently. There is an English constitutional maxim 
which says "The king never dies." Though the king 
dies or the form of government changes the state is 
continuous,. Individual states do disappear, but their 
disappearance is only the disappearance of a type of 
government, not of the state as such. The state is 
permanent throughout, as permanent as the human- 
minds the unity of which it is the fundamental" 

Bluntschli, in common with many other writers of a 
similar cast of thought, says that the state is organic. 
The organio *^** ^* ^® ^ moral and spiritual organism, and? 
Nature of masculine. These are allegorical description? 
the state. corresponding to particular points of view 
from which the state may be regarded. They are not of 
the essence of the conception of state : in fact, as we 
^'hall see in our analysis of the organic theory', they may 
be expressions of mistaken points of view and theories. 

German writers distinguish two meanings of the 
word state — the idea and the concept of the state. The 
The Idea sanie is true of the word society, which, as 
and Conoept Professor GidJings points out, mean'; both tb«» 
of State. individuals entering into social relations and* 
the union which Tesulfs. According to the Germans, the- 


concept of ihe state is the result of concrete thinkinjr. 
It refers to the actual political types of history. Ajnong 
ihese types tliere i« one common element or essence, 
that is the state. All actual political types, present, 
past and fttiture, have* this common essence, embodying 
the idea of the state. The distinction is that of the 
«tate as it is, as a matter of organisation, and the state 
in general, differences of organiBation being left out of 
account. Some writers, as Bluntschli and Proftessor 
Burgess, regard the idea of the state as the state as it 
ought to be, i.e., its final completion, or perfection. 

•3. State, GovEEiiTMBNT, Nation, I^ationality. 

In the English language certain terms of Political 
•Science are very nearly related in meaning, and the' 
student must be able to appreciate the scientific uses of 
the words. Much of the difficulty, as we have seeni 
arises from the carelessness or inexactness of everyday 
language. All science requires definition, and before 
we proceed we must distinguish, and define the words 
state, government, nation and nationality. 

Between state and government we have already 

drawn the line of distinction. State is used to denote the 

sovereign unity of a number of people 

iSl^Ltl.«...t settled on a fixed territy and organised 
Government. - , /y - ii 

under one government. Go'oe'mmeni is the 

practical manifestation or organisation of the stat«> 

find essential to it. In ordinary language state and 

government are oiten' used interchangeably, but fox 

Political Science a definite distinction is necessary. 

(roveriiment is the machinery through which the ends or 

purposes of the state are reajlised. The state is largely 

an abstraction ; government is concrete. Governments 

change or die, the state is permanent. Government has 

power in virtue of its relation to the state. It is not 

sovereign ; it has power only because the state grants it 

power. It exercises sovereign power because it is the 

organisation or practical medium of the sovereign state. 

Hi is not even necessarily identical with the form of state. 


The student must familiarise himself with thia 
distinction, as it is the solution of some of our most 
difficult problems, notably sovereignty. Much of the 
confusion in older writings on Political Science is due to ■ 
the failure tp separate state from government. Hobbes,. 
for example; the upholder of the seventeenth century 
absolutiat theories, declares, in his Leviathan, that it a 
sovereign dies, the most minute arrangements must be 
made for the succession to the throne, otherwise the 
commonwealth, or state, will be dissolved. But the 
commonwealth does not depend for its permanence on the 
adventitious succession of kings. The king is part of th»» 
government, but he is not the state. Kings come and 
go ; but the state continues to exist as long as the 
common mind on wliich it is founded is able to expres-; 

The words nation and nationality have a common 
origin. They come from the root natus, the Latin 
^ word meaning horn. Modem English usage. 

Nationality liowever, has given distinct ipieanings to thp- 
words. Yet here again langiiage difficulties 
cause confusion. The ambiguity is due partly to our 
inexact everyday speech, partly to dissension among us 
Political Science writersi and partly to the difficulties 
of translation. 

Only in very recent years has a proper distinction 
been , drawn between nation and nationality in the 
English language, and as yet this distinction, far from 
being current speech, is not even universally accepted by 
writers on Political Science and History. Many writers 
still use "nation" in our sense of "nationality," an^ 
prefer to use " nation-state '^' for "nation," in 
the sense used in this chapter. This confusion 
in English is increased by the use of the worrt 
nation in the German language. In the German 
language there is a word nation, which does not expresa 
the meaning of the same English word. The English 
equivalent for the German nnfinn is nationality. The 
English word nation , in spite of the old casual 


practice aud rthe persistence of some writers {e.g., 
Willoughby in his " Nature of the State ") has defi-nitely 
a political signification, which the Grermans denote by 
tie word volh, which is usually translated into English 
as people. The English word people (as also the French 
peuple) has its nearest German equivalent in nation, the 
English word nation having its parallel in the German 
word usually translated people. The Germans have 
-etymology on their side in the ethnic sense of their word 
nation (from natus, horn); But the English language 
has given nation and nationality distinct meanings, and 
there is no reason to confuse issues simply because of 
etymology. Science demands as exact definitions sa^ 
possible, and if on the one hand popular usage is vague 
and often wrong, on thfe oth«r hand there is no reason to 
•aivorce scientific from popular usage in words, except 
fas in the present case to a certain extent) when 
absolutely necessarJ^ 

Nation is very near in meaning to state : the 
former lias a .broader' signification. It is the state 

plus something else : the state looked at from 
sta'w"' ^ certain point of view — viz., that of the 

unity of the people organised in one state. 
Thus we speak of the British nation, meaning 
the British people organised in one state - and 
acting spontaneously as a unity. Oh the othe.T 
hand we should hesitate to ' speak of ■the Austiro- 
Hungarian nation, though- we can speak perfectly 
correctly of the Austro-Huhgarian state. There wns 
not that requisite unity of spirit in the old Austro- 
Hungarian Union to make it a nation. This distinction 
of nation and nationality is of paramount importance 
largely because it has not been observed till quite recent- 
ly in the literature on the subject. John Stuart Mill, 
whose chapter on Nationality — ^in his "Representative 
Government "—is a classic on tiis subject, gives a good 
lead to thinkers by giving clear ideas on both the subject 
and name of nationality ; but even in Mill's Works the dis- 
tmetipn between nation and nationality is not brought 


out. Though T. H. Green, the profoundest of modern 
English political thinkers, does not deal directly with the 
subject of nationality, he giTes, in his "Principles o* 
Political Obligation," one or two very apposite passages 
regarding the meaning of the word nation. "Thft 
Nation," he says, "underlies the state," and, again, he 
characterises the state as " the nation organised in a 
certain way." He also points out that the members of 
a nation "in their corporate or associated action are 
■animated by certain passions arising out of their 
organisation." Till recently nation and nationality hare 
been used interchangeably; but it is far better to use 
ihem — ^indeed many present-day scientific writers do — 
as two separate terms. As yet the unfortunate thin"- 
about their separation is that they have to share the 
common adjectival form " national." They both have the 
same root, natus, (which shows a racial substratum 
of meaning), but the one, natHbn, has definitely become 
political in meaning, thei other, nationality, while it also 
lias a certain political content,' lays emphasis on the root 
meaning of common birth and other common elements 
(language, traditions, etc.), usually accompanyinn- 
common birth. 

Nationality is a spiritual sentiment or principle arising 
among a number of people usually of the same race, 

resident on the same territory, sharing a 
Natio'naiity. common language, the same religion, similar 

history and traditions, common interests, with 
common political association, and common ideals of 
political unity. Territory, race, language, history and 
traditions, religion, common interests, common political 
associations, and common hopes of political unity 
are the elements on which nationality is based. They 
are the basis of nationality, not nationality itself, 
■which is a spiritual principle supervening when 
some or all of these elements are present. Not all of 
these elements taken together, nor any one of tliem^ ufn 
any combination of them will make national! t>'. 
Not one of the elements is absolutely essential : nor are 


all of them taken together essential. But' eveiy 
nationality has as basis some of thenil Nationality is 
spiritual, The physical element tinist be accompanied 
by the spiritual; otherwise, there is a body but no soul. 
Our distinction of state, nation and nationality, may 
now be made clear by saying that the nation is the state 
plus nationality. Almost every nationality either has 
been a state (as the Scots), or aspires to be a state, 
whether it be a new state or the rehabilitation of a pre- 
viously existing state (as the Poles or Czechs before the 
war). A nationality may be none the less real though it 
does not wish to become a complete organic state. ■ Scot- 
land, for example, does not wish severance from the 
British nation. The cry for Scottish home rule has few 
supporters : yet the Scotsman is one of the most distinct 
persons in the world as regards his nationality. It 
may be &aid, however, that a nationality which rests 
on its past glories and does not wish to be a distinct sta;te 
IS in the process of being lost, or of being fused in a 
greater whole. The Scots may be said to be in the 
process of fusion in ' British ' nationality. The 
Americanism ' Britisher ' already supplants to a large 
extent, to members of other nations at least, the older 
distinctions of English, ScottisJii, and Welsh. The 
jireservation of nationality depends on the preservation 
of the social and political institutions of the populations 
forming the nationality. These may be preserved 
without absolute autonomy. A federal system, which 
harmonises the desire for self-government with the fact 
of dependence on a wider state, may fully satisfy 
national needs. 

4. The Elembn;ts of Nationality. 

Common residence on common territory is a very 

usual accompaniment of nationality, but it is by no 

means either essentialor universal. A pbpu- 

R?s"i5in!e. ^^*i.o^ li^i^^ together, definitely settled on 

a given territory, will na,turally tend to have 

a uniformity of culture and experiences, or conversely. 


a population Ijvi&g in the cyclopean 'dispersed state' 
of whicli Aristotle speaks, y/iiX nujre likely form groups 
witt different experiences and purposes, and tkus prevent 
the groAvth of the ' friendship ' so essential to national 
fusion. Continued residence on a fixed territory is 
rjg'htly ' set dpwn hy most writers as one of the first 
elements of njationality. It is essential, indeed, to the 
growth of nationality, but it is not essential to the 
continuance of national feeling. A nomadic tribe cannot 
■form a nationality so long as it is nomadic ; but if it 
settles down for a long period and develops, it may 
become distinctly nation^. , If this nationality 'by any 
chance resumes its wandering, quite probably it will 
preserve ; its nationality. A glance at the existing' 
nationalities of the world will show firstly, that most 
nationalities have a given territory, the territory and 
nationality giving their; names to each other (Scotland 
for the vScpts, Denmark ' for the Danes, ^France for the 
l*^rencli, etc.). Secondly, there are many nationalities 
distinctly marked as such, which have not achieved this 
ideal of a country of their own (as the Slovaks, Slovenes, 
and Euthenians in Austria-Hungary before the war). 
Thirdly, several nationalities are scattered throughout 
the length and breadth ofi the world. This last poinl 
sho'ns that common residence on common territory must 
not be regpded as either a universal charaoteristic of 
nationality, or essential to its vitality. Migration does 
not affect nationalitjr. An Englishman, Scotsman or 
Irishman is English, Scots or Irish from one 
end of the world to the other. The Jews have 
preserved their nationality in spite of their disper- 
sion. The Czechs, till they achieved nationhood, 
were as active nationally in, the United States as 
in Bohemia, their home. So also were the Slovaks. 
One of the biggest, and most clearly marked European 
nationalities, the Poles (tliougb they have still a Poland), 
were, and are, almost as dispersed as the Jews; yet the 
Pole keeps his nationality in alien environment, even to 
the third and foxirth generation. Dispersion may very 


easily lead to extinction of nationality, especially if the 
members of the nationality come into contact with a 
more virile culture. A weak nationality always tends 
to be swallowed up ^ by a stronger. Its culture 
disappears, or is assimilated hj the stronger one. Unless 
the numbers forming' a nationality are silffiiiently stronfy 
to transplant their own home lives, their nationality is 
in danger of decay. The United States furnishes a good 
example of how cultures are fused. The descending 
generations of Czechs, Slovaks, Ruthenians or Germans 
usually become thorough-going Americans. 

One^ of the most universal bases of nationality 
i« community of race. This unity of race is indeed 
characteristic of most nationalities, but 
oi'rSoe*'^^ here again one must not be too ready 
to make it an unqualified necessity oi 
■national solidarity. For one thing modem races ar« 
so mixed that it isi difficult to say what is one race and 
■what is another race. Even the science of races, 
Ethnology, gives no undisputed theory of races. 
Opinion on many racial questions among experts is, in 
even leading questions, confusedly diyided. The racial 
bond of nationality, however, need ncAbe so exact as 
'the science of races demands. Belief j in a common 
origin, either real or fictitious, is a bond of nationality. 
'Every nationality has its legendary tales of its non- 
historic origins, whether it be the Patriarchs of the .Tews, 
or Hunyor and Magyor of the Huns and Magyars, or'the 
well-known stories of Greece and Rome. Scientifically 
speaking, a nationality cannot be regarded as a pure 
family descent. The origins of clans or tribes may, 
with a considerable degree of truth, be ascribed to some 
single progenitor, but national feeling cannot emerge 
without some initermixture of blood. The ius coiimihii\ 
or right of intermarriage must as a rule precede' it. 
A notable instance presents itself before one's eyes in 
India. The caste system is essentially non-national. 
The essence of' the Indian caste system is separation ; 
the essence of nationality is solidarity. Were 


.nationaiity dependent on this inx ronnnhn alone, 
there could be no real nationality in India ; but, of course. 
tiSihas just.been pointed. out, no single ingredient of the 
list given above is ©sseirtial to natiouality. Bace-unity 
is, one, of tihe strongest bondo, mot because of the ethno- 
logical signification I of I'ace, but because it implies the 
further unities of oomnion language, common traditions, 
and common culture. Were the real race issue to be 
the criterion, some of the most distinct of inodera 
nationalities would at once break up. the theory. The 
IJnglishiand Scots are, to p fair extend;, ethnologically 
the same, but they are distinct nationally. Germans 
and English, Dutch, Danes and ScandiMavians, are 
racially more or less ]}omogenous, but nationally they 
are quite distinct. The United States — the most 
interesting study in nationality in the world — is racialh 
very diverse, but nationally 'American.' 

Community of language, traditions and culture are 
closely connected with community of race. Language' 

and "race usually go together. Even modem 
o?iLajn8ua|e, Ethnology uses terms which strictly belong 

IIl!i'U''ft™ to linguistic divisions. The' word Arvun, for 
ana culture. '^ . , i . ..' \ ,. 

example, is, properly speaking, a linguistic 
term but it is universally used to designate iEe 
'race' of people using Aiyan languages. So it is 
with terms such as Ural-Altaic and Pinno-Ugrian, 
used to distinguish 'races.' Mosi writers on 
nationality have laid great emphasis on the necessity of 
common laaiguage. Fichte, ■ for example, one of the 
<"hief apostles of German, nationality, declared that 
nationality was a spiritual, thing, a manifestation of the 
mind of God, its chief bond of union being language. 
Language is developed from, and connected with, common 
experiences, interests, and ideals. It really forms 
the basis of the other eleihenls. Gdmmunity of 
'interests or ideals is no bond of unity unless they can 
be understood, and language is the vehicle of under- 
standing. Most of the recent European national move- 
ments turned laigely on national language, e.g., the 


Polish and 3pliemian movements. The* obverse is seen 
in tlje German and Magyar, policy of suppression of 
languages of subject nationalities. That language alone 
must not, be taken as a determinant of nationality, 
however, is shown by the United States.^ which uses the 
English languageibut has its own nationality, and again 
by Switzerland, in which there is one nationality and 
three . distinct languages. 

This Gomtounity of language, implying common 
intercourse, common culture, and, as is usually the case, 
accpmpanying a real or fictitious common origin and 
common histoiy, is vitally important to nationality. 
The greatest barrier I to intercourse between peoples used 
to be niountains and seas. . These are now overcome, but 
there nemain the barriers i of language, and in this 
connection the modem world witnesses two diametrically 
opposed tendencies. On the one hand, many zealous 
people believe, and In- to translate their faith into ffect, 
that there should be one universal language.' On the 
other hand one of the chief pleas of all nationalists is 
language. , Thus Bohemia for the Czechs means a Czech 
language for a Czech people. The national movements 
of the Slovaks and Slovenes' and other small nationalities 
mainly turned on language. At the present time there 
are distinct movements in India in favour of one Indian 
language and for the encouragement of all Indian 
languages. i - 

Religion, agaiii, is an important basis of nationality, 
but history provides many examples of na;tionalities 
which have developed in spite of religious 
of Religion, clifferences An ' important distinction must, 
be kept in mind in this connection. National 
union, other things being equal, is not likely to be strong 
and lasting where there are fundamental ■ differences 
in faith, as between Christianity and Mohammedianism. 
Nationality may develop in spite of difference of 
sect. The, Serbo-Croation^ national movement is a 
case in point. The Serbs are mainly Orthodox, 
the Croats, almost to a man, are Eoman Catholic. The 


language of Serbs and Croats is the same (thougll written 
in a differeat script), their traditions and culture are 
similE^r, hut their religious secte are distinct. 
Njone the less the i- bridge of union has been built 
in, spite of sectarian differences. In Greater Serbia, 
howevier (which inclwdes' Bosnia, Herzegovina, and 
Cj;o0tianSla"vonia) there is an odd half -million of 
Hosleijis who must either migrate from a unified Serbia- 
Crpa/tia or be oontisnt to remain a hostile minority. The 
Magyars and Turks, sons of the same legendary father, 
are racially the same, with close affinities in language; 
l)ut, their religious separation into Christians and Moslems 
has for ever destroyed hopes of national reunion. 
Religion can undoubtedly be a ' strong incentive to 
national feeling. The identification of Protestantism 
with patriotism, for example, made England defeat Spain 
in the time of the Armada. The State and Church for 
n^ftny centuries of Westeam history were so much inter- 
rela,ted that the. finest logicians of the time could not 
satisfactorily demarcate theiri spheres. Their affairs 
were so inextricably connedted that in mediaeval and 
early modern times state wars were church wars and 
church wars state wars. The conjunction of church and 
state meant very intense patriotism; and in the modern 
v(orld, where the church has, relatively to the state, 
receded to the background, patriotism is based on other 
and new idgals. Tet this also must be noted that reli- 
gions, either as a whoTe or in their sects, are po^Jrorful 
agents of disaolution. !■ 

PoUtieal unioiL, either past or future, is one of the 
mpst 'marked features of nationality, so marked indeed 
, that of the various unities it may almtist 
PQiitioai te said to be' the only essential. 'A 
nationality live? either because it has been 
a nation;. with its' own. territoi'y and state, orbeoause it 
wishes to become a nation with its own territory and 
state. Most of the vocal nationalities of the modern 
world depend for their* national vitality on the fact that 
they aspire to nationhood. The extreme expression of 


this tendency; is tlie' cry 'one nationality, one state ' — 
an aspiration wliicli, if carried to its logical' extreme, is 
dangerojip and deleteriousi The feeling of 'nationality, 
in fact, often emerges only ' through opposition' of the 
ideals of a subject mnified ^ populatiom ' to tho'se of its 
masters. ; MisgoA-ernmenti.' is a; 'prolific parent of 
nationality. On the other hand, a population living for 
a considerable period under one state, if that state is' 
tolei'ant in its ideas and practice, tends' to become one 
nationality. A prominenti example is the United vStates, 
where peoples of many different nationalities have been 
fused in the one American nationaliti;\-. The terms 
German-American, Czech- Ametican, and the like; 
indicate the process of fiision. The pdpulation of the 
United, States. is composed largely of immigrants Who in" 
the first generation are piire Englishmen, Scotsmen," 
Germans, Poles, Magyars, or Czechs.' Their children 
'become. political. half-castes, and the third and fourth 
generations lose their parental prejudices and > become 
piire Americans. Commoni ipolitical union is the most 
powerful, .though not the ojily agent', in such a fusion. 
■ Cpmmon interests are likewise closely connected with 
the de^-elopment of- nationality. A' popvilation which 'is 
clearly marked off from others by charaC- 
ofimTerests ' t^™tic commerce and industries tends to 
develop a. charpcteristic nationality. These 
interests need not be merely commercial. They 
may be diploniaiic. Common ■ interests are rather- 
aids towards strengthening union than fundamental 
agents of union by themselves. They have hdd 
their importance in conjtmction with other elements 
more than by themselves. They have pla,yed their part 
in nationalities such as the Dutch and B'plgian, but, wpre 
they the sole determinants Holland and Belgium would 
prolsably not exist at all. T'hey were obvious considera- 
tions in the Ainglo-Scottish Union of 1707,' but they'are 
quite disooimted in North America where the lAaterial 
interests of. the United Rtates and Canada are very much 
the same. "W^ith- the co-operation of other agents, we 


see it working ia th^i, British Responsible Colonies where 
distinct, colonial nationalities in the Auatralians, Son'th 
Africans, etc., are visibly developing. 

Nationalities are based on some or other of the above 
factors ; but Nationality is spiritual, formed by common 
^ , . ideals acting on a number of minds. Itsi 
natural oasis may pe one element or a combin- 
ation of elements: in. itself it is essentially . spiritual, 
usually seeking its .physicai embodiment in self-govern- 
ment of some form. Self-government once attained, ike 
national ideal longer an ideal but a realised 
fact, and, is therefore dorma.7it, to be revived by some ex- 
ternal danger to the state. The various ' unities' given 
above are the chemical elements of the protoplasm; the 
ideal gave the life. It is necessary to emphasise this for. 
many theorists have tried to sum up nationality in one, 
some or all of these 'unities.' Certain , writers have 
argued that the Qponomic motive (common interests) is 
the main bond of nationality. Economic forces have 
played their pait, a powerful part, in moulding new 
nationalities, Evnd states have not been blind to the 
importance of this force. , The Germans, for example 
tried to supplant Polish nationality by f planting' 
Poland, with Prussian peasants; but history, instead of 
teaoliing; how economic forces have nuacle nationalities, 
shows rather how nationalities have lived in spite of 
econoinic forces. 

JSTationality may exist before, national ideals are 
definitely talked of in the press or on the platform. The 
consciousness of social union emerges from the natural 
fact of social grouping, but only gradually does the 
national, self emerge as tu definite group force as distinct 
frpm other group forces. Froni the lowest form of tribal 
group-consciousness the feeling of community ^develops 
till, in more advanced fopms of social orgaUji^ation, it is 
complex and difficult to analyse. . The, child is bor^ into 
his social gipup, and gradually assimilates the particular 
customs, traditions, majiiierisnis and mental outlook of 
his group. He feels a pride in his own characteristic 


culture, even thougli it may be only parochial. His 
culture is his own: lie rejoices in it, and feels as ^ 
personal insult any slur cast on Ms own comiaunity'. 
Nationally, thus, the individual becomes a type living in 
a society of such types, and to preserve his community 
he is willing Ito surrender himself for the general good. 
"Not every individual, of course, is as intensely national 
as this. But national feeling always has the double 
aspect of altruism and egoism, each of which aspects 
may go to extremes. The extreme of egoism leads to 
the desire of domination,' to the pride of , type which, 
insists on the impcsitioi of its Kultur, or mental; 
and moral habit-code, on everyone else. This, in part, 
at least, is the explanation of the' German imperialism 
which led to the Great War. The extreme of altrism 
takes the form of an exaggerated, nervous, unreasoning 
patriotism resulting in sacrifices superficially n,oble but 
in reality wasteful. 

5. WATioNAUfY a;s a Factoe. in Practical Politics. 

As a principle of practical politics nationality belongs, 
to' the nineteenth and twentieth centuries. The 
Congress of Vienna in 1814-5, at which the 
The Growth map of Europe was resettled after the 
itv. I^apoleonic struggles, represents the high 

water-mart of the previous determining 
factors — ^policy and dynasty. In the eighteenth and 
previous centuries boundaries were fixed accordinsf 
to the policy of individual states or the desires of 
individual rulers. Kings waged wars for aggrandise-.' 
ment of their territories on the old feudal theory that 
to rule and to own were synomymbus. Personal 
ambitioii or greed, arising often from the patriotic desirfe 
to enlarge the state boundaries and add large numbers 
to the population, made supreine the idea of conquest 
a 8, the decisive element in fixing the size of stateiS.! 
Heedless of the wishes of the people concerned, the 
sti'onger seized the territory of the weaker. Sometimeis 
small states were allowed to eiist, not from any diasire 

roi.i'rifAi, sciKNX'K. 41 

to meet the wislies of Ahe people, tut to suit the defensiye 
or offensive aims of the greater states. , , , 

Though feucjalism had disappeared long before the 
eighteenth century, cerif^in feudal ideas survived t]^e 
actual feudal system. .One of these — r^nd a most important 
one— was the idea thait the king was owner of the 
nation's land.! This led frequently to division and sub- 
division of territory among' the king's family, just as a 
private landlord ' often do6s now. Large portions of 
territory could be ihherited ill this way, aiid in the same 
way cotlld ' be given a's & grift or dowry. State 
boundariiBi^,' ' therefore, were largely at the will of 
royal 'famili-es or dynastic^. For centuries this was the 
accepted riile'; the people as well as the rulers were 
imbued with th6 old feudal ideas. Keither did the kings 
take the will of 'the transferred' or conquered people* 
into account, nor did the tieople themselves regard such 
consideration hece'ssary'; ' It is 4o matfer for surprise 
then t'iiat frequently "iti on6 state resided the most 
heterogeneous collection of peoples, castes and creeds. 

In spite of this, some of the greatest nations in the 
West achieved 'nationhdod early, and the fact that they 

had no national difficulties partly accounts 
Cau^et of for 'the late appearance of nationality as u 
ment. "" practical question. The national boundaries 

of - England, France, Spain — all leading 
powers in EuiWpe for several centuries — ^-ere settled 
relatively early in modern history. Because they 
hkd no national difficulties themselves, they were iiot 
likely to be affected by the practical aspect of nationality. 
Besides the national elements in the wars of modern 
history,, such 'as the Dutch struggle against Spain, three 
things have acted together to break up completely th*^ 
old feudal and dynastical ideas. The first is the spread 
of enlightenment to the masses ; the second the partition 
of Poland; the third, the French Eevolution. 


1. Nationality is a sentiment which is stronger or 
weaker' as the circumst«nces in which it occurs vary. 

With the raising ,of pplitical consciousness 
1.^ Spread by riieans of ecttication, ' national feeling 
men"'* *"" is ' strengthened. Often, it is true, in 

spite of the ignorance of the masses the 
thread of national sentiment has ,, remained unbroken 
for centm-ies. Unity has often ,tieen,, preserved for 
centuries in spite of both conqiiest and ignorance., 
With the growth of, eniighteument the common ^d^^^lS' 
are not only better understood and: appreciated but 
more talked of and written abou.-^,,, Education raises 
the dignity of the individual, ai^d brings forward 
claims of personal freetlpni. Personal freedom leads to 
the idea of national freedom. The demand fpir perspijE^; 
freedom leads to, ^emQpr,9cy, and nationality has 
developed by the side of democracy,. The Great War 
was the culminating point of the struggle, for in that 
H^r democi-acy was fighting autocracy,, and nationalitv 
fighting dynasty. ; 

2. The Partition of Poland, by which dynasties by 
superior force took advantage of an unwilling people, 

, stands out as one of the most ca,llbus acts in 
'? .The Part- history. Poland had sua elective kingship, 
Poiantf; which her neighbours, iRussia, Prussia, and 
Austria, regarded as. dangerous to their 
own hereditary principle. In, 1772, at the suggestion 
of Frederick the Great, of Prussia, these three; powers 
agreed, to what is known as the First Partition. , Eacli 
received a certain, amount ,of territory, but' Poland, 
roused by their theft, abolished tihe elective in favour of 
a hereditary monarchy, and began to reform h«rsel'fi in 
oth;er -ways. The fact that Russia supported the old 
system drove the Polis'ii rulers to ask the help of Prussia. 
Prussia not only refused assistance, but sent an army 
to occupy part of. Poland. This led to the Second 


Partition ia 1795, whereby Pnisi^ia, Russia and Austrin 
(lividert tlie whole of Polapd among themselves. 

Like the Je^vs of old> the Poles scattered to ail parts 
of the world, carrying wifh them not only burning 
indignation at . tHe rapacity of the neighbouring 
dynS'Sties, but ajso the fervid desire forrttie re-establisli- 
ment of their old state. They became political tugitators 
in. eveiy state of Europe, and so strongly did they press 
tbjeir claims that thjipfcera were forced to .recognise that 
there must be some juster principle ;, for settling the 
boundaries of states, j<han that shown by the plundering 
rulers of .Russia, Prussia and Austria. 

■3. I The French. Revolu'tion completed the work of 
the Polish Partition. The French Revolution was not 
primarily a matter of nationality- for 
Frlneh *^® Frenchi national boundairies had' been 

Revolution, settled long before 1789. It was primarily 
a social revolution, but indirectly it fanned 
the national flame. The execution of the kins', 
Louis XVI., was a severe blow to. the righta 
of dynasties. If the French, with, their nationhood 
complete, coixld behead a king, surely other nation- 
alities, ruled not by' their own but by foreie*n 
rulers, could dispute the rights of dynasties. Not only 
so, the French Revolution awakened the peoples who 
had for several centuries been sleeping under the feudal 
system and its results. The French Revolution threw 
off the old social and' political order and decided 
to begin anew. To begin anew required the formula- 
tion of new principles of political order. The central 
doctrine was liberty, interpreted both as individual and 
constitutional liberty-. Class privileges and effete 
constitutions alike had to be abolished, and the new oi'der 
was to lip founded on the sovereigntv of the people.' 

The doctriiie of the general will propounded by 
Rousseau, the apostle of the French Revolution, 
implied the rights of na'tionality and self-determination. 
The' people, he said, should he. free to determine with 
whom they are to assiaciate in political union. The 


Inuniph of democracy was the first result of the Eevolii- 
tion. This was succeeded by the conqiiests of Xapoleon/ 
which appareiitly dealt a deathblow to nationality. At 
the Congress of Vienna in 1814-5 the map of Europe was 
drawn on the principle not of nationality but of 
dsrnasty. iDstead of granting the right of self-deter- 
mination to nationalities, the Congress resitored the 
pre-Revolution system. Poland was ntot restored' ' td' 
statehood; Norway was. joined to Sweden j and Belgiiim 
to Holland; Germany and Italy 'W6re re-established iii 
their positions of the previous century. 

The overthrow of ITapoleon, like the overthrow of 
Spain in the Netherlands, was really due to. the national 
forces opposed to him. As the century advanced' 
national feeling became strong enough to destroy Hhe 
basis: of the Vienna settlement. The Congress left sis; 
separate questions of nationality to be solved -^ — (1)-' 
Belgium and Holland, joined as the* Kingdom ofi the- 
Netherlands ; (2) Germany, divided into thirty-eight 
sovereign states ; (3) Italy^ with eight separate govern- 
ments ; (4) Poland, divided betwefen the three neighbour- 
ing powers ; i (6) Austria, with several distinct nation- 
alities — German, Magyar, Polish, Bohemian or Czechi 
RutheniaA, Slovak, Moravian, Roumanian,' Slovenian 
and Italian; and' (6) The Turkish Empire, in which the 
Turks ruled five distinct Christian nationalities. 
Practically all these questions have been solved. 
Belgiiim separated from Holland in 1830; Germany and 
Italy, eac'i, after a long struggle,, achieved tlieir present 
nationhood in 1871 and 1848-70 respeotively. The new 
principle of self-determinationi was particularly discerni- 
ble , in the Italian union where some of fhe smaller 
states were actually' asked to select their government 
by plebiscite. Greece, Eioumania, Sferbia, Bulgaria 
and Montenegro all achieved independence during the 
century. The Great War was fought largely on the '. 
principle of nationality, and the variouisi Peace Treaties 
have solved the remaining questions. Alsace-Lorraine' 
has been returned ; toi France ; Poland again is 


independent ; tlie various subject nationalities oi Austria- 
Hungary areiBitlier given independence or are allowed 
to join tkose witk whom they have politicalandinational 
afiSnitiee. i 

6. "One J^ationalitt, One State." 

Onei of .the most common characteristics in modem 
nationalities is the desire to become nations, or to be 
incorporated in independent states. Their common 
ideals, it is said, require a common organisation to give 
them reality. The extreme formula of this idea is "one 
nationality, one state." iH i-; •, 

It is impossible here to do more than mention a few 
leading considerations arising out of this doctrine. In 

the first place, the rights of nationalities are 
Rights of not absolute. "No pationaJity has a right 
Hies. to dismember the state of which- it is a 

part, unless that state so cramps the 
members of the nationality that the continued existence 
of the nationality and its traditions is threatened in 
such a ^ay as to impair the moral lives of its members. 
All national claims are conditioned by the paramount 
claims of^tlie state of which the nationality is a part, but 
the claims of the state may be of such a nature as to 
make the continued existence of the nationality im- 
possible.' In sitch a case the ultimate issue may be force 
The ultimate justification of state and national rights 
alike is the common good, and in a struggle of 
nationality aild> state the result is to be judged with 
reference to that. 

In the second place, while some nationalities may be 
vigorous, enough in themselves to resist the influences of ■ 

others, that is, strong enough to preserve t'aeir 
Absorntion national identity, others tend to be absorbed 
fties.*'"*"*'"' by stronger neighbours. A_ more advanced 

or stronger type of civilisation tends to 
swallow up a weaker. The attempt of the Gennans to 
subdue the Poles by settling Germans on Polish terri- 
tory so far from succeeding ■ actiially resulted in many 


of the , Germans becoming- Poles. The Polish nationality, 
instead of being absorbed, proved itself capable of 
absorbing, others. The same is time of the French in 
Alsace-Lorraine. But in Germany itself are smaller 
sec^tions of non-Germans .called, the Wends, who can 
scarcely be said to be sufficiently strong to establish a 
state on national gi-ounds. They will be absorbed by 
the stronger culture around them. In Amei'ica _and 
'New Zealand potential nationalities in the Red Indians 
and ^Maoris 'have been absoibed by their more viiile 
environment, with a di.stinct gain to the general forces 
cf civilisation. A similar process is observable in India, 
where the primitive tribes tend to be absorbed by the 
stronger civilisations around them, e.g., the Santals by 
the Bengalis. 

The process of absorption is most observable in the 
Fnited States of America, into which annually pour 
many thousands of immigrants from Europe. In most 
cases these new-comers preserve tlieir nationality but 
in the second generation they fuse with tihe Americans. 
It is,, therefore, most difficult to say whether any 
given nationality deserves statehoodv Underlying all 
■political life there is the moral and social ideal of the 
common good. This common good is really the 
criterion of national life, and, as the view of man is 
limited, it is impossible to say • with any finality whether 
the incorporation of a gi'ven nationality in a state is for 
the common good. Most thinkers look forward to a 
final unity of mankind. That unity: must be a unity of 
various types and qualitie.s. Diversification of elements 
gives a fuller meaning to the unity; on the otlier hand 
too great a diversity may destroy or prevent the unity. 
In the third place, the so-called rights of nationalities, 
apart from the difficult question of " one nationality, one 

state ". ai-e (1) the right of each nationality 
fthgtnl of to its own language ; (2) the right to its ow» 
iifes'*"*'' customs; (3) the right to its own institutions. 

These ri.ghts, as we have shown, are not hy 
any means absolute. Language, combined with political 


Gommuaity, is one of the inost necessiary elemenits iu 
riationality. But it is questioiiable how far national 
l&nguaj^'fis Bhovild be fosteted. As a rule each lang'uage 
has certain qitalities which g-ive it a claim for existence. 
Thte song' literature of one; 'the music of another, the 
peculiar metliod of ^ exprewsion of another, the interest t" 
the Comparative Philologist and Anthropolbgist of them 
all: tJhesemay be excellent i^laims to existence, (hi the 
other hand, it may be argued that the erectiou 
or perpetuation of linguistic barriei's does not 
serve the well-being of humanity. The common 
aims and ideals of Uiankind are best appreciated when 
they are understood through the same tongxie. At the 
present -uH)melit, on 'the 'one hand we hear of the 
rights of nationalities ; to their own speech, and. 
the differences of peoples by the institiition of a common 
language. The artificial' fiVsteriiig of language as a 
ng,tional eleinent is a jiarticularly questionable policy. 
Languages, like <uilturps. are absorbed by stronger 
neigli hours. Gaelic, for example, is practically dead in 
Scotland, though, as a, language it will continue to be 
studied for its literature and philology. In India, there 
are several hundreds of languages, and it is questiona-ble 
whether all' these languages should be encouraged 
to become living languages for national groups. Even 
now there is a strong inovement in India ^h favour of 
a single, languag'e and alphabet. The same is true pf 
customs and institutions. Higher civilisations, without 
objection from the advocates of the rights of nation- 
alities have siippressed . customs and institutions 
in lower civilisations which they regarded as 
evil. Sometimes national customs are suppressed for the 
salvation of a state in which the -nationality is either 
pi'oving dangerous or is hindering development. Such 
for example was the cause of the siippression of the 
wearing of the kilt, the national dress of the Scottisli 
Highlanders, by the Earl of Chatham, after iihe Stewart 
Rebellions in Scotland. It cannot be said that the 

4S yoL^TiCAL. s,giEN;<?:p. 

suppression injured Sc,o,1;land, whj^e,.,it helped iai^tlie 
'^unification, of Great Bi^i^in- 

In the jfpujtb place, in the modern world, deyelop- 
inent is taking place., in; two .■ opposite direottiong:— 
nationalism .iani. internationalism. Many 
'"nli"m' thinkers considep th^ final solution of world 
" '* ■ politics to lie in fedeTalism.. Federalism is an 
attempt to recpiicile two opposites — local independence 
and central government over. a large area. The claims 
'of nationality may be satisfied by federalism, aiform,_o* 
government which may be a solution to the difficulties 
of 1both nati,Qnalism and interiia.tionalism. 

It is impossible, therefore, to lay down any hard-and- 
fast mles„ or principles. Rights , exist in the. state, 
which is ifounded on the common ;^elLbeing of man, and 
the only general principle which , w,e can extract from 
the many-sided question, p| na,tionality is that_ nation- 
ality, with national language, cus;tom8, and institutions, 
is lo be fostered only in.sp far as it 'is conducive to. the 
common well-being. ' ,, . 

7. The Oeganic NATtrBE of tiie State. 
We have already seen, that Bluntschli mentions the 
organic nature of the state as one of its essential 
characteristics. T,he; , state is a Hying 
'Analog/'" organised ' entity, not a lifeless instrument. 
Biuntscfiii's Its organism, he says, is a copv of a natural 
Opinion. p. ' :. IT- ii J? 11 • 

organisni, particularly m the touowmg 

respects : — , , , , , i ' 

(a) Every prganism is a unipfn pf , spul an(J body, i.e., 
oi material elements and vital forces. 

(6) Although an organism is and remains a whole yet 
,in its parts it has members which are animated by 
special motives and capacities, in order, to satisfy in 
various ways the Varying needs of tbe w^olei 

(c) The prganism deyel,9ps itself fa'om within out- 
wards, and has an external grpwth. ,; .,: 

He goes pn tp shpw, hpw there is a .body and sp^^^t 
in the state, how it is organisd with different fimctions 


in its members, and liow it grows and developes. He also 
ascribes to it a moral and spiritual personality, which, 
in contrast to the feminine church, is masculine,. 

The organic analogy is a, very oldi one, in fact it is one 
of the commonest comparisons in Political Science. 

It has, howeTer, come to the foreftront since 
. the appearance of the theory of evolution. It 

appears in ,Plato, and in Aristotle, who com- 
pared the symmetry of the state to that of the body. 
In mediaeval writers it is particularly prolific, and like 
most of the theories of that age it was used as a polemical 

Mankind as a whole was regarded as an organism. 
This idea of organism, clothed in the religious 

language of the day, was based on St. Paul's 
Use of the statement tlhat the Church was a mystical 
7he* MfdttTe hody whose head was Christ. Church and 
Ages. State each adopted the idea, the imperialists 

holding that the Emperor, and the eccle- 
siastics that the Pope, was the head in this world of the 
mystical body. As obviously a two-headed organism 
was unnatural some thinkers held that there were two 
bodies, each with its own head, and both part of a greater 
body whose head was God. From this was concluded that 
instead of being mutually exclusive the Empire and 
Church should live together in amity, as they were 
really parts of one whole. Others used the analogy 
to discredit the stiate. The soul and body were the 
counterparts of the Church and Slate, and as the soul 
is greater than the body so was the Church grieater than 
the State. Not only were the Church and Empire 
compared ,to organisms but the analogy was used for 
individual groups and states, and even in these early 
writers we find excesses of analogy such as occur later 
in the worl5;s^ of Herbert Spencer. ITevertheless, in spite 
of many crude comparisons, some of the mediaeval 
writers sliow a verj' reasonable use of the analogy. 
John of Salisbury, a twelfth century ecclesiastic and 


philosopher, lield that a well ordered constitution 
consists in the proper apportionment of functions to. 
members of the body and in the proper condition and 
stfength of each member. The members, (he said, must 
supplement eacih other, and as the body is joined to the 
head so the unity of the state depends on their 
coherence among themselves and with the head. 
Another writer, Ptolemy of Lucca, starts his delibera- 
tions on political matters thus — " For as we see that 
the body of an animal consists of connected and 
co-ordinated members, so every realm and every group 
consists of divers persons connected and co-ordinated for 
some end." This is a perfectly orthodox modem view. 
Other well-known mediaeval writes, such as St. 
Thomas Aquinas, Ookham, and Marsiglo of Padua f>ive 
the analogy. Ideas which are still very common were all 
voiced then. The idea of m«'mberahip, for example, was 
develpped to show th« place of the individual in the 
various political and ecclesiastical groups. Growth, 
development, differentiation of function, the existence 
of the nervous system, and other points were used for 
various purposes, the common centre being the Church 
and State controversy. 

Passing from mediaevalism to the modem world we 
find tike analogy common property. MachiaVelli uses it 
with great effect on occasion, while one of 
Hs Modern ^^^ most trenchaht chapters in Hobbes's 
History. Leviathan (entitled "Of Those. Things Tliat 
Weaken or Tend to the Dissolution of a 
Oonjimonwealth *') carries out a tJaorough-going parallel 
between the diseases of the body and the weakness of a 
commonwealth. "Amongst the infirmities of ,|a Com- 
monwealth 't will reckon in the firgt place, those 
that arise from an imperfect institution and resemble the 
diseases of ' a natural body which proceesd from a 
defifeetttous procreation." And he goes on to speak of 
the equivalents, in the Colnmotl'ttrealth, of boils, scabs',' 
and, wens in the bddy organic, as Well-as of pleurisy, agtie, 
and lethargy. 


The most elaborate modem analogy between tbe state 
and the liTitig organism has been given by Herbert 
Spencer. A brief exposition of his theory will show 
both the virtues and weaknesses of the analogy. 

Spencer holds that society is an organism. The 

attributes of each are similar. The permanent relations 

existing between their various parts are the 

I*?*™'", same. The first point whidh makes society 
of Spenoer 8 > • . 1 1 « i • • in 

Thmry. an organism is its growth. A livmg body 

grdws and develops : so does society. The 
parts of each become unlike 'as the bodies grow, and as 
they become unlike they become more complex. There 
is a progressive differentiation both of structure and of 
function in society, but this differentiation does not 
mean separateness. The functions are inter-related, so 
much so ill fact that they can have no meaning other- 
wise. Just as the hand depends on the arm and the arm 
on the body and head, so do the parts of the social 
drganism depend on each other. Every living body 
depends for its very life on the proper co-ordination and 
inter-relation of tbe units. The life of society depends on 
exactly similar conditions. Another point of comparison 
is that in each case the life of th« whole may be 
destroyed without immediate destruction to the parts, or 
the life of iihe whole may be continued longer than the 
lives of the units. But betveeen the two there are points 
of difference. The parts of an animal body form a 
conetete whole but in society there is no concrete whole. 
The parts are sepai'ate and distinct. Teti the social 
organism is made a living whole by means of language, 
which establishes the unity which makes social organisa- 
tion possible. The cardinal difference between the one 
and the other is that in a living body consciousness is 
coa<;©ntrated in, one definite part of the whole : in society 
it is spread over the wiiole. Hence, argues Spencer, not 
tblB good of ike whole but only the good of th« units i« to 
be sought' in society. (This is the basis of Spencer's 


Spencer .goes on to show how society grows and 
develops like a living body. Both begin as germs, 
and, as they grow, they become more complex. The 
stnicture which they finally reach is, far more compli- 
cated than the simple unit from which they develop. 
In the body politic, as in the body natural, growth goes 
on either by simple multiplication ofi units or by union 
of groups. Society never reaches any considerable size 
by sirdple multiplication : union of groups makes larger 
societies. Integration takes place in society as it does 
in the animal body in the formation of iSke mass : it also 
takes place in the simultaneous process of the cohesion 
of the parts making up the whole. 

Spencer gives a number of structural analogies 
between society and the living organism. Each has its 
organs — the animal its organs of alimentation : society 
its industrial structures. Just as in animals of low 
types there is no real organ, but only a number of parts 
acting as an organ, so in social development there is a 
primitive stage where each man carries on his work alone 
and sells his produce to others. Then in the course of 
evolutioii, comes the cluster of cells, in the animal ; the 
social parallel is the group of families clustered together 
in a fixed locality where each does its owu; work. Then 
as the developing animtil requires a more active 
" glandular " organ, so society passes from the household 
to the factory type. The analogy again is evident, in 
the functions the living organism and society perforni, 
A simple animal if cut in two will live on as 
before : so a simple form of society, and as a nomadic 
tribe can easily Ibe divided. But to cut a highly 
organised animal (as a mammal) in two means death. 
Likewise to cut the county of Middlesex off from its 
surroundings would mean death, for the social processes 
would be stopped by lack of nutrition or supj^ieB. 
Again, increase in the development of animals means 
increase in the adaptation of particular organs for parti- 
cular functions. So ailso specialisation takes place in 
society, and specialisation in each, while it impliea 


adaptation for one duty, means unfitness for other 

In the social as in the individual organism there are 
various systems. These are (a) the sustaining system, 
(h) the distributory system, nnd (c) the regulating system. 
The first constitutes the means of alimentation m the 
living organism and production in the body politic. Just 
as the foreign substances which sustain the animal deter- 
mine the alimentary canal, so the different minerals, 
animals and vegetablesdetermine the! form industrialism 
•will take in a given community. The second (distri- 
butory) is the circulatory system in the organic body: 
in the body politic its parallel is transportation. The 
vascular system in the body has its social equivalent in 
roads and railways. The third, the regulating system, 
is the nei-yous and nervo-motor system in the animal; 
in the body politic it is the governmental-military. 

The organic analogy in Political Science performs a 
useful function. It emphasises the unity of the state, 

the dependence of individuals on each other 
critioism : and on the state as a whole. The individual 
oangsrs^of" PToperly understood is not an individual 
the Theory, in the sense that he is distinct from society. 

Each individual is essentially a social unit. 
He cannot be separated fi'om society, just as the ihand 
or leg, without losing its virtue, cannot be separated 
fk)m the body. The state also depends on the indivi- 
duals composing it. So far the organic idea is invaluable. 
It points out the intrinsic connection of the individual 
■with the state and the state with the individual. The 
analogy, again, if properly used, is harmless. One can 
no more object to a writer saying that the state is like 
a body than he can to the common analogy that the state 
is like a buildiipg. ' 

The dange;r of the analogy lies in the qualification 
"if properly used." The analogy has been used with 

various degrees of thoroughness for 
•a1 Effects various purposes. The writers ot th^ Middle 

Ages used it to prove important points in 

not Proof ^" 


practical policy; and (sucli was the .condition of 
opinion of the times) their contentions had far-reach- 
ing practical effects. Herbept Spencer uses it as a basis 
for individualistic theories. He declares that the unit 
in society is " discrete " and exists for his own gopd only, 

Spencer, however, recognised the limitations of the 
analogy in theory biit in his enthusias^m in wording out 
hjs theory the analogy became identificatiow. 
The chief fault of the orgsinic analogy is 
that it is an anajogy, An analogy is 
not a proof. Many essential features of the human 
body are not obvious in the^ body politic. The 
assimilative and reproductive powers of animals have 
no counteirpart in the state. The state cannot 
react to stimuli in the same way as a living body. 
It does not grow, live or die in the same way. Organisma 
grow by internal adaptation : but the state grows by 
accretion of new parts, or by conscious effort on the 
paJft of its componenti elements or individuals. This 
points to the 'crux of the. T" hole position, An animal 
body is made up of individual cells, non-thinking units, 
ineapable of action independent of ttie body. Society is 
composed of thinking units, capable of exercising will 
aiwJ of acting according to chosen ends. Their a,c|;iQn is 
the action of conscious purpose : the a' ipion of, cells is 
mechanical and unconscious The state has thus no 
equivalent to many of the most characteristic points of 
the organism. And when we take into consideration the 
phenomena of diplomacy, declara-tipn of war, and 
making. of peace (involving "growth") the analogy is 

Turtfaer, as already pointed out, cells cannot live 

away from their body. Individuals are likewise all 

"social" or "state" individuals by naturg 

Rw5'its%« ^^^ .^ cessity. So far the analogy, in 

th« Th^»ry. pointing out the intrinsic oonnection between 

society and the individua,l, is good. But to us© 


the analogy in its mos' thorough-going applica- 
tion may mean either (1) as Spenoer sa.ys, that the 
individual must seek his own happiness indepen-< 
dently of others because, while the organism is concrete, 
society is discrete. In this way Spencef, ■ while 
allowing certain bonds of unity in -society, denies 
the intrinsic relation of tho individual to society. In 
common with most individualists, he desocialises the 
individual because he finds no single ' nerve sensorium ' 
in society. To do so is to nullify what merits 
the organic analogy possesses; for though there 
is no actual physical body which we can point 
to and call the "state" or "society" yet the state 
is a very real entity. The individuals in a state, we may 
say, are organically bound together by common purposes 
and ideals. Or (2), it may mean that the individual is so 
bound to the state that he is, as the ancient Greek citizen 
was, a purely state-individual. All his activities are 
centred in and conditioned by the state. These two 
extremes of the theory point to its danger. Dr. 
Leacock's chief objection to the theory, rises from this 
"Too great an amalgamation of the individual and the 
state/' he says, in his Elements of Politics, "is as 
dangeKius an ideal as too great emancipation of tihe 
individual will." The organic analogy emphasises 
unity, indeed, but too often at the expense of diTeiirsity 
or variation. 

Dr. Leacock also points out that it furnishes no 
criterion of conduct. "The organic theory in telling 
No cnt«r- ^^ ^^Sii our institutions grow and are not made 
ion •! hardly offers a practical guide to political 

conduat, conduct." It might lead to an inactive 
fatalism; but certainly to no sound theory of a political 
ideal realised by conscious Lf«rd effort. 

Further, the analogy, when carefully analysed, proves 

to be only partial. One of the cliief points in the 

analogy is the interrelation of whole and 

Ana'iylfs. parts. This is true of the state and of 

organisms : but it is true of inorganio objects 


as well. The parts of a state Eave a relation to the 
whole and the whole in idea is prior to the parts., 
BluntschK says " An oil painting is something more thau 
a mere aggregation of drops of oil and colour ; a statue 
is something other than a combination of marble 
particles ; man is not a mere quantity of cells and blood 
corpuscles; so +00 the nation is not a mere sum 
of citizens and the state not a mere collection of 
external regulations." Bluntschli's own comparison 
applies to the inorganic. The notion of continued 
growth is as true 'of an inorganic fire as of an organic 
animal. Why then' it may be asked should these qualities 
ofi growth, etc./ be called organic if they are also 
characteristic of inorganic objects? 

Some scientists and philosophers (^such as Kant) 
regard the organism as implying! a oertam end, which is 
the condition of its present state of development. The 
state is also said by Aristotle to be an end, and to be 
prior to the individual, but. modern science, while it may. 
grant that the organism fulfils a certain end, does not 
regard that end as prior in intention to its fulfilment.: 
The organism is adapted to its environment and fulfils 
certain functions in relation to that environment, but 
its adaptation is due to natural causes, not to precon- 
ceived ideas. Not only so, but these analogies of end 
and purpose apply to human intelligences, and therefore, 
are taken from human society and applied to the. 
organism. To reflect an idea from society to the 
organism, and then try to explain society by the analogy 
does not help us. ^ ■ , 

To sum up, the organic analogy isi useful in bringing 
into prominence the fact that ,'the state is not a 
mechanical,, unity.. It brings out the 
Conclusion, essential unity, of the state, the differentia- 
tion of functiohs in , government, and the 
mutual interrelation of citizens. - Applied beyond these 
simple comparisons, however, it is illogical and mis- 
leading. Though the analogy seems clear at first, ' a 
closer analysis makes its usefulness less obvious. Some 


of the most applicable points of likeness to the state 
in the organism are those eiliher which hiological 
science does not admit or which are ultimately taken 
from society itself. Common purposes, acting on 
human minds, keeps society together. To explain tihe 
action of mind by an analogy with the non-intelligent, 
to explain moral action by what is non-moral, beyond 
the general limits indicated, only leads to confusion. 



1. Genekai Eemaeks. 

An investigation of the origin of the state gives us 
two distinct lines of study — one historical, the other 
speculative. How this or that state came 
Enquiry.' ii^to existence is a matter for history. 
History tells us the various ways in which 
governments come into being or perish; but it does not 
tell us how mankind originally came to live under state 
conditions. Did history extend back to the beginninj? 
of society, our enquiry would be mainly historical. Of 
the circumstances surrounding the dawn of political 
consciousness from history we know little or nothing. 
Where history fails us we must resort to speculation. 
Many theories, each of which has something to commend 
it, have been advanced to explain the origin of the state. 
At the present time the evolutionary or historical theory 
finds almost universal support : but finality of judgment 
is difficult. In the last few ^ears much has been done by 
the sciences of Anthropology, Ethnology and Compara- 
tive Philology towards the elucidation of the question, 
and, as these sciences are only in their infancy, great 
discoveries may await them in respect to this particular 

The sacred veil which Burke says is drawn over the 
earliest types of government has not been lifted by 
history. Long before historical documents existed 
tribal and national characteristics had been formed, and 
even the first stage of political society — the relation of 
command and obedience — ^had passed. Aristotle thinks 
that the Cyclopes illustrate the earliest type of actual 
political society. A description of the Cyclopes is 


given in the Ody»eey^ The Cyclopes had no assemblies 
and no laws. Eaeh- man made laws for his wives and 
children, and, says Aristotle, they lived " dispersedly " 
(i.e., with no fixed abode or institutioAa) "as was ihe 
manner in the earliest times." This Cyclopean 
existence is somewhat similar to the hypothetical " state 
of nature " which has appealed to so many thinkers. 
Unfortunately it does not explain to us the origin of 
political society: it do^s not sihpw how political 
consciousness first evolved and tooi actual fprm. The 
Cyclopean society is a form ojE organisation : it does not 
explain its pwn origin. It marks a stage in political 
development. ' 

An enquiry into the origin of the statp leads us to 
some of the fund{unental problems of Political Scieuce, 
or, particularly, of Political Pbilosopiy, &)r which 
history gives us only certain material for induction. 
Anthropology, which collects, arranges, and explains the 
many farts concerning social institutions, i^ even more 
helpful in this respect than history. 


The best cl^issification of historical formations from 
«iuntsohii's *^^ point of view of their origin is that of 
ciassifio- Bluntschli. He gives three main classes of 
*»'""■ historical forms:— ' 

I. The original formation of the state, where it 
takes its beginning among^ a people without being 
derived from already existiug states. 

II. The secondary forms, when the state is produced 
from within, out of the people, but yet in independence 
upon alread5r eSisting states, which either unite them- 
selves into one or divide themselves into several. 

III. The derived formation of the state which 
receives its impulse and direction not from within "but 
from without. 

It is necessary to remind the student in this 
connexion that a change in the fo3?m of government in 
state is not a change of the state. "Where, for 


example, a monarcliical system is replaced by a 
republican, the state continues though the form of 
government is cbaniged. ■ ' _ 

These main classes are subdivided by Bluntschli in 
the following way: — 

I. Original, 

1. Creation of an absolutely new state. — ^This takes 
place when a number of people, coming together on a 
definite territory, gather rouid a leader or leaders, 
(often religious) who fortlnvith establish statutes for the 
approval of the people. The creative act of the leader 
or king and the political will of the people form the law of 
state. The state is the work of the cbnscious national 
will. An example of this process exists in the legendary 
origin of Rome wfiere, according to the story, the 
people, coming together in the city of Rome, 
consciously created a state. The historical authenticity 
of this is doubtful. 

2. Political organimtion of the inhabitants of d 
definite territory, where the people, though gathered 
together on a definite territory, may not yet have organised 
theinselves into a political society. — Thev organisa- 
tion of the people in this case leads to a state. , An 
example is Athens, where, according to the legend, 
the hitherto unorganised people were organised by 
Theseus, who concentrate]i the government in Athens. 
Bluntschli cites also the example of California in the 
United States of Anaerica. In California, in the first half 
of last century, aitraoted- by the gold mines, a big 
population of all sorts of people gathered together. In 
1849 they elected representatives to a constituent 
assembly which drew up a constitution for the state. 
The common will of the whole populaition, not the will 
of particular individuals, established the state. 

3' Occupation of territory by an already existing 
nation. — In this case a nation already in existence 
occupies land necessary to its continued existence* 


The most foequent from' tliiis takes is conquest, 
examples of which abound in history. Another form of 
occupation is the peaceful settlement of a territory, as 
in the case of the Pilgrim Fathers. In similar cases it 
is usually superiority of civilisation, not force of arms,, 
that conquers. 

II. SecOndaht Fohmations. 

(1) Formation ■ of a Composite State by a Leac/ne 
between iStates. (2) Union. (3) Division. 

(1) Of the CoBaposite state Bluntschli gives three 
types — _ _! 

(or) Confederation, where several hitherto independent 
states unite for certain purposes, but do not make a new- 
state. In a confederation the units are free to with- 
draw if they wish, , The managemeint of common affairs 
is given either to one member of the union or to an 
assembly of delegates. 

(b) Fedferation, where hithierto independent states 
uiiite in making a new state. In a federal union the 
"states" are not sftates properly so-called, as they do 
not possess sovereignty. Federation is the most 
tiomplete type of ''union. 

(c) Bluntschli gives federal empire as a third class, 
the example of which is Grermany (before the War). 
Both confederations and federations are best fitted for 
Republics, he says, and as Germany differed from them 
in having a monarchy tvith kings at the head of states, 
and in the predominance of Prussia, he puts the German! 
Empire in a distinct class. 

(2) Union. — Two or more states may be united uiotder 
one ruler, or a single new state may be f&rmed. The 
lowest and more imperfect union of this kind is 
(a) Personal Union where two hitherto separate states 
may come under one dynasty by succession. The 
succession may later fall to two different persons — the 
imion nover being very real. , 


(b) Real Union. — In this case tlie supreme goveru- 
ment in legislation and administration is one for tihe 
constituent elements of the union. 

(c) _Co7nplete Union. — Thje highest type of, union is 
where a composite a^^d single gtate is formed. * 

(3) Division. — (a) National Division where previously 
there was a bond but where the bond has decayed, e.g., 
in the Empires of Alexander, Charlemagne and 

(6) Division by Inheritance. — This took place fre- 
quently in the middle ages when the feudal idea 
preva,iled that the king was owner of the land and could 
do with it as he liked. 

(c) Declaration of Independence, as in the case of 
United Provinces of the Netherlands against Spain in 
1579, and the United States of America in 1776. 

III. Derived Formations. 

1. Colonisation, (a) Greek, where the people went 
from the mother state and consciously formed a new 
state independent of the mother state, but preserved the 
same manners, government, and religion. 

(6) Homan, in whicli the colonies were in s.trict 
dependence on Bome. They were really extensions of 
the existing state. ., 

(c) Modern, of various types. 

2. Concession of sovereign rights, which is an exten- 
sion of the colonial idea, as in Canada, Australia, South 
Africa, and the Philippine Islands. 

o. Institution by a foreign ruler, as vhen conquerors, 
like Napoleon, set up states. 

We shall have to return to a more detailed analysis of 
several of the types of historical formations given by 
:^luntschli. These historical types do not give us the 
origin of the state as such, as distinct from the 
.origin of any given state. To discover the origin 
of the state as such, we have to resort largsely to 
speculation. The historical ladder of development 


ifl defective, but by using the material, ofiten sbadowy and 
usually very delba/teable, wMcli sociology, liistory and 
antkrppology give us, we can with a fair measure of 
certainty build up a reasonable theory of the origin of 
the state, lliis theory is generally known as the 
Historical. or Evolutionjiry Theory of the origin of the 



Before stating the, Hisioncal Theoiy we must first 
examine certain theories which, though now rejected, 
have held great influence on political development as well 
as on political thought. These theories are three in , 
number — 

1. The Social Contract Theory. 

2. The Theory of Divine Origin. 

3. The Theory^ of Force. 

Though these theories are now practically universally 
rejected, a study of them is valuable for more than one. 

reason. In the first place, these theories 
value of represent an attempt to solve the fufljiainental 
Thaori*!.'* questions of both how and why the state 

came into existence, and each contains some 
iinportant truth. In the second j place, each of these 
theories has had considerable influence on actual 
political practice. Many of our , modem political 
institutions can be properly understood only wben 
examined in relation to tke political ideas current at thie 
time of their inception. Political theory and practice 
are closely related. Sometimes political ideas definitely 
lead to cbanges in old institutions or tbe creation of new 
ollfes. The theorist comes first in this ciise, while the 
practical refonnei* caiTies out wlia£t is theofetieally 
desirable. Sometimes the opposite course ^s fttUtiWed. 
Political changes hsfppen, especially Sudden political 
changes, with no reasotoed basis. Actual events in this 
case are followed by theory. 


' The Social Contract Theory has played such an 
important part in modern political theoty and practice 
that it demands treatment at considerable 
The soeiai length. In the theory there are two funda- 
Theory? mental ^ssumptidns — ^first, a state of nature, 
second, a contract. The contract, again, may 
mean either (a) the social or political contract, which is 
the origin of civil society, or -,(6) a governmental 
contract, or agreement between rulers and subjects. 

The state of nature is supposed to be a pre-political 
condition of mankind in which there was no civil law. 
The only regulating power was a vague 
of'^Na'tuVe. spirit of law" called natural law. There was 
no law of human imposition in the state of 
nature. The views of writers vary greatly as to the 
condition of man in such a stat«. Most writets picture 
it a state of wild savagery, in whidh the guiding principle 
was " might is right." Others think of it as a state of 
insecurity, though not of savagery; some consider it to 
have been a life of ideal innocencfe and bliss. 

The contrabt is interpreted in various ways, accord- 
ing to the theory which the individual writers wish to 
establish. Some writers regard the contract 
Contract.*' *s t^^ actual historical origin of civil society ; 
others look 'upon it as a goyernmenMl 
contract, made betweeii :^ulers and ruled. Some regard 
it as historical, others take it only as a basis or emblem of 
the relations which should exist between government and 
governed. The main idea of the contract as' the origin 
of civil society is a surrender by individuals of a certain 
part of their "natural" rights in order to secure the 
greater benefits of civil society. Man, conciously and 
voluntarily, made a contract, whereby the free play of 
individual "wills, was given up to secure ,t}i.e advantages 
of social co-operationr For the surrender of his natural 
rights each man , received the protection of the 



The Contract theory is first found in the Sophists, a 
school of Greek Philosophers who lived before Plato. 
In Greek j? -^^^ P^^^sophy of the Sophists a sharp 
Philosophy, distinction is made between nature and 
convention. This distinction they applied to 
society. The fundamental principle of human life, the 
Sophists said, is self-assertion. Man's nature is such that, 
if he is not hindered by social institutions, he wiU seek 
his own interests. His true nature, however, cannot be 
fulfilled because of conventions, that is, social institu- 
tions. These social institutions curb the natural play of 
human activity, and, as such, are wrong. The state is 
a barrier to self-realisation, and, therefore opposed to 
nature. It is a result of contract, or a voluntary 
agreement between men. ' 

Both Plato and Aristotle mention the theory only to 
repudiate it. In the Republic Plato represents one of 
his philosophers, Glaucon, as attributing the 
AhsJottel" ^^^^ origin of political society to a contract. 
Each man, he says, tries to get as much as he 
can for himself, but to escape such individual self- 
seeking and its consequences men formed a contract, 
which, according to Glaucon, is the criterion of law 
and justice. In another book, the Crito, Plato gives the 
arguments used by Socrates against those who triad to 
effect his escape flrom prison. Socrates says that, as he 
is an Athenian citizen, he has made an agreement to 
obey the laws of Athens even though he considers them 

JN'either Plato nor Aristotle has any sympathy with 
such views. They are, they hold, essentially unsound, 
and after two thousand years, during part of which 
the Contract theory ruled supreme, the modem world has 
reverted to their position. 



The Epicurean philosophers, though in theory they 
professed to have no dealings with \the sta.te, offered the 

Contract theory as an explanation of justice, 
Epioiireans. ^°* ^^ the origin of the state. Epicurus held 

that right is only a compact of utility which 
10 en make not to hurt each other in order that they be 
nolt hurt. There is no such thing as justice in itself. 
It exists only as the result of mutual contracts. There 
is no justice where, as in the case of animals, there is 
no contract; nor, therefore, is there justice where men 
either cannot, ox are unwilling to make contracts. 

Except foE occasional aippearaaces, as in the works of 
the Latin poet Lucretius, the Social Contract thieory was 

not revived for many centuries in the W«et. 
Fatherk""" In the East the theory appeared in Hindu 

Sanskrit li'^erature,, in books such as the 
Mahabharata. It is not clear that, in the West, the 
later and earlier theories are connected by more than 
chance. After the foundation of the Christian Church 
political thought was dominated for centuries by 
religion. The early Christian Fathers held that govern- 
ment is the result of sin, and, therefore, an evil. God 
imposed civil society on mankind because of man's fall. 
Such a theory gives no room for the exercise of man's 
will which is necessary bo a. contract. There were,, 
however, influences at work during the eiarly centuries 
o£ the Christian era to bring the idea of contract to its 
fruition. One of these influences was in the Church 
itself. The Bible, which was the criterion of truth to 
the Church Fathers, contained several instances of such 
covenants or contracts between the Lord and the people 
or between the king and the people. Thus in the Old 
Testament (Samuel II, v, 3) we read — " So all the 
elders of Israel came to the King in Hebron : and King 
David made a covenant with them in Hebron before the 
Lord; and they anointed David King over Israel." This 
and several other instances in the Bible gave the 
necessary support to the ecclesiastical, writers who 
wished to give a contract theory. The theory, however, 


had little vxigt^ as a political instrument, but it bore 
mnich fruit in the mamy ecGlesiastical councils of the 
middle ages. f 

The chi'ef influence in kfeeping ali-«^e the contract 
notion was Roman Law. According to Eoman Law the 
people was tte soiirce of political authority, 
2J""" and the predominance of the conception of 
contract in Roman Law was also not without 
its effect iit this matter. Tke Roman Emperor held 
authority from the people. " The will of the Emperor 
is law," said Ulpian, one of the greatest Roman jurists, 
"^only because the people confers supreme power upon 
him." This idlea was not only universal among the 
Roman jurists but latent in the thought of the tim«i 
From Cicero onwards the idea constantly recurs, not 
only as an idea in philosophical speculation but as an 
inherent element in the constitutional practice of the 
Roman Empire. In Cicero's work " On the Common- 
Wealth " We find fiie view that the state is the natural 
order of life, foimded on justice, with the aim of 
securing th'e common well-being. A state is no state, 
he says, where all are oppressed by one or a few, where 
there is no common bond of law, no real agreement ot 
union. Cicero looked on political liberty as indemti- 
cal with a i^are in political power. Common consent, 
common wiH, co*mnon power run through his thought, 
impTying, indeed almdst directly stating, the idiea 
of contract. 

Though the RoSian lawyers did not adopt the idea of 
liberty as ifieanting a share in a\ithority, they certainly 
regarded the people as the source of authority. The 
social contract as a definitely stated theory did not 
appear tUI the eleventh century, but Roman legal ideas 
contained' an undeveloped form of the theory. Consent 
is common to both the tlieory of Contract and to Roman 
Law, a^d,, if Roman Law does not directly express the 
theory,, it- certaialy furnishes one of the chief foundations 
on- which it wafi built. 


Another important influence in the development of 
the theory was the Teutonic idea of government. The 
Teutonic theory went further, than the 
Tiiutons. Roman. Tfot only did the King require the 
theoretical consent of the community for his 
election, but in actual practice he was under the law. In 
the Roman theory the authority of the ruler was 
derived from the people : m the Teutonic it was both 
derived from and continued under the people. At the 
time of their election the Teutonic kings practically 
made an agreement with the people, the chief article of 
which was the guarantee of good government. There 
are many examples of kings renewing their promises in 
cases where they thought the confidence of, the people 
had been shaken. 

Still another influence is to be found in feudalism. 
The feudal system was largely personal, yet there was 
a certain basis of contract between the lord 
and his vassals. The two principles of 
feudalism, loyalty to the person of a superior, ancl 
contract, seem mutually exclusive, but in reality they 
were not so either in theory or practice. There was a 
mutual obligation in the feudal system. Each side haiJ 
duties. The vassal performed certain duties on the 
understanding that the overlord performed others. 
'Further, in the feudal system the ruler was the owner, 
but gradually the notions of rulership and ownership 
were separated. Ownership was regarded as a contrac- 
tual relationship between owner and tenant, and 
rulership came to be looked on as a contract between 
people and ruler. 

Though/ the theory of the early Christian Fathers 
that civil society was the result of the Fall, held the 
field for a long time, gradually^ it gave way to the idea 
that the state was the creation of the will of the 
community. Influenced both by Roman Law arid 
Teutonic ideas, the Church leaders took up the position 
that God was a "remote" cause of civil society, the 
" immediate " cause being either the will of an individual 


i-uler or of a community. The chief current of 
opinion was in favour of the act of will on the part of 
the community, an act which was compared to the self- 
constitution of a corporation, although a corporation 
■was only a subordinate body in the state. 

The Church Fathers had never disputed the state of 
nature — in fact it was an accepted part- of their creed. 
Thus one of the constituent elements of the 
Th« state Social Contract Theory was already generally 
of Nature, current Natural law, as we shall see, was 
also an accepted fact. The Roman and Teutonic ideas 
were easily fitted to the notion of contract or consent; 
and it was left to the various theorists to draw what 
conclusions they wished from suoh premises. 

The first definite statement of the contract was given 
in the eleventh century by an ecclesiastic, Manegold of 
Maneeoid Lautenbach. Manegold regards the office of 
the king as sacred. It is above all earthly 
offices ; the holder therefore must be above all others in 
justice, goodness and wisdom. Though God is the ulti- 
mate origin of the kingly office, the immediate origin is 
the community. The people set the king over them to 
secure them against tyranny and wickedness. If the 
king, who is elected for such security, turns against the 
people by acting tyrannically himself, the people are 
freed from his rule, because he has broken the pact or 
contract on which was elected. The people may 
swear allegiance, but their oath is conditional on the 
king observing his oath to adminisjter justice and main- 
tain the law. These oaths are reciprocal : they consti- 
tute a contract, the breaking of which by one paxty leads 
automatically to the freedom of the other from its terms. 

Manegold's theorytis not an explanation of the (mgin 
of the state; it is an interpretation of currenlj constitu- 
tional ideas. _ The Social Contract Theory has always 
been used with some reference to constitutional theory 
6r actual political events. Its use as an explanation of 
the origin of political society is often secondary. Just 
as Manegold formulated the theory to explain the 


current position of ruler and ruled, Hobbes, Locke and 
Rousseau, several centuries later, used it to 'justify 
absolutism, constitutional government, and popular 
srf^ereignty respectively. 

From the elevemik century onwards tike theory became 
more and more aecepited, till in the sixteenth and 

seventeenth centuries it was universally 
HirtS?""' iield. The aims of those who supported' the 

theory varied giteatly. Some used it to 
support absolutism, some to support the liberty of the 
people. Only a few give it as an explanation of the 
origin of civil society. Among the many exponents of 
the theory we may mention Languet, the supposed 
author of the Vindiciae Contra Tyrannos, or the 
Grounds and Hights against Tyrants, 1579, one of the 
' earliest of the modem systemaliic treatises aooepting tlw 
contract theory; George Buchanan, the Scottish 
Reformer, whose On the Sovereign Power among the 
iScots wsiB also published in 1579; Althusius, the German 
jurist, whose Systematic Polities (1610) gives a wonder- 
fully modem position, showing a clear appreciation of 
the distinction between state and govemmeni; 
Mariana, a Spanish Jesuit, whose anti-monarelue 
doctrines in On Kingship and theEdmeaImn of a King 
(1599) are surprising considering his environment — \s> 
was a Catholic in the most absolutist country in Europe — 
Spain; Suarez, also a Spanish Jesuit, who, in hi» 
Treatise on Law and God the Legislator (1613), starts 
by giving a theory of popular sovej^ignty akin 
to -that of Rousseau, but proceeds to argue that the 
people in virtue of their sovereignty give supreme power 
to the king; Grotius, the Dutch jurist, foivnder of our 
modem International Law, who, in his Law of War and 
Peace (1625), followed the absolutist theory of Suareg; 
Ptifendorf, the German phUosqpher, whose wiosrk 
On the Law of Nature and of- Nations, is., an 
attempt to reconcile the doctrines of Groitius and 
Hobbes; Spinoza, the celebrated philosopher, wlo 
argued for individual liberty on practically the'sama 


f rounds as Hoboes did for absolutism, in his Th^ologitnf 
Political Treatise (1677). Amon^ English wxitera 
accepting the theory ma^ be meatuMoied; Hooker, i^ 
author of the Laws of Ecclesiastical PoUty. (Ibdi), wio 
gives the first definite statement of the theory in 
English. Hooker, a clergyman, set out to defend the 
Church as established in England, and in its defence he 
made an ana-lysis of authority in general. He conclude? 
that authority depends on consent. His arguments 
are founded on the state of nature and the social contract. 
The poet Milton in his Tenure of Kings and Magistrates 
(1644) tries to show that ultknately political power 
rests with the people. Filmer, an English seventeenth 
century royalist,' whose antagonism to the contract 
theory led to John Locke's Treatises, and Hume, the 
celebrated philosopher, whose essay Of the Original 
Contract is one of the most telling attacks on th** 
CJontract theipi.v, are both opponents of the theory. The 
views of three writers on this subject demand special 
atrt-ention — Thomas Hobbes (1588-1679), John Locke 
(li632-1704), both Englishmen, and Jean Jacques 
Rousseau (1712-1778), the French writer. 

Hobbes's theory is expouadied in his Leviathan, 
published in 1651. Hobbes lived in the stirring times 
Hobbes °^ ^^^ great Rebellion and the Clommon- 

wealth. '^.e was much affected by the 
miseries caused, in England by the Civil War, and 
concluded that the salvation of the country lay in 
an absolute system of government. Adopting the 
current theory of contract, he started from a state of 
nature in which man was subject to only one law — the 
natural law of self-preservation. The state of nature 
was a state of savagery, where every man was ei1«her 
trying to kill, or in danger of being killed by his 
neighbour. Man's life was, as he says, "solitary, poor, 
nasty, brutish, and short." The law of self-preserva- 
tion meant the rule of brute strength or of cunning. The 
.same law impelled man to seek a way out of sucGi a 
wretched condition. This he found in a covenant of 


each with all, whereby a state was established. 
Hobbes's own words best explain the process. The 
state is established by a covenant of every man witih 
every man in such a manner as if every man should say 
to every man : " I authorise and give up my right of 
governing myself to this man, or to this assembly of 
men, on this condition, that thou give up thy right 
to him, and authorise all his actions in like manner." 

In this way people resigned their natural rights to a 
person or body of persons, which person or body became 
the sovereign in the community. This sovereign v/as 
not a party to the contract, but a result of it. He (or 
they) derived from it absolute authority, which could 
not be revoked, for the individuals had left no rights to 
themselves. The people, eays Hobbes, have no right to 
rise against the sovereign. The sovereign therefore 
possesses unlimited power, and, however arbitrarily that 
power is exercised, the people must obey. 

In his desire to support absolutism Hobbes entirely 
fails to recognise wfhat we now call political sovereignty. 
Critioism ^^ gives a theory of legal sovereignty which, , 
of Hobbes's so far, is perfectly correct, but he does not 
*"*■ recognise that the will of the state is not the 
will of an individual ruler. Instead of being completely 
independent of the people, the ruler is, properly 
regarded, the agent of the people. The people may 
indeed give him a legal status, but that legal status does 
not empower a ruler to oppress the people irrespective of 
all moral rights. As Locke pointed out afterwards, 
civil society exists for the common good, and, if that 
purpose is defeated by a ruler, the society may change 
the ruler. Changing a ruler does not mean the abolition 
of civil society. The state is more than governmeiit and 
the state-will more than the will of an individual. 
Hobbes does not recognise the difference between state 
and government ; in fact as we have already seen, the so 


far confuses them as to say that the state is dissolved 
with a death of a ruler. 

The theory of John Locke is given in his Two 
Treatises of C^il Government, published in 1690, two 

years after the English Revolution. It is 
Look*. important to note the historical background of 

both Hobbes's and Locke's theories. Hobbes, 
impressed by the miseries of the great Rebellion, argued 
en the basis of the social contract for a system of 
absolute monarchy. Locke, on the same basis, tried to 
justify the deposition of James II, and the establishment 
01 constitutional government. Locke starts with the 
idea of a state of nature which, he considers, was a state 
of equality and freedom. In the state of nature men 
were subject to the law of nature, which constituted 
certain rights over life and property. The state of 
nature was not, as Hobbes held, a state of war and 
misery. It was a state of insecurity, because, although 
rights did exist, there was no impartial or final arbiter 
to protect the individual in the enjoyment of his rights. 
I'or this reason, men agreed to resign to a ruling authorit 
just so much of their rights as was necessary to 
secure their ends. The state was thus created to protect 
certain rights already in existence. The individual 
surrendered certain rights to secure his remaining rights 
and liberties. These individuals could not invest their 
rulers with unlimited . rights over life and property, for 
they had not possessed such rights themselVes. And, as 
Locke says, it is not reasonable to suppose that the 
individuals would resign more of their rights than was 
actually necessary to secure the benefits of civil society. 
The sovereign therefore could not, as Hobbes said, be 
unlimited, The sovereign ' could claim only limited 
authority. If he betrayed his trust he could lawfully be 
deposed. The people in such a case could resume their 
original liberty and establish a new form of government. 


poijItical science. 

. Locke's theory is a theoretical justification of consti- 
iutional government. He represents a ^eat advance in 
political thought. By showing that ; the 
Criticism^, sovereign (or ruler) is not independeift of 
Theory.** the people in all his actions he gives us the 
fuijdaiaen tally importaril; distinction of state 
and gpVernment. Hobbes, as we liave seen, identified 
the' onei with the other. Where Locke errs is in his 
failure to recognise that the ruler may quite legally 
oppress a people. Hobbes declared that the sovereign 
could not act illegally, and so far as the sovereign 
occupies a legal position which says he cannot act 
illegally, this is perfectljr true. A people may he 
oppressed by the sovereign legally enough, if the 
law enables the sovereign to oppress them; and their 
right to depose the sovereign does not arise from the 
sovereign's legal position. They may, however, have a 
moral right to depose him. What Hobbes does not 
recognise, and what Lpcke does recognise, is that there 
is a power behind the throne, that the exercise of 
sovereignty depends ultimately on the will of the people 
to obey. The sovereignty of the state is not tba 
sovereigniy of a ruler. The will of the state may limit 
the will and actions of a ruler. Thus Hobbes confuseil 
the state and king, but Locke did not recognise the fall 
bearings of legal sovereignty. To use our modem 
terminology, Hobbes gives a theory of legal sovereignty 
without recognising the existence and power of political 
sovereignty: Locke recognises the force of political 
sovereignty but does not give adequate recognition to 
^egal sovereignty. 

The theory pi Rousseau is contained in his Social 
Contract published in 1762. Rousseau tries to combine 
the tbeories of Hobbes and Locke. He sets 
ousseau. ^^^ ^^ hanrionise the absolute authority of the 
sovereign with the absolute freedom of the citizen. Hi« 
purpose, as he said himself i was "to find a form of 
»S86ciation which may defend and protect, with the 
whole force of the community, the person and property 


of eaoTi associate or citizen and, bj;^ means of which., each 
uniting with all, may nevertheless obey only himself axui 
remain as free as before.'' The sta/rting point in hi& 
theory is a state of nature, which he says was idyllic. 
It was the happiest period of human life. Each one, 
unsophisticated and free from social laws and institut- 
ions, was able to seek and secure his own happiness. 
The state of nature was ideal, and the nearer we are ta 
that state the better for us. With the growth of popula'- 
tion, however, man was forced into civil society. He 
had to give up his natural freedoiri. " Man is bom free," 
he says in a historic passage, " but is everywSiere in 
chains." Civil freedom wa? substituted for natural 
freeddm by a sofeial contract. This contract is made by 
the individtials of the community in such a way that 
every individual " gives in common his person and all his 
power under the supreme direction of the general will 
and receives again each membeir as indivisible part of Ovs 
whole." The individual gives himself up to the control 
of all, but not to a particular person. The community, 
not the ruler, as Hobbes held, receives the sovereignty. 
The sovereignty' of the community is iualienable and 
indi^visible. The " prince," that is, government, is only 
a subordinate authority, or servant. The ruling power 
or government is only a commission : it exenciaes its 
power in virtue of the sovereignty of the people, and the 
people can limit, modify or take it away as it wishes. 
The government' Wields the executive power but the 
legislative power remains with the people. When th» 
peopile assemble together, they resume full power and 
the " prince " is suspended from his functions. 

In this way Rousseau tries to reconcile the absolute 
authority of the whole with the absolute freedom of th« 
parts. Thus, if an individual suffers the death 
SHiJi™'", "' p6iia.lty for Ms misdeeds, he is reaUv a con- 
Theary. sentmg party to ms own execution, for he is 

part of the soveSreignty which made the law 
which condemned him. The central idea in Rousseau's 
theory is the doctrine of the general will, a doctrin* 


which, more than any other single doctrine, has moulded 
modern political thought. The legislative power always 
belongs to the people ; only that law is a real law which 
is in accordance with the general will. This general will 
(which is to be distinguished from the, will of aU, or 
individual wills) can be expressed only in a mass' 
meeting of the people. A representative assembly 
cannot adequately voice it. Representative assemblies 
once elected become the masters, not, as they should be, 
the servants of the people. The true sovereign is the 
totality of the people. " As nature gives a man 
absolute power over his members," he says, "the ^ocial 
contract gives to the body politic absolute power over its 
members ; and it is this same power, which, directed by 
the general will, bears the name of sovereignty." 

The obvious difficulty of this is that only unanimity, 
which in practice is impossible to secure, could make a 
-law valid. Rousseau, however, says that the general 
win is not necessarily the unanimous will of the citizens. 
Absolute unanimity is necessary only for the original 
contract. After the state is established consent is 
implied in the fact of residence. • "To dwell in a 
territory," he says, "is to submit to its government." 
Within the state a majority is sufficient to make a law 
valid. The general will (which he says, always wills the 
common good) is the criterion. 

Just as Hobbes's theory supports absolutism and 
Locke upholds constitutional government Rousseau's 
theory supports popular sovereignty. Rousseau's chief 
merit lies in making clear the distinction between the state 
and government, but he goes to extremes in making the 
state-will equivalent to popular demands. The general 
will, which always wills the public good, is not, as he 
makes it, equivalent to the decision of the majority of 
the people. In his desire to establish a sound enough 
theory, he goes so far that he completely destroys the 
stability of government. Government in his view, 
excludes the legislative function. It is purely executive ■. 
ii simply carries out orders. It cannot make laws, i.e., 


express the will of the state, and it is liable to instant 
dissolution when the people assembles in a sovereign 
body. But government includes the legislative as well 
as the executive. 

Like Hobbes, Rousseau advocates absolutej inalien- 
able sovereignty. Hobbes says it belongs to the ruler; 
Rousseau to the people. Like Locke, Rousseau recog- 
nises the distinction between the ruler and the power 
behind the ruler, or between legal and political 
sovereignty. Locke, however, regards as legal all acta 
made by the govetniaent except those which violate the 
rights of the individual. The people reserve certain 
powers for use in cases of necessity. In Rousseau's 
theory all laws depend on the general will, which can be 
expressed only in a general assembly of the people. Th& 
people are continually sovereign; they do not exercise 
sovereignty in cases of emergency only. 

The Social Contract Theory reached its high- water 
mark in Rousseau. The historical commentary on his 
theory is found in the French Revolution, 
Rousseau, which was a practical application of an 
extreme • theory of the sovereignty of the- 
people. After Rousseau the theory gradually died out. 
The theory, as one writer puts it, " faded away in the- 
dim light of German metaphysics." 

Kant and Pichte, the Gennan philosophers, each gave 
a distinctiove setting to the theory. Eant regards 
it not as a historical fact but as an " idea 
of Reason." Tlie CJon tract, he says, may 
be looked on as '■* the coalition of all the private 
and particular wills of a people into one common 
and public will, having a purely juridical legis- 
lation as its end." It is unnecessary, he says, to pre- 
suppose the Contract as an historical facH. It has, how- 
ever, practical reality, for " it ought to bind every 
legislator by the condition that he shall enact such laws 
as might have arisen from the united will of a whole 
people, and it will likewise be binding upon every 
subject in so far as he will be a citizen so that he shall. 


regard the law as if lie tad consented to it of liia own 
will." The Contract is thus the criterion of the justness 
of law. If it is impossible that the whole J>eople could 
haye consented then the law is unjust. , A law, for 
example, establishing certain birth-privileges- would be 
unju'st according to this standard of judgment. 

Fichte, Kant's disciple, just as in many respects Kant 
was Rousseau's disciple, carries the theory to its utmost 
limits. Fichte (though his opinions did not 
remain uniform throughout his life) says that 
as man is subject to the moral law ' alone, he can 
terminale |;he contract at will. Every man, therefore, 
can take himself away from tHe civil society of which he 
is a party by the original contract. The same right 
applies to any party of men. Fichte allows the most 
•extreme form of secession, for, he says, what belongs to a 
smaller number of men logically belongs to a greater 
number. The righl; of secession of course passes into 
the right of revolution. Fichte later changed' his views 
from this extreme individualism. 

It is natural that the idea of consent in the Social 
Contract Theory should have appealed to the makers, of 
the American constitution. The War of 
merica. Independence had been fought on that ground, 
and, not unnaturally, the Social Contract appears 
in the preamble to the Declaration of Independemcej; 
The ideas of Eousseau' in particular appealed to 
the Americans, and these are traceable in almost 
■eviery American constitution dtawn up at that 
time. In the constitution of N"ew Hampshire it is 
stated that "sdl men are born equally free and 
independent. Therefore all government of right 
Originates from the people, is founded in consent, and 
instituted for the genea-al good." In the often-quoted 
constitution of Massachussets the contract is definitely 
accepted. "The body politic," it says, "is formed by 
a voluntary association of individuals. It is a social 
compact, by which the whole people covenants witli each 


Citizen and each citizen with the whole people, that all 
shall be governed by certain laws for the general good." 

The contract idea is also voiced by the early American 
writers — snch as Jefferson and Madison, but there is 
r.othing particalarly noteworthy in their presentatioh of 
the theory. 

In the nineteenth century the theory gradually died. 
The causes of its death were — 

1. The rise of the historical spirit in Political Science, 
marking a change in the mental attitude of the time 

from speculative to positive. Montesquieu, 
ti^Theory. *^6 French writer, was the leader of this 

school. His Spirit of the Laws, published in 
1748, is one of the most eppcn making books in the 
history of Political Stoience, though it failed to have 
immediate effect on his contemporaries. Montesquieu, 
in sharp contrast to the wrilers of his time, who started 
from nature to prove their theories, adopted history and 
observation, with generalisations drawn therefrom, as 
his method. Burke, in England, used this method witii 
great effect against Rousseau. 

2. Darwin and theory of evolution. This theory, 
applied first to the plant and animal, gradually suffused 
all departments of thought and enquiry. At the present 
moment it is siipreme, and Political Science like every 
oth«r science, is interpreted in the ligQit of evolution. 

S. The replacement of the sound elements in the 
theory by new theories, e.g., the doctrine of political 
sovereignty, and the recognition of the distinction 
between state and government on which the doctrine of 
political sovereignty rests. 

4. The general unsoundness of the theory itself. ' 

5. Ckiticism of the Social Contract Theohy. 

The above sketch of the history of the social contract 
tlheory will enable the student to appreciate the main 

points of criticism to which it is open. Two 
«!?* Theory, things must be remembered:' first, that the 

social contract theory is sometiines regarded 


as an actual historical fact, to which the origin of the 
State is ascribed ; second, that it is often used only as 
an idea either to interpret current constitutional usage 
or to express certain fundamental relations existing in 
political life. In the first of these lies the chief weak- 
ness of the theory ; in the second its chief strength. 

1. As an historical explanation of the origin of society 
it is false. If o thing in the whole range of history shows 
critieismi ^ stage of historical development such as the 
1. It is theory demands. History gives no example 

'*'**• of a group of primitive people, without any 

previous political knowledge or development, meeting 
together and consciously forming an agreement like the 
social contract. JiTot only so, but to assume that indivi- 
duals either could or would do any such thing presupposes 
either a knowledge of political institutions learnt from 
somewhere else, or a fairly highly developed social consci- 
ousness inconsistent with the ignorance and simplicity 
which are usually associated with the state of nature. 
Some writers, indeed, suggest what seem to them actual 
instances of contracts. The most notable is that drawn 
up by the English emigrants to America in 1620. "We 
do," it says, "solemnly and mutually in the presence 
of God and one another, covenant and combine ourselves 
together into a civil body politic for our better ordering 
and preservation." Another example is the State of 
California, already quoted in Bluntsohli's classification 
of historical origins. In fact most of the American 
state constitutions are of a similar type. These, how- 
ever, do not give the origin of the state as such, but the 
origin of particular states. The contracting parties were 
already familiar with government; what they did was 
to institute among themselves what they were familiar 
with under different conditions. 

Not only is there no historical evidence of a social 
contract as the origin of the state, but what evidence 
there is shows tihat a contract of any kind was unlikely. 
Research has shown that early law was more communaT 
than individual. In early times law existed not for 


individuals but for families. Sir Henry Maine in parti- 
cular points tkis out. Early laws, lie says, "are 
binding not on individuals but on families. .... The 
movement of progressive societies has been uniform in 
one respect. Through all its course it has been distin- 
guished by the gradual dissolution of family dependency, 
and the growth of . individual obligation in its place. 
The individual has been steadily substituted for ths 
family as the unit of which civil laws take account. . , 
The movement "has been from one of status to one of 
contract." Though history does not give us an absolute 
solution, we may reasonably argue by analogy that in the 
period preceding that of which Maine speaks, there was 
still less individualism. The social contract tjheory, 
however, speaks of individuals making contracts foi 
individual safety and the security of property fox 
•individuals . 

2. The whole oonception of the state of nature and 
natural law is wrong. The social contract is a 

mechanical, artificial explanation of the origin 
2- Natural of civil society. The state is in the proper 
Meaning. . Sense of the word as " natural " as was the 

supposed "natural" law. (Natural Law is a 
subject which riequires fuller treatment, arid it receives 
such in tlie chapter on Law.) The distinction between 
nature and convention, which is so prominent in the 
Sophistic philosophy, and underlies the whole theory of 
contract, is false. Man is part of nature and his 
impulses and actions are as natural as is hia life itself. 
Far from being, artificial, the state is, the very express- 
ion of man's nature. The state depends on illie society of 
man who by nature is social, or, as Aristotle said, is a 
political (or, rather, social) animal. N"o better refuta- 
tion of the social contract from this point of viesw has 
ever been given than by Plato and Aristotle. 

Plato (in the Republic, Books I and II) refutes both 

the Contract and Force theories in the same 

ways. Two of the characters of the Republic, 
Thrasymachus and Glancon, contend respectively that 


force and the social contract are tzhe bases of civil society. 
Both, says Plato, are wrong. The state is a growth, not 
a manufacture. Its origin is natural, based on the need 
that man has for his fellow members of society. This 
mutual need, at its lowest an economic need, exists from 
the beginning of man's existence and is part of his 
human nature. Men do not make a bargain consciously : 
the agreement exists because of their nature. No man is 
self-sufficient : of necessity he depends on his fellow-men. 
This does not mean that civil society is merely utili- 
tarian. Justice does not exist for self-interest : it is the 
expression of the true nature of man. It is the inner 
relation which makes civil society a true unity. 

The arguments of the Republic are brought out more 
clearly in the Protagoras where Plato illustrates, 
his meaning by a myth. Men in their earliest state 
lived in a scattered condition. Gradually they gathered 
together in towns, but the mere fact of congregation did 
not improve them, as they had no form of government. 
Zeus then sent his messanger, Hermes, to distribute 
justice and reverence, the two bonds of civil society, 
among them. Zeus ordered Hermes to distribute these 
not to a few, as the arts were distributed, but to every 

Aristotle, like Plato, his master, combated the idea 
that the state was mechanical or artificial. The state, 
Ai-istotie ^® says, is a type of life, necessary for life. 
Tfature, he says, always seeks some end, and 
the end is the good life. This good life is the final cause 
of the state, man's need being the efficient cause. The 
state arises from the needs of life and continues to exist 
for the sake of good life. Nature therefore intended 
man to live in a state from the very beginning, and for 
this reason man was given the power of speech.. The. 
true nature of a thing is its fuU development. The state 
is the final point of development in a series stretching 
from the household, joint family and village community. ■ 
Just as the household or family is natural so is the state.' 


The positions taken up by Plato and Aristotle are 
substantially those adopted to-day, though we make a 
distinction, not given by them, between the state and 
society. The Sophistic contrast between nature and 
convention which troubled Plato and Aristotle has lost 
its point in the modern world. We no longer contrast 
the two, although we often contrast nature with society 
as a whole. 

3. On an appreciation of the nature-con ventdoa 
fallacy depfends the understanding of another point of 

criticism, that the theory is illogical. Liberty 
niogi'oal. cannot exist in the state of nature. Liberty 

implies rights, and rights arise not from 
physical force but from the common consciousness of 
common well-being. Rights imply duties : the two 
terms are correlative. If I consider I have a right to do 
such and suchj I must concede the same right to others, 
and why both my neighbour and I agree in this is that 
we are both conscious that it is necessary for the common 
welfare. In the state of nature the only right is force :' 
there is no such thing as duty, except the duty of 
self-preservation. The physical or brute force of the 
state of nature is not a bond of society : it is only a 
personal weapon. It creates no rights and therefore 
gives no liberty. Law is the condition of liberty. The 
so-called liberty of the state of nature is really license. 

4. It has been pointed out, too, that the conditions 
of a contract presuppose a systejgL_o£ law to support it. 

There must, therefore, be the will of a 
Impossible, community behind a contract, which at 

once ascribes the origin of the state to some 
thing behind the contract, i.e., common will. 

5. Bluntschli, and others, point out that the contract 
theory is dangerous, and, as evidence, quote ihe intimate 

connexion of the French Revolution with 
dangen)us. Rousseau^ The theorjr certainly has been 

used to establish positions dangerous to the 
stability of the state. To the superficial observer it 


might appear easily that the state and government are 
due to Individual caprice, while several upholders of the 
theory actually encourage revolution. 

Though these v/eaknestes exist in the theory, due 
credit must be given to it for one fundamental truth. 

Civil society rests on the consent, not of the 
E. Its value, ruler, but of the ruled. By bringing out thia 

the theory became an important factor in the 
development of modern democracy. It served a useful 
purpose in its time by combating the claims of irrespon- 
sible rulers and class privilege. The theory of Divine 
Eight was a more complete instrument of absolutism 
than the Social Contract of Hobbes. The chief enemy 
to the Divine Theory was the Contract Theory. While the 
the former gave Divine Power to the ruler, leaving cnly 
the duty of implicit obedience to the ruled, the lattet 
brought into prominence the fact that the state and 
goyernment are actually founded on the minds of the 
citizens themselves. 


6. The Theory of Divine Origin. 

The central idea of the Theoly of Divine Origin is that 
the state was founded by God. The type of state in 
which the ruler is regarded as the vice-regent 
of God (or, to use a phrase current in the mediaeval 
literature on the subject, the Vioar of God) is called 
a theocratic or God-mled state. The Divine theory 
takes us back to the very earliest stages of political 
General ^^^®- Modern research has shown that 

Expian- universally among early peoples the rudi- 
**"*"■ mentary forms of government were intimately 

connected with religion. The earliest rulers were a com- 
bination of priest and king. Their powers as king 
depended mainly on the stiperstitious dread with which 
the people regarded their priestly position. 

The best repository for examples of the theory of 
Divine origin is the Old Testament, where God is 

looked on as the immediate source of royal 
Testament, powers. He is regarded as selecting, anointing, 

dismissing; and even slaying kings. He is 
pleased or displeased with them : their policy is judged 
according to the greater policy of God. Th« king in the 
Jewish state was tSie agent of God and responsible to 
God alone. The early history of the Jews not only give* 
no trace of the will of the people instituting the king, 
but shows the unquestioning acceptanfce by the people of 
the theocratic state. 

In neither Greece nor Borne did political theory run in 
the Jewish channels. Though religion was not divorced 

from politics, early in their history botih the 
and "Rome. Greeks and Romans gave a deinite place to 

the will of the citizen in political institutions. 


The Greeks considered the state to be aa outgrowth of 
man's nature. The Roman legend of the foundation of 
!l^me, while not omitting religion, said that the people 
and king created the state. The blessings of the gods 

The idea was current in the epic ages of Sanskrit 

literature. The Mahdbharata, in particular, contains 

many passages which either express or 

uterature.'' suggest the divine origin of +he state. The 

idea does not occur to any marked extent 

after the epic age. 

With the advent of Christianity the Theory of Divine 

Origin received a new impetus. For many centuries 

it held almost undisputed sway. The only 

Ghrist'a cbunteractiug influences were the theory of 

Fathers. Roman Law, which regarded the peo^le 

as the ultimate source of law, and the 

Teutonic ideas of popular government. The Church 

Fathers founded their theory on the well-known 

saying of St. Paul (Roman.'-, X, verses 1 and 2) — " Let 

every soul be subject unto the higher powers; for there 

is no power but of God : the powers that be are 

ordained of God. Whosoever resisteth the power, 

resisteth the ordinance of God, and they that resist shall 

receive to themselves damnation." 

The logical result was a purely theocratic doctrine. 
The early Church Fathers looked on government as an 
institution founded by God because of the Fall of man. 
Before the Fall man lived in a state of sinless innocence, 
but with the beginning of sin, God instituted governi 
ment. The king was the representative of God and, in) 
the name of God his law had to be obeyed. Two of 
the greatest of the Fathers, St. Augustine and Pope 
Gregory the Great, teach that the reward of a 
good people is a good ruler and the puniehment 
of a bad people a bad ruler. [It is in the 
work of Pope Gregory the Great that the latei 
Fathers found most of their authority.]- ,The 
Roman lawyers traced the authority of law to the 


people : Gregory ascribes it to God. The insistence on 
the divine character of authority by the Fathers was due 
to three causes : first, the influence of the Old Testament, 
second, the necessity for the abolition of disorder in the 
early church (the divine theory proved an excellent lever 
for the exercise of despotic power in the Church) ; and 
third, the existence of two powerful bodies, the Church 
and the Empire. The cast of mediaeval political theory 
was determined mainly by the last of these causes. 

As we have already seen, the theory of the Church 
writers underwent a considerable change later. The 
influence of Roman Law had always been on the side of 
the will of the people as a determining factor in political 
phenomena. Teutonic ideas helped in the same direc- 
tion, and the later ecclesiastics began to make a 
difference between the "impulsive" cause (in Latin, 
causa impulsiva) or the remote cause (in Latin, causa 
remota) — both of which were God — and the immediate 
cause, the people. This distinction favoured the growth 
of the social contract, in which a place was definitely 
found for the idea of consent. 

Both the Divine Theory and the Social Contract 
Theory were used for more than one purpose. We 
have seen how both absolutism and popular 
Theory.*"* government were justified by the Contralct 
Theory. Similarly th^ Divine Theory was 
used for various purposes ; in fact, its use as an explana- 
tion of the origin of the state was secondary. 
One_ of the best-known uses of the theory wai^ the 
justification of absolutism. There is no place for the 
will of the people in a theory which regards 
the king as the vice-regent of God, and an 
agent to carry out His orders. Tha theory, was 
used as a bulwark against the onrush of democratic ideas. 
For the individual to set himself up against the 
king was equivalent to disobeying divine law, or com- 
mitting the sin of sacrilege. Bolfh before and after, the 
Reformation the theory was used by certain ecclesiastics 
to discredit the civil power as compared with :the Church, 


Tke Church, like the Empire, had become a vast organis- 
ation with wide powers and possessions. To elevate 
religion it was held that the Church received its poweff 
ftrom Grod, whereas the state was a purely hximan or 
worldly organisation. The inference was that, as God 
was superior to man, so was the Church superior to the 

In the sixteenth and seventeeth centuries in England, 
the form the theory took was the Divine Right of kings. 

That theory v/as supported not only by the 
Si^Kingsf" Stewart kings but by a large school of 

thought. Even the absolutism which Hobbes 
tried to justify by means of the Social Contract was 
queationed by the royalists of the tinae. Sir Robert 
j'ilmer, for exaniple, deela;red that Hobbes was wrong in 
supposing that absolute sovereignty was based on a 
contract. No suph contract was possible, for there was 
never a condition of man such as Hobbes pictured in the 
state of nature. Equality never existed, for when GbJ 
made man. He made Adam master over Eye and tftie 
children, born to them. Authority was founded from t)he 
beginning by God Himself. God is the Father of Men,, 
and from His 3?at;^*^<'^°°^ came royalty, and, therefdre, 
absolute poyer. 

The causes of' the decline of tihe Divine theory were (1) 
the rise of the Contract Theory, with the emphasis it 
Th d I" g^"^^ to consent (2) the rise to supremacy of 
of the the temporal as distinct from the spiritual 

thftoi-y. power, or, in other words, the separation of 

church and state; and (3) the actual refutation of the 
absolutism which the theory supported by the growth of 
democracy. Though the theory as an active influence is 
dead, it is still current in the popular consciousness' of 
to-day. In India in particular we are familiar with the 
rieligious reverence with which the throne is reerardedj. 
while in Germany the efx-Emperor both before and durinjt 
the war often expressed the theory of the divinityi of 
kings as applied to himself. 


Tlie chief criticism of the theory ia given in the 
critioism. EcelesiasPikal Polity of Richard Hooker^ 
Reason " himself an ecclesiastic. Revelation (or 
fion. """'*' B.eligion), he says, is concerned with matters 
of I'aith. In other matters man has Reason 
as his guide. Modem political theory leaves to religion 
the decision on the question of divine intervention. That 
God is the origin of or intervenes in t3ie state is not a 
political but a religious view. The modern jwlitical 
scientist itgards the sta/te as essentially a human 
institution, orgainised in its government through 
human agency. It comes into- existence when a number 
of people come together on a fixed territory, and, 
through, t|ieir conscioti^ness of common ends, organise 
themselves politically. No one now accepts , the 
priginative power of God as a criterion of the rightness 
or wrongness of any given fqrm, of government. To 
say that God selects this or that man as ruler is 
contrary to experience and common sense. Monarchs 
conceivably might claim certain po.wers or qualities 
consequent on descent from a remote divine aincestor; 
tut it would be very difficult to establish such a claim 
for a moidem president, elected Iby the people. 

In the theory, too, as in the Social Contract Theory 
is an elem'ent of danger. In a theocratic s]l)ate the 
Dangers ruler is responsible only to God. Irrespon- 
of the sibility to human opinion might well be a 

theory. grave danger in the hands of an irresponsible 

man. Modern research has shown that the priest-king 
of primitive society not infrequently used his divine 
status to cheat and oppress his people. The theory 
also condemns all iorms of government except the 
monarchical. The theory was responsible largely for 
the ruin of absoliite monarchy. It was the "corrup- 
tion of European monarchy in the seventeenth 
century." The responsibility of a ruler must be to 
man. His relations to God must' be his' own private 
affair; his relations to man are public. As BluntschH 
pointedly remarks, the statesman must not, in the 



telief that God determines tlie destiny of nations and 
states, and in the confidence that God will govern well,, 
" tempt God and shirk his own responsibility." 

Even from the religious point of view it is difficult 
to justify the theory. The early Christian Fathers 

held that; a bad ruler is given by God to 
to^Reiifgion. i^en as a ptmishment for their sins. It is 

difficult for the ordinary ma» to regard some 
of the rulers of the world as divine, however sinful the 
people. The normal man's view would be that such 
k'ings were living examples of blasphemy. Nor does it 
appear from history that evil results have always followed 
from the removal of kings. 

In the Jfew Testament, moreover, "there is as much 
authority against the Divin.^. theory as for it. The very 

phrase "the powers that' be" in itself 
theory not implies the possibility of change' in the 
supported form of government. But the best-known 
Testament!* passage is that on which the separation" of 

Church -and Stabe is founded — the statement 
of Christ's "Render unto Caesar the things that are 
Csesar's and unto God the things that are Gpd's." This 
is evidence of the human character of tlhe state from the 
very fountain head. 

The Divine theory has had its merits. In the days 
when the terrible nature of religious law appealed to 

men more than it does now the idea of divine 
Its Merits. origin was useful as a factor in, preserving 
socfety?' order. However mistaken 'or unscrupulous 

the theory was it at least deserves credit for 
the prevention of anarchy. The strong arm of the 
Church did much in the Daik Ages towards the security 
of person, property and government. 

The theory, again, is an emblem of an undoubted 
historical fact. Early political and religious institu- 
tions were so closely connected that it is 
cai value!' ^°t possible to describe them separately, 
The earliest ruler was a mixture of priest (or 


magician) and king. His power as king depended 
mainly on his position as priest, a position which 
allowed scope for various kinds of cruelty and decep- 

The theory, again, explains many modem survivals 
cf the close connection between religion and the state. 

All great state functions are to-day accom- 
survjvais in panied by a considerable amount of rel- 
ouluiVe" igious ceremony. Kings are still ciowned by 

religious men with religious rites. Several 
states are still definitely religious states — as Turkey, 
State or " established " churches, some of which receive 
support from the public funds, are still recognised. 
Ecclesiastics still, as in the British House of Lords, 
in virtue of their offices, take part in law-making. 

The chief merit of the theory, however, is not in 
religion as such but in the close connection of religion 

and morality. To regard the state as the 
Its em- work of God is to give it a higji moral 

morafenVof status, tc make it something which the 
the state. citizen may revere and support, 

something which he may regard as the per- 
fection of human life.. The law of the state does not 
cover the field of morality. Morality deals with inten- 
tions and motives; law deals with Qxtemal actions. The 
state deals wih these outward actions only, but its end 
must essentially be a moral end, and to regard it as the 
creation of the all-wise and all-good God brings into 
prominence this central fact of its being. 

To use the theory as many have done to bolster up 
force and authority in the name of divine authoriy, 
however, shows how from wiiat in itself may be per- 
fectly harmless, very harmfal results may follow. In this 
respect the theory is essentially the same as the Force 
theory. The strength pf, both the Divine and Force 
theories lies in their emphasising one aspect of force — 


moral force. If the theory meant simply tkat, as one 
of tie later Churcli writers said, God is a" remote" 
cause, that Grod simply implanted the social instinct 
among men, there would be little harm in ii. What 
Political Science demands is that political institutions 
should be regarded as purely hiiman creations. 

7. The Theoey or Foece. 

The ThfeOry of Force states that civil society originated 
in the subjugation of the weaker "by the stronger. In ' 
the earty stages of the deTelopment of 
statement mankind it implies' that those physically 
theory. stronger captured or enslaved the weaker. 

: This was true not only of individuals but of 
tribes and clans. From \h,e more rudimentary political 
organisations it spread in successive steps to. the 
more advanced. Finally kingdoms . and empires 
fought against each other and survived or 4i^d according 
to' their strength. 

The Force theory, like the other theories already 
examined, bas been employed as the ' support of 
diverse contentions. Some of the Church 
Uses of the Fathers, in order to discredit the state as 
theory. compared with the church, which, they said, 

was founded by God, argued that the state 
was the leeult of brute force. The Force theory has also 
been used by writers of the individualist school to prove 
that it is in tibe nature of society that the stronger should 
prevail against, the weakei'. From this they try to> 
demonstrate that there no regulation of com- 
petition in .industry. The most productive system 3S 
that which gives the most unrestricted scope for indivi- 
dual efforts. The opposite school of thought, socialism, 
uses the theory for exactly the opposite purpose. The 
present system of industrial organisation, say Certain 
socialists, is the'resultof the improper use of force. The 
state is the outcome of the exploitation of tihe weaker 
by the stronger. This force, the origin of" all' civil 


(society, has continued till at the present stage one part 
of the community robs the other of its just reward. 
Government is force organised so as to keep the 
working classes in cheek. The object of the socialist is 
to prove tfoe justice of the worker's claim to a largei 
share of what he produces. 

The Theory ol Force was widely adopted by writers 
in G-ermany before the war. Their chief object was to 
educate the people in ideas of world domina- 
Germany!^" tion by Germany. Treitschke, the Prussian 
historian, puts power or force in the forefront 
of his definition of the state. "The state," he says, 
"is the public power of offence and defence, #16 first 
task of which is the making of war and the administra- 
tion of justice." General von Bernhardi, another modern 
German writer, says that war is a biological necessity 
of the first importance and the aspiration for peace is 
directly antagonistic to the first principle of life. 
Struggle is a universal law of nature, and the instinct 
of self-preservation which leads to struggle is the natural 
condition of existence. " The first and paramount law,"" 
he says, "is the assertion of one's own independent 
existence," and from this he proceeds to argue that the 
right of conquest is justifiable. " Might is the supreme 
right, and the dispute as to what -is right is decided by 
the arbitrament of war. War gives a biologically just 
decision, since its decisions rest on the very nature of 

The Force theory contains a considerable amount of 

truth. Force is an essential element in the state: it is 

critioismi necessary both internally and externally. 

Foroo . Internally the state requires force for the 

the State. preservation of its unity against disruptive 

element?. The relation of command and 

obedience necessary to government implies the existence 

of force. Externally a state requires force to repel 

aggression. To set up force, however, as an explanation 

of the origin of the state, and as a justifiijatibn of its 

action, is wrong. 


The Social Contract and Divine theories err in a 
similar way. The Social Contract as used by some 

writers, justifies the most absolute form of 
Trc^' and government, and gives no place to resistance. 
bruie force. The same is true of .the Divine theory; 

Force may mean either that might is right, 
that physical, brute strength is the determining factor 
in' state development, or that will or moral force is the 
basis of the state. The former, physical force, is not a 
permanent basis of a state; the latter, moral force is. 
Might without right can at best be only temporary'; 
might with right i^a permanent basis for the state. 
Force does not create rights; rights,, like the state, are 
founded in the common consciousness of common ends. 
Mere brute force simply means despotism, violence and 
revolution, with no rights, save the rights of the 
physically stronger. True force, that is, moral force is 
the permanent foundation of the state. Might without 
right lasts only so long as the might lasts ; might with 
right is as lasting, as the human minds on which it 

One aspect of the force theory requires particular 
attention. Bernhardi, we have seen, argues that the 

exercise of force is essential from the very 
the^iyfiest. nature of society. • Struggle, leading to the 

survival of the fittest, he says, is a natural 
law. . Sir Henry Maine, expresses similar sentiments 
when he speaks of " beneficent private war, which 
makes one man strive to climb on the shoulders of 
another and remain there through the law of the 
survival of the fittest." Herbert Spencer continually 
voices iJie same views. He speaks of the beneficent 
working of the " survival of the fittest," and he declaims 
against our modern legislators who pass laws to protect 
weak or unsuccessful members of society who, without 
their interference, would naturally go to the wall. 

To discuss this question would mean a full analysis 
of I3ie application of the theory of evolution to society. 


a task which, cannot be undertaken here. Certain 
salient facts may be brought before the student. 

The word "fittest" in the phrase "survival of the 
fittest " — the core of the evolutionist position — means, 
as Huxley says,' the survival of those best 
"'F?ttesf.'''' fitted to cope, with environment in order to 
survive and breed. As Professor Marshall 
says, the survival of the fittest means the survival not of 
the man who does most good to his environment but of 
the one who derives most from the environment. In 
society the circumstances are so varied and complex 
that the meaning of fittest is by no means uniform. 
Among both animals and men the fittest may not be iSke 
physically strongest. In the struggle for food, foi 
example, physical strength may be worsted by cunning, 
or the strongest may not survive in .^n environment 
where the puny may more easily find food and avoid 
enemies. What is true of individuals is true of groups 
of individuals in society, or of races. The actually 
strongest may not survive, or they survive only in the 
sense that the word, "strongest" is applied to those, 
who, whatever their phy?icaJ strength, actually do 

In society again the struggle is not only between 
individuals but between groups or races. In the lower 
creation the struggle is chiefly between 
mlBs"of individuals. Individual struggle between 
struggle. men is largely replaced by the contest 
between tribes or nations. Tribal or 
national survival may be achieved at the expense of 
the individuals. Oppression, slavery, even extennina- 
tion of individuals may follow group or national 

The human individual, further, belongs to different 
groups. By race he may belong to one group, by 
language to another, by religion to another, by 
profession to another, by political allegiance to another, 
by culture to another. Among these groups struggle 
for survival goes on, and failure in one may be accom- 


Xmnied by survival in another. Thus a nation may be 
coiiquered, but its religion may survive among the 
conquerors, so that the terms failure or survival may be 
applicable and non-applicable at the same time. 

More important in the case of man is the conflict of 
ideasj Ideaa struggle with each other and fail for 
survive. Ideas, are crystallised into laws and 
Conflict of institiitions, and the survival of ideas 
,', ; means the exis.tence of the institutions 
embodying them. Thus against the idea of selection 
by brute force has prevailed the idiea of riespect 
for human life. Against the idea of the weak 
being allowed to die off unprotected have survived the 
ideas of human kindness and sympathj. Spencerians 
argue that the human race has suffered by the survival 
of such ideas ; their opponents reply that had the 
physical weaklings gone to the wall the world would have 
lost its Miltons and Ifewtons. The fact is that 
these ideas exist and prevail, whatever the results of 
their survival. 

All this points to the supreme differentia in society — 
consciousness. Man is a thinking agent,' whose actions 
are directed by moral ends. This is in the 
The very nature of man, and the results of 

Af.inan. his thinking are natural. The state, 
government, and indeed all institutions are 
the result of man's consciousness, creations which have 
arisen from his appreciatioii of a moral end. Huxley 
in a well-known passage gives what we may accept 
as the only reasonable contrast between society 
and nature. " Society, like art," he says, " is a part 
of nature. But it is convenient to distinguisli ; those 
parts of nature in which man plays the part of immediate 
cause, as something apart; and, therefore, society, like 
art, is usefully to be considered as distinct from nature. 
It is the more desirable, and even necessary, to make 
this distinction, since > society differs from nature in 
haying a definite moral object; whence it comes about 
that; the course sihaiped by the ethical man — the membet; 


of society or citieea^^-neoessarily runs coimter to ikat 
which the' non-fethical man — the priamitive savage, or ma-n 
as a m«re member oft the animal IduiiLgidom — tenda- to 
adopt. The latter fights out the struggle for existence 
to the hitter end, like any othier animal; the former 
devotes his best energies to the object of setting limits 
to the struggle." 

War, the supreme exercise of force between nations, 
is natural only because it is more primitive. In 
society the primitive force-struggle is modified by 
ideas. War undoubtedly has its value: it breeds 
courage, loyalty, self reliance, but it achieves them at an 
enormous co&t. Moral ideas — the characteristic of man 
— enable us to secure these virtues at less oosit. In the 
more primitive \Porld the process of evolution is maitily 
spontaneous or uoooniscifiras. Although' man has the 
power of deliberate choice, this delih^tion in primitive 
society may contain a considerable amount of uncon^ 
sciousness. The progress of society sihows how 
oom«cioTis choice takes the place of the "spontaneity" 
of the lower forms of creation. < i 


The I p,CGej)ted , theory of the , origin of the state in 
modern' Political Science is the Historical or Evolutionary 
theory, .^^oording to this theory the. state is an 
historical growth. -Its beginnings are . unknown to 
history, but ifrom what we do know from History, 
Anthropology, Ethnology, and. Comparative Philology 
we Can both construct a reasonable theory of origin and 
recognise a oontLnuous! course of development. 

An analysis of the rise of the state enables us to 
separate three distinct factors in its growth. . These are 
(Kinship, Religion, and Political Conscious- 
development, ness. Though it is posisible to separate these 
elements in an analysis such/as is given here, 
it is not to be supposed that these are actually ,sepai"ated 
in the process of state building. A clear, cut division is 
impossible ; they operate in various, coinbinatiAns. Each 


element' plays its part in acliie\iing i tlie unity neceesariy 
for- statehood, but the exact method in' which it worikB 
v&ries from . oommunity' to community and- ifsxjmon* 
«nviTonment to another. ' ;' ii .i'r>i.j 

1. " Kinship. A study-of earlydnstitutions shows'that 
kinship played a considerahle part -in- early civic dewelop- 
ment. Blood relationship is' an inevitable 
' '"■ i bond in society j for it is one of the most fuMa- 
iriental facts 'in individual life; The Closest bond of kin- 
ship is :the f amilyi' icomposed of father, mother and chil' 
dren. ' With the expansion of the family arise new fami- 
liesi and. by the multiplication of f^miliesfiofu the. same 
stock itribes or clans are formed. Whii/b the-direct course 
of 'development- from the family was is a matter s of . dis- 
pute, but thereis no disputing the importance of the fact 
cf tkinship.ii,,QDhat,it was important may be judged from 
ithei various legends of their common origin prevailing 
among nations and nationalities both modem and ancient. 
Other factors, I such as common purpose, , .entered 
in the process of development, but this fundamental bond 
of union was the family, or blood relationship. , ; 

On this, subject h^ve, arisen two theories wh^oh require 
examination — tke Patriarchal and the ^Matriarchal 
theories.' An examination oi the ' former^ — the ■ 'patriar- 
chal — will explain the latter ;' i ; 

The Patriarchal theory has its strongest supporter in 
Sir Henry Maine, (one time legal member of the 
' 'Viceroy's' Council in India), in' Ms books 
archai*"^'' -Ancient Law and Earlf History of Institii- 
THfeory. iions. The theory may be stated in Maine's 

"tatement '^^^ ^ay- "The effect of the evidence 
of it. derived from comparative jurisprudence is 

to establish that view of the primeval conditioii 
of the human race which, is known as the Patii^ 
archal' Theory; There' is no doubt,' of course,, 
that this theory was originally based on the 
Scriptural history of the Hebrew patriarchs in Lower 
Asia; but its connection with Scripture rather militated 
than otherwise against its reception as a complete theoryj 

political: SCIENCE. 99 

since the i majority of the inquirers wJm? ti^l recently 
addressed Ibemselves with .ino,i^ earnestness to the 
colligation of soci^,! phenomena, were either influenced 
by the str0pge6it;j prejudice against Hebrew, anti- 
quities or by thei strongest' desire to construct tHeir 
system without/ the assistance of religious records. 
Even now there: is perhaps a disposition to undervalue 
these accounts, or rather to declin* generalising froija 
them, as iforming . part of the traditions of a Semitic 
people.i It isi to, be noted, however, thatlthe legal testi- 
mony comds nearly exclusively from the insititutiojis of 
societies belonging to th« Indo-European stock, •the 
Romans, Hindoos, and Slavonians supplying; the greater 
part of it ; and indeed the difficulty, at the present stage 
of the inquiry, is to know where to stop, to say of what 
races of men it is not allowable to lay down that the 
society in which they are united was originally organ- 
ised on the patriarchal model. ; . . The points which 
lie on the surface of the -history are those: — The eldest 
male parent — ^the eldest ascendant — is absolutely supreme 
in his household. His dominion extends to life and 
death, and is as unqualified over his children and their 
houses as over his slaves ; ■ indeed, the relations 
of sonship and serfdom appear to differ in 
little , beyond the higher capacity which the child in 
blood possesses of becoming one day the head of a family 
himself. The flocks and herds of the children are the 
flocks and herds of ,the father, and the possessions of the 
parent, , which he . holds in a representative rather than 
m a proprietary character, are equally divided at his 
death among his descendants in the first degree, the 
eldest son sometimes receiving a double share under the 
name of birthright, but more generally endowed with no 
hereditary advantage beyond an honorary precedence. 
A less obvious inference from the Scriptural accounts is 
that they seem to plant us on the traces of the breach 
which is first effected in the empire of the parent. The 
families of Jacob and Esau separate and form two nations ; 
but' the families of Jacob's children hold together and 


become a people. This laoks like the immature genn of 
a state or commonwealth and of an order of rights 
superior to the claims of family relation." 

The family, tfhen, he regards as the unit of primitive 
society, and the family at its lowest means father, 
mouther and children. The single family breaiks up into 
more families which, all lield together under the head of 
iLe first family, the chief or patriarch, becomies the tribe. 
Withdrawals from that tribe make new tribes, which, 
still held together by kinship, act together and ultimately 
form a state. Maine's ascending scale of development is 
in these words: "The elementary group is the family 
connected by common subjection to the highest male 
ascendant. The aggregation of families forms the Gens 
or House. The aggregation of Houses makes the Tribe. 
The aggregation of Tribes constitutes the common- 

Maine derives his evidence from three sources — from 
accounts by contemporary observers of civilisation less 
advanced than their own, from the records which parti- 
cular races have kept of their own history, and from 
ancient law. These sources provide ample proof of the 
power of kinship on the development of the state, though 
we shall find several insurmountable difficulties in the 
theory as Maine presents it. 

The chief evidence in favour of the theory is found 
in tfhe early history of the Jews, especially the Patriarchs 

of the Old Teistament. In Athens there were 
tiii''thlory'' 'families' and 'brotherhoods,' and in Eome the 

three primitive tribes with a common origin. 
In Eome, too, there was the " patria potestas," the power 
of the father, which gave the head of the household 
almost unlimited authority over its members. The cl'an 
system in Scotland, the tribal system in many countries, 
the real or fictitious legends of common origin in many 
tMttionalities, all these go to show the importance of the 
family. In India Maine was familiar with the ramifica- 
tions of the family system, by whiclj very large ^umbers 
are included in one household, under the head of the 


eldest male. In certain rude communities to-day large 
groups of individuals have been found in one so-called 
family, each man having large numbers of brothers or 
sons or cousins. The patriarchal theory, adopting this 
as the unit and supposing the headship bequeathed from 
one chief to another, by easy stages transforms the 
father into the chief or king and' the family into a civil 

The theory is open to certain very grave objections. 
Its chief merit is that it points out what is undoubtedly 
a factor in state development, the 
fhe'xheoi-y! ^^^^^7- ' Aristotle, while recognising the 
difference between a family and a 
developed civil community, likewise posits the relation 
of father to children as a fundamental fact in the origin 
of civil society. Aristotle said that there were 
three approximations to . civic relations in family 
life — (1) the relations of a slave-master to his 
slaves, (2) the relations of a husband and wife, and 
(3) the relation of a parent to his children. The 
family is the ultimate form of social union. Command 
and obedience arise naturally in it, and logically enough 
it may be considered as the basis of alL forms of social 

The Patriarchal theory is one ofi the simplest explana- 
tions of the origin of the state, but one of its chief 
weaknesses is this very simplicity. Primitive 
a**dan8er?'''^s not the same as simple. The more 
researches that are made into early society, 
the more is it clear that early forms of social organisation, 
were very complex. This danger of simplicity applies 
equally to other 'theories of the. origin of the state. Sir 
J. G. Pxazer, the most out&taifding of modem anthro- 
pologists, in his classic work The Golden Bough, mak^S 
a point of warning investigators against this danger. 
"He who investigates the history_ of institutions," he 
says, " should constantly bear in mind the extreme 
complexity of the causes which have built up the fabric 
of human society, and should be on his guard against a^ 


subtle danger incidental to all science — the tendency to 
simplify unduly the infinite variety-of the phenomena by 
fixing our attention on a few of them to the exclusion of 
the rest. The propensity to excessive simplification is 
indeed natural to the mind of man, since it is only by 
abstraction and generalisation, which necessarily imply 
the neglei?t oc a iiaimber of particulars that he can 
stretch his puny faculties so as to embrace a minute 
portion of the illimitable vastness of the universe. But 
if the propensity is natural and even > inevitable, it is 
nevertheless fraught with peril since it is apt to narrow 
and falsify our conception of > any subject under investi- 
gation. To correct it (par+sally) we must endeavour to 
broaden our views by taking account of a wide range of 
facts and possibilities, and when we have done so to the 
utmost of our power we must still remember that from 
the very nature of things our ideas fall immeasurably 
short of the reality." 

This procedure, applied to the Patriarchal theory, at 
once raises difficulties in the theory. In the first place 
a considerable number of writers hold that 
The Matri- not the patriarchal but the matriarchal family 
fheory also ^^^ the unit. This is known as the Matri- 
supported. archal theory. The upholders of this theory 
(the chief of which are McLennan in his 
Patriarchal Theory, Jenks in his History of Politics 
and Morgan in his Ancient Society) say there is 
considerable evidence to show that the primitive 
family had no common male head, but that kinship 
was traced through females. • Before the patriarchal 
family there was the matriarchal family. The 
patriarchal family is possible where either monogamy 
or polygamy exists, but the earliest form of 
marriage relation was polyandry, according to which 
one woman had several husbands. Descent in such a 
state could_ only be through the female. The prevalence' 
of queens in Malabat and the power of princesses among 
the Marathas may be cited as evidence in favour of thf 
matriarchal theorv. 


Though examples exist ! of polyandious types of 
society in various parts- of the world, the! evidence i» not 
sufficient to justify the matriarchal theory. The very 
existenoe of matriarchal descent, . however, is a fatal 
argument against the pafeiardhal theory. The patrih 
archal family is not amiversal; and where a male member 
lof a feanilyi'is chosen as leader it is evident that some 
cause outside the family system is in operation. 

The existence of another cause is also shown by the 
fact of adoption. In primitive communities v^fe find that 
individuals were adopted by families, some- 
amouny. ^ times in large numbers, in order to; ^ive 
reality to the idea of kinship. The idea 
behind adoption obviously liea outside the family. 
Adoption was regarded as necessary to secure certain 
ends. The meaning of the family , as a community is 
materially changed when this is . tak6n into account. 
Still more important is the statement of Maine himself 
that the notions of power and consanguinity, (or kin- 
ship) blend but they do not supersede each other. In 
the family was latent the idea: of tcivil, authority. The 
analogy to civil authority may be true in, regard to tlhe 
rule of a father over children, but something else vis 
necessary to i explain the continuance of., paternal 
authority over gfown men.' Physical force may account 
for the rule of the man over hia wife and his children, 
so long as the children are young and relatively weak, 
but something beyond force is necessary, to explain the 
power of a^weak old man over men in the prime of life. 
Some; deeper foundation exists. In Rome the patria 
potestas was enforced by the state, but where there is no 
state outside the iamily the rule could continue only 
because it was reasonable or because it served certain 
ends. ■ '!■ ...-., .,', 

Actual examples of the t)atriarehar type< of . society, 

Bioreover, show that mere descent alone is not sufficient 

.1 to establish a new head of the, family. Thus 

eieiSehta: ■ ^^ ^^® Slavonic Houise Gommunities the head 

was .elected, ,! not because of .descent, 'but 


because of his capaeity;^ Ability to manage is, essential 
to 'beadshij)!. This, again, shows an ^deai , outside mere 
kinship. • . ., i , , 

We may concltrde that in e&rly society kinship was 
the fiirst and strongest bond. As the community evolved 
the sanction of kinship continued till otheir 
of*kinship. elements — common ,customs> common, speech, 
common purpose — -became clear. The bond 
of blood was the first element of unity; the 
other independent bonds appeared later. The course 
of history shows the gradual supersession of 
kinship by these other elements. ■ Tfliiis in the earliest 
stages of society citizenship was equivalent to the 
membership, real or pretended, of a common family. 
Nowadays citizemship in a state practically < means 
residence on or biitih within a particular part of tihe 
world's surface. The variousstruggles of class against 
class, from the patricians and plebeians in Rome 
to the" aristocracy and people of the modem west, or 
to the Brahmin and Sudra in India, all illustrate the 
struggle of various elements against kinship, or an aspect 
of it, heredity. . , 

2. Religion. In the early stages of human society 
religion was far' more powerful than it is now. It 
coloured every act of human life. In the 
importanea home, in public life, in war, in festivals it 
to early"" played a predominant part. Every idea, 
man. every habit, every custom of primitive 

man was governed by religion: Its influence 
in later times is equally manifest. Only in relatively 
modern times has religion been separated from politics, 
and this development has taken place only ; in the 
advanced communities of the west. Tb-day in many 
parts of the world there are primitive tribes where 
superstition or religion is the supreme arbiter in all 
matiters. , . . ,,, . 

Primitive; man,' knowing little about -tbei fiorces or 
laws ofi nature yet recognising their great power, aaeribed 
sucB power to unseen spriiiis. He regarded these spirits 


or gods as responsible for every process of nature. Thus 
in Greece and Home, the most advanced communities of 
ihe pre-Christian Wioilid,, agriculture, war, the sea, the 
sun, each bad a presiding deity. To the savage the 
mystery of death was particularly terrible. The depaited 
spirits were looked on as capable of love ^nd hate, of 
bene^cence and malevolence, and were worshipped, os 
propitiated by sacrifices. Ancestor- worship, arising from 
this, was very common, and the worship of departed 
ancestors had a considerable influence in family life. 

The religion of jirimitive man we now call either 
animism, or merely superstiiion. For a fuller study o? 

this the student must turn to Anthropology. 
Frazii-'f' ^^^ most remarkable modem study of 
Theory, the influence of religion or superstition on 

the development of political society and 
social institutions is the Golden Bough., the work of 
Sir J. Or. Frazer, Professor of Social Anthropology in 
tlie University of Liverpool. In Psyche's Task and 
Lectures on the Early History of the Kingship, Professor 
Frazer gives in small compass the factora particularly 
tearing on our subject; It mus't be remembered that the 
investigation into this subject is modern and incomplete 
As Professor IVazer points out, we are only beginning 
to understand the mind of the savage, and his 
institutions, and the truth once found out " may involve 
a reconstruction of society such as we can hardly 
dream of." 

Common worship undoubtedly was a most important 
element in the welding together of families and tribes. 
This worship was often ancestor- worship-. Common 
devotion to ancestors provided a permanent basis of 
union. As we have already seen, in early society the 
family played' an all-important part. The family was as 
much a religious as a ■ natural association. ! Common 
worship was more essential tihan even kinship. The 
wifej the son, or the ado pted son were all initiated into 
the family religion:. With the extension of the family 
to the tribe, common worship continued to be the bond 


of union. Tribal UnioU, too, -was impossible exce|Kt f or 
those who performed the same 'religious ceremonies. 
Worship, ttier6fi6i-p, provided' a bond of union- in tii* 
earliest civic communities, when as yet the end of civic 
unity' was not recognised. , - r , , . 

This is further proved by the character of' primitive 
law. No legal relation e^xisted between families 
or tribes unless tii^ religion was common. The sanction 
of the law was ireligion anil, as it was the terrible aspect 
of religion that appealfed to primitive minds, iJhe 
breaking : of law was followed by terrible punishment. 
The relation of command i and obedience, natural enough 
in family relations^ > was thus : tiefinitely established by 
religion. As far as we can judge early societies were 
ruled with a rod of iron by the absolutism of religiou-s 
law. There was no question of the right of the indivi- 
dual against the state, for no such right existed. 

The evidence available points to the existence of 
monarchies in the religious stage of state development. 
The kings were priest-kings, combining the 
Priest Kings. ^y^;jgg qJ ceremonial observances and secular 
rule. Examples of the survival of these kings exist in 
historical times. Sometimes they survived as titular 
kings, their main duties being the conduct of teligious 
ceremonies. They may have been instituted after the 
aboli-tion of monarchy in order to discharge the religious 
duties which the old priest-king combined in one 
person. Professor Frazer quotes the case of the 
descendants of the Ionian kings at Ephesus who, 
though their duties were mainly religious, continued 
to enjoy certain royal , privileges, such as a seat of 
honour at the games, the right to carry a staff instead 
of a sceptre, and the rigrht to wear apurple robe. The 
same writer cites the Spartan kingsMp as an instance 
of the double function of priest and king. The! two 
kings were supposed, to be; descended from i Zeus, 
and as such they acted as the priests of Zeus; A modem 
example he finds in the Matabeles of South Africa, where 
the king is at the same time high-priest. Every year 


he ofEers sacrifices at certain festivals, and prays to tke 
spirits of Ms forefatliers and to his own spirit^ from 
whom he expects great blessings, "In early society" 
says Dr. Frazer, " the divinity that doth hedge a king is 
no mere figure of speech." 

Before the days of priest-kings according to Dr. 
Frazer, the "magical man-god " held sway. There are 
The Magi- *^° types of "incarnate human godsi" In one 
eian Man- type man is looked on as divinely inspired, the 
^*"'' inspiration coming either at birth or at somn 

time during his life; the other is a ma;^ician. In 
primitive communities magical rites and incantations 
are practised both privately and publicly, privately for 
the benefit or injury of individuals, publicly for the* 
community. The magician thus becomes a public per-'' 
sonage of great importance, for the welfare (or the 
reverse) of ih.e\ community depends on him. From 
chief magician the step to chief or king is simple. Once 
that step is secure the profession of magician becomes 
the' highest aspiration of the tribesmen. The clever 
men of the tribe not only appreciate the advantages of 
the position, but recognise that it is largely through 
deceit that the position is maintained. The supreme 
power thierefore tends to fall into the hands of the 
cleverest and most unscrupulous men. 

Dr. Fra;zer regards this step as one of the most 
important in the history of progress. Before the 
Early monarchy of the clever sorcerer was estab- 

Monarohy. l^ghed the council of elders ruled. 
Stagnation,, social, political and intellectual continued till 
the emergence, through sorcery, of the clever magician- 
leader, w'ho, once he reached the height of his ambition, 
discarded selfishness and worked in the interest of his 
community. A single minded resolute man was 
infinitely more useful than the "timid and divided" 
counsels of the elders. The communily then grew by 
conquest or other means, both in population and wealth, 
two necessary elements in moral and intellectual 
advance. Despotism at this stage, as in more advanced 


stages, was the best friend of progress and liberty, for 
it provided tOie means of advance and gave scope for the 
development of individuality. 

From the sorcerer, magician or mesdicine-man 
developed the priest-king. Dr. Frazer gives a large 
mass of evidence to show how, after the sorcerers- have 
raised themselves to power, an intellectual revolution 
takes place. The acuter minds of the tribe recognise 
the deception of the magicians, and ma^ic is replaced 
by religion. The magician gives way to the priest, 
who tries to achieve the same end as the sorcerer not by 
trying to control the forces of nature but by 
appealing to the gods. The king in giving up magic 
adopts prayer, but preserves his kingship, and is often 
regarded as a god because of the possession of his nature 
by a powerful spirit. 

Enough has been said to show the iraportanoe of 
religion in the early sta,ges of state development. The 
influence of religion in the later stages is a matter of 
history. Religion has both in tlie earlier and later 
stages been a pqwerful instrument for inculcating 
obedience and preserving order. By analogy from the 
effect of religion in the Christian era as well as from 
direct evidence of ancient law and primitive communities 
we may argue that in the earlier staa-es of religion, when 
yet it was merely^ animism or superstition, its power was 
far greater. When we take into consideration that the 
relation of command and obedience is the fundamental 
fact of civil society, we are able to appreciate tihe great 
value religion has had in the development ofthe'staite. 

3. Political consciousness. Under this general head- 
ing may be grouped a numbeu of elements which, working 
Political alongside religion or kinship, helped. in the 
consoious- development of the state. Underlying all 
"*^'" other elements in state formation, 

including kinship and religion, is political conscious- 
ness, the supareme element. Political consciousness 
implies the existence of certain, ends to be 


attained tnrongh political organisation. These fiims 
in the earliest stages are not expressed; indeed, 
thtey may not be recognised. Other elements, 
kinship it may be, or religion, may seem supreme, but 
gradually the ends of political organisation become 
evident, and political institutions arise consciously 
because of these ends. At the beginning the political 
consciousness is really political unconsciousness, but, 
just as the forces of nature operated long before ilie 
discovery of the law of gravitation, political organisation 
really rested on the community of minds, unconscious, 
dimly conscious, or fully conseious of certain moral 
ends present throughout the whole course of develop- 
ment. I 

Among elements of development which may be classed 
under this general head are the need for security of 

person and property, tike necessity of defence 
of'person. *Tom external attack, and the need for 
Regulation improvement, social, moral and intellectual. 
"Reiatjons. Witia the increase of population there is the 

need for the creation of some agency to control 
the manifold relations of individuials. The first need 
is order. ITo settled life or progress is possible without 
the security of the person. With the increase of popula- 
tion also comes the need for regulating social relations 
such as the family and marriage. With the increase of 
wealth arises the necessity for tihe protection of property. 

All these lead to some kind of law. In its earliest form 
law is religious, with terrible penalties. This religious 
law, as we have seen, secured the relation of 
InceVf taw. command and obedience. At the beginning 
of history we fin(^ men ruled by customary 
law. Customary law was very rigid, obedience to it 
being still of a semi-religious, character. Progress 
begins when the people apprecia.te the .purpose of the 
law, i.e., when mere obedience is succeeded by intelligent 


The earliest type of law, which existed before the 
inr^ntioii of writing, may be divided into Dooms law 
' ' andi Clistomary law proper. Dooms Jaw was 
lIw.'"' merely separate ' 'dooms' ' or judgments. The 

°'"'"" ^'*- 1 relation of cause and effect was not yet 
recognised, nor was here any idea of universal law. 
Such laws were merely isolated judgments, laid down by 
chiefs as cases of necessity arose. .The .existence of 
such law was, really revealed negatively, i.e., when it 
was broken. Judgment was given after the fact, not 
as pre-supposing the existence of a general law bearing 
on the case. A doom was an inspiration of the, moment 
to suit a given case. 

Oustpmary- law .proper, also unwritten, emerged when 
the dooms were regarded as precedents to guide the 
administration of justice. The law^, instead 
Law.*""^" of being vicaripus dicta of chiefs, now became 
stable. The chiefs or councils of elders 
become the repositories df legal knowledge and their 
duties were regarded as a sacred trust. The kings or 
councils did not actually make the law but were the 
interpreters of it. This customary law gradually was 
, modified. The influence of migration, whereby tribes 
became familiar with laws different from their own, 
brought about this modification. Sucii comparison 
inevitably led to questioning. Some laws were bettet, 
some worse, and the wiser among the earlier peoples 
began to ask why. This "why" is the keynote of all 
progress. It brings to light the end of institutions, and 
leads to the replacing of custom by thought. 

The need for defence among primitive peoples, with 
whom the aggressive instinct was highly developed,- 
' was equally great. Defence implies attack, 
oefenoe. and in early communities we find that war 

created kings. The ablest leader in war 
became king. This, of course, is true also of relatively 
highly developed communities. Finally, the need of 

pOLlitCAL Science. 'HI 

^fiJ^T^^d, ' Whicli mai-bs' the ■ latest stage of political 
d^elcipmeiit, I leads' the consdious adaptatibti of political 
institutioiiy W'certain'definittJ ends. We are accustomed 
to look on progress as a late appearance in sbcial and 
political development. l?he conditions (if progress arise, 
however, as soon as people questioii among themselves 
the purpose of tiheir institutions. 

9. CojNXLtrSION. 

Several false ' theories of the origin of the state have 
been examined ; their good as well as their bad poin^ts 
Conciu i n ^^'^^ been broaght forward. The chief 
elements in state formation and development 
have been specified, but at the conclusion of 
all this we can' do little more than say that 
the" state is a historical growth in whioih kinship, 
religion and political consciousness have been the 
predominant elements. It is impossible to say at what 
stage any one element pr^idominated, or even when it 
■entered or left the field. 

In all probability family groups existed before 
tihe state, and the state, in a rudimentary form first 
appeared as an extension of the family. 
Elements in B^ligion re-inforced family discipline and 
the Proeesi gradually created the wider discipline 
necessary to the existence of a state. Custom 
was the first law, enforced by chiefs or parchiarchs. It 
carried with it a religious sanction. Gradually politics 
and religion were separated, and definite political ends 
were responsible for political unity. 

Many variations of the process no doubt existed. 
A partriarohal state may have prevailed in one place; 
a matriarchal in another. Magician kings may 
Variations, l^^^e existed in one community; priest-kings 
in another. Any detailed construction of the 
earliest forms of civic organisation are bound to 
be fanciful. The main issue is clear,, namely, that 
the state is a gradual development. Its origins are lost 


in the mists, of time, but from ; the evidence we have 
we may reasonably conclude that ;from imperfect begin- 
ningrs the, state has developed and is at the present 
moment developing towards the well-being of mankind, 
which, consciously or unconsciously, !has been its 
mainspring throUghoiit. 



1. The Various Aspects of Soveheignty. 

The word sovereignty comes from a Latin word 
superanus, which means supreme. The use of the word 

as a technical term in Political Science dates 
Meaning of ^^o™ *^6 publication of a work called the 
Sovereignty. Republic by the French author Bodin, in 1576. 

The idea of sovereignty was common before 
his time, though it was called by other names. 
In Aristotle we read of the "supreme power" in 
the state, and the Eoman lawyers and mediaeval 
writers speak of the " fulness of power " ofl the state. 
Obviously all reasoning about the state must have some 
reference to what is really the central charaoteristio 
of statehood, whatever name may be given to it. As 
we shall see, the term has certain definite applications 
in Political Science, but the notion of supremacy is 
present in all its uses, whether in Political Science or 
in ordinary speech. When one speaks of a person, a 
body of persons, a law, or a state as sovereign, one 
implies that there is in existence a power which is higher, 
better, greater than all other powers, a power which 
is at the very top. In speaking of any human agency 
as sovereign; we mean that it must be obeyed by other 
individuals or bodies. It isi, in a word, supreme. 

In Political Science there are several senses in which 
the term is used, and unless the various uses are clearly 
Different understood, the student will be in danger of 
uses of the much mental confusion. In the first place, 
Poi'iUoai ^^ student must be on his guard against 
"••itinBj confusing the idea of the sovereignty oi the 
Sovereignty, state with titular or nominal sovereignty. 

The word sovereign is frequently used to 
designate a king or monarch. The king or monarch 




may seem to be the highest power in the state, 
but in modern democracies the king is more a 
servant than a master'. The use of the term in this 
sense dates firom the time when kings had absolute 
power, or the power of final decision. Nowadays the 
king is a part of the machinery of government, and the 
term sovereign applied to him is merely a name or title. 
Such sovereignty therefore, may be called titular or 
nominal sovereignty, and the chief merit of its . use f or 
the purposes of Political Science is to call the attention 
■of the student at the outset to the radical distinction 
between the state and government. 

The sovereignty of the state is simply the supreme 
power of the state, or as Professor Burgess says, " the 

original, absolute, unlimited power oyer the 
■eignty'oif individual subject and over all associations of 
the State, subjects." This sovereignty of the state may 

be analysed from different points of view, but 

in itself it is the perpetual and complete power 
oi the state over its members. It is not the power of 
eny part or branch of government: in fact -the distinc- 
tion between the state and government, as alrcEidy 
insisted on, is the key-note to the proper understanding 
of sovereignty. 

The idea of tte sovereignty of the state may be looke^i 
at from two main points of view : (a) legal sovereignty/, 
(b) political sovereignty. 

The legal sovereign is the authority which by law has 
the power to issue final commands. It is the authority 

to whose directions the law of the state 
(o) Legal attributes final legal force. In every ordered 
Sovereignty, state there are laws which must be obeyed 

by the citizens, and there must be a powpi 
to issue and enforce these laws. The power, whether 
it be a person or body, to which in the last resort is 
attributed the right of laying down these laws is the 
legal sovereign in the state. The test of the existence, 
or location of the legal sovereign lies in the law 
-courts. A judge can enforce a law only if it is passed 


by the legal law-making body. The legal sovereign 
thus is the supreme law-making authority, recognised 
as such by the law of the state. 

The political sovereign is the sum total of the 
influences in a state which lie behind the law. In a 
modern representative government we might 
iover«ignfy« describe it roughly as the power of tte people. 
It is the power behind the legal sovereign, 
but whereas the legal sovereign is definitely organised 
and discoverable, the political sovereign is vague and 
Sndeterminate, though none the less real. 

The simplest way to understand the diffe^rence between 
the political and legal sovereign is to imagine a small 
state in which the opinion of the people is expressed by 
a mass meeting at which every citizen is present. The 
expression of the opinion does not make a law. Imagine 
further that in this small state the body legally 
empowered to make laws is a House of Representatives. 
The opinion of the mass meeting would be of no avail 
legally till it was definitely drafted into legal form and 
passed by the House of Representatives. A judge in 
the courts of the state could not apply the opinion of 
the mass meeting to a case which came before him ; but 
when the opinion was embodied in legal form and passed 
by the House of Representatives he would have to 
apply it, whether he wished or not. The mass meeting 
represents the political sovereign; the House of 
Representatives the legal sovereign, for it is the body 
empowered by law to issue final commands. The mass 
meeting might express its opinion clearly,, it might even 
pass a resolution framed in legal terms, but till the law- 
making body passed it, no judge could take the slightest 
notice of it. 

In modern governments we are familiar with the 

representative system. The electorate, by means of 

voting and electing representatives, indicates 

LagaV°and' *** *^® legislature the tjrpe of laws that are 

Poiitieai desired. In this way it expresses roughly 

overaign y. ^^^ political sovereignty in the stete. 


Modern democracies are representative or imdirect — 
not pure or direct like the Greek democracies, 
where the general assembly, of the citizens was 
tantainount to the legislative body. In a direct 
democracy the expression of the political sovereignty is 
equivalent to the making of a law. In such a simple 
case the legal and political sovereigns practically 
coincide. The distinction between the two is shown in 
any modern state. It is well brought out in the 
organisation of the British Government. In the Unite-i 
Kingdom the legal sovereign is the King, House of 
Lords and House of Commons, tecShnically called the 
King-in-Parliament. Thin , sovereign is legally all- 
powerful; there is no legal limit to circumscribe its 
power; it can, as one writer says, do everything except 
make a man a woman or a woman a man. It is legally 
unlimited; it can make or unmake any kind of law; 
it can even make legal by an Act of Indemnity 
what previously was illegal. But this legislative 
supremacy of Parliament is limited, though not legally. 
It is limited by the will of the people. Parliament 
could legally make a law enforcing the people to kill 
each other. Actually it would never think of doing so, 
because the will of the people has to be considered. In 
other words, the political sovereign lies behind and 
conditions the legal sovereign, thus limiting the legal 
sovereign, thoVLgh. legally speaking tihe legal sovereign is 
omnipotent. The political sovereign in the state is the 
influences in the stiate, which, formulated in a legal 
way and passed by the legal law-making body, 
ultimately become the law of the stiate. The political 
sovereign manifests itself by voting, by the press, by 
speeches, and in manifold other ways not easy to describe 
or define. It is^ however, not organised, and it can 
only become effective when organised. The organisa- 
tion of political sovereignty leads to legal sovereignty. 
The two are aspects of the one sovereignty of the state. 
They constantly react on each other. Sometimes, as in 
direct democracy, they practically coincide, and the 


<listiiiction between the two is recognisable only in 
theory. In modem large nation-states the distinction is 
always more or less visible in the change of forms of 
government and in dhanges in the legislatures and con- 
sequent changes in laws. The chief aim and problem of 
modern governmental organisation is to find a structure 
in\ which the distinction is at a minimum. 

Political sovereignty is to be distinguished from populai 
sovereignty. The phrase " popular sovereignty" is not 
used in any real scientific sense : it indicates 
Sovereignty. ™o^^ what is known as political liberty, 
which is discussed later. Popular sove- 
reignty roughly means the power of the masses 
as contrasted with the power of an individual 
ruler or of the classes. It implies manhood suffrage, 
with each individual having only one vote, and the 
control of the legislature by the representatives of the 
people. In governments where the legislature is 
organised in two houses, such as the House of Commons 
and tihe House of Lords, it further inaplies the control 
by the lower, or "popularly" elected house, of the 
nation's finances. 

Anotiier distinction is sometimes made, namely, 
de hire (legal) and de facto (actual) sovereignty. A 
De iure and ^^ **"** sovereign is the legal sovereign, as 
|s faeto explained above. A de facto sovereign is a 
overeign y. gQygpgjgjj whioh; whether its basis is legal or 
not, is actually obeyed; in Lord Brycis's words 
"the person or body of persons who can make 
his or their will prevail whether with the law or 
against the law : he, or they, is the de facto ruler, the 
person to whom obedience is actu-ally paid." A de facto 
sovereign may be a , soldier, who by. his army can 
compel obedience ; or a priest, who may so awe the people 
spiritually that they will obey him whether his claim 
to obedience is legal or not ; or any other agency which 
can compel obedience. 

The existence of de facto sovereignty is most easily 
discernible in times of revolution. There have been recent 

118 politicaj: s cience. 

instances in Russia, Germany and the old Austria- 
Hungary, where new powers have displaced tfae old 
legally constituted powers. Sometimes revolutions mean 
merely a change in the existing personnel or organisa- 
tions, in which case the forms of the old legal sovereignty 
are fulfilled; in other cases tihe old legal sovereign is 
completely abolished, and the people are often in doubt 
whether +o obey the new power or the old. Thus, in 
Petrogard in 1917, when the- Bolshevists came into 
power, manj of the officers of the old government refused 
to obey them, thinking that the advent to power of the 
usurping power would only be temporary. 

Many other instances of de facto sovereignties exist. 
Oliver Cromwell instituted a de facto sovereignty after 

he dismissed the Long parliament. The 
Examples of Convention, after the Revolution of 1688, 
8over«"griiie8. which offered the crown to William and 

Mai-y, had no legal status. Napoleon, after he 
overthrew the Directory; the French Constituent 
Assembly, convened in France after the 1870 "War to 
make peace with Germany, were de facto sovereigns. 
Legal sovereignties have been in question recently in 
Russia, Germany, Austria and Hungary. When the 
allied armies took 'over part of Germany they constituted 
a de facto sovereignty. 

Sometimes in a state there is partly a legal sovereign 
and partly a de facto sovereign, as in some of the 

unsettled South American Republics, where 
ai'de'faeto *^^ army actually rules, while nominally the 
and de iure legal government is in power. Frequently it- 
iijgf * *"" is difficult to locate a de facto sovereign. 

The legal sovereign is discernible according 
to the laws, but where the legal sovereign is in question 
or in abeyance it is very difficult to gauge exactly the 
power that rules. In a well-ordered state de iure and 
de facto sovereignty coincide", or, in other words, right 
and might go together. De iure sovereignty wftiatevei 
may happen, has always the legal claim to obedience. 
Until the law is altered no judge properly can condemn a 


prisoner on the orders of a merely de fdttb sovereign. 
When there is a clash between the legal and actual 
sovereigns, either the one or the other must disappear, 
or they must coalesce. Either the legal must be 
reaffirmed, or the old legal sovereign must disappeat 
and the new actual become the legal sovereign; 
intimately only that riglht will prevail which has might 
on its side, and in actual history we find that right and 
Inight always tend to coalesce. Sovereignty de facto, 
when it has showM its ability to continue, will gradually 
become de iUre. New laws giving a definite position to 
the new powers will be made with the result ifliat the 
previously existing de iure sovereignty will disappear. 
On the other hand, de iure sovereignty is difficult to 
dislodge, because the legal power tends to draw force to 
its side. Men are more inclined to obey and support the 
legal power than to commit themselves to an unknown 
de facto power. Lord BrycCj in his Studies in History 
and Jurisprudence, sums up the relations between the 
two thus — 

"When Sovereignty de mre attains its maximum of 
Lord Bryoo's Quiescence, Sovereignty de facto is usually 
statomentof also steady, and is, so to speak, hidden 
tht relations, behind it. 

When Sovereignty de iure is uncertain. Sovereignty 
de facto tends to be disturbed. 

When Sovereignty de facto is stable. Sovereignty 
de iure, though it may have been lost for a time, 
re-appears, and ultimately becomes stable. 

When Sovereignty de facto is disturbed. Sovereignty 
de iure is threatened. 

Or, more shortly, the slighter are the oscillations of 
each needle, the more do they tend to come together in 
that coincidental quiescence which is an index to the 
perfect order, though not otherwise to the excellence, of 
a government." 

De' fadto sovereignty is chardcteristic of war and 
revolutions, and certain rights have come to be recog- 
nised in regard to it. Thus when a de facto sovereign 


overcomes a, de iwre sovereign^ but not for a suf&ciently 
long time to make, tie tie facto sovereignty real, the acts 
of iihe supporters of tlie de facto regime are usually 
pardoned, in an Act of Idemnity, whei} the de iure 
sovereign is resumed. De facto sovereignties also r^ise 
difficulties in international relations. Thus, in the 
recent lease of tlie Bolsheviks in Russia, the allied Powers 
refused to recognise the government, although they had 
recognised the new government formed when the Tsai 
abdicated. The test of de facto sovereignties is their 
power of continuance. If they show ability to become 
ultimately de iure sovereignties, they are usual^ 
recognised internationally. 

The question of the location of sovereignty, so fre- 
quently discussed in books, on the subject, becomea 
simple when we keep before our. mind's eye 
The location ot the two-fold aspect of the sovereignty of the 
tovereignty. g^^^g rjij^^ location of the sovereignty of the 

state is simply the state and the state alone. 
Political sovereignty, one aspect of the sovereignty of 
the state, lies in the will of the people, moulded by the 
various influences which exist in any body of people. 
Political sovereignty, as one writer calls it, is the 
"resultant or better still, the organic compound which 
includes the forces of every man and pf every agency 
made or directed by human skill and intelligence within 
the society." It is the centre of the national forces, or, 
in the words of the same writer, " the concentrated 
essence of national life, majesty and power focussed to 
a point." Political sovereignty lies with the people; it 
is a r^al, ever existing power, which is co-terminous 
with the state itself. De facto sovereign% or, as Bryce 
calls it, "practical mastery" seems at times practically 
synonymous with political sovereignty m the 
sense that , political , sovereignty is the' ultimate 
deciding factor in legal sovereignty; but de facto 
sovereignty is really the actnail power which is obeyed 
at any time, whether it is (Ze «Mre or not, or whether 
it rests on the will of the people or not. Political 


so'TOreignty is tlie power the organised issue of which 
is legal sovereignty. The location of legal sovereignty 
in a state is a matter for lawyers. In some govemmejitH 
it is easy to tell where the legal supremacy lies. In the 
United Kingdom it lies in the King-in-Parliament. 
Where, as in most modem governments thp legislature 
is limited by a rigid' constitution, the discovery of the 
legal sovereign is more difficult. "Where such a 
constitution exists, the ordinary legislature has powers 
only within certain prescribed limits; the legal 
soveleignty ultimately rests in the constitution. 

The theory sometimes advanced t^hat in sovereignty 
is placed the sum of the law-making bodies within^ the 
Sovereignty state, rests on a confusion between state and 
as the sum government. The sovereignty of the state, 
inV^boSiti' say those who hold this opinion, means the 

expression of the will of the state, and all 
law-making bodies share in expressing this will. These 
law-making bodies, however, express this will only, 
because of the sovereignty of the state. The legislature 
in any state ruay delegate powers to County Councils, 
District Boards, Municipalities, and so forth, but these 
powers of the organs of government are merely 
concrete expressions of the sovereignty of the state. 
They are not divisions of the sovereignty of the state, 
but manifestations of its organic unity. 

The modem theory of sovereignty arose with the 
modern national democratic state. In the middle ages 

there was really no state in the modem sense. 
History Feudalism had to break up before the modem 
Theory of idea of a state could emerge. Feudalism 
Th''*Mdd'i'" ^^^ ^ governmental system based on personal 
Aess. ' ' allegiance, and the idea of the sovereignty 

of a person or king was the natural result of 
the system. Co-existent with feudalism were the 
antagonistic claims of the Church against the Empire, 
leading to the ever^discussed question whether thie 
temporal power (the Empire) or the spiritual power (the 
Church,) was supreme. The modem theory, which 


regards sovereignty as the original, absolute 
and undivided power of the state, could not 
arise m such circumstances, especially as many 
of the writers of the middle and early modem 
ages added to the confusion by saying that either 
the Law of Nature of the Law of God was sovereign. 
With the disappearance of feudalism the way was 
paved for the appearance of the modem theory, 
but it took centuries for thinkers to throw off 
the feudal confusion of state and government. 
Feudalism gave the idea of the territorial sovereignty 
of a king or prince. As the intermediate lords 
of the feudal system died out, the king's power 
and importance increased until he ultimately stood 
supreme. And it was only gradually, as the nature of 
the state was properly understood, that the sovereignty 
of the state as distinct from the sovereignty of an 
individual or part of government came to be recognised. 
The climax of the confusion in the identification of state 
and government is well represented in the historic 
utterance of Tjouis XIV. of France, " The state is 

The first modern ideas on sovereignty came from 
France, in the writings of Jean Bodin, in the sixteenth 
Bourn. century. The slate Bodin defines as an 

aggregation of families and their common 
possessions ruled by a sovereign power and by 
reason. Sovereignty he defines as " supreme powei 
over citizens and subjects unrestrained by the 
lawis." Bodiij emphasises the perpetual mature of 
sovereignty; he says that there is no limit of time 
to it, though he admits that, there may be life tenure of 
the supreme power. The chief function of sovereignty 
is the making of laws, and according to him the 
sovereign is free from the laws thus made. But he is 
not free from all laws, for all men are bound by Divine 
Law and the Laws of Nature and of Nations. 
Bodin' grants that a legal sovereign is under these laws 
(of Nature or God), and is answerable to God. 


Regarding civil law, he says that the sdvereign's will i» 
the ultimate source of law, and is free. If the sovereign 
wills a change the old order does not hold. 

Bodin deals with legal sovereignty, for, he says, 
sovereignty may reside in one person or in a body of 
persons, the former being the better. Bodin is thus an 
absolutist, but he makes the proviso that the law of 
God or law of Nature be oI)served. 

Hobbes, whose theory of the Social Contract we have 
examined already, says that the sovereign is the person 
Hobbes °^ body to Vhom the individuals in the state 

Looks, ' of nature agree to surrender their natural 
Rouss6au. rights and liberty. This surrender is 
absolute, hence the sovereign is absolute, supreme in 
overvthing, able to change all laws. Ho is under no 
human power whatsoever. The sovereign power he re- 
gards as indivisible and inalienable, and the source of all 
legislative, executive and judicial authority. Hobbes 
followed the absolutist lead of Bodin, and his tiheory, 
like Bodin 's, is one of legal sovereignty only. 

Locke, as we have also seen, gave a theory of 
sovereignty based on the social contract. But he 
carefully avoids the term "sovereignty"; instead, he 
uses the phrase "supreme power." "There can be 
but one supreme power," says Locke, "which is 
the legislative, to which all the rest are and must 
be subordinate, y^t the legislative being only a 
fiduciary power to act for certain ends, there remains 
still in the people a supreme power to remove or alter 
the legislative, when they find the. legislative act 
contrary to the trust reposed in them." Thus according 
to Locke there are two "supreme powers " in the state. 
Of these two tihe community is always the supreme 
power ; but this supreme power of the community is 
held in abeyance and is exercised only when the govern- 
ment is dissolved, and a new government has to be 
created;, but so long as the government subsists, the 
legislative wields the supreme power. This distinction 
was ^Korked out in the nineteenth century into the 


clear-cut concepts of political sovereignty and legal 
sovereignty. , : 

It is to Rousseau, however, witli Ihis idea of the 
sovereignty of the general will, that the modern theory 
owes its immediate origin. According to Rousseau 
sovereignty is. the absolute power which the social 
contract 'gives the body politic over all its membeics,, 
when this power is directed by the general will, i.e, 
by the will of the citizens as a corporate whole. This 
general will (whether it means " the will that wills the 
common good," or " the will of the majority," or, what 
we may call, " public opinion ") is, with Rousseau, 
the sovereign. The sovereign as conceived by Rousseau, 
stands out as absolute, infallible, indivisible, inalienable. 
It finds its source in an original contract and abides 
permanently in the body politic, Rousseau thus 
accomplished for the people what Hobbes had done for 
the ruler. 

2. Chaeactebistics of Soveeeignty. 

The various characteristics of the sovereignty 
of the state may now be summed up as follows: — 
(1) Absoluteness; (2) Universality; (3) Inalienability; . 
(4) Permanence; ajid (5) Indivisibility. 

1. Absoluteness. The sovereignty of the statei is 

absolute and unlimited. Were it not so, the 

1- *»'s°'"'«- staifc would not be a state but a body of 
nfls9. ^ 1 T I T 

people siibordinate to another state. 

Sovereignty is the supremo characteristic of statehood, 

in fact, so indissolubly are they connected that we may 

say no state, no sovereignty ;■ no sovereignty, no state. 

The absoluteness of the sovereignty of the state 

implies — 

(a) That within the state there is no power superior 
to the sta,te. 

(h) That outside, the stsite tljere is no power superior 
to the state. 


The abs'jluteness of the sovereignty of the state means 
the unlimited power, of the state over its memhers; no 
human power is greater than the state. Such abgplute- 
ness really implies the other characteiistic&— univei^? 
ality, inalienabilicy, permana'Ojce and indivisibility. 
The theoretical absoluteness of sovereignty is modified 
Qnly when sovereignty, issues into power as exer- 
cised by government. The exercise of sovereignty 
belongs to government, and in the exercise ol sovereign 
power government is limited. But the limits are not 
legal limits to the sovereignty of the state. They are 
limits to the practical exercise of sovereignty. These 
limits arise from the very nature of the state. T!he state 
would not exist but for individuals; and government, 
the organisation of the state, is composed of individuals. 
Government therefore, which exercises sovereign ^power, 
is limited because of its very nature, by the ordinary 
limitations of human individuality. The supreme func- 
tion of govemment-^law-making — is governed in its 
exercise Ijy the fact that laws are made for finite men by 
finite men. 

Thus the sovereignty of the state as such is one and 
The iimrta- supreme, but there are influences which efEect 
tions of the exercise of sovereignty. We have already 
sovereign y. gj^^^jj j^q^ political sovereignty conditions 
legal' sovereignty. Professor Dicey has summed up the 
limits on the legislative supremacy of the British 
Parliament thus : (1) the external limit— rwhich lies in 
the possibility that the citizens may disobey or resist 
laws and (2), the internal — which arises from the 
very nature of the body or person exercising 
sovereignty. The sovereign is thus a body (or person) 
of moral beings (or a moral being) who impose (ol 
imposes) the inevitable limits of ttieir (or his) personality 
on their (or his) powers. Even the most despotic riilei 
is limited by both these considerations. The most 
absolute ruler could not make or unmake any law at his 
pleasure, for all subjects, however obsequious they may 
be -in many respects, have limits of human endurance. 

126 poLiTicAi. scibncje; 

Hia own character, enviionment, education ajad religion, 
mtist also meiild his actions. Th&reiaie, accordingly, limits 
of individuality, expeidieiicy and common sense. 
Bluntschli expresses the same truth in a 
well-known pasSage: "There is no such thing 
as absolute independence — even the state as a 
whole is not almighty: for it is limited, etttemally 
by the rights of other states and internally 
by its own nature and the rights of its individual 
members." This limitation of the "natural rights" 
of the members is the external limit mentioned by Dicey, 
Many writers — especially earlier writers on sovereignty 
— ^have declared that sovereignty is limited by 
natural law, or divine law, a limit- 
limits of ation that has been expressed in such 
oivi'ne'iaw. terms as eternal principles of morality,, 
natural justioej and religion. The remarks; 
made above about the internal limit of sovereignty apply 
here also: In the same way as moral universals guide 
individuals, they guide the organisations of individuals. 
The principles of morality undoubtedly affect the exercise 
of sovereignty, whether the morality be called Natural 
Law (universal principles applicable to all mankind) or 
the Law of God. Both the law of Nature and the law 
of God have to be interpreted by human agency ; and these 
laws — of Nature and God — exercise no sovereignty in 
themselves. They are not legal limits on which a judge 
could insist as standing against the expressed will of a 
state in the actual state-laws. They are not legal limits, 
but conditions of law-making. 

There are, however, one or two limits which have become! 
prominent during the last century, and which merit 
fuller consideration. Tl^e sovereignty of the state, 
it IS held by some, is limited (a) by its own fundamental 
laws, as drawn up in its constitution, and (b) by inter- 
national law. 

(a) Most modem states make a distinction between 


fundamental laws and ordinary laws. The fundamental 
laws are those general principles which are 
Th« LiQiitB- drawn up to guide future legifslatoxs and 
Gon'ititution. administrators in the state. They are 
regarded as more important than ordinary 
laws: in fact ordinary laws are valid only in so far as 
they accord with the spirit of fundamental laws. These 
fundamental laws are drawn up in a single document 
called the constitution, and the constitution cannot be 
altered save by some special process of law-making. 
The ordinary legislature cannot amend, abolish or add 
to the constitutional law. Such constitutions are called 
"rigid," as distinct from "flexible" constitutions, 
where there is no distinction between fundamental and 
ordinary laws. The most notable flexible constitution 
is that of the United Kingdom, while the constitution 
of the United States America is a typical example of the 

The existence of such laws limits the ordinary legis- 
lature of the United States. It reduces it to a position 
analogous to tliat of a British municipality or' railway 
company, the constitutions oi which are laid down by Act 
of Parliament. India is like the United Stated of America 
in this respect , for its legislature is a subordinate law- 
making body, limited by higher laws — viz., the laws of 
the Imperial Parliament, which act as its constitution. 
The Legiislative Councils of India are subordinate, 
indeed, but so are the legislatures of France, Germany 
and the United States. Actual legal supremacy rests in 
the constitution. But the sovereignty of the state of 
the United States, Germany or France is not limited. 
The American people could sweep away the constitution 
and all appertaining to it and establish a leg'islature 
like that of Great Britain. The constitution limits 
the govemment, not the state. Only in so far as the 
state wishes to have these limitations do tihe limitations 

(b) The limits of international law may be reduced to 


the same terras. Each atate is independent and interprets; 
for itself how far the principles of inter- 
The Limita. national law are to apply. International law 
ternationai ' is not law in the ordinary sense of law. It 
'■*"'• is more like international' principles of 

morality. These principles are somewhat like customary 
IstTv; As a' rule thely are obeyed, but ultimately the 
individual states have to say w;hat laws apply to them 
and how they apply. There are as yet no international 
courts to enforce international law, though there are 
courts to interpret it; and what we find in 
practice is tlhat states iiiterpret international law foi 
themselves, usually as they find it expedient. When 
there are international courts to enforce international 
/law, then states independent at present will no longer 
be independent. ' ' 

3.11 these limits to sovereign tjr, paradoxical as it may 
seem, are Kmits and not limits at the same time. 
Sovereignty is supreme power, and, as Austin has told 
us, supreme power limited by posi'tive law is a contra- 
diction in terms. The so-called limits are not legal 
limits to the soyereignty of the state. They are limits 
to the exercise of sovereign power, or, rather 
conditions of law-making, and most of them arise from 
the very nature of man and society. , 

2. TTniversality. The sovereignty of the state applies 
to every citizen in the state. .No person, no union or 
organisation, . however universal, affects 
versaiity. tike sovereignty of the state. An organisa- , 

tion, for example, like the socialist "Inter- 
national," though it may be excellently organised and 
have members in every country of the world, does not 
destroy the sovereignty of any one state. It could only s 
do so by setting up a new international state with a 
sovereignty of its own which would destroy the 
sovereignty of individual States. 

The only apparent exception to the universality of i s 

i i 


sovereignty is what is known as the extra-territorial 
sovereignty of diplomatic representatives. An 
TerrHoriai embassy in a country belongs to lihe country 
Sovaraignty. it represents, the members of the embassy 
being subject to the law of their own country. 
This, however, is only a matter of international courtesy 
and is no real exception. Any state in virtue of its 
sovereignty could deny the privileges so granted. 

3. Inalienability, " Sovereignty," says Lieber, the 
well-known American writer, " can no more be alienated 

than a tree can alienate its right to sprout or a 
ablilfii*" ™^^ ^^^ transfer his life and personality 

without self-destruction." The state and 
sovereignty are essential to each other. This does not 
mean that the state may not ^ive up part of its territory, 
or, as it is said, cede sovereign rights. The ceding of 
sovereign rights does not mean ceding the sovereignty of 
the state as such; in fact the cession of such rights is 
excellent example of the working of the sovereignty of 
the state. All that happens is that whereas formerly 
there was one state, now, with such cession, there are 
two states. Far less does the abdication of a monarch 
or sovereign mean the alienation of sovereignty. It is 
merely a change in the form of gpvemment by the 
resignation of his position by a titular sovereign. 

4. Permanence. The sovereignty of the state is as 
permanent as the state itself. The cessation o£ 

sovereignty means the end of the state ; the 
enoo.""*"" cessation of the state means the end of 

sovereignty. We have noted above how 
Hobbes, in his confusion of state and government, 
regarded^the immediate succession of a king on the 
death of his predecessor as necessary to the continuance 
of the s^ate. The death of a king or president, however, 
is again only a personal change in the government, 
not a break in the continuity of the state. 

5. Indivisibility. The indivisibility of sovereignty 


Arises from its absoluteness. Thete can only be, one 
6 indivisib- sovereignty of ike state; otherwise, there 
ii'ity. would be more than one state. 

On the subject of , the indivisibility of sovereignty 
mudh has been written, and much authoritative opinion 
has been given on either side. T'he qjiestion 
Sovereignty, of the divisibility of sovereignty came to the 
Fede?ansin. front particularly with, the development of 
federal government. In a federal union, such 
as the United States,' there are ' three chief grades of 
flowers — ^firSt, the constitution, which contains the 
general conditions of goVerhtiient for the whole of the 
United States, and' beyond the limits of which no 
legislature can ^o withoi^t amendment to the constitution 
itself ; secoildly, there i^ the federal government, or gov- 
ernment of the' TJni'teid States as a whole; and, thirdly, 
there are the' governinents of t3ie individuail states which 
make up the union. The government of the United 
States is e'rapowered to legislate on certain matters, the 
governments of tbe states on other matters, and th'ese 
governments are supreme in' iheir own spheres, which 
are decided by the constitution. ' 

The question of the divisibility of the sovereignty of 
the state is not affected by federalism. A federal union 
makes one complete state, and only one, with, therefore, 
one sovereignty. One aspect of the sovereignty of the 
state, some writers hold, does admit of divisibility, and 
that is legal sovereignty. Legally the constitution of the 
United States, or any federation or confederation, grants 
supreme powers to various units of government. To 
call this a division of sovereignty, however, is due to a 
misuse of the word sovereign. The diyisjoii of goverat 
mental, po'?<'«»'* which the, constitution grants is q.uite 
another thing from the diwEjion of the sovereignty of, the 
state. In this matter, as I in many others. Political 
Science is at variance with popular usage. We speak 
of the " state "of Am,^rica when we. mean the unite 
which form the one state called the United States of 
Ainerica', whereas they are not states at all. They are 


subordinate law-making bodies with guaranteed powers ; 
but tkeybiave not sovereignty. The student would, be 
well advised to keep in mind the difference between the 
sovereignty of the state and legal powers granted by a 
definite legal instrument. It is technically as correct- 
to say that a municipality Js sovereign within the limits 
set by the constitution given it by the central govern*- 
ment, as to say that the " states " of the United' States 
are sovereign. Were wei to adopt this attitude, then 
sovereignty could be divided into thbusands of fragments. 
The truth, however, is that there is only one sovereignty 
of the state, which in its legal aspect issues into the 
Various powers its organisation, or government. 

This idea of' divided or dual sovereignty, therefore, 
arises from the usiial cause— the failure to distinguish 
state and government. All states are units with one 
and only one sovereignty : but in their organisations they 
t-ary one from another. The division of power or delega- 
tion of power by dne part of the organisation to apother 
no ihore ■ affects the central fact of undivided sovereignty 
than the existehce of many nerve centres affects the 
existence of only one head in the human body. The hot 
arguments Centred in this question, endiing in the United 
States with a Civil War, arose from, a very natural 
desire of states w;hich.lost their sovereignty when they 
became units of a federal system to preservie at least the 
theory of their lost supremacy. 

3. AtrsTiif's Theory of Soveebignty. 

An analysis of the tiheory of Austin will show the 
application of the various points mentioned above. John 
Austin was an English lawyer who wrote a book on 
Jurisprudence (published in 1832), containing a theory 
of sovereignty which has been violently critiieised by , 
practibally every subsequent writer on the subjebt of 
Political Science. His theory is the outcome (if the 
teaching of Bentham and Hobbes, but it is by no means 
the same as their theories. The criticism evoked by 
Austin's thetory may justly be said to Tiave led to the 
modern theory of the sovereignty of the state. . . 


Law, Austin considers, is a command given by a 
Austin's superior to an inferior, and, with this guiding- 
of'the*"* conception, lie goes on to develop tis theory 
Sovereisnty. ^1 these words : — 

" The notions of sovereignty and independent political 
society may be expressed concisely thus .... If a 
determinate human superior not in the habit of obedience 
to a like superior receive habitual obedience from the 
bulk of a given society, that determinate superior is the 
sovereign in that society and the society, including tihe 
superior, is a society political and independent." He 
goes on, "to that determinate suf)erior the other 
members of the society are subject, or on that determinate 
superior the other members of the society are dependent. 
The position of its other members towards that deter- 
minate superior is a state of subjection or a state_ of 
dependence. The mutual relation which subsists 
between that superioi* and them may be styled the rela- 
tion of sovereign and subject; or the relation of sovereign7 
ty and aubjection." That is, in everjr independent orderly 
political community there is some single person or body 
of persons which can compel the other persons in the 
community to do as he or it pleases. The sovereign 
may be a peison, or the sovereign may be " collegiate" 
(i.e., a group). Every community has a sovereign 
somewhere, for, supposing a community is broken up into 
parts, as in a revoluliion, it will settle down ultimately 
and a state of equilibrium will be reached when the 
sovereign will be discoverable in the new scheme of 
things. Thus, before the rupture in America the 
sovereignty resided in one place, and in another after 
the Declaration of Independence. This sovereign, either 
single or collegiate, occurs in every independent orderly 
community, and it always possesses ultimate and 
irresistible forre. Austin says that if a single person 
is sovereifcn , he is a monarch,, if a small group, 
there is oligarchy, if a small group, but larger than 
oligarchy, an aristocracy: if it is a large numerous 


group then it is democracy; Austin did not believe in a 
limited monarchy, e.g., he calls the government of 
Britain an aristocracy. 

Certain conclusions follow from his theory — 
conoiusions ^^^ ^^® superior or sovereign must be a 
following determinate person or body ; therefore meithei 
ihsory!"* *^^® general wiU nor all the people taken 
together can be sovereign. 

(2) The power of the sovereign is legally unlimited 
or absolute, for a sovereign cannot be forced to act in 
a certain way by any command of his own. He makes 
his own limits. 

(3) Sovereignty is indivisible. It cannot be divided 
between two or more persons or bodies of persons acting 
separately, for, if so, one would be limited in some way 
by the other, which would be a superior power, and 
therefore the real sovereign. 

These are Uhe main points of Austin's theory. 
Obedience and rule are the essential factors for the 
critioism existence of a state, and a law is a command 
of Austin's of the sovereign which demands obedience. 
t eory. ^ legal right is distinctly a state matter : it is 

granted by the sovereign authority and it will be upheld 
by the sovereign authority. It must be noted that 
the rights are legal rights, not moral or religious rights. 
The notions of law, right, and sovereignty run together, 
and in considering the theory of Austin we must remem- 
ber that he gives a lawyer's view of sovereignty, i.e. 
legal soveieignty. 

In all Austinian " determinate " sovereigns there are 
limits of some kind — the external and internal limits 
Maine's mentioned above. Even despots rule according 

eritioism. to the limits of common sense. Sir Henry 
Maine in particular criticised Austin on these grounds. 
Maine's experience in India had shown him tihat there 
is npt necessarily a deteirminate body or person who is 
obeyed. He saw the power of custom in India, and that 
this custom controlled the people and rulers alike. Not 
only so, but custom is not a deliberate statute ; it is the 


outcome of ag6s. Certainly it is not tihe ^at of a 
determinate superior. Maine's example is Jl^njit Smgh 
of the Punjab, who in Maine's woi;ds, never " issued a 
command which Austin, , Would calla law," for the riUes 
which' regulated the lives of his subjects were derived 
from their immemorial usages, and these, rules were 
administered by domestic tribunals, , ajqid, as Maine saye, 
Ranjit Singh was a ruler the smallest disobedience to 
the command of Tjrho^ would have meant death or 
mutilation. . . > 

This position Austin met by allowing the principle that 
"What the sovereign permits he commands." This is 
true so far. The English common law, for example, is 
not made by Parliament, It exists, in customs, which 
are explained, modified, , or expanded when the courts 
apply thpnii They axe la^s all the same, the courts taking 
cognizance of them as much as they do of parliamentary 
statutes. The KingTin-Parliament as legal sovereign 
could, indeed, alter the common law, or maJie it statute 
law, thus makiijg it a definite command of the legal 
sovereign. But much of the common law it could not 
alter without much danger to the state, for to try to 
upset tradition and custom might lead to revolution. 
Did Parliament merely make common law into statute 
law the process would be an excellent example of the 
power of custom as influencing Parliament. In India the 
power is even clearer, for the legislative sovereign has 
to accommodate itself to the deeply ingrained popular 
customs, which are often based on religion. 

The difficulties of the Austinian theory are more 
marked when he applies his principles to existing states. 
Difficulties -^^ applies his theory to two in particulja,r— 
in the appiP (1) Great Britain; (2) The ITnited States. 
^ustui's Let us, examine ihe .former, i In England,, he 
tl^ory. says-, one component pajH} of the sovereign 

or supreme body is the "numerous body of the Commons," 
who exercise their sovereign powers through representa- 
tives. In other words, he says that the electorate is a 
component part of the sovereign,, and it exercises its 


powers by' alectlng representative^. Yet he sd.y8 th.6 
. lectors delegate their powers to the representatives " ab- 
solutely and unconditionally," so much sO that the "re- 
presentative a8senatl)ly mig^hf, concur with th6 king and 
the peers in defeating the principal ends for which it is 
elected or appointed," i.e., it might deprive the people 
of their vote altogether. Therefore, he holds, sovereign- 
ty resides with the Kiig, Lords aiid Commons (not 
electors). But th,at sovereignty, he say's, return^ 
when Parliament is dissolved. This antinomy 
leads to one of the mo&t glaring fallacies in 
his whole position. He goes' "on to say that although 
the electorate delegates its powers absolutely or un- 
conditionally, yet it may do so " subject to a trust oi 
trusts." Then he goes on — "I commonly suppose that 
the Parliameiit for the time being is possessed of 
sovereignty. But speaking accurately the members of 
the Commons house are merely trustees' for the body 
by which they are elected or appointed, and consequently 
the sovereignty always resides in the king and peers 
with the electoral body of the Commons." 
Thus Austin says variously that — 

(1) Parliament is sovereign. 

(2) The King and Peers and electors are 


(3) The electorate is sovereign when Parliament 

is dissolved. 

(4) That the Commons have powers (a) free from 

trust, (6) are trustees. 

The Austinian difficulty is easily solved by the simple 
device of the separation of the two conceptions of legal 
and political sovereignty. Austin's theory is 
poetical"'' *^® attempt of a lawyer to give a lawyer's 
sovereignty, view of sovereignty, i.e., legal sovereignty. 
In placing legal sovereignty in the United 
Kingdom in the King-in-Parliament he is right : but he 


does not stop there. He tries to give a place in his theory 
to the influences which lie at the back of legal 
sovereignty and this leads him into hopeless oonMsion. 
The electorate has no part in legal sovereignty : nor are 
the representatives in any sense trustees. No court 
would pay any attention to an act made by any other 
body than the King-in-Parliainent : nor would any court 
listen to an action under Trustee law between an 
elector and a representative for breach of trust. The 
sovereignty of the King-in-Parliament is, as Austin says, 
legally absolute, but really it is conditioned by the vast 
number of influences termed political sovereignty. 

I. General Meanings of Liberty. 

The subject* of liberty follows naturally after a 
discussion on sovereignty. The finality of the various 
characteristics of sovereignty — absoluteness. 
General. universality, indivisibility — may lead to the 
notion that sovereignty and liberty are mutually 
exclusive ideas. Far from this being the case, sover- 
eignty and liberty are correlative terms. The sovereignty 
of tbe state, instead of being the negation of liberty, is 
the medium of liberty. Liberty is possible only in an 
ordered state, a state, that is, where the legal and 
political aspects of sovereignty coincide, or nearly 
coincide. The fundamental maxim of liberty is that 
law is the condition of liberty. 

These remarks are true of liberty in a general way. 
Various ^^* ^^^ ^^ analysis of the idea of liberty ws 
Meaning* of must first separate the various meanings of 
•■"«"■'»' the term. 

First, there is the general, unscientific use of liberty, 
common in everyday language and in poetry. This 
Natural aspect of liberty may mean several things. It 
Liberty. j^ay mean mere license, or the desire 
to do as one likes irrespective of what all others 
like; or it may mean fi'eedom from the conven- 
tions of social intercourse and manners, such as 
may be achieved by living in distant country districts, 
or in solitary woods, far from the crowds and manners 
of towns. Or it may merely mean the freedom of 
thought as distinct from the slavery of the body ; or the 
desire of the human soul to be free from the body, to 


be free, as one poet puts it, like the clouds flittiiiji^' 
across the sky. Everyone has a vague notion of liberty 
of some kind and a desire for it, but amone ten people 
using the word, perhaps po two will be able to say 
exactly what they mean, or ii they do siay it, will agree 
with each other in their definitions. TMs general, 
unscientific use of the word we may call Natural Liberty. 

Secondly, it may mean the Rule of Law, that is, the 
limitation of the powers of government by establisflied 
Civil law, whether it be in the form of a 

Liberty. constitution which contains fundamental 
principles to guide and limit the government, or, as in 
England, the fact that law applies equally and 
impartially, to all, to the greatest and humblest alike. 
This sense of the term may be, called Civil Liberty. 

Thirdly, it may mean constitutional government, that 
is, a form of government in which the people 
as a whole have an effective' voice. In this 
Uberty.' sense, what we may call Political Liberty, 
the: phrase 'free government' or 'free 
country,' means that the country concerned has a 
representative government, or is a democracy. It means 
that the people themselves determine how they are to be 

Fourthly, it may mean national independence. In this 
sense we speak of battles like Thermopylae and 
National Bannockbum deciding the liberty of the 
Liberty. Greeks or Scots. A ' free ' country in the 
sense means a country which is independent, or simply 
that, it id a sovereign state. In this, sense, ther^foi^, 
sovereignty and freedom mean the same thing. This 
sense of liberty may be called National Liberty. 

2., Natfeal. LiBEETT : The Law OF Natuee. 

In connexion with the origin of the state, we have 
already mentioned the idea of liberty in the so-called 
state of nature, where natural law was supposed to 
prevail. We must now examine the meaning of 


natural law in more detail, and in doing so it is essential 
first to give a ; short review of its history. The 
law of JTature has a long and vexed history in 
both philosophy and jurisprudence. In its n^ost familiar 
form we have seen it in the theories of Hobbes, Locke, 
Rousseau ajad their predecessors of the contractual 
school of .thought. Its actual origin lies further back 
than history shows; but from suoh historical evidence as 
we possess we can build up a fairly rational account of 
its earliest stages..; 

To early man all law wa? diving. In both ij;s origin' 
and sanction! early law depended on divine powers, which 
Early to unthinking and simple men were beyond 

History. ^he scope of question. The more inquisitive 
minds in early days began to reflect on things of the 
world around them, and tried to find reasons for them 
and causes of their existence. One outstanding fact 
was obvious — th© uniformity of nature. Implicitly or 
explicitly tMs uniformity was the basis of all questions 
and answers. The primaeval reasoner could not fail to 
recognise that in nature there is much difference amid 
much similarity, and much similarity amid the difference. 
Among the objects of nature he could make a rough 
division of animate and inanimate, and amongst the 
animate he could see distinctly, what science has since 
called genus and species. These varied greatly, but in 
all the variation there seemed a common principlei, A 
dog ciffers from a bird, but the stages of lifte are similar 
-T-birth, youth, age and death. Such phenomena to the 
early reasoner gave indications of something common 
working in all the animate world, something which was 
beyond the control of life itself. Not only so, but early 
thinkers could not help .being struck with the distinc- 
tive features of their own special type. Man was 
distinct fiom other a,nimate life, ,and, among men, as 
among the trges and tanimals, there were many 
differences co-existing vs^ith a principle of unity. Amid 
the , various passions and emotions of man there seemed 
to exist, a sameness. Though; qne man did not grow up 


exactly like another, the same weakness of childhood 
was succeeded by the same strength of manhood and the 
same decline of old age. In aU this clearly there was a 
principle of growth or of d^cayi a principle independent 
of the will of the individual through whom it was mani- 
fested. The question as to the first principle or first 
cause was answered by the general name of Nature. 

This conception of Nature involved two ideas, one, 
uniformity or rule, the other, power, or force, both ap- 
plicable in a general way to all living beings, 
eoneeption These ideas had a special application in 'the 
of Nature. ^^^^ p£ ^^^^ j^ xrj^^ ^^^^ of j^^j^ ti^g particular 

form that nature took was reason. Nature thus came 
to be looked on as rational, and as operating towards 
certain definite ends. In otiher words, nature, instead of 
being regarded as the material universe, the result of 
some blind force, was interpreted as an intelligent or 
rational force. The moral was added to the physical 
aspect of the universe, and gave a double meaning to the 
phrase Laws of Nature. 

In Greek thought the idea of nature varied according 
to the mental outlook of 'the users. In the earliest 
In Gresk stages of thought the change or flux in 
thought. material nature was sharply contrasted with 
the unvarying institutions of human society.' In early 
society, where rigid custom was law, human life seemed 
to be more stable than the life of external nature. 
Later, the position was reversed by the ethical philo- 
sophers, who came to look on social institutions as fai 
more variable than the External universe. Thus the 
Pythagoreans, who were primarily phys'icisits and 
secondarily moral philosophers, applied the idea of 
Nature, the unifying principle of life, to human society 
with its definite laws and social organisation. The 
phrase Laws of Nature cams to express lin human society 
what is primarily characteristic of external nature— ^iz., 
uniformity. The uniformity in society, however, was 
gradually shown to be unstable. The acts ofi individual 
human agents, such as the law-giver Solon, the 


foundation of colonies, which made their own laws 
suitable for their own peculiar circumstances, and the 
comparative study of political and social institutions 
— all these showed as much diversity in human insti- 
tutions as uniformity. 

Studied by themselves, customs or laws (and early 
laws were simply customs) showed the same division of 
unformity on the one hand and difference on the other. 
Thinkers saw that though there were great variations 
among the customs and laws of peoples, yet everywhere 
there were certain phenomena in common. These 
common elements came to be regarded as the essential 
laws of mankind. They were everywhere similar, 
therefore, it was argued, they must have a common 
principle. The common principle was Nature, and these 
laws were called Natural Laws, and as such they were 
fundamental, prior both in time and in sanction to man- 
made laws, wMch varied from community to community. 

Among the Greek philosophers the distinction was 
very general. In the Sophists it appeared in the 
distinction, already noted, of Nature, with its 
Sophists, permanent institutions, and Convemition, oi 
AHstotle." artificial man-made institutions. Carrying 
out this distinction, the Sophists considered 
that mankind did not embody any of the permanent 
elements of Nature, but that every people legislated for 
itself according to its own notions. The Cynics, another 
school of Greek thought, maintained the vi?sw of nature 
later voiced by Rousseau, as meaning simplicity of life. 
Human institutions were looked on as artificial, and, as 
such, opposed to nature, and wrong. The distinction 
also appears in Plato, who contrasts abstract justice with 
the written laws of the state; and in Aristotle, who, in 
his Ethics, divides justice into natural and legal oi 
conventional, and law into common and peculiar. 

It is to the Stoics, however, that we owe the most 

important presentation of the theory of natural law. 

To the Stoics natural law was the universal 

divine law of reason, manifested in both the 

142 PdliltlCAL SCIENCE. 

moral and the material worlds. Man's leason was only a' 
part of the law, but in virtue of this natural element in 
him — his reason^^man could understand the relations of 
things.' Man's reason, therefore, was the inatrument 
throug^h which the law of Nature wa^ revealed, and, as. 
the Stoic ideal was to live according to nature, reason 
was the criterion of what was good or bad. Sociail! 
institutions therefore were not conventional : they were 
the results of reason, or, what is the same , thing,' 
manifestations of the law of Nature. 

The Stoic theory passed through Oicero into Roman 
iiaw. The centre of CScero's teaching is that in every, 
individual there are certain feelings implanted 
cioero, ijy Q^^ ^j. j^ature ; these feelings are common 

to everybody: The law of Nature to him was the 
universal consent of mankind. '"TJhiveirsal consentj!' 
he said, "is the voice of nature;" TTniyersal consent 
meant the ordinary common-sense opinion of reasonable 
bfeings, and in this' form the law of Nature passed into 
the field where it had the gieatest vogue — ^Roman Law. 

In Roman Law the conception of natural law was 
encouraged not only by the Stoic theory but by actual 
Roman ' tiistprical circumstances. From the earliest 
Law. period in Roman history, the foreign popula. 

tion in Rome had an important determining power in the 
course of Roman development. Various causes, such as 
coramercial intercourse and the instability of iprovinicial 
go'vernments, led to a large number of immigrants to 
Rome every year, and these aliens, or peregrini, thou"''' 
they often had very close business and social ties with 
Rome, were really outside the pale of Roman civil law. 
At first they had no rights, either private or public, but 
the Roman courts had to adjudicate on cases in which 
they were concerned. Such a state of affairs is unkno.wif 
in modem times. Modem European communities do not 
allow such accessions of alien elements as endanger the 
native population. Further, absorption of alien 
elements is far quicker nowadays. In ancient times the 
oitiginal citizen's, believing themselves kbit together by 


blood ties, did not favour the external nsiiiTpation of what 
was their birthright. In Rome tfiiese aliens at first had 
no -law, but when the Romans recognised that their 
presence, instead of beiTig dangerous, was often 
beneficial, they made special legal provision for them. 
They did not share in the Roman civil law, which was 
a privilege reS6rVed for Roman citizens only. What the 
Romans did was to select iniles of law common to Roiae 
and to the different communities from which the immi- 
grants came. They thus had one law for foreigners 
and another law for themselves. The law fot the 
foreigners was merely a selection from the laws 
common to the various communities and Rome.. The 
technical name of these laws was the ius gentium, or law 
common to all nations. This law, selected an<} 
codified by Roman lawy6ra, was quite distinct frbm thB 
civil law, or ■ins civile, applicable only to Roman citizens. 
T'wo eltemenlte thiBxefore co-existed in the Roman system : 
as the Institutes of Justinian expreiss it, " AU nationis . . 
. . . are governed partly by their own particular laws 
and partly by those laws' which are common to all 
mankind. The law which a people enacts is called the 
Oivil I^aw of that people, that which, natural reason 
appoints for all mankind is called the Law of Nations, 
because all nations use it." 

The law for foreigners was promtdgated' by the Roman 
praetor, and, as it was the common law of all nations, 
it was also regarded as the result of natural 
fuSfnaturait reason, and called ius naturale or natural 
and jus law. The ius gentium and ius naturale were 
g lutn. thus identified. The ius gentium was much 
looked down on in Rome, as it was applicable not to 
Romans but to the peregnm or foreigners. The pride 
of the Roman lay in the ius civile, or civil law, which Was 
applicable only to those who could boast of Roman 
citizenship. One might reasonably" expect that the 
more general and apparently fundamental principles of 
tihe ius gentium, would have commanded more respect ; but 
in Rome the sense of citizenship was so intense that 


everything non-Eoman was only of secondary import- 
ance. The ius gentium really contained legal principles 
common to every known community. The basis of 
these principles was simply good faith or common stense 
in matters of trade and commerce, and, in family matters, 
normal family affections. 

The fusion of the law of nature and law of nations 
was really the result of Greek theory being applied in 
cause of actual practice to Roman conditions. When 
tha fusion, the Roman lawyers looked about for a 
philosophical foundation of law they found the Stoic 
idea of the law of Nature suitable for their 
purposes. The Stoic idea of brotherhood, too, was 
helped by historical events. The idea of universal 
empire had been shown practicable by the conquests of 
Alexander and the later extension of Roman power. 
The religions of the East overran the West ; commerce 
was bringing the various Mediterranean peoples 
together. Greek and Latin spread to all parts of the 
world, and became international languages. The 
universal empire of Rome, in fact, seemed the realisation 
of the Stoic ideal, and, in legal matters, it was 
recognised that there must be a law for Romai^ and non- 
Roman alike. This law was the ius gentium, founded on 
the natural reason of mankind: in other words, the 
ius gentium was the ius naturale. 

Gradually it was recognised that the ius gentium 
or ius naturale was more important than the *ms civile. 
The edict of the Roman praetor who legislated for 
foreigners thus superseded the ius civile. The contrast 
between the ius gentium and ius civile helped all the 
more to fuse the ius gentium and ius naturale. The 
strongest element in the fusion, however, was the con- 
ception of equity. Equity (which comes from the Latin 
word aequus, meaning fair) conveys the notion of the 
levelling of differences, and this was essentially what 
the ius gentium did. The old Roman law recognised a 
multitude of differences between classes of men and 
property, but this distinction disappeared in the ius 

PptlTICAL 3C^:^NCB. 145 

gentium. ,, The "sense of practical convenience " of the, 
Komans htelpcd in this, fosr they were alwaiys ready to 
bend formal law to suit indvidual cases., Equity was 
fairness, or the common sense application of the law, ap.d 
thus it had a moral application, though primarily its 
application was not ethical. The connexion between the 
levelling of the law, and the symn^try of nature on the 
one side, and the justice of the law of Nations on the 
other, brought about the identification of the one with 
the other. The identification, however, was not 
altogether complete, as in the case of slavery, which was 
universal, and, accordingly, a matter for the' ius gentium, 
and philosopliy had shown it cont^ry to nature. Like- 
wise, , in the ius civile tb,ere were statiites ascribed to 
natural reason. Further, there were elements in the 
ius . gentium not universal, which were classed as 
iMS gentium because they were certainly not matters of 
the ius (Sivile,. Qeiief ally , speaking, the, two^t^rms were 
synonymous, though the jurists use ius naturale when 
they speak of motive, and ius gentium when making a 
practical application to a given case. As Bryce says, 
the connotation of the twoi terms is different, while 
their denotation, save as regards these smaller points, 
especially slavery, is the same. ; 

After the decline of the Roman jurists, the, idea of 
natural law was kept alive by the religious and philosoph- 
■"'m d*""*"? ^^^^ writers of the middle ages. Passing 
times. ' from law into religion and philosophy, natural 

law became an ethical ideal or standard. Identified as it 
was by manj' leading writers with the law of God, it 
represented, divine justice, according to which pripces 
had to rule, and subjects obey. The earliest tracefe of 
modern democracy are to be found in the writers who 
iiisist iihat if the law of God or Nature is broken by 
rnleFs,.,then automatically the duty of subjects to obey 
ceases. , Modern ciyjl and religious liberty owe much to 
natural I9.W as a standard or ethical ideal. 

It is impossible hra"e to do more than mention the chief 

146 tOnttCAL' SCtEtfCte. 

exponents of mediaeval theories of natural law. The 
Eonian lawyer Ulpian (of the third century) 
uipian. divided law into ius natwale, ius gentium 

and ius civile, a tripartite division, which, passing into 
the Institutes of Justinian, was almost universally 
accepted by the lawyers and ecclesiastics. The ius 
naturale and ius gentium, it will be seen, are separated. 
The ius naturale, according to TJIpian, was the law taught 
by nature to all living beings. It was not peculiar to 
man alone. It was equivalent to animal instinct. The 
ius gentium was the law peculiar to men. 

The ecclesiastical writers, or canonists, were more 
uniform in their conception than the lawyeJs. Though 

the legal writers wavered from one view _ to 
Canonists- another, the candnistS accepted the division 
diwiBion'* °^ Uipian, over and aboVe which they held 

that natural law (as in Gratian, the founder 
of canon law) was identical with divine law. Law was 
divided thus : — 


r I 

Natural Law CustpmB 

Divine Law. 

I I 

Ius gentium. Ius civile. 

The canonists rejected the idea of the la;w of Nature 
as equivalent to animal instincts. Gratian says natural 
law is the gospel teaching which tells you to do towards 
others as you would that they , should dp towards yoti; 
Eufinus, a commentator on G-ratian, is more explicit i 
he says natural law may have the meaning of instinct, 
but it really should be looked on from its human side. 
It is, says, a quality implanted by Nature, leading 



men to seek what is good and avoid what is evil, 
divides it into three, thus : — 

Natutal Law [itit natltraU). 


Oommands (to do 
what is UBeful). 

Prohibitions Demonstrations 

{e.g., against ("•?■• what is 

killing caoh expedienta«.;., 

other). that all meD 

should be free). 

The canonists thus reject the instinct theory of natural 
law, replacing it by the idea that natural law is the law 
of the gospel or oC God. The many difficulties 
St. Thamas arising out of this theory were dismissed in 
Aquinas. ways we cannot discuss here. We must, 
however, note the treatmenl of the question by St. 
Thomas Aquinas. St. Thomas (who lived in the thirteenth 
century) represents the culmination of scholastic theoi-y. 
Half a century after his death political theory became 

{lermeated with the questions of Church versui State, 
eading to the Reformation in the religious sphere and 
to revolution in the political. St. Thomas divides law 
thus : — • 

I ^ 

(Lex Aeterna). 

(Lex Naturnlis). 

(Lex Humana). 

(Lex Divina). 

St. Thomas defined law in general as an " Ordinance 
of reason for the common welfare, promulgated by him 
who has the care of a community." Eternal la'w 
is the plan of the universe, the basis of the government 
of all things, pre-existent in the mind of Gtod. It 
is the law of the Author of all things; it is the 
essence of law, known by "reflexion" to man. Tfa'tural 
law is that part of the eternal reason or law which 


carries- man to his true end. It. is summed up in one 
precept, viz., avoid eVil and do good. This precept is 
fundamental, and is the basis of human law. Human 
law is based on natural law. It is natural law made 
known through human reason, and applied to earthly 
conditions. It is derived from natural law in two 
ways : — 

, . (a) In consequence of the general principle of do 

good and avoid evil. 

(b) As a particular application of the general 

principle (e.g., that so-and-so be punished 

for a definite act). 

Divine law corrects the imperfections of human law 

and natural law. It is the law which supplements human 

law, which in itself is insufficient. It is necessary foi 

man's true end, which is beyond nature, and, unlite 

human law, which is obscure, it is clear, exact, and 

infallible, affecting the internal part of man, while 

human law affects only externals. Divine law is the' 

law of Revelation, and is divided into (a) the Old , Law 

(of the Old Testament), and (b) the New Law (of the 

ISTew Testament). 

To St. Thomas the ius gentium was part of natural 
law, the part applying to the relations of men with one 
another, e.g., in buying and selling. Natural law he 
conceived of as applying to both men and animals. 

Lord Bryce (in his Studies in History and Juris- 
suminary of prudence, Vol. II, pp. 148 — 50) enumerates 
illaw"of^* "' no Ifcsg tiaan six meanings given to Nature by 
Nature. the Roman jurists : — 

1. The character and quality of an object, or of a 
living creature, or of a legal act or conception. 

2. The physical system of the Universe and <lhe 
character which it bears. Thus it is said that Nature 
has taken some objects (e.g., the sea and air) out of the 
possibility of private ownership. 


3. The physical ground of certain relations among 
men, as in the case of blood relationship, e.g., the rule 
that persons under puberty should have a guardian. 

4. Reason is often denoted by the term Tfature, e.g., 
Nature prescribes that no one shall profit by harm and 
injury to another, and lihat a buyer may make a profit on 
p* re-sale. 

5. Good feeling and the general moral sense of 
mankind. Eor instance, Nature ordains that parents 
shall be supported by their children, and that certaioi 
offences {e.g., adultery) are disgraceful. 

6. (In TJlpian), Nature means those instincts which 
the lower animals have in common with man. 

Q-enerally speaking, iihe Roman conception of natural 
law in practice amounted simply to common sense, or 
fair dealing between men. In Bryce's words, it may be 
characterised as " Simple and Rational as opposed to that 
vfhich is Artificial or Arbitrary. It is XJniversal, as op- 
posed to tfiat which is Local oi National. It (is superior to 
£^11 other law because it belongs to mankind as mankind, 
and is the expression of the purpose of the Deity or of 
the highest reason of men. It is therefore Natural, 
not so much in the sense of belonging to men in their 
primitive and uncultured condition, but rather as Qorre- 
sponding to and regulating their fullest and most perfect 
social development in communities, where they have 
ripened through the teaching of Reason." 

TLe Roman lawyers did not connect the law of Nature 
with the state of nature, so the application of the prin- 
ciples of the ius Tiaiurali or ius gentium, was not 
hindered by the necessity of find out what actually did 
exist among primitive communities. Neither did the 
Romans, as was done later, regard the law of Nature as 
a law apart from positive law, witlli a sanction distinct 
from the state; nor did they look on it as an ideal. 
The practical common-sense of the Romans kept them 
from these dangers inherent in the conception of 
natural law. 


From the Roinaii lawyers and Cluistian theologians 
the law paaaed into modem Europe through the teachers 
in the 13th °^ ^^^' ^^^ philosophers. During the 
14th and 16th thirteenth, fourteenth and fifteenth centuries 
nnturies. ^^ precision of the old Roman conceptions 
was lost, for the idea entered the field of philosophical 
speculation and political controversy. Like most of the 
theories of the time, it was used at one time by the 
church school aiid at another time by the state school 
as a final appeal. Not the least important part of its 
history is the use made of it by the anti-monarchical 
writers, who argued that, as natural law was above civD 
law, therefore subjects were justified in resistance to 
kingly transgressors of natural justice. In this way 
natural law was a theoretical forerunner of modem 

The modem history of thf: law of Nature culminates 
in the French Revolution, with the Declaration of the 

Rights of Man, in 1789. After the 
History Renaissance, thinkers began to seek a basis of 

law independent of the Bible or inherited 
authority. The French lawyers for centuries accepted 
in theory the idea of nature as giving simplicity 
and uniformity to law. Z'^evertheless, this idea as 
implying equality and liberty, just as in Rome, 
was not applied in practice. It was either a standard of 
law or an ideal, and till Rousseau's time, it did not 
become a power in practical politics ! The French law, 
in fact, in spit,? of the passionate love of the simplicity 
oi the law of Kature shown by the French lawyers, 
remained very heterogeneous. Nor did the centralised 
power of the monarchy bring uniformity into the legat 
The idea of a 8ta,te of nature was common from the 

sixteenth to the eighteentih centuriea. ' Tha 
o?Natuf*. liisioi'y 9f tte state of nature we have 

alre^y given in outline in connexion w^ith the 
Social Contract Theory. Locke in particular drew 
attention to the connexion between natural law and 


freedom. In 1776 the idea was embodied in the 
American Declaration of Independence, in which the 
equality and freedom of men are postulated. These 
ideas, going to America from Europe, returned with 
renewed vigour to France, and provided Iflie theoretical 
basis for the French Revolution. Eousseau's ideal was 
the state of nature. Everything inconsistent with the 
state of nature was wrong. The state of nature was 
thus his political criterion or standard. In the state 
of nature, all men were bom equal. This idea was 
current also, in Roman law, but the Roman lawyers 
applied it only in the aense that wherever Roman law 
applied, the Roman courts made no difference between 
men. In the French Revolution it was applied to all. 
Where the Roman lawyers had said that men were equal, 
the French said men ought to be equal. The notion of 
equality thus became a catchword for revolutionaries. 
Wliat in Rome was a basis of right was made in France 
the cause of a terrible wrong. Passing from the cold 
realm of 'aw to tihe heated area of political controversy, 
Nature became the gospel of dreamers and agitators, 
and shook the civilised world to its foundations. It 
ultimately died away as the result of the experience of 
anarchy in practical, and of the historical spirit in 
theoretical politics. 

In modeim law, the idea of nature operates or has 
LaiiJf °''*'^" operated, in three distinct ways : — 

1. In Equity. Equity in English law is equivalent 
to the Roman application of common sense or fair 
1. Equality dealing in cases where no direct law governed: 
the issue. TTiough the law of Nature or the 
ius gentium is not specifically mentioned by English 
jurists as the basis of equity decisions, the ideas are 
Roman, taken from either Roman law or canon law. 
The older English judges referred rather to the law of 
God or the law of Reason. Excellent examples of the, 
modem law of Nature are to be found in India, where, 
under tike peculiar circumstances of the legal systems 
prevailing with the aclrent of the English, many casei 


were not covered by positive law. Thus from the Bast 
India Company's earliest days, directions have been 
given to rulers to apply the principles of " justice, equity 
and good conscience " — ^in other words the Eoman law 
of nature or of nations. Bryce quotes the order of the 
Indian Civil Procedure GoHe of 1882, whidh. lays down 
that a foreign judgment is not operative as a bar if, 
in the opinion of the Court which deals with the question, 
it is " confrary to natural justice." 

2. Natural law and International law. The Roman, 
equivalent to our modern International law wah 
I. Inter- *"* feciale. The bases of our International 
national law, however, were the ius naturale and »Mi 

""■ gentium. International law is based on two 

things — ^first, the customs which have grown up among 
peoples in their commercial dealings with each other, ana, 
second, the doctrines of legal writers, such as Grrotius. 
The legal writers found in the law of Nature the 
permanent basis of all international relations. The 
law of Nature and the ius gentium, or law of Nations, to 
them were practically synonymous. The ius gentium 
of the Romans was really a part of Roman law applicable 
in the Roman courts, but in origin it was " inter- 
national," and the pihrase "Law of Nature and of 
Nations " in the writers of the sixteenth to the eighteenth 
centuries came definitely to mean what we now know as 
International Law. 

3. In the Philosophy of Law, natural law (or. in 
German, Naturreeht) has in recent years been used as 
l_ ,„ the metaphysical basis of legal ideas and 
Philosophy doctrines. TMa has been peculiarly the case 

in German writers, such as Roder, Ahrens, 
Stahl and Trendlenburgh. 

Some other effects of the idea of Nature may also be 
noted. 1. The idea of Nature in literature and 
■ffeets of art. The influence of Rousseau was not 

Nature. confined to politics. He a;ttacked not only 

'•in political, but also literary and artistic forms. 

•nd Art."^ The classicism of the seventeenth and 


eighteenth century writers was marked by artificiality 
and mannerisms, and the return to Nature in literature 
was a return from stilted language and subjects to the 
description of natural scenery, country and family life, 
in the simple language of tl e household. This, is known 
as the Romantic movement in literature, the English 
leaders of wldch were Wordsworth, Coleridge, Byron, 
Scott, Shelley and Keats. These writers also were 
supporters of the new ideas of political or civil liberty 
current at the time of the French Revolution. 

2. The idea of Nature in theology, giving us 
I. In what is known ai Natural Theology, which is 
Theology. based not on Revelation, but on Reason. 

3. In Economics, the idea of natural liberty was a 
theoretical basis for the doctrine of laissez-faire, or com- 
j. In plete freedom from government interference 
Eoonomies. in industry and commerce. The assumption 
in this case is that things will naturally work out for 
the best benefit of man if left to themselves. 

4. The idea of nature in natural science. The laws 
of cause and effect in the physical and biological worlds 
^ ,„ have been used with great influence a' 
Natural analogies for the social world. TIhe most 

oitnoe. notable modern writer of this school is Herbert 

3. Natukal Rights. The Meaning of Rights. 

From tfie above short history of natural law, the 
influence of the idea of nature in human society will be 
clear. The consequences of the idea have been so great, 
both in theory and in history, that we must examine the 
notion in detail. 

The earliest noteworthy distinction is that which 
existed between Nature and Convention. The natural 
Nature and li^^ i^ this sense is the simple or primitive life ; 
Convention, the non-natural or conventional is the life of 
society with its manners, customs and various institu- 
tions. In its widest meaning Nature includes every- 
thing that exists. Man. therefore, is a part of nature. 


and his institutions are natural. To say that what is 
natural is right and vhat is non-natural is wrong, doea 
not apply accordingly to the social " conventions." We 
might substitute for the meanings of nature and non- 
natural in this sense the words normal and abnormal. 
What is abnormal is not wrong. 

Natural law, in fact, cannot give an absolute rule of 
conduct. Where it is regarded as the equivalent of tjhe 
Divine law or the revealed will of Gfod, it 
Lfw"a1' might be held that natural law is an absolute 
a Rule or law, insomuch as it is the will of the Absolute 
conduct. ^j. Q^^ rpj^jg^ however, raises the twofold 
difficulty of revelation, and of civil society as distinct 
from rriigio'is society. Natural law, like divine 
law, however eternal the latter may be, or,, in what- 
ever way it may be revealed, must be interpreted 
through human agency. Human reason ultimately is 
the deciding factor. Natural law interpreted, in Ifliis 
light thus becomes the law of human reason. Kajit who. 
accepts the Social Contract theory not as an historical 
explanation of the origin of society, but ns a standard of 
justice, regards the law of Nature as the equivalent of 
the law of jeasoii (or, in Kant's language, the categorical 
imperative of practical reason). Unlike St. Thomas 
Aquinas, he considers that human reason itself is the 
law-giving authority. 

Natural law, again, without a definite authority to 
enforce it can only be an ideal, which people may or may 
Natural not obey as their conscience directs. Natural 

an Ideal. law is often used in the sense of law as it 
ought to be, or perfect law, as distinguished horn 
imperfect human law. In this sense it najght be useful 
as an aim to human aspirations, or a standard, of hiunau 
law, if, indeed, it could be universally promulgated for 
pwirposes of comparison. Otherwise it is a distinc| 
danger to the state. The state is a human 
imstitaitiom, organised in government through human 
agency, and to set Khe rule of , natural law agaiast 
'the rule of the law of the state is to introduce a diial 


sovereignty, and therefore, a dual state, which is 
inconsistent with the notions of both sovereignty and 

Though natural law and natural rights are now very 
generally dismissed from the sciences of botih morals 

and the state, they had a very consider- 
Baturai"* "' ^^® influence on certain types of political 
Law. thought of last century. The particular 

school the thought of which is based on 
ideas of natural rigflit, is known as the Individualist 
sdhool, of which John Stuart MiU and Herbert Spencer 
are the most noted exponents. For a more detailed 
analysis of the ideas of that school, the student must 
refer to the chapters on the End of the State of and the 
Functions of Government. At this stage, "our purpose is 
to analyse the meaning of Rights, an analysis to Which 
the above noti's on natural law will be helpful. 

Rights must be distinguished from ■powers. Nature 
gives every normal man certain powers. These powers 
are simply the brute force or instincts with 
Bi*^hts!^ "' which every one is endowed at birth, just as 
animals are. Risjhts arise from the flact that 
man is a social being. He exists in society along with 
other men who are more or less similar to himself. Each 
one in society is endowed with powers, but rights arise 
from the- consciousness on the part of each individual 
that every other individual has similar powers, and that 
it is in the common interest that everyone should 
be able to esercise his powers. For the existenre of a 
right, therefore, there, must be (a) a power, and (6) a 
recognition of the exercise of that power as necessary 
for the common welfare by others having similar 
powers. These two elei^ents form the raw material of 
rights : for ths full confirmation of a riglit there must be 
a third element — ^the claim to the recognition qf the 
power by eveiyone pos8ess^ng the power. 


Rights arise from the moral nature of man. Rights 
are powers of free action, and every individual must 
from his very nature have certain powers of 
«ow Rights free action. The elementary needs of life, 
' not to speak ofi the higher needs of social 

life, demand movement, work, speech, etc. To fulfil 
one's needs ad a man one must thus havfe certain powers 
of free action ; still more is such action necessary to fulfil 
one's 'nature as a social being. Every individual exists 
in society. As a moral agent each one is capable of 
acting according to a certain conception of what is good 
for him, or, as we may call Jt, a moral ideal. TIir rigihta 
of tihe individual are the conditions under which he is 
able to realise this ideal. The ideal is stared by other 
mora! agents in society, and the claim of one 
individual to realise his ideal must be recognised 
by others. Fveryone is cojiscious that not only has 
he certain powers of development according to 
an ideal conception of his own good, but that he 
possesses these powers in common with other individuals' 
who likewise have a conception of a good or ideal 
towards the reaching of which they have certain 
powers. Rights arise therefore from individuals as 
members of society, and from the recognition that, fior 
society, there is an ultimate good which may be reached 
by the development of the powers inherent in every 
individual. The consciousness of the common interest 
turns powers into rights; and the only proper sense in 
which we can speak of natural rights is as rights 
necessary to the ethical development of man as man. 

Another way of saying this is tJiat rights imply obli- 
gations, or that rights imply dutiesi. In society the 
acts of individuals are limited by the interests 
Billies. *"" °t other individual 5. If, therefore, one* indi- 
vidual wishes to act in a certain way, he must 
concede the same power of action to his neighbours. 
The state exists to maintain and co-ordinate the varitfds 
claims of individuals, so that the fundamental 
duty of every individuar is obedience to the state as 


organised in goverument. The state represents the 
eolleotive interests of the community. , • Its interests are 
therefore superior to the inltrests of any individual, 
for were there no state tihere would be no rights, but only 
powers, or brute florce. The commands of the state, or 
laws, are the conditions of rights, and these rights 
involve the duties of obedience, alle^ance and support, 
both moral, tuch as by public service, and material, 
such as by paying taxes. 

The state, founded on the intelligences and wills of 
individuals composing it, must maintain and co-ordinate 
the rights of its citizens. This it does 
FunoHon 61 through its system of law, and behind its law 
the state. is, the supremacy of the state, tike supremacy 
that actually arises out of the very rights the 
state exists to maintain. The state provides the per- 
manent power whereby its citizens can live moral lives. 
The powers or forces of individuals become rights when 
mutually recognised, and the state gives the conditions 
whereby the conception of a common good can be 
worked out by each individual in his own life along with 
his fellows. 

When these rights are formulated, they are upheld by 
the power of the state. It is in the formulation of 
Ti,g rights that the state shows itself moat 

Farmuiation necessary. Obviously, where there is a large 
° '* *■ , number of individuals, eac'h with his separate 
claims, it is necessary to define claims. In many cases 
both rights and obligations are vague. Thus, in matters 
of property, contract, and family relations, some general 
principles may seem obvious, but the applications of these 
principles to individual cases may raise difficulties. In th* 
case of a child reaching his or her majority, or in 
the case of the making of wills, many possible \vrays of 
deciding might be given, bur the law must decide which 
method it' will accept. Not only is there the 
necessity for the formulation of law ; there must also be 
interpreters of disputes. No law is so clear or compre- 
hensive that it can cover every possible case. Disputes- 


or cases not contemplated in the law, must ariee. and 
interpretation and decision are necessary. InteiTireta- 
tion and decision require judges, who als» must decide 
cases which are not met by existing law by what is known 
as her priucipies of equity.' The law must also declare 
the penalties which will follow illegal actions, these 
penalties being decided according to the danger to the 
state involved in breaking the law. The law also must 
be known, that is, it must he published, and definite. 
4. Eights against the State. 
There are no rigSits of nature unless nature be under- 
stood in the sense indicated. Rights arise from_ the 
nature of man, it is true, but the proper inter- 
nights pretation of that nature gives a very different 
fhf'stlte. result from that given by the upholders of the 
so-called state of nature. The "natural 
rights " of tihese " men of nature" are simply their 
natural powers or brute foroe, which are limited only 
by the biute force of othnrg. or by the " natural '* limits 
of mere muscular power or cunning. 

No mnal development is possible in such a 
condition for the simple reason that such individuals are 
not moral agents. B-ights arise from the 
The R«iation existence of moral agents in the moral medium 
dual and of society, and as such, rights imply duties, 
state. There is no absolute right in any man : 

absolute right to do or choose as one likes is an attribute 
not of man but of the Absolute, or God. 

The state exists to maintain and co-ordinate the rights 
arising among men, and, as such, is a necessary element 
No Bights ^ *^® moral perfection of mankind. The 
aeainst the question frequently occurs — ^both in theory 
"*'*■ and practice — whether the individual has any 

rights, lagainst the state., From the above discussion on 
the Bjeaniiig of rights the answer to this question is clear. 
The individual has no rights against the state. To have 
rights against the state is tantamount to saying that the 
individual has no rights at all. If there is no state there 
are no rights, but only powers. The state is essential to 

tOLttiCAli SCIENCE. 15& 

the existence of rights among mankind. In a perfect 
society with everyone sufficiently moralised to know his 
own good, the state would be unnecessary: in other 
words, the State is necessary because our moral destiny is 
not reached. Men are weak and erring, and till tbey 
have ceased to be so the state will be essential. 

To say there are no rights against the state, however, 
does not mean that the individual has no rights against 
Rights a' particular form of governpient. A govern- 

against ment may so far defeat its object as 

Rirm»"of' the organisation of the 8>tate, which exists 
Government, for the moral good of man, that, to fulfil 
their moral destiny, the citizens of the state may have 
to change the form of government. Thus where the form 
of government is a despotism, g[iving no security 
ol person or property, ob"v*ioTisly individuals cannot live 
a proper moral life. Where, to favour a iew, 
a government reduces the majority, of citizens to moral 
inanition, the citizens have a right bn; moral grounds to 
change, thcgovernanent. The form of government thus 
can be altered in the interests of the state. 

In modern representative government to change the 
form of .government is not difficult. The opportunity 
) for the, exercise of their own poweor is given to 
in'Mocie^n* ' *^® people. They, possess the political 
Demooraoy. sovereignty which is the condition of the 
legal sovereignty. The right to change 
the form of government thus rests with themselves. 
The rig-ht to change the form of government is to be 
distinguished from any so-called right of revolution. 
Theoretically the right to change the form of govern- 
ment and the right of revolution are merely different 
degrees of the same thing, but revolution is not justifi- 
able even as an extreme measure, insomuch as revolution 
as a rule brings about greater evils than it suppresses. 
Revolution usually means general anarchy and a dis- 
appearance for a time of all conditions of the normal 
moral life. The recent example of Russia shows how 
revolution, however just the cause®, may lead ■ to a 

160 tftLlttCAL sctteMcJi. 

complete loss of freedom, save the '' freedom " of force. 
The evils of the Eussian Eevolution were far greater 
than the evils of the pi-evioua autocratic rule. So- 
called bloodless revolutions, . or as the French call 
them, cowps d'etat, are merely sudden raHical changes in 
the form of government; the citizens are not deprived 
of the rights, on which their lives as individuals are 

Similar arguments apply • to the right of resistaoee. 
In modern representative governments laws are made by 
majorities, and minorities must concur. 
Reslstanoe Minorities have no right of uhlawful resist- 
ance to a law which they dislike. A minority 
has always^ the right to make itself a majority, 
i.e., to make its own point of view so persuasive that the 
majority will support it. A law remains, a law till it is 
repealed bj' the ordinary law-making process, and if the 
law is irksome to many individuals, they must first 
persuade others of the justice of their case to give them 
the majority necessary io repeal the law. A law some- 
times dies out without forma^ repeal. The necessity for 
its existence may have passed, or its existence may be 
so unpalatable to the comnion consciousness that eithet 
the government will not enforce it or the law will be 
allowed to lapse. Every government must enforce laws 
vital to rights land the common good. 



5. Civil Libeutt. 

The nature of rights has been explainedi therefore we 

are now in a, position to appreciate the meaning of, Civil 

Liberty. Civil Liberty arises from the state. 

What Civil The state is organised in government, which 

Meant' ^%^ down laws, executes them, and, through 

_thei judiciary^, interprets them in disputed 

c^ses. The jiowers of government are determined by the 

state, so that the sovereignty of the state is the guarf. Jtee 

, of iridividiisil , liberty against the government. Govern- 

imeiit exercises its powers onJy to the extent ajid in the 

\way allowed by the sovereign community. The 

sovereignty of the state is expressed in its laws, and in 

pery state there are two types of law :-— 

1. Public law 

2. Private law 

ihich guarantee the individual respectively 
i 1. Against thei government 

2. Against other individuals, or associations of 

Public law guarantees the individual against 
governmental interference; private law guarant)ee3 
him against other individuals or associations of 
individuals. In subsequent chapters more w;ill be 
said about these types of law. Here it is necessary to 
observe that the niethods whereby states guarantee 
individuals against government vary considerably. In 
every stiate there is a body of fundamentiil principles 
which regulates the conduct of government. These 
principles, sometimes written, sometimes unwritten, are 


called the constitution. Where a constitution is 
definitely written, as in the case of the United States, 
the general principles of government, an outline of its 
organisation and a definite niiinher of general guarantees 
of individual li'berty are given. Where, as in the 
United Kingdom, the constittttioh is unwritten, tradi- 
tions, customs and laws prescribe the form of 
government and the, guarantees of individual liberty. 

Such constitutional guarantees are characteristic of 
modern democratic states. In states where ihe distinc- 
tion between th^ state and government was, 
The state or is not clear, naturally there is no 
Government, guarajiitee on the part of the state again^ 
government. Thus in a despotism, where the 
only ^iil is the will of the despot, there can be no indi- 
vidual freedom save for , the individual despot. 
The same is true of theocracy, , wlkere the inter- 
preter of the will of God is supreme. Freedom; in 
such cases means freedom, to do what the despot allo|Fs. 
Th^ same is true of the feudal and absolute governments 
of the mediaeval and early modem ages. In modern 
democracies, however, we find that the will of the com- 
munity continually checks the government. In most 
countries that will is expressed in the constitution, and 
the government cannot go beyond the constitution 
without breaking the law. Thus in the United States 
the legislature. Congress, naiist work within ;^resGribed 
limits ; and the government was so organised at the 
begining as to give the least change of despotism! ■ The 
leWslature, the executive and the judiciaary were 
oi'gahised separately to' ensure that the lawmaker should 
not carry out his own laws Or interpret them in cases 
of dispute. In England the opposite is" the case. The 
legislature is suprenie: it can make or uninake any law 
it pleases, but behind its acts lies the will of the people,' 
wifich, expressed in its varipub ways — at elections, in 
the'i^i'ess, on' the platforin — makes the cdiiditibns undef 
which the legislature exercises its powers, ' ' 


It must be remembered that constitutional gorern- 
meuts are relatively new. In origin their powers 
were sometimes elaborately circumscribed to 
CoMti" prevent despotism. Experience has proved 

oovernmtnt. *^^* *^® theoretical limitation of govern- 
mental powers is neither the sole nor the chief 
guarantee of individual liberty. Naturally enough con- 
stitutional govel-nment, coming after centuries of des- 
potism and after bitter struggles with despotism and class 
privilege, guarded itself as carefully as possible, but 
these guarantees have sometimes been broken to serve the 
very ends for which they were established, and countries 
with no elaborate guarantees have possessed as much 
freedom as others. Thus in the United States there is 
no more freedom than in the United Kingdom. The key 
to British liberty is not a constitution or the separation 
of powers, but the rule of law,, whereby every citiaen of 
the coimtry, of whatever degree, is amenable to the 
same process of law as his neighbour. On the continent 
of ■ Europe, on the other hand, there is the system of 
administrative law, by which officials are subject not to 
ordinary law courts, but to special administrative courts. 
Reference will be made to this later. 

■ 6. Rights. 

In modiern civilised governments there is a tendency 
to regard certain rights as fundamental. There, is much 

difference of opinion among thiiukers con- 
part^ui'ar ceming the extent of those rights, and con- 
Rights, siderable variation among governments as to 

the method of their guarantee. Taking a 
general survey of Ijoth political thought and practice, 
we may sum up these rights thus : — 

1. Right of life and liberty. 

2. Right of property. 

3. Right ol contract. 

i. Rights of Free Speech, Reputation, Discussion 
and Public Meeting. 


5. Eights of Worship' and Conscience. 

6. Right of Association. 

7. Rights of Family Life. 

A detailed analysis of each of these is impossible here. 
On each, however, a few words must be given. ^'- 

1. Right of life, OT as it Aa frequently caUed the 
Eight of life and, liheriy. \ hs. we h?if e seen, rights arise 

from the nature of man in society. Obviously 
Right of g,U righlis, depend on life, for without life man 
Libeny^ can exercise no rights at all.. Fundamental 

among rights, therefore, is the right to life. 
This right inpludes not only the right to live but the 
right to defend, oneself , against attaclf. Every state, 
however primitive its organisation, provides .for personal 
safety. Jn early societies t]ie power to avenge or punish 
was in .tJie hands, of blpod-relalions ; this led to what is 
known as. blpod-feuds. In modern highly organised 
communities the right to life is safeguardpd by the law, 
and by the government through the police a,nd courts. 

Murder is heavUy punished, thougfti the notions of 
punishmemt vary from state to state. The idea of capital 

punishment, i.e., a life for a life, originates 
"^nishment P^'-ly from the human desire for revenge 

and partly from the necessity bf ridding society 
of one who is dangerous to it. Modern ideas of punish- 
ment tend tOiWatds the recognition of the right to lifte. 
Instead .of a murderer being hanged, modem penal law 
tends to regard him as one who must be removed from 
society for some time, in order that he may reform and 
ultimately resume his place in society to contribute 
iowards the welfare of society like all well-behaved 
citizens. , 

The right to life, based as it is in the common welfare 

of society, not only necessitates the prevention of 

suicide. murder, but demands the punishment of those 

who try to commit suicide. From the point 

of view of the general welfare, every life is valuable, and 


to murder another or murder oneself means the elinuiia- 
tion of an individuality which has duties as well as 
rights. One cannot claim security to one's *t)erson from 
encroachment by others if one is,allowed to kill oneself 
by one's own free act. Sui.cide, therefore, is an injury 
to society,! and those who attempt it are punished. 

The rigfht to life also involves the rigrht to selfi-defence. 
For self-preservation force may rightly be used even if 
that force may kill others. Force of this kind 
8eif-defenoe. may ' only' be used as an extreme measure 
where' no other means Will strffice. In 
English law the only justification for the use of extreme 
force is self-defence, which does not imply the right of 
attacking. The interpretation of what measure of force 
it is necessary 'to exercise for self-defence remains with 
the courts which are guided in theii< judgments by the 
right to defend one's life pp the one hand, ^d the 
existence of private blood-feuds on the other. , . , 

The right to life involves also the right to a certain 
amount of personal freedom — such as freedom of move- 
ment, the right to the exercise of one's 
Freedonijr faotilties and of determining the general condi- 
tions of one's life. -Mere life without move- 
ment would be meaningless, and without the exercise of 
the hujnaii,, faculties it would not ries above the level of 
that of animals. The right. tO' freedom arises^ froiii the 
fact that there is a society to the general good qf which 
each individual can contribute something and have a 
conception of what that good is. Thus slavery is 
universally condemned because the good of society 
"demaads that each man must be able to determine the 
.conditions of his own life. In c^ses where such deter- 
mination is not possible,, idiots or lunatics, the 
right to life is still respected on the ground that either 
the individual is curable and> capable of later self-deter- 
mination or that the very fact of their continued 


existence performs a social function, by calling forth 
family or philanthropic feeling's. ' , 

But the right to life and libei-ty, though fundamental, 
is not absolute. Thus in war the individual lit© is 

sacrificed. Many wars it is true, have sacni- 
This Right ficed individual life because of the persona)! 
absolute VE^nity of rulers ; th« right to life was thus 

infringed. But wars such as the recent great 
war, where two moral ideals were at stake, involve the 
sacrifice of life as a condition of the realisation of that 
ideal. Green, tbe great modeirn English ethical and 
political philosopher, condemns all v/ars on the ground 
iftiat they are emblems of human imperfection. War is 
only necessary because states do not really fulfil their 
functions as such in maintaining rights among indivi- 
. duals. Armies are due to the fact that states do not 
live up to their purpose, therefore no state is absolutely 
justified in traversing the right to life, though in parti- 
cular instances states may be, justified in going to war 
because of the good whick may result. The right to life 
or liberty, .again, may be suspended where tflie laws are 
broken. As laws, properly understood, exist to maintain 
a system of rights, obviously if they are broken action 
must be ta,ken to preserve the system. Both life and 
liberty therefore depend on obedience to the laws. 
Thus in the case of fnurder or treason the murderer or 
traitor may be deprived of his life, and in the case of 
stealing and violence the offender must be restrained. 
On the other hand, if the right' to life and liberty is 
to mean anything, there must be safeguards against 
arbitrary action on the part of the government. In 
France before the Revolution there was a systetn known 
as lettres de cachet, by which the administration was 
able without judicial process summarily to deprive any 
individual of his liberty. These letters de cachet were 
issued under the privy seal {cachet) and the individual 
had x?e legal process to secure either redress or freedom. 


In the English system the maximum amount of indi- 
vidual liberty is secured in a very simple way. There is 
in England no definite constitutional guaran- 
Ljberty"^' *®® ®-^ liberty, such as is given in some 
Efigian^, modern written constitutions. In England 
personal liberty is guaranteed simply by the 
courts of law. The existence of constitutional declara- 
tions of the liberty of the individual are of no avail with- 
out machinery to guarantee it. In England the right of 
personal freedom simply means the riglkt not to be 
imprisoned, arrested or coerced in any manner which 
is not justified by the law. Physical restraint in 
England is wrong, except the individual is aecuesd of an 
ofEence and is to be brought to trial in the courts, and 
when, after trial, he is convicted and has to be punished. 
The two ways in which this principle is upheld are-?— 

1. Eedress for arrest 

2. The Habeas Corpus Acts. 

1. Redress for arrest means that a person who has 
been wrongly arrested can either have the wrongdoer 
punished, or exact damages in proportion to his injuries. 
Such action may be taken against any person in the 
realm, official or non-official. 

2. The Habeas Corpus Acts, A Habeas Corpus writ 
is an order issued by the courts calling, upon a person., 
by whom a prisoner is alleged to be kept in restraint, 
to produce the prisoner (or have his body — -ihe English 
equivalent of the Latin habeas corpus) before the court, 
and explain why tihe prisoner is kept under restraint, 
in order that his case may be d^lt with by the court. 
The prisoner may then be set free or brought to 
proper trial. By this means the individual is saved 
from any arbitiary act on the part of the executive 
(fovemment, or, in other words, the executive govern- 
ment must act strictly according to the law, otherwise 
the courts will interfere, on the application either of the 
prisoner or of some person acting on^his behalf. 


The Rule of Law in England thus secures the 
minimum amount ofi personal restraint. In times of 

emergency, such as wars Or threatened 
JaJ, ""'* °' revolution, spelcial measures may have to he 

taken for the safety of the stated-such, as the 
Defence of the Reabn Act during the Great War. In 
such cases for puhlic reasons it is necessary to give the 
executive more arbitrary powers; hut in tijnes of peace 
the rule of law is paramount. 

2. Right to Property. — The right to property has an 
ethical basis, and the political safeguards of prQp€3"ty ' 
The Right ^^® really expressions of the ethical end. 
to Pro- The ethical basis of property is that property 

"'"^ '■ , is essential for the realisation of. the moral 

end of man. The word property comes originally from 
the Latin word proprius, which means own or peculiax, 
and proprietas, a peculiar, or essential quality, arising 
from that ownership. The ethical quality of property 
i.9 that it is essential in some form to the existence of 

The many controversial questions regarding the ori- 
gin, distribution and ownership of property cannot be 
discussed here. The question of individual as against 
public ownership will be discussed in a later chapter^ 
The, ideas on property change from age to age, and with 
the change of ideas tihere goes change in laws. At 
present the laws of all states give definite guarantees to 
private property, but the view as to what may be private 
property varies from placa to place. While private 
property in land, rivers, moors, and such like is 
respected in some countries, in others the tendency is 
to regard it as public property. However much the 
views may vary, it may safely be said that there is a 
certain amount of private property which,/ whatever 
may be the type of, state, will be guaranteed — such as 
houses, clothes, cooking materials, food, and books. 


Property, like liberty, contains no absolute rigkt in 
itself. At any time this claims of -the state ma;^ be so 

paramount, e.g., in a great war — that th^ 
rigw?**'"** usual -property rights may be temporarily 

s'Jfpended. So it is also with confiscation of 
pitiperty. Property may be confiscated either as a 
punishment or' for reasons of state. The whole question 
of taxation is also connected with property. It depends 
on the partijcular views pievailing in a community 
at any penofl whetiher any given type of property 
shall be taxed, or taxed more ,, heavily than any 
other type. Thus speculation in buying and ■ selling 
land near rising towns may be checiked by a tax 
on unearned increment, or increase in, yalues cs^used not 
by the investor's exertions but by the growth of the 
community.; "Vested" interests, again, are often saiid 
to .confer certain property rights . on individuals. 
Vested inteieets arise from length of tenure, 
and it is held that the individual i has, a "right" 
to expect the continuance of the conditions under 
which he bought or developed his propertv. Such 
an idea rests on a wrong idea of the state. The state 
cannot allow any interests to continue if these interests 
defeat ."the object of the state's existence. No govern- 
ment can bind its successors for ever to a certain line 
of action. The change of ciroiiinstaniCes in time may 
completely alter the meaning of a certain type of propei:ty 
or investment. The common welfare, not individual 
interests, is the main concern of the state. 

3. The Right of Contract. — The right of contract is 
really a phase of the more general right of property. If 
The Right °^® ^^® certain rights of property, then 
of Con- reasonably enough one may have rights to 

"""* ■ dispose ofl or use that property as one desires. 

The phrase "freedom of contract," ,ho>jvever, like the 
right of property, is variously interpreteii^, by govern- 
ments. Thus in America the consti,tution prohibits 
interference with contracts by the states, but in Britain 
therii is a tendency to interfere with the sO-called 


freedom of contract. The doctrine of laissez-fadre 
demands that no restrictions, or as few restrictions as 
possible, shall be placed on the " natural " movements m 
commerce and in industry, but though that doctrine 
prevailed for many years, experience showed that many 
interferences were necessary in the freedom of contract. 
Thus there are Factory Acts, Employers' Liability Acts, 
'Insurance Acts, etc. 

A contract is a transaction in which two or more 
persons, or bodies of persons, freely impose certain 

obligations upon each other to act in a certain 
con"raet.°' '"''^y ^i*^ regard to some definite object. A 

simple kind of contract is the buying and 
soiling of an article Once the axticle is bought or sold, 
the contract ends. The ordinary type of contract, how- 
ever, is more comJ)lex. It places two parties under 
certaifa. obligations for the future : it is an act of will 
which imposes a certain restraint on each party for the 
future, and it might reasonably be supposed that each 
party could brea,k the contract at will. Once a contract 
is made the parties can annul it only if each party wills. 
One party cannot break it if the other does not wish to. 
'Bhe basis of contract is really truth and honesty. If 
one party fails to keep Jhis word then he deceives the 
other party and may cause him material loss, which is 
equivalent to ' the theft of his goods. 

Contract is an essential basis of society. In primitive 
forms of social organisation contract is of a simple kind ; 

whereas in modem society, where there is 
orcontraot. ™uch differentiation of functions, contract is 

th« basis of business and of social 
organisation. Where there is no security of contract 
there can be no business more than mere barter. Cdn- 
traot. therefore, may be said 'to be essential to the pro- 
gress of civilisation, and if the state is to fulfil its 
funption, it must, have the support of the state. 


The state must maintain and adjust the rights and 
obligations arising out of contracts, but certain contracts 
The state cannot be recognised by the state. Contracts 
and made for illegal purposes, immoral contacts, 

Contraets. ^^ contracts endangering the safety of the 
state are, necessarily invalid. The state, for example, 
could not support a contract made to deal in slaves, or 
a contract involving bribes. Gaming and betting 
contracts are ranked in most countries in the same class. 
The state can support contracts only which are coU' 
sistent with the end for" which the state exists. 

4. Right to free speech. — This right arises from the 
nature of man, for speech is necessary for social union. 
This so-called right of free speech ia much 
Free'fpeeeh. misunderstood. It does not mean the right 
,. r "to say anything one likes where one likes; it 
simply means the right to speak (and write) so far asi is 
consistent with the general well-oeing. As the general 
well-being is inextricably connected with the state, 
freedom of speech auust be limited Iby considerations of 
the stability of the state. Thu^ a speaker, or writer may 
give his views on the policy of government, but he must 
not stir up violence or revolution. Truth alpne is no 
index for freedom of .speech. Thus a citizen may wish to 
tell the pvil character of a neighbour or enemy to the 
public, but unless the speaker can prove that his remarks 
were made, in the public interest, how-ever true the 
remarks may be, he will be punished under the law of 

The riglht of free speeoh is thus limited, by the right 
of reputation. In normal social life ah individual's good 
y^^^ name is of the utmost value to him, not only 

Right of because of the normal human sense of honour 
epu ation. -^^ ^^ j^j^g business and politica:! relations'. If 
an individual insultg, another individual, and is assaulted, 
the injury to the attacker's feelings must be taken into 
account. Where such an insult is private, i.e., takes 
place between two individuals, it may lead to blows or 


assault, and- tlie law courts. Where it is public, it is 
subject to tke law of libeL _ '•. . j r 

I^esident Woolsey gives the following six principles 
w'2'oiMy'l wMch cover the various phases of the fighjt 
Principles!- of reputa-tion:— ' 

,'.',Here then we, have the rights of spe-ech _and the 
atatement ,o,f trutih.on.the on? hand, personal feelings and 
reputation on the other. The principles reconciling the 
two rights seem to be these : (1) To tell the truth, to 
disclose the truth when, the character of a man ought to 
be known, to do this publicly when he is talked of for a 
public office, may be entirely justifiable. (2) To put 
the principles or condupt of a person in a ridiculous ligflit 
by word or caricature, when he is thus before the public, 
is equally defensible. (3) It is reasonable, therefore, 
that the truth in a statement, even if uncalled for, should 
take off' something of - its libellous character,' unless 
especial malice in bringing to lig'ht that which was not 
known, and Vas not necessary to be made public for 
the purposes of trut!h, csin be alleged in the ca^e. 
(4) In all cases, then, thb malice and the causelessness 
of the injury to a man's name are important consideira- 
tions, nor can par4;y any more than petty professional or 
other jealousies, excuse libels. (5) Ridicule, equally 
with sober statements, may violate rights, when it is 
malicious or causeless, whether 'thei'e is reason for it or 
not. (6) The revelation of former faults' or misdeeds 
(without good cause), of persons who have long led an 
upright life, is a wrong demanding redressi." 

The modem use of the phrases " freedom of 
thought " and, " freedom of - speech " comes from the 
f i-eedom of ti^^^s of the French Revolution. ^ Originally 
Speech, etc., the ideas came from England. Ita !i the 
'stZT'" Declaration of the Rights of Man it is' laid 
down that the " free communication of the 
rights and opinions is one of the most precious 
rights of man ; each citizen therefore should be able to 
fipeak, write, and print freely, subject to the respon- 


sibility iot 'ISreaking this liberty in cases determined 
by tbe law. Tlie constitution guarantees as. a natural 
and civil right to each' man Ijo speak, write, print and 
publish his thoughts without these writings being 
submitted to any cen^rship before publication." The 
Belgian constitution lays down similar principles, par- 
ticularly regarding the freedom of the Press. In 
England no " constitution£\.l pravisions such as these 
exist. English law. recognises no principle of the 
freedom of discussion.- The only security for freedom 
of speech in England is that no one shall be punished 
excepi) for Sitaiementa spoken or published whicb 
definitely break the existing law. " Thfe position is 
given in these ■words in Odgers'a work on libel and 
slander: ' . - 

" Our present l,aw permits any one to say, writer 
and publish what he pleases ; but if he make a bad use 
of this liberty, he must be punislied. If he unjustly 
attapk an individual, the person defamed may sue for 
damages ; if, on the other hand, the words be written 
or printed, or if treason or immorality be thereby 
inculcated, the ofEender can be tried for the mis- 
demeanour either by information or ihdictment." 

In England there is thus no theoretical -freedom of 
speech or freedom of the press; the anly freedom that 
exists is freedom within the law. If anyone 
"libels another, he may be convicted under the 
law of libeL ' The same is' ti-ue with regard to libels on 
government. "Every person/' saysi the well-known 
English law' writer, Dr. Dioey, ' " commits a misdemean- 
our who publishes (verbally or btherwise) any words or 
any document with a seditions intention." And again, to" 
quote the same authority a " seditious intention " taeans 
" an intention to bring into hatred or contempt or to 
excite disaffection against the Queen or the government 
and constitution of the United Kingdom as by law 
established, or either House of Parliament, or the 
administration of justice, or tq. excite British subjects 
to attempt otherwise than by lawful means the- 


alteration of any matter in Church or State by law 
CBtablished, or to promote feelings of illwill an,d 
hostility between different classes." 

The law only recognises as'legitimate the publication 
of statements which may show the go'vernment to have 
been misled, or to have committed errors, or 
statements wtich point out defects in the existing 
system which can be remedied by normal legal means. 
"In other words, the law sanctions only criticism which 
is bo7ia fide, and intended to bring about reform in a 
legal way. 

The same general position holds with regard' to 
discussion on religious and moi-al questions, wMch 
«iasphemy. ^^^ governed by the same laws and the law 
of blasphemy. All cases arising under these 
jaws are judged by the ordinary procedure of a judge 
and jury, so that the pai-ticular amount of immorality 
or religious danger in an act under judgment will be 
»dju4ged largely aceording to the current ideas of their 
-danger to the public life of the country. 

The freedom of the press in England, though 

not guaranteed by any constitutional maxim is 

guaranteed by the Rule of Law. . No license 

fho^ress."' ^^ necessary for a publication: the persons 

respon,sible may be punished, not for 

publishing, but for publishing anything, wihich breaks 

the law. The same principlb makes it unnecessary to 

giv« caption money or a deposit before publication. 

As Dicey, says, in England men are to be interfered 

with or punished, not because they may or will break 

the law, but because they have con^mitted some 

definite assignable .legal offence. Except in the case 

of plays (a survival of the old licensing system) no 

license to print or publish is necessary either for books 

or newspapers, and most newspapers in England are 

definitely political. For has goveramen,t or anyone 

«lse the right to seize or desjtroy the stock of a 

publisher because it may contain what in the opinion 


of government is seditious matter, nor can government 
supervise the (editing or printing of a paper. 

Preiss offences are tried in the ordinary courts by 
a judge and jury. With the jury, as in all cases, of 
libel, lies the decision as to whether the press exceeds the 
law or not. It is io be noted that in France not only 
is there a large body of special press law, but that 
certain press offencfes are tried by special tribunals. In 
France 'the idea has for centuries prevailed that it is 
not merely the concern of the government to punish 
breakers of press law, but it is also their duty to guide 
opinion in the proper channels. In England, before 
169&, there were numerous restrictions on the press and 
printing', including the monopoly of the ■ Stationery 
Company, the Licensing Acts, whidli lapsed in 1695, 
and the special . tribunal known as the Star-Chamber, 
which, with its other functions also controlled' printing 
presses. . Since 1695 the theory has prevailed that 
goyernmeht has nothing to do with the moulding of 
opinion : its main concern is to see the law observed. 

Another right, the right to Public' Meeting, which 
is part of the right of free speech, is governed in 
England by the same principles. Any one 
MMting. i^ England can meet and discuss- any 
question in any way provided* the meeting 
obeys the law. If what is said, be libellous, the law 
of libel will come into operation ; if blasphemous, the 
law of blasphemy ;, if the object of the meeting is 
unlawful, the meeting ,is unlawful assembly.; If a 
breach of the . peace is- likely to be committed or is 
committed, the meeting is unlawful and those respon- 
sible punished. / i. 

5. The Right of. Worship and Conscience. — The right 
to one's religious faith is not universally admitted. 
The I^ some states only a certain type of 

wfrshU religious faith is permitted; in others there 
«nif . is generar toleration. Modern history teems 

Consoianos. .^^rith instances of wars on religious grounds, 
either ibecaupe pf a, f undanaental ^ difference 


in religion or because of quarrels between sects of the 
same religion. In the modern world the tendency is 
towards toleration in all religions within certain limits. 
Thus in the United Kingdom, though there are state 
churches, dissenting chuches are allowed to practise 
their faiths freely. During the mineteenth century the 
chief political disabilities were removed from Eoman 
Catholic Christians and Jews. Only in a very.^few 
instances do civil or political disabilities exist. In 
newer countries, including the British self-governing 
dominions, there is no State Church. Complete tolera- 
tion is allowed to all religious faiths or sects. In India 
the government is neutral regarding religious matters. 

Since the Reformation .the church aiid state havp 
gradually ■ drawn apart ; the church has given up its 
previous temporal powers and confined itself 
state?"*'"' ^° spiritual matters. In certain states' a 
species of the autocratic ruleistill prevails, e.ff^, 
in Islia-mic States ; but even in Mohaanmedanism' the 
modern trend towards universal toleration is makiag 
itself felt. Modern opinion' leaves matters of heresy to 
thfe church, and only if the church exceeded what the 
common consciousness regaTded as just or reasonable 
would any action of government be likely. ".v 

Generally • speaking the rig'ht to one's faith is 

limited by two things. First, where the worship 

involves immorality, the power of the state 

Limitation may intervene. An example is the system of 

of Worship, worship of the Thugs. Secondly, where the 

religious authorities so act as to endanger 

the state, ; the state must then safeguard its own 

existence. A religious body, for example, to further 

its faith might try to raise civil war or invite a foreign 

power to help, it. In such a case the state would have 

f to intervene to save itself; ' , r 

It is diffieulli 'to' say that in any state there is a 
right to worship as such. People as a rule may hold 
what opinions they choose provided illegal acts do not 
flow from these opiniohs. Thus in England thougrh 


there exist the law of blasphemy and la^s to uphold 
the Christian religion, lihe laws are operative only in 
cases where they are blatantly set at defiance. 

Begarding the general rights of conscience it is 
often held that conscience, being the chief possession 
Rights of of man, is inviolable. In a sfense it is 
Comoienoe. inviolable. The state through government 
can compel a man to do which his conscience tells liim 
is wrong, but the state thereby does not afEect the 
conscience. The conscience as the inner unspoken 
voice can pireserve itself in spite of the state or 
government, but What it cannot do is to prevent the 
state acting towards the possessor of the conscience in 
any way the state thinks fit. Thug, though the state 
cannot make a man's conscience say that which it 
thinks wrong is right, it can imprison him, or force 
him to act or not to act in a certain way. In this way 
the conscience of the individual must conform to the 
law of the state. Legally speaking, the state, not 
the individual, is the judge of conscience-rights. No 
man can be allowed on grQunds of conscience to stand 
outside the law of the state, for, in the first place, the 
state is based on the intelligences of the community 
for the common good, and' the existence of rights of 
conscience apart from the state would defeat the 
object of the state ; and, secondly, the admission of 
rights of conscience against the law of the state would, 
in this imperfect world, open the way for the exercise 
of dishonest rights of CQUsoience. The state, therefore, 
through government, must be the arbiter of rights of 
conscience, a ad as such be able to compel all individuals, 
whatever their consciences, to act according to the law. 
The otate ma^ on grounds of expediency, as with 
conscientious objectors to conscription, permit certain 
latitude, but it can never ■ affect the innermost 
oanscience. II- cannot compel a man to believe that 
what is bad is g^Kjd , but it must control his outward 


6. The: Bight of Association. — In modem . highly 
developed society individuals enter iiito relationships 
The Right ^°^ many purposes. They form unions, 
of _ _ clubs, societies or associations for political, 
Assoeiation. commercial, philanthropic, educational and 
other purposes. Sometimes these associationsi _ are 
temporary, with only a slight organisatio.n : sometipies 
they are permanent, with a very elaborate organisatjoa. 
The increasingi inter-communication between the 
various political communities of the world has le,d to 
many associations which go beyond the limits of any 
cue state. Some of the organisations extend over 
many states, that is, they are international. 

The Eight of Association in a general form is one 
of the elemental rights of man as a social being. The 
state itself depends on association; but the 
The state state, as the supreme association or unity, 
and other must preserve itself among other assoeia- 
■ tions, and, if need be, in spite of other associa- 
tions. It may happen in the future that 
associations which extend beyond the frontiers of any 
one state may lead to the disappearance of individual 
states and the formation of a single world state; but 
80 long as there are individual states, and so long as 
these are necessary conditions for th^ moral develop- 
ment of mankind, so long must the individual states 
preserve their identity. Already thinkers are putting 
forward the claims of associations against the state; 
but so long as _ the state continues so long m'lst 
associations be within and under the state. 

The Right of Association must, therefore, be 
limited by the necessities of the state. As a rule, 
associations live under the protection of 
Mrmght. *^® siB.U, but sometimes they may become so 
powerful as to endanger the state. Thus 
trade-unions mus't be limited in such a way as to 
prevent them paralysing the moral life of a nation. 
The East India Company, originally a trading company, 



became such a powerful political body that it had to be 
transformed from a trading companj into the Govern- 
ment of India. Secret politiaal societies which aim at 
the subversion of governinent by unlawful meana must 
also be suppressed. The same is true af all sipils^r 
societies, wliether secret or public, but secret societieB 
are a particular ■ danger as they usually favour 
revolutionary and illegal methods. 

Generally speaking, all associations which prevent 
free moral development in a people are wrong, but their 
moral badness becomes a matter of state only when taey 
endanger the state or openly contravene the end for 
which the siate 'ecsists. , 

7. Ri%/ht of FamUy Life. — The rights of the 
family rest on similar grounds to the rights of 
property. The family life represents a 
Rights of fiioaiilar effort to make real what the individual 
Family. conceives as necessary for his own good. The 
fa.mily state js a condition of the good life, but 
wlieryas in property the right is exercised over a 
thing, in the family state it is exercised over a person 
or persons, which implies that the individual exercising 
family rights must recognise that the good of others is 
permanently and indefeasibly bound up with his own 

Many rights are included in the general name 
rights of family. There are the rights of marriage ; the 
rights against others in the purity of the. 
Types of marriage religion ■ the rights over children ; 
Rights. the rights of children, and the right of 

inheritance. The family state is one of the 
essential elements in human existence, and the relation 
of the *tate to it is determined by the fact tha,t the rights 
arising out of it must be maintained and co-ordinated. 
The types of family life differ from one country to 
another, but some, features are general The whole ques- 
tion pf the relation of the state to the family is a jnixture 
of the legal and moral, and in many particulars these two 
aspects are not in agreement in every country. 


Marriag>e itself is a contract in perpetuity. The 
state aan recognise no temporary marriage. Tie state, 
howeTer, may recognise the invalidity ot 
fSnte in marriage where impediments exist which 
Family defeat the moral end of marriage. The state. 
Rights. ^^^^ ^f^J, various reasons, may prevent 

marriage hetween very near relations. In most modem 
.-states, also, polygamy is forbidden!. The marriage 
relation implies the mutual surrender of personalities 
hy the husband and wife. In other words there is in 
marriage a reciprocal reeognition of rights, which 
implies monogamy. Polygamy not only excludes many 
men' from the married state, but it does not preserve a 
real reciprocity of rights between husband, wife and 
children. The husband in a polygamous marriage is 
like a master over slaves. The wife is not' the head of 
the' household save for the time she happens to be 
favourite/ and she is alsd required to exercise' a self- 
control which the husband does not exercise on himself. 
Then, again, the claims of children on their parents' can 
be satisfied only by the joint responsibility of the 
parents, which is impossible in a polygamous system. 
The state recognises certain rights and obligations 
on the part of husband and wife.' The husband is the 
head of the family, its protector and supporter. The 
law forces him to support his family; The husband and 
wife, too, are bound to be faithdEul to each other. The 
law grants divorce in cases of infidelity, though it may 
be for the good of the family for the offence of infidelity 
to be condoned. The state as a rule recognises the claims 
of the husband or wife against other individuals, and 
may grant damages in case of th^ infringment of the 
right of fidelity. 

' ■ The tendency in the modern world is towards legal 
equality of men and women in these matters, though up 
to the present the law distinctly favours the man. 

_ The right of the parent in respect t6 the children is 
mainly a duty, w-., to support the children. The parents 
are the guardians of the children, and the child has no 


legal position till it passes out of tlie state of minQrity. 
The la\r8 of the varioiis states of the world recognise a 
fixed' age of majority, an age which varies from state 
to state. States also recognise the duty of the jjarent 
to support the childj though th« duty of the child to 
support the parent in old age is usually regarded as a 
moral, not a legal, duty. 

In conclusion, it will be noted that these particiilar 

rights are all relative. Not one of them is absolute. 

They exist in the state, which is the condition of their 

exercise, and not one of them in itself can be supported 

against the paramount claims of the state. 

7. Political Libeett. 

Political liberty, in its modem meaning, is 

practically synonymous "with demacracy. Democracy 

is of two kinds — direct democracy, in which 

Meaning of every citizen has a direct share in the 

Libert. management of government, and indirect 

deanocracy, in which the citizens elect 

representatives to carry on the work of government. The 

former type is possible only in very small states where 

all the citizensi can meet together and express their 

opinions; the latter is necessary in our large modem 

states, where it is physically impossible for the citizens 

to meet together. In some countries attempts have 

been made by means of ihe initiative, which enables the 

citizens to compel the legislature to pass a certain type 

of law, and the referendum, by which a proposed law 

is saibmitted to popular vote, to eliminate representation, . 

but as yet these have not found general favour. 

Underlying democracy is the idea that each citizen 
should be ablfe to express his views on the affairs of 
1 government which) concern him or his 

^'eaning of <^°^^*^y- The niethpd by which the citizens 
lOemoeraoy. express their views is by voting; but not 
everyone is allowed to vote even in the most 
advanced democracies. Both reason and experience 
show that certain classes of people must be excluded—^ 
such as aliens, whose loyalty is due to another state. 


lunatics, and children, botir of whom cannot comprehend 
the' issues to 'be voted on. The tendency of democracy;, 
in the modern world is to broaden its basis to include all. 
adults, male and female, so that every on,e may bave a 
say in government. Demtocraejr, however,, was not always 
so broad: the Greek democracy, for example, was a 
democracy only for citizens who were.rieh and; leisured, 
whereas "the slaves, the working classes of . modem 
democracy," wiere omitted altogether. 

Fpr various reasons certain, classes 'are sometimea- 
excluded in modem democracies. Sometimes those who 
do not pay a minimum gymouni of taxes are excluded;- 
sometimes illiterate people are excluded; sometimes 
certain classes of government ser^ahts are excluded. 
The varying principles and jjr^ctice of governments, 
are examined in njore detail in the section on the 
Electorate. " '' ■' 

In technical language, the chief, c(i^culty of 
democracy is to find an organisation which affords the 

greatest possiblei fusion between leg\al and' 
Problem of Political sovereignty. On , the pne side it is 
gemooraey. necessary to avoid the tyranny of the 1 egis- 

lature; on the other,, it is necessary to 
give as free play as ■. possible to the minds of the 
people. For the avoidance of tyranny there are the 
guarantees of a constitution, and the division of powers 
between legislative, exefcutive and judiciary in such a. 
way 'that one cheeks the other. For the testing of the 
popular will there are elections, which should be as 
frequent as is consistent ■ with the national peace of 
mind, for frequent elections are very disturbing where, 
as in the modern world, they are managed on the- 
party basis. The initiative, referendum, .and recall, are 
other instruments for giving full plc^ to the popular' 
will. The press is also important in this way. Locaf 
aelfrgovernment, whereby municipalities andi other local, 
areas manage their own affairs, is another important- 
element in modern political liberty. 


Th6 modern world is eitlier democratic or rapidly 
ftioving towards democracy. One of the chief dangers of 
democracy is that it may go to extremes, ox 
Danger of become mob rule. That the dividing'^ line' 
Democracy, between politicalliberty and anarchy, which 
means lack of rule, and, as a result, social 
and political chaos^ is hot very definite is 
shown, by thp historical examples of tte I'rench Eevolu- 
tionand, recently, of Rijpsiai. In. these countries thc^ 
desire to have a share in political affairs overcame the 
ability to govern on the part of those who broiight 
a,bout the change from moiiardhical to popular govern- 
ment. The result in each case was a despotism marked 
by, terror whicli no individual, despot would have dareas 
to perpietrate. The theory of democracy is that all are 
equal before the law, but in practice democracy has 
often gone to the extJreme of mob rule which has result- 
ed in the wholesale execution of all .opposed to it, giviiig 
them neither a voice in government nor equality before 
the law. 

Political liberty, therefore, must not be regarded 
as something to be a,ttaine^ as an end in itself. It is 
to be attained far the higher moral end of thja 
Liberty 'only perfection of humanity, and as such its course 
a Means must be marked by the gradual enlightentoent 
an*Enii? oi the citizens. The greatest danger of 
democracy is ihat the voice of the peoplemay be 
unenlightened. Sence the same argument that applies 
to lunatics and children applies to the unenlightened, 
that, not being able to understand the issues at stake, 
they should not be allowed to influence the course of 

8. I^ational Liberty. 

National liberty is synor.ymous with autonomj' or 


inJepc-ndenee It means that the community concerned 
is sovereign. Many of the greatest wars in 
Meaning of *^^ world have been fought for national 
National liberty. Ifational liberty also involves the 
Liberty. rigjit to choose in which nation a people 
wishes to be incorporated, e.g., the case of Alsace- 
Loraine in France. This is the new well-known principle 
of self-determination. 

The various questions connected with the rights of 
nationalities also come under this heading. These have 
been discussed already in connexion with nationality. 

In the British Empire there are various grades of 
national liberty among, the many Dependen- 
Liberts?' ^^^s. In all matters of every-day life British 
in the Dependencies are self-governing. Some of 

Empfre. them, the so-called self-governing Dominions 
(Canada, Australia, New Zealand, aniJi South 
'Africa) are, in most respects.- a^oist independesnt. In 
India, lihe Government of India is gradually assuming a 
similar position, and we are approaching the Dominion 
status. Many dependencies are held for military or naval 
reasons (such) as Gibraltar, Malta, and Aden) and these 
are ruled by the authorities concerned. The chief matters 
in which the Imperial Government preserves its powers 
are foreign affairs and matters of war and peace, but 
in these all recent developments point to the dependen- 
cies being taken into council. As long as the Imperial 
Government is responsible for the defence of the depen- 
dencies, it must have power to defend them, but the 
lecent war has shown co-operation in defence and now 
we may expect . co-operation in povyer. 



1. Definition. 

The word law comes from an old Teutonic root lag, 
which means something which lies fixed or evenly. In 
•General *^® English language the word is used to 
meaning denote that which is uniform. In physical 
.of Law. science, for example, we speak of the laws of 

motion, where the word means a definite sequence of 
cause and effect ; and in Political Science we use the term 
to mean a body; of rules to guide human action. Every 
citizen is familiar with laws of variousi kinds, and with 
lawyers and judges, who interpret or apply them. In 
Political Science, however, we are not concerned with 
the various laws and interpretations of laws, knowledge 
of which is necessary for the training of a Wwyer. We concerned only, with the general pipinciples of law 
so far as an understanding of them is necessary for a 
proper conception of the nature of the state. The 
detailed study of the principles of Law belongs to the 
science of Jurisprudence. 

Laws, no matter in what form they may be expressed, 

are, according to Austin, in tae last resort reducible to 

commands set by the person or body of 

o/Lawl"" persons who are in fact sovereign in any 

independent political society. To this 

Austihian definition of law Sir Henry Maine makes the 

objection that it is too narrow, that it does not cover all 

those cases of usage in which not the direct command 

but the dictates of customary procedure have sway. To 

meet Maine's criticism President Wilson presents a 

conception of law which does not identify it with a 

-definite onmmand ; he endeavours to infclude in it those 

-customary usages which have come to have binding force. 


j "Law," he says, "is ttat portion of the establisheiJ 

1 thought and habit which has gained distinct and formal 

I recognition in the shape of uniform rules backed by the 

, autJiority and poweo? of, goyemnient." President 

Wilson thus tries to harmonize the analytical view of 

law with the criticisms offered by Sir Henry Maine. The 

best definition of a law. is that given by Professor 

1 Holland — " A law is a general rule of action taking 

cognisance lonly of .external acts, enforced by; a 

; determinate authority! whichi authority is human and 

' among.human authorities is that which is paramount in. 

j a political society " ; or, briefly, a law is ." a gener^irrulW' 

1 of external action enforced by a sovereign politieal" 


The above extract gives the' essence of law. To put 
it more shortly^ flawiis,, in President Wilson's words, 
"the will of the state concerning the,, civic 
of 'taw.'*'* conduct of those under its authoirity." For 
] law two things are thus necessary, (a,) : thei 

civic commuiaity, (b) a body of rules. JSTo numerous body 
of men can live together for any length of time withoiit 
havii^ certain recognised' rules of conduct., Just as the- 
first' thing necessary for the formation of a literary 
society or for the conduct of a public, meeting is 
a body of guiding principles, so in a community there 
must be some definite rules. These rules need not be 
written down on paper; they may simply be the 
recognised customs of the people. Thus, in India, many- 
of the rules which people observe in . their daily 
intercourse with each other — such as caste rules — are nof 
definitely written >down, but are handed down from 
generation to generation, in the form of custom. ,Biefore 
writing was invented, custom was the only source of law^; 
the headman, chief, priest or pouncil of , elders 
iipiterpreted in cases of doubt. After the invention of 
writing -these custonas were written down, and^ with; the- 
gfrowing differentiation of functions in : socieityj^' laws 
became more numerous and more complex. With the 
growing complexity of law arose the necessity for- 


skilled interpreters, v^-z., lawyers and judges. Not all 
customs were written down, and only those customs were 
law which the community accepted as such. In a modern 
government there is a definite organisation to make law* 
— the legislature^— but it does not make all the lav/s. 
Many laws existed before legislatures were organised 
in their modern form, Jbut legislatures, as the organsi- 
of the sovereign state, implicitly agree to those laws 
which they. do not actually pass, on the principle that 
what the sovereign' petmits it commands. 

, 2. The SouEGEs of Law. 

Professor Holland gives the following six sources- 
of law: — (1) , Custom., or Usage. (2) Religioni 
Sources (3) Adjudication or Judicial Decision., 

of Law. (4^ Scientific Commentaries., (5) Equity. 

(6). , Legislation. , . 

The^ earliest) kind lOf law was customary law.. lu 
primitive types of society, whete the social organisation 
was simple ani there was no art of writing, 
1, custoiTi disputes were settled by the patriarch, or 
or sage. council of elders, according to the prevailing 
customs. The customs were based on the general usage 
of the family, tribe or clan. This usage arose out of 
such needs as security of person and propert;\-, or the 
provision of the necessaries of life, in short, utility. 

Customary law was closely connected with religion. 
Decisions had the force of divine inspiration, and' 
2 Rere" disobedience to them brought to the 
malefactors the severe penalties which early, 
religion attached to all breaches of divine law. The law 
tl^us had the double advantage of arising out of the 
Customs, of the people and of receiving the. support of the 
early types of religion or superstition. The promulgator 
of the laws varied from community to community: 
sometimes the headman, sometimes a council, and" 
sometimes priests or priest-tings, issued legal decisions. 
In this respect there is a marked distinction between the? 


«aet and west. In the west law tended to become 
political : in the east, religious. ' 

With tlje growing complexity of social organisation, 
custom hod to be supplemented by legal decision or 
adjudication. By the mixing of one tribe 
•o'ustom'and with other tribes, either for trade or marriage, 
derated'."''" conflicts of custom arose. The custona of 
Judicial one tribe pn one matter might »be at variance 

precedents, ^.^j^ ^-^^ Custom of another tribe on the same 
point. To decide such conflicts, it was necessary to refer 
the case to the wisest men in the community, who thus 
became judges whose decisions were accepted not only 
ior the single case in question but for all similar cases. 
Such judges naturally, became very influential persons. 
Xnowing the customs better than others they were 
xeferred to in all cases of difficulty, and where the old 
customs were obviously unfitted to the case they would 
decide according to common sense. Their decisions thus 
became judicial precedents. At first they were given 
•orally and handed down by tradition ; later they were 
written down and made definite. 

Custom and interpretation are characteristic not only 
of early law: they are operative in all law. Customs 
Custom and &^°^ ^P ^^^ ^^ away among men without 
Interpret- obvious reasons, and men tend to do what 
-ation. cuftom prescribes, and judges tend to decide 

according to what custom dictates. Though laws now 
are chiefly written laws, and although writing tends tO' 
check custom, judges are always affected by custom. 
The necessity for the interpretation of law, as we have 
Tseen, created judges, or more gtener'ally, men stilled in 
I law, or lawyers. Lawyer?, like other people, are 
influenced by the ideas current in their community, and 
in prguing on the general principles governing individual 
■cases they frequently must plead against old customary 
rules or old laws, and in this way gradually influence 
judicial decisions on old customary rules. Progress' from 
the rigidity of custom thus is made possible through 
adjiidication hv trained lawyers. 


This process is observable in practically all systems of 
law. In the most ancient systems of law, law-codes. 
Examnies appeared. These codes were the summary, in 
" a definite written form, of the customary law 
for the community. Thus there appeared the Mosaia 
oode, the laws of Solon, the Roman Twelve Tables, the 
laws of Manu, and the Koran. These codes contained 
certain fundamental principles, the basis of future legal 
progress, but they were the products of individual 
genius, not the expressions of any national legis- 
lative activity. AH these codes were expanded in order 
to suit new needs, not by tegislation but by custom and 
adjudication or interpretation. Thus, in Eome^ 
the Twelve,, Tables were not succeeded by any 
active Te^'isla llun on the part of a legislature for 
several centuries. The gap was filled in by the 
Roman lawyers, who, working on the basis of the 
Twelve Tables, twisted the old law to suit new conditions. 
As we have seen in connexion with the ius gentitim, the 
process was helped by custom, whereby the Roman 
praetor issued edicts based on the common customs of 
mankind to cover cases on which the existing positive 
law had no bearing. The praetor, it is true, could not 
legally bind his successors by' his rulings but in; 
practice his successors followed him. His edicts thus- 
became laws. 

In Hindu law a similar process is observable. The 
most influential basis of Hindu law is the code of Manu, 
which is partly religious, partly legal". There- 
Law.'"*"* ^^®' °^ courae, other codes, and though they 
belong to an early type of society in spirit^, 
these codes a^e comparatively modern in form. The 
code of Manu recognised the influence of custom, and in 
this way opened the way to legal progress. 
"The king," Manu says, "who knows the revealed 
law must enquire into the. . . .rules of certain" 
families and' establish* their particular laws." ' The 
recognition by the Hindus of the power of custom led 
to the creation of a class of interpreters, who, like- 


the law itself, were partly priestly, partly legal; viz., 
the Brakmins. The Brahmins, adding learning to 
their hereditary position as the chief caste, were, able, 
by writing commentaries, to add new interpretations to 
■oldr rules in order to suit the newer conditions of society. 
With the advent of British rule the ^ process was 
oontinued. The power of. interpretation and custom 
«,re still recognised, and Hindu law progresses not only 
by legislative enactinent, but by interpretation or 
judicial decision. \ 

Mahommedan law is based on the KoraJi, which, though 
more modern than the Hindu codes, rests on divine 
authority. The Koran aims at a 

Law""*'*"" comprehensive regulation of the ordinary 
^ affairs' of life, and as such has not been 
expanded so much as the Hindu codes by either 
interpretation or custom. Its basis is largely the old 
Arabic customs familiar to Mohammed himself. 
Mahomedan communities have not shown much favour 
for the direct legislative processes familiar in the west. 
Their religion and law are one. In cases (e.g., taking 
interest for money) they have altered the Koran, and 
in recent years both commentaries, such as the Hedarya, 
in India, and direct legislation in Turkey, have made 
the law more progressive by the admission of the power 
of custom, adjudication and direct legislation. 

A similar process is observable in the spread of Eomau 

law in Europe, to which reference will be made 


j The importance of judge-made law or precedeilt^.in 

; modern English law is to be explained historically by 

the fact that the king used to delegate 

Utawf"^''**' sovereign powers to judges. In all early 

societies the principal function of the king or 

' head of the community was the interpretation of law. 

Thus, in the laws of ManUj the king is the " dispenser of 

jwstice," not the maker of laws. The dispensing of 

justice was also equivalent to the interpretation of the 

will of God. In England the tradition of the king as the 


<ji8pen8er of justice still survives in the fictions that the 
iord Chancellor exercises his powers as keeper of the 
king's conscience, and that the king presides in person 
over the court of the King's Bench. Obviously in a 
Rowing society the king had to delegate powers to 
others, but the delegation of powers was accompanied 
by the fiction that the judge was the representative of • 
the king with the king's power. The decision of 
ihe judge therefore was equivalent to the decision of the 
sovereign, and, ag such, law. The king's word was law, 
Sv, the judge's word was law. 

We have seen the close connection between custom 
and religion. Early laws were a mixture of customs and 
religion. Eicligion has importance in law not 
nengionf"" only as giving a concurrent sanction to law 
based on other principles, such as custom, 
tut religion in itself is a basis of law in most communities. 
We have seen above the relations supposed to have 
existed between natural law and divine law. Divine 
law, in its proper sense, is law looked upon as revealed 
through man from God. God is the ultimate source of 
Jivine law, though man must promulgate it. 

The Greeks and Romans had very little idea of divine 
law as distinct from state law. The specially inspired 
Examples. people in Greece and Rome were not 
la'^rgivers, but advisers for partichilar 
occasions, such as the Oracle at Delphi and the Roman 
augurs. Among the Jews, the idea of divine law was 
very strong. God was looked on as the direct ruler of 
,-the people, and as such* was in direct touch with them. 
The Old Testament continually speaks of the direct 
action of God in human affairs. Christ did not carry on 
-the Jewish tradition in this direction. He left political 
matters alone ; his life he occupied with spiritual affairs. 
■"Render unto Caesar the things that are Caesar's, and 
unto God the things that are God's "was his principle. 
To the Christian there is a revelation, not of state-law, 
but of moral fundamentals. In Indiaj the Hindu law is 
a revelation of God's mind, in which leligious precept. 


are combined with. regTilations for everyday life; Tke 
Koran is a direct descendant of the old' Jewish. theocracy. 
It is the direct law of the Prophet, and binding in botih . 
the religious and civil spheres of life. 
' Divine law such as that of Marni or the Koran is a 
j direct source of law insomuch as it is always 
I acknowledged by the state. No state can allow divine 
law as an appeal against state law. InMead of allowing 
! the possibility of antagonism the state acknowledges 
these laws. Thus the Shastras and Koran are 
acknowledged (21 Geo. Ill, C. 70, section 17) to be the 
laws of the Hindus and Mahommedans in India.. 
Conflict, therefore, between' religious' feeling and law 
does not arise. Moreover, in cases where positive law 
does not apply, judges are likelv to go on the supposition 
that the sovereign authority, if it had legislated for this 
particular case, would have accepted the religious inter- 
pretation, and thus religion is also a source of .judge- 
made law. 

The next source of law is scientific commentaries. 
In courts of justice the greatest importance is attached 
4. soientifie ^^ ^°*^ lawyers and judges to the opinions; 
Comment- of great legal writers or .ijnirists. Thus, in 
'"'I**- England, the opinions of Coke, Hale, 

Littleton,' Blackstone, and Kent are held in the highest 
respect, and in India the Hedarya, .the FuWa Alumgiri, 
the Mitacshara, and the Dayabhaga. The opinions of 
commentators are not decisions'; they are only argu- 
ments :_ as Sir William Markby says, " a commentary 
when it first. appears is only used as an argument to 
convince, and not as an authority which binds." Argu- 
ments, however, by becoming recognised, are tanta- 
mount to accepted decisions. The authority of the com- 
mentator is established, just like a judgiB^made decision, 
by frequent recognition, so. that the principles enuncia- 
ted by him become even more authoritative than judi- 
cial decisions. Judicial decisions, however, differ from 
commentaries in that judicial decisions apply to a given 
case; commentaries deal with abstract' principles. The 


commentator, by collecting, comparing and logically 
arranging legal principles, customs, decisions and laws 
lays down guiding principles, for possible cases. He 
shows the omissions and deduces principles to govern 
them. He provides the basis for new law, not the new 
law itself. It must be noted that legal commentaries 
must command sufl&cient respect among lawyers to 
enable them to be taken as standards. Relatively few 
commentators acquire a reputation sufficient to make 
them sources of law. 

Equity is also a source of law. The influence of equity 
In connecsion with the ius gentium we have already seen, 
s. Equity. •'^I^i^yj "^ *^^ words of Sir Henry Maine, is 
" any body of rules existing by the side of 
the original civil law, founded on distinct principles and 
claiming incidentally to supersede the civil law in virtue 
of a superior sanctity inherent in those principles." 
Equity is simply equality or justice, or, in cases where 
the existing law does not properly apply, judgment 
according to common sense or fairness. Equity, as a 
source of law, arises from the fact that positive law as 
the world advances tends to become unsuitable for new 
conditions. To make it suitable either the law must 
be altered formally by the legislature or some informal 
method of alteration must be adopted. Equity is an 
informal method of making new law or altering old law,; 
depending on intrinsic fairness or equality of treatment. 
Thus the Roman praetor, on assximing oflice, issued a 
proclamation telling the manner in which justice would 
be administered during Iiis tenn of office. The ba.«is of 
the proclamation was equity, based on the law of nature 
or nations. 

In England the ■. beginning of equity legislation is to 
be traced to the custom of giving to the Lord High 
Chancellor complaints addressed to the King which were 
not met by the existing common law. These appeals 
were made to the King's justice or conscience and were 
referred to tfiie " keeper of King's conscience," or ihe 
Lord High Chancellor (piodern Lord Chancellor), who 



received powers to remedy injustice according to equity 
or fair dealing, or the moral law. Similar functions were 
assumed by other courts besides the Lord Chancellor's* 
Court, or Court of Chancery, but the Court of Chancery 
is the supreme judicial organisation for equity 
jurisdiction. Thus, in contrast to Eome, equity is 

. enforced by a distinct set of judges. 

The subject matter of equity belongs to the science 
of Jurisprudence. The usual classification of equitable 
jurisdiction is into exclusive, concurrent and auxiliary. 

I Equity is exclusive where it recognises rights not 

I recognised by the common law ; it is concurrent, where 

j the law recognises rhe right but does not give adequate 
relief ; and auxiliary, where the necessary evidence 

1 cannot be procured. 

The last and most important source of law, is 

' legislation. Legislation is the declared will of the 
I. Leeisia- sovereign state. In the modem world it is 
♦'on- the chief source of law, and is tending to 

supplant the other sources. Custom and equity are both 

I largely replaced by definite legislative acts. The 
codification of law tends to narrow down the field of 
judicial decision as a source of law, and scientific 
commentaries are used mainly for discussion. In i;he 
creation oi Hew enactments, custom, religious opinions 
and equity all play their part; in doing so they are not 
so mucjh direct sources of law as influences in law 

The organisation of modern legislatures will be dealt 
with separately. Only a few general points need be 
mentioned here. In the modem world, legislation is the 
work of representative assemblies. These assemblies are 
the organs of the popular will, and as such they are 
fionstantly widening the field of legislation. The people, 
realising their power as legislators, or as the electors of 
legislators, make constant demands on legislative bodies 
to make laws of this or that type. All modern democratic 
legislatures are so overcrowded with proposed laws that 
the most elaborate arrangements have had to be made for 


the conduct of public business in order to save time. 
WHereas, in earlier days, the assemblies legislated mainly- 
in matters of public law, leaving private law to custom 
aoid the decisions of judicial tribunals, nowadays the j 
legislatures deal with both public and private law. The f 
people, jealous of law not emanating from their elected 
assemblies, have thus narrowed down the sphere of 
custom and judge-made law. As we shall see later, a 
most important modern theory of liberty, the theory of 
the separation of powers, demands a clear distinction 
between the legislature, executive and judiciary. This 
theory, the basis of the organisation of the government 
of the United States of America, has given to legislation 
a theoretical independence at the expense of both the 
juHiciary and executive. Fallacious in many respects 
though the theory is, it certainly has heightened the 
importance of modem legislatures as the source of law. 

3. The Various Kinds of Law. 

Law may be classified in various ways, according to 
the particular basis adopted by the writer. For our 
purposes, however we may divide law, according to the 
agency through which it is formulated into: — 

(a) CJonstitutional law, of which more will be said i 
in the chapter on the Constitution. Constitutional law 

may be written or unwritten, it may be 
utionaTl'aw. promulgated l^y a body specially created for 

the purpose, or it may grow up gradually] 
without any source other than the customs of the people 1 
and the ordinary law-making body in the state./ 
However it arises, constitutional law is the sum of thef 
principles on which the government rests, principles | 
which prescribe the ordinary course of governmental 
procedure and lay down the limits within which the) 
powers of government can be exercised. ' 

(b) Statute law, the most familiar type of law made 1 
by the ordinary law-making bodies, e.g., by the King-in- ' 
(b) statute Parliament in the United Kingdom, and by 
•■"*• Congress in the United States. 


(c) OrdinaBces, issued by tlie executive branch of 
government within the po\*^ers prescribed to them by 
(c) ordinan- the law of the state. Ordinances are not as 
•es. a rule permanent, and are issued for the 

special purposes ot administrative convenience. 

{d) Common law, which rests on custom, but is 
Law.''''""'"''" enforced by the law courts like statute law. 

(e) International law, or the rules which determine 
<e) Inter- the conduct of the general body of civilised 
national states in their dealings with each other. 

{f) Administrative law, which prevails on the 
(f) Adminis- Continent' of Europe, whereby public officers 
trative Law. ^re subject to separate law and procedure 
from private individuals. 

Professor Holland divides law according to the public 

or private character of the persons with whom legal 

The basis of rights are concerned. A " public " person 

Vniate^" means' either the s^ate, or a body or individual 

V^}tVS!L holding delegated authority from the state. A 
Holtand's ,, , . o e j • j- -j i 

division. private person means either an indiviaual 

or a collection of individuals, who do not represent the 

state even for a special purpose. When both the persons 

with whom a right is connected are private, the right is 

also private; but where one of the persons is public, the 

right is public. Thus law may divided' into: {a) Private 

law, when the right is between subject and subject ; (6) 

Public law, when the right is between state and subject. 

Public law, Holland subdivides into: 1. Constitutional 
law. 2. Administrative law. 3. Criminal law. 4. 
Criminal procedure. 5. The law of the state con- 
siderfed in its quasi-private personality. 6. The pro- 
cedure relating to the state sio considered. This classi- 
'fieation is only one among many, as the classification 
depends on the basis adopted by the individual writer. 

LaA^rs have also been classified into written (or statute) 
law, and unwritten ('or customary) law. In legislation, 
Written both the contents of the law are fixed, and 

unwritten, legal force is given to it, by acts of the 
sovereign power. This produces "Written" law. All the 


other sources of law (such as Adjudication, Usage, j 
Scientific discussion, etc.) give rise to what is called 
Unwritten -law. This classification is not, however, 
quite a scientific one. 

4. Development of Modehn Law in the West. 

Modern European Jaw has two sources — Teutonic and 1 
Roman. The Roman conquerors carried their system 1 
The Roman °^ ^^^^ with them wherever they went, but 
and Tout- that system did not supersede the indigenous 
SysMms. sys1;ems of the barbarians. Roman law was 
markedly different from Teutonic. To the] 
Romans law was a command of the state, issued! 
through the government officials ; to the Teutons law ( 
was a matter of custom, each tribe or people having its 
own customs, a^id, accordingly, its own law. Roman; 
law was the law of a unified state; Teutonic law was the; 
law of diverse peoples. After the fall of Rome, the 
invaders — ^Goths, Franks and Lombards— established 
separate governments of their own, so that the old 
unified Roman law was replaced by the particular law 
of each conquering people. Before the fall of the 
Empire, however, the Romans had established Roman 
law for Roman citizens, and the invaders • allowed the 
Roman citizens to ^continue under their own law, very 
much in the same way as Europeans and Indians live 
at the present time in India. ' 

This continued through the various wars of conquest 
following the fall of the Roman Efiipire. Even the 
great Charlemagne respected the system he found. 
What happened wasi that everyone kept the law of his 
own people, with the result that under one ruler there 
were frequently several systems of law — one. Roman, 
one Grothic, one Frankish, and so on. 

With the advent of feudalism the basis of law ' 

changed. Hitherto tfie law had been personal. The ; 

son came under the same law as his father, I 

Feudalism. ^^^ with- feudalism the basis changed from 

personal descent to territory. Instead of law being I 


applicable to families, it was made applicable to a 

particular area. This meant that all people living 

within a stated area were under one law. This tendency 

towards centralisation was helped in other ways. 

Throughout the mediaeval struggles Homan law had 

possessed the virtue of unity and system, which 

gradually prevailed against the multiplicity of the 

Teutonic customs. Though the Romans were overcome 

their law survived, so much so that with the exception 

of England, the law of every modem European country 

' is preponderatingly Roman in character. 

I The chief influences in the supremacy of Roman law 

! were first, the Latin lajiguage as the medium of inter- 

'■ influtnees in course among the higher classes, just as 

of'"Roinan English is at present in India. Second there 

I law. ^ were the Roman legal codes. Despite the over- 

I throw of Rome the barbarian kings recognised the 

j strength of the law, and they had codes prepared. The 

j Breviary of Alaric, King of the Goths in Spain, drawn 

up in the sixth century, was an abstract of the Roman 

laws and imperial decrees for his Roman subjects. It 

kept alive the Roman legal system till the great code 

of Justinian, the greatest code of law in the world, was 

I drawn up. This code, known as the Corpus Juris or 

i Body of Law, was created to systematic the existing 

j Roman Law, which was in a state of much confusion in 

Justinian's, time. Third, there was the Church, with 

i its law, technically known as canon law. The Ohureh 

was essentially Roman in organisation and spirit. 

' Jf ot only did the Church keep, alive the form and 

spirit of Roman institutions, but it was the chief 

medium of education in the middle ages, and through 

^ its various preachers and teachers was able to influence 

1 both ignorajit and educated as it pleased. Fourth, 

there was the influence of lawyers, both ecclesiastical 

t anS secular. After the twelfth century, the code of 

Justinian was taught all over Europe. Law schools 

arose in considerable numbers, first at Bologna m Italy 


and in Pario, ultimately spreading to Spain, Holland 
and England. The lawyers trained m these schools were 
iiaturally imbued with the Eoman spirit, and with the 
decay of popular courts and the growth of central 
courts their influence spread wider and wider. 

The gradual amalgamation of the Teutonic and i 
Roman systems, with the predominance of the Boman, 
ia a matter of legal history. Among the various 
influences may be mentioned the Napoleonic code j 
(Code Napoleon) of 180-4, in Prance, the first code of the 
French civil law. This code has had great influence. ( 
The Belgian, Dutch, Italian, Portuguese, and partly 
"the Spanish codes and the codes of the Spanish South 
American states, have all been mudh influenced by it. 
its only Europeaai rival is the German code, which was 
•drawn up at the end of the nineteenth century. 

A different course marked the legal development of 
England and countries which, like the United States of 
Legal America, owed the origin of their law system 

Development to England. England, separated geographiA 
The^power'' cally from the countries of Europe which 
of Roman adopted the Roman system, developed along . 
**■ her own lines. Because she had been under 

Roman sway" for som^e centuries, England could not 
■escape completely from Romaoi influence in law, but 
Ihat influence was exerted principally in the ecclesiast- 
ical courts. The influence was also felt in the admiralty 
courts (in matters of international law). In spite of the 
efforts of the church to further the cause of Roman law, 
the courts resisted its influence so strongly that, as 
Sir William Markby says, "no one has ever been able 
to quote a text of the Roman law as authority either in 
the courts of common law or the courts of Ohancery." 

The Crown naturally preferred the Roman system 
because it was so suitable for national centralisation; 
but the English courts were able to preserve their 
independence by restraining the ecclesiastical courts. 
In this they had the support of the nobles and commons, 
as well as occasionally that of the king, who did not 


look with favour on the growing power of the church. 
It is remarkable that the church, with learning and 
religious influence on its side, was unable to make a 
stronger mark on the law of England. 

The indigenous English law was not able to fill all the 

gaps that the defvelopment of the times made." These 

I gaps were filled by cjistom, and the intei-pre- 

casV-Law."" ters of the customs were the judges. On the 

; judges therefore fell the duty of fiUing in gaps 

which otherwise might have been Billed by Roman prin- 

' ciples. Customs later led to the formation of precedents. 

Up to the time of Henry VIII. Year Books of decisions 

were published. These decisions sometimes were 

original, and sometimes they followed previous decisions 

on similar points, or precedents. These decisions, being 

in the hands of judges were .for the most part simply 

the application of common sense to the cases that arose. 

Precedents at first were only guides for subsequent 

[judges, but in course of time they were compulsory, 

I They became as important as statute laws, and their 

growing importance led judges to be more careful in 

the form of their judgments and to give more reasoned 

!; statements for their conclusions. Thus, while in the 

r rest of Euiope Roman principles imderlie the legal 

I system, its place in England is taken by previous legal 

decisions, or case-law. 

Tht) result in actual practice is that where Roman 
law prevails,, the decisions of judges must follow 
Comparison ^^^ Roman general principles. In England, 
with Roman and the United States, the judge is largely " 
Law systems. | to use his common sense. Obviously the 
English system, though lacking in symmetry, is more 
suited to change than the' Roman. Another marked 
difference between the English and continental legal 
systems is that on the continent judicial decisions are 
not authoritative, as they are in England. It is true 
that Imperial rescripts or decrees in particular cases 
v.'ere treated as authoritative, but that was because the 


Emperor was regarded as the source of law. No judge 
or tribunal had such authority. 

In. the western systems of law other influences have 
played a part. Naturally in Christian countries the 
Jewish , law of the Old Testament is trace- 
in "uiVwest. ^.ble. This law came from the church in the 
, middle ages. At that time politics and religion 
wer'3 hopelessly mixed up. Aftei' the Refioimatiou 
Protestant idea,s also found their way into the European 
legal systems. 

Where fusion has taken place between Roman and 
Teutonic law, generally the Bopian prevails in the- 
domain in which it, reached its highest, perfection, name- 
ly, private law. Roman influence also is marked in 
oO'lonia] and municipal law, sp^heres in which Roman 
experience filled in the gaps in the legal system of the 
Teutons. Teutonic law prevails in public law, for the 
Teutons, with self-government and the idea of repre- 
sentation, founded their governments on their own 
familiar customs. i 

,6. Law in Bhitish India. 

Before the advent oi^ the British, there were two 
principal legal systems in India. One was the 
Mahommedan law, the other the Hindu law. 
B°r1t?sh I "'* ^^® Mahommedan law applied to Mahomm- 
Hindiiand edans, and the Hindu law to Hindus 
eda'nTaw. but some of the penal piovisions of 
Mahommedan law were applied to the Hindus 
aJso. The Mahommedan law, l)£^sed on the Koran and its 
legal commentaries, treated some subjects, particularly 
family relations, inheritajice, and wakf (thei law concern- 
ing religious foundations), in cofltsiderable" detail. Tiie 
Hindu law was partly religious and partly sodifil, but 
was far less . systematic ,than the Mahommedan. In 
origin, as in the Iiistitutes of Manu, Hindu law is 
supposed to be a direct emanation from God. Its interf 
pretation was given to the Brahmins, whose sacred 


position continued t}le original religious sanction of the 
law. When the British power was organised in India 
the newly established courts enforced the rules of both 
Hindu and Mussulman law. 

In_ the case, of both Hindu and Mahommedan law, the 
original codes were to same extent amplified or modified 
iniiuanee ^^ *^® writings of lawyers. The most 
of oomment- learned Brahmin commentators became 
aries. recbgnised authorities Sta Htindu lawj. The 

Sayings and Doings of Mahommed (the Sannat and 
Hadis), the decisions and writings of Mullahs and Muftis 
altered the Koran of the Mahommedans. 

Besides the Hindu and Mahommedan law proper, 

there was a large number of customs, often purely local, 

recognised authorities in Hindu law. The 

forests, etc. There was also a body of 

mercantile or trading custom, relating to the transfer 

of property. 

Thus when the British came to India they found: — 

1. The Hindu and Mahommedan law, altered in 
^h* "Ju'*'"" certain respect* by interpretaltion and 
British commentaries, mainly found,ed on the 
*""•• Shastras and Koran. 

2. Many customs, sometimes general, sometimes 
local, whiob govern the use of land, tillage, and forest- 

3. Certain mercantile customs, observed by traders 
^nd recognised particularly by the Mahommedans, and 
customs which goveimed the transfer and pledging of 

4. Penal rules, dra^vn up and enforced by the 
Mahommedan rulers. 

The law that the East India Company found in India 
was personal or religious, not territorial. It was 
applicable only to individuals belonging to the particular 
religion ta which the law applied. The indigenous law 
also was lacking in certain well-established branches of 
English law, particlarly in civil and criminal procedure 
•and in the law of torts or civil wrongs. The law 


govefning property and contract was also very 
defective. What the Company did was to accept what 
they found as applying to the various communities of 
Indians, but t^ey made English law applicable to 
themselves. The English r;ould not accept many of the 
provisions in the law they found — such as mutilation 
or stoning as punishments, the fact that Brahmins 
should have a special law to themselves, and that a non- 
Mahommedan could not give evidence against a 
The legal Mahommedan. The English, thus, while allow. 
po'loy of ing the indigenous law to continue as applied 
* " '• • to Indians, brought with them for themselves 
both the common and statute law of England. 

When the High Court of Calcutta was established in 
1773, the EnglisE lawyers began to apply English law 
The effeot *° both English and Indians. The Declara- 
of Engiieh tory Act of 1780, by making it compulsory 
**■ that their own law should apply to Hindus 

and Mahommedans stopped this practice. The system 
of the Declaratory / Act prevails to-day, and the 
Privy Council in England often has to determine 
the exact interpretation of the Koran of the 
Shastras. Both the Koran and the Shastras have been 
affected by western jurisprudence, and the precepts 
established in the courts. Not only so, but the Govern- 
ment of India has powOT to alter the Acts of Parliament 
«nforcing the observance of Hindu law for Hindus and 
:>Iahommedan law for Mahommedans. Many statutory 
modifications have been made — notably the Bengal Sati 
Eegulation (1829), the Indian Slavery Act (1843), the 
Caste Disabilities ^Removal Act (1850), the Hindu 
Widows' Re-marriage Act (1856) and the Civil and 
Criminal Ph)cedure Codes. 

The chief source of modem Indian law is lefgislation, 

either by the British Parliament, or by the Indian 

Legislative Councils. The old Hindu and 

egis a ion. ]\JaliQmj)je,jaii divine law as well as a number 

of older English statutes, English common law, and 


Indian customary tew still apply in their respective 


One of the most' noteworthy things in modern 

Indian law is the codification which has taken plaice. 

„ ^.^ .. With the organisation of a judicial system it 
Codification. i " , " ■ j 

soon became necessary to organise pr<M;eaure. 

In 1781 the British Parliament' authorised the Govern- 
ment of India to make regulations for the conduct of 
courts. Tn 1773 the creation of the High Court in 
Calcutta had already necessitated, a code of procedure. 
This code was made on English models, but the Act of 
178 L enjoined that the Engli^k rules should be made 
suitable t'ur the Indian people. What the English did 
a-t first was to adopt |Jie prevailing Mussulman practices, 
but where . these were unsuited to western ideas they 
were supplanted by English rules. The result was a 
confused mixture which lawyers found diffi(-ult to 
inteipret and JTi,dges to apply. ' ^ 

In ]83j the India Charter Act was passed. It pro- 
vided for the a^PP'ointment of a number of legal experts, 
called the Indian Law| Commission, who were to 
ascertain the various rules applicab].e in the courts and 
in the law of British India, and to report regarding their 
consolidation, and, if necessary, their amendment., This 
Commission was- appointed in 1833, Macaulay being the 
most prominent member. It drafted a Penal Code, 
which did not become law till I860. In the meantime 
(in 1863) Dnother Commission was appointed, which 
worked in England. The result of this Commission was 
the passing of the Penal Code, which was drafted by the 
previous Commission, and two Codes of Civil and Crimi- 
nal Procedure. A third Commission, appointed in 1861, 
drafted other proposals but resigned in 1870 owing to the 
resistance offered ta its proposals by the Government of 
India. ' After this the work of codification and revision 
Fas carried on in India under the Law Member of the 
Governor-General's Council. 

As "the result of these Commissions, and of the 
activity of the Legal Member of the Viceroy's Council, 


legal systematisation in India lias been very great. Except 
m torts, or civil wrongs, certain branches of contrac't 
law, family law, and inheritance (both of which are 
(lecjided by the indigenous law and custom, save as 
decided otherwise by, the Succession Act), the statutes 
resulting coyer the whole' field of, law. The greatest of 
Ihem all is the Indian Penal Cdde (the I.P.C.), which 
was drafted by Macaulay. It is based on English crimi- 
nal law, but its provisions are made specially applicable 
to_ India where necessary. Thus self-defence is more 
widely interpreted in India because Indians are usually 
unwilling to use force in self-defence. Dacoity, judicial 
corruption, police torture, kidnapping, insults to relig- 
ious places, all, these are treated more fully thau would 
be necessary in England. The death penalty, cftmpul- 
fiory in England, is in India made an alternative. 

In practically every branch of law, save those 
mentioned, codification has taken place. Among the 
various Acts may be mentioned : ■ The Codes of 
Civil and Criminal Procedure of 1861^1882 and 
1898 (Criminal), and 1859 and 1882 (Civil); 
ihe Evidence Act (1872), which codifies the laws 
of evidence, the Limitation Act (1877), the Specific 
Helief Act (1877), the Probate and ' Administration Act 
(1881), the Indian Contract Act (1872), Negotiable 
Instruments Apt (1881), which gives the law regulatiiig 
promissory note®, bills of exchange), and cheques; the 
Trusts Act (1882), the Transfer of Property Act (1882), 
the Succession Act (1865), the Easements Act (1882)", 
the Companies Act (1882), Inventions and Designs' Act, 
(1888), the War and Cantonments Act (1889), the 
Ouardiajis and Wards Act (1890), the Official Secrets 
Act (1904). The various acts governing railways, the 
post office, factories, the co-operative credit societies, 
electricity, lunacy and provident insurance have also 
heen codified. Some of these Acts have met with 
unfavourable criticism, but the process by '.^hit^h they 
were drawn up admits easily of amendment. :Every year 


amendments are made to some o£ the Acts, the amend- 
ments not being new Acts but mainly textual alterations 
in the old ones. The codification has certainly been of 
great use in the administration of law. 

A considerable amount of revision of Statute Acts 
also has be/en done, both by codification and consolida- 
tion. Of the work of consolidation an excellent example 
is the Code of Criminal Procedure of 1898 (Act V. of 
1898) which repealed and replaced eighteen separate 
enactments by consolidating them into a new Act. 

6. Law and Morality. 

"We have already seen the general connection between 
Political Science,' the Science of the State, and Ethics, 
Connexion the S'cience of Morality. Both Political 
Law'and Science and Ethics deal with man as a moral 
Morality. agent in society. The State is the supreme 
type of social union, but the state is only a means to 
an end. It is not an end in itself. It is a means 
towards the moral end of the perfection of men in 
society. Therefore the acts of the state must have an 
integral connexion with the moral end of man. Law 
is made by the state and enforced by the state, but the 
law of ihe state, only affeots part of mam's life. It 
affects only the outward acts of life. Matters of the 
conscience must be decided by the conscience. Thus the 
state, by its law, punishes breach of contract, but it 
does not punish lying as such. Dishonesty, ingratitude, 
meanness, covetousness, anger and jealously are all 
immoral; l)ut they are not illegal, except when they 
lead to a breach of law. _ The state does not punish a 
man because he loses his temper, but it punishes him if 
he assaults or kills another man in temper. The state 
does not punish for covetousness but it punishes theft 
arising out of covetousness. Thus law and morality 
! differ (a) m their sanction, one being enforced by the 
! etate, the other being a matter' of conscience, 
i (6) in the type of action affected, law dealing 


with the outward acts of men, ethics dealing with 
jtll the actions of men; and (c) in their definiteness. 
Law is thas a matter of force; but morality cankot be 
forced. Law, agaiq, often is based on expediency.) 
Acts which in themselves are not immoral are made 
illegal because it is expedient that they should be so. 
Thus it is not immoral to ride a bicycle without a 
li^ht, but it is made illegal because it is dangerous to 
other people. It is not immoral for a trustee to buy 
the estate for which hfe is responsible, provided the other 
parties are satisfied, but law prevents such a contract 
because it opens the way too easily to fraud. Thus law 
creates' a class of wrongs which are not moral but legal/ 
wrongs. They are wrong because they are illegal, not. 
because they are immoral. 

The state is founded on the minds of its citizens, who{ 
are all moral agents. The, connexion between them, j 
therefore, must be close. A bad people means a bad"' 
state and bad laws. An unhealthy public opinion, in 
modern lepresentative government, must eventually 
mean bad laws. "The best state," as Plato said, "is 
that which is nearest in virtue to the individual. If 
any part of the body politic suffers, the whole body 
suffers." Modem political theory, with the organic view 
of the state, has returned to the Greek theory. The 
individual has ah inherent connexion with the state. 
The state therefore must affect the morality of indivi-l 
duals as well' as the morality of individuals must affect J, 
the state. 

The individual moral life manifests itself in manifold" 
ways. The state is the supreme condition of the- 
individual moral life, for without the state no moral' 
life is possible. The state therefore regulates other 
organisations in the common interest. The state, 
however, has a direct function in relation to morality. 
This function is both positive and negative. As a 
positive moral agent the state makes good laws, that 
IS, laws which are in accord with the best moral interests 
of the people. Negatively, the state must remove bacP 


laws. It is to be noted that what may be a, state law 
in one generation becOi!n€Js a moral law in tbe next, so 
tliat the marffin between' illegal and immoral is not 
, always clear. Thus when compulsory education is 
introduced into a country it is at first illegal to keep 
one's child froln school. In the next generation ' what 
was previotisly a crime becoines a sin. The father 
feels it a moral duty to educate his children. 

Thus, though there are certain differences between 
the law of the state and the moral law they are 
inherently connected. In the modern world we do not 
jnake the state the supreme end, as did the Greeks. We 
regard it als the condition of morality. The state and 
law continually affect both public opinion and actions; 
in its turn law reflects public opinion and thus acts as 
the index of moral progress. 

7. Intehnational Law. 

. The subject of International Law affects us here only 
in so far as a general knowledge of its principles enables 
tis '"•*•■■ us 'better to understand the nature of the 
(i!S»'°"* staie. The subject now forms a special 
fnpaufne course of study, and its' detailed treatment is 
Law? a matter tor lawyers. 

We have seen that law is an order of the state. The 
state both makes it and enforces it, but the law of a 
state applies only to the citizen of that state. Inter- 
national law thus would imply an intemationa;l 
state, if the word law has the meaning that we have just 
asciibed to it. ' An international state which could 
enforce international law would mean that the states 
that exist at present had a higher authority over theitt. 
-It would thus destroy their sovereignty. There would 
then only be one state, properly spelSsing (that is, with 
the characteristic of sovereignt;^), that sfate being' the 
I international state. But states «?-e sovereign, therefor^, - 
j the first question that arises in connexion wi^th interna- 
tional law is whether international' law is really law at 
l-all. Law, as we have se:en in the discussion • on that 


subject, is the expressed or implied will of the state 
concerning the citizens of ihe state, which must be 
obeyed by those citizens. It is a general body of rules 
behind which lies the wholei force of the community, as 
organised in the state and, governinent. Ifi a citizem 
.breaks the rul^s, he will be punished ; in other words, he 
is foroed tp obey the rules. > Does any such force lie at 
the back of internatiflinal law ? There is force, the 
force of the minds which made up these rules, but 
these minds are not organised into a single organ 
of compulsion. International law, to be real law, would 
require some international., organ to enforce it. At 
present each state interprets international law for itself ; 
there is no international court for interpretation of the 
law. , States somietimes. refer matters in which they have 
differed to a special trihunal, but even then they are not 
legally hound to accept the decdsioni of the tribunal. Bach i 
state acts , for itself and • even if it acts against the 
opinion of tlie wiele civilised world there is no restraint 
upon that state outside an international war. , No indi- 
vidual in a state can break the laws of the state with 
impunity : ; but a state may break international law at 
will, The only constraints are the' fear of the dis- 
approbation of other states and the risk of bringing war 
on thei state itself. .' 
t The sanction of international law has the same basis 
as the sajiotiqn of . ordinary la,w,' viz., the common will 
underlying theleigal principles. Law does not consist 
merely in the making of a definite code : it is rather the 
recognition by the state of principles already definitely 
existing among the people ; and the sanction of the la\y, 
which in the first place is showfl. in the machinery 
of the state, realls^ is the common agreement . of the 
people. In a similar way international law i must have I 
at its root the mutual agreement, of natipna; its sanction! 
will depend on tte. growth of a common will amGng| 
peoples, and ' (though it seems, a paradox), when 
j[ntfrnation,al. law has ,a firm . sanction' that sanction wilL 
destroy it, as iat?(mation&l rlaw. A common will which! 


can enforce international law will mean the breaking of 
the bounds of states and nations. The wor(J; "interna- 
tional" will then have lost its meaning. A complete 
eanction to law Ijetween nations as they at present 
exist would imply the fusion of states at present distinct. 
Even at present, in spite of the repeated breach of 
intema;tional law during the Great European War, a 
considerable body oi the recognised principles of 
international law is observed; none the less, the 

I fact remains that it is observed merely as a law 
of convenience for individual states: no obligation, 

j beyond the obligation of honour, binds states to observe 
international law. ' 

' International law is in this way half law, half morality. 
Some lawyers regard the term law as including not only 
the definite positive law of the'statfe, but also law in the 
process of being made. In this sense International Law 
is law. It is ''in the process of becoming positivei law, 
but it can become law in the national sense of law only 
when it has the sanction of a definite state. 

Among the older writers, such as Hobbes and 
Pufendorf, International Law is not looked on as 
law. Bentham, Austin, and Professor Holland, 
AifthorUies. ^'i^oDg modem writers, support the same 
view. The Austinian view of law as a body 
of rules for human conduct, se* and enforced by a defi- 
nite sovereign political authority, does not admit of the 
recognition of Jntemational law as law. It beldngs to the 
sphere of positive morality. Modern jurists, however, 
tend to place Intematig/Ual Law defiiiitely within the 
sphere of law. Variation in views is natural, 
because both the content of International Law and the 
development of international institutions have altered 
considerably, especially in the last half century, and are 
likely to develop stilt more rap'dly in the near future, 

The chief reasons adduosd by modern authorities foi 
regarding International Law as law are :-^ 

(a) that the rules embodied in International Latr 
are io their nature not optional but compulsory. In the 


last resort they rest on force, although that foi?ce is - 
exercised more through the action of society or public 
opinion than through a definite and authorized body. 
The covenant of the League of Nations attempts to ^ 
create a definite body for its enforcement ; 

{b) that already its legal qualities have been proved 
by the fact that its rules are accepted as law by states 
and are appealed to as law bv contesting) parties ; and 

(c) that its rules have been built up by legal I 
reasoning and are applied in a legal manner. / 

Professor Westlake argues that as states live together 
in the civilised world substantially as men live together 
in a state, the difference being one of machinery, we 
are entitled to say, not on the ground of metaphor, but 
on the solid ground of likeness to the type, tiiat there 
is a society of states and a law of that socieity which 
goes by the name of International Law. Perhaps the 
aptest description of the legal nature of International 
Law is that given by Sir Frederick Pollock, — 1 
" International Law is a body of customs and observ- < 
ances in an imperjfectly organised society which have I 
not fully acquired the character of law, but which are j 
on the way to become law." 

International Law, as defined by Wheaton, one of j 
the highest authorities on Inteimational Law, is "those | 

rules of conduct which reason deduces as con- 
Deflnition of sonaxLt ,to justice from the nature of the 
Law.'"" '""" society existing among ipdepfendent nations ; 
with such definitions and modifications as may 
be established by general consent." In more simple 
language, International Law is the body of rules, which 
civilised states observe in their dealings with each other, 
these rules being enforced by each particular state 
according to its own moral standard or convenience. 
Some states aire as honourable in their observation of 
the rules of International Law as they expe6t their 
citizens to be in obeying state or municipal law, while 
others observe the principles only when it suits their 
own convenience. 


The content of International Law may best be 
summarised by a list of the subjects discussed^; 
and settled at the Hague Conferences ^ 
Content of The various Conventions reached in 1907 
L^*j;:"'*"'"'"were:— (1) For the pacific settlement of 
international disputed. (2) Eespecting the 
limitation of the employment of force far the recovery 
6f contract debts. (3) Concerning the commencement 
of hostilities. (4) Ooncerningr the laws and customs of 
war on land. (5) Eespecting the rights and duties of 
neutral Powers and persons in war on land. (6) Con- 
cerning the status of enemy merchant ships at the 
outbreak of hostilities. (7) Concerning the conversion 
of merchant ships into warships. (8) Concerning the 
laying of automatic submarine contact mines. 
(9) Regarding bombardment by naval forces in time of 
war. (10) For the adaptation of the principles of the 
Geneva Convention to maritime war. (11) Regarding 
restrictions on the right of capture in maritime war. 
(12) Regarding the establishment of an International 
Prize Court. (13) Regarding the rigiht and duties of 
reutral Powers in maritime war, (14) Prohibiting the 
discharge of projectiles from balloons. 

Many other subjects will occur as time goes on. 
The most important recesnt subject is that of ait 
control, on which no definite understandings have yet 
been reached. 

8. HisTOKy OF International Law. 

Lawrence, in his Principles of International Law, 
gives three periods in the development of international 
relations. These periods cover practically the whole 
' stretch of history, and, thpugh one i§ divided 
Periods, *™i" .*^e other ior the purposes of historical 
exposition^, the earlier perifids are real^ly the: 
bases of the later periods. 


1. The first period stretches from the earliest i 
times to the establishment of the Roman Empire. ! 

Amfing the earliest peoples of which history/ 

1. To th« tells, thei^e was practically no international 
JJ|'",f^U*,„''' regulation. Each country was hostile to its' 
Empire. neighbour and despised it. War was 

declared without ceremony and carried on 
without mercy. Even the highly civilis^ed Greeks 
regarded their neighbours as unworthy of notice save 
for the "purpose of conquest. The only traces of any i 
international dealings we hava from them were in J 
maritime trade, for which a code grew up in Rhodes, i 
Greek thought, not Greek practice, contributed con- 
siderably (to international development. The greatest 
philosophers of Greece, Plato and Aristotle, were 
limited in their political views by the small city state. 
5ut even they, in places', voice the idea of natural law, 
which later developed into the internationalism or 
social ideal of the Stoics. From the Stoics the ideal 
passed to iRome. , ,^ | 

In Rome, before the Empire, such international lawj 
as existed was called ius feciale. This law oontainedj 
precepts about war and peace, and was propounded byf 
a special religio-legal college. The ius fediale is of 
little importance in the development ol \jhat we now 
know as international law. The ^eat contribution of 
Rome ypas the ius gentium, the development of which 
has already been noticed. 

2. The second period stretches from the beginning ^ 
of the Roman Empire to the Reformation. With the / 

spread of Roman power over the whole world, 

2. From the as then conceived, there was no question oft 
?he' Rl/man* international relations, as there was only one/ 
Empire to state. Even after the fall of the Roman 
atton!*""" Empire the imperial idea continued, and it 

was only after the Pope amd Emperor each 
claimed the imperial power that this idea was shaken. 
With the revolt against the Papal authority at the 
Reformation, the Pope's clairas to world-power were 


I lost, and with the growth of modem national sta/tea the 

\idea of the temporal supremacy of the Empire was 

'killed.' With the decay of the imperial idea arose other 

. influenoes whicii helped the development of International 

) Law. The feudal system, with its territorial sovereignty, 

I brought out the idea of territorial, states, each state 

I having jurisdiction over citizens residing on a 

! definite territory. The spread of Christian principles 

taught humane ideas. Grotius, the founder of modern 

International Law, was reaMy instigated to his work by 

Ihe devastation and sorrow caused by the many wars q{ 

his time. ' Roiuan law, with the ius gentium, and the 

idea of equality before the law, also was an important 

influence. Schools for the study of Roman law sprang 

up all over Europe. Lawyers imbibed the principles 

which later became the basis of International Law. The 

idea, arising from feudalism, that ithe king was owner 

of his country also lent itself to treatment by the 

principles of Roman law. 

3. . The third period is from the Reiormiation to the 
present time. The ideas cuiTent in the common con- 
sciousness of Europe were systematised dur- 
Reformation i^^' ^^^ period. The rise of independent 
to the states made some definite regulation of their 

resen ay. j.g|a,tions essential. The firi^t modem work 
' on International Law was On the Law of War 
and Peace by Hugo Grotius, a Dutchman. Grotius 
Guunciaied as the two m.aiij principles of internaitional 
relations that (a) all states are equally sovereign and 
independent, and (6) the jurisdiction of any one statie is 
absolute in the area belonging to that state. After 
Grotius many writers took up the question, and now 
it has become a special branch of law. As time gioes 
on both International Law and itttemational organisa- 
tions are becoming more definite. In the latest 
development, the League of Nations, provision is made 
for the creation of a permanent Court of Justice, which 
will replace the previously existing Hague Tribunals. 

political science. 215 

9. The Soueces of International Law. 

The various sources of International Law are: — 

1. Eioman Law. We have already seen howBoman 
law affeciied the various law systems of the world. The 

same la^w also provided a basis for the 
Law." *" settlement of questions arising between 

nations. Not only fio, but IU)man law 
provided a positive basis for Intemajtioqal Law in two 
ways : (a) by the idea of the Law of Nations ; (6) by con- ^ 
tributing the notion of the ecyiality of citizens before j 
the law, a notion which was extended to the equality of 
sovereign states in IiKtemational Law. ( 

2. Writers of authority. These writers, by showing l 
what rules nations actually do observe, by interpreting ' 

general opinion on given questions, and by 
Jile*""'"'"" giving definitions and modifications' of 

previous tules based on genferal consent, 
provide a source of Intematibnal Lkw.* Such writers, 
like writers on municipal law, must be recognised 
authorities .on the subject. The greatest name among 
them is that of. Grotius, whose War and Peace, 1625, 
gave the thepjjetical foundation of International Law. i 
Pufendorf, in his Law of Nature aifd of Nations (1672) ; I 
Leibnitz, in his Diplomatic Code of the Law of Nations 
(1693-1700) ; Bynkershoek (1673-1743), whb first 
dealt with niaritkne law; Wolf (1679-17S4) and 
Vattel (1714-1767,) are othtr important names in, the 
development of International Law. The names of Kent, 
Whtaton, Manning, Woolsey, Westlake, Lawrence and 
Hall may be noted among more modern writers. 
Writens such as these are recognised authoriiies to 
whose opinions statesmen contililijllly refef as autho- 
ritative or final. • 

3. Treaties' of peao& and commereie, alliances;, and 
conventions. These define prie-existing rules or 

modify them. Titese treaties, ■ which may 
,*,',"'"'"•"**•' be signed by two or more states, lay 

down the^ principles on the subject 


in question which the various states agree to observe. 
They may simply affirm existing rules, or modify 
and explain them. ' They may affect territory, as 
the treaties- of Weistphajlia (1648) and ¥trecht 
(1713), i or the transfer of sovereign rights, as 
the treaty- of Paris (1856). They may affect commercial 
relations or conduct to be observed during war by both 
belligerents and neutrals, such as the famous Geneva 
Convention of 1864. ' 

4. The laws of particular states,, or municipal law. 
In the municipal law of every state there are many 

statutes which afect international relations. 
paiTJil'" JEVery_state must decide for itself the terms 

on which it will allow a citizen of another 
state to become on© of its , citizens. , This is known as 
naturalization. The regulations affecting ambassadors 
who represent one state in another state, envoys, and 
consuls have all inltemational bearings.! Particularly 
important are the rules of individual states with regard to 
admiralty questions. Admiralty questions dealing with 
prize cases are based on international usage, aad the 
decisions of admiralty courts form a basis of Inter- 
national Law. ' 

5. The adjudications of international tribunals 
and conferences. Tribunals or conferences are some- 
times set up to decide particular cases. 

ments In These bases may be refejred to ttem by 
ionarcases. ^'^o^'ier state, or they may concern only the 
states represented at the tribunal. The 
decisions of such tritunals , are more authoritatiye, if 
several states take paxt in thpm,. 

6. The history of wars, of negotiations, the 
circumstances leading to treaties as contained in 

protocols (draftSj ■ coBlfcaining the fundamental 
war' and'*" principles), and manifestoes (containing 
Diplomacy, statements of policy) aad all international 

transactions are sources of International Law. 


7 . The written opinions . of eminent lawyers con- : 
tained in .itate papers and diplomatic coi'respondence , 
in . the ti Foreign Offibes of states. Often I 
■of d^ioin'"' *li®86 opinions are confidential, but with the 
-fttistsand growth of democracy there is a greater 
statesmen, tendency to publish them. Both England and 
the United States of America publish the main part of I 
their diplomatic papers, and these, circulated in other 1 
countries, give a basis for future international action. ( 

By far the most important International Conferences 
have been those held at Hague. The Hague Conferences 
have been called " the Parliament of 
Conferences. Mankind." Those Conferences have systema- | 
tised International Law, and from them the/ 
Hague Court of Arbitration developed. Much that the' 
International Conventions, agreed to ^and systematised 
at the Hague has been dncorporated in tiie municipal law 
of the s.tates which took part in the Confeirences. The 
Coutt of jirbitration was estyablished to enable states, if 
they so wished, to ref elf disputes to it, and since its ^ 
creation in 1899 it has decided many questions — and the 
decisions have b^en accepted by the parties concerned. 
From 1899 to 1912 eleven separate nations had recourse 
tfi it. The conference also attempted to create an Inter- 
national Prize Court of Appeal, which brought about a i 
Conference iii London (1908-09) on Prize, and led 
to the Declaration of London, concerning blockade, ' 
contraband of war, the position of neutrals and compen- 
sation. The Heclaration of London was withdrawn 
during the "W^ar by the British government. 

10. The Lba6t7e of Nations. 

The most recent development in international 1 
relations is the League of Nations. The immediate | 
cause of the League was the Grreat War. ' 
^f"* ?''*'" Historically the League is but, a further 
tea'guV development of the international movements 
which have just been examined. The Great 


War in several respects aided the grawth of an inter- 
1/ natisnal organisation. In the first place, the struggle 
( was so bitter and it caused so much misery, that all 
nations and individuals were convinced that wars sh6uld 
be avoided, and that some effective means of settling 
international disputes should be created. In the 
second place, the Great War was fought largely on the 
I principle of nationality. Many nationalities were made 
into nations by the peace treatiies, but some of these 
nationalities required guarantees to secure immunity 
from attack and freedom for development.., In the third 
place, the- Central Powers lost a considerable amount of 
territory, and the partition of this territory amang, the 
many Allies might have raisecl trouble among the Allies. 
By the League of Nations a system was devised whereb;y 
the territory lost by the Central Powers will be fuled 
by individual nations under the League itself. 

The Covenaint of tbe League of Rations forms part 6f 
the Treaty of Peace signed by the German delegate^ on 
28th June, 1919. The Covenant contains thirty-§ix 
articles, with an annex naming the original members 
of the League. - The original members are the Ally 
signaitories of the Peace Treaty, the new states created 
by it, and other states' invited to join. The seat of the 
League is at .Geneva, in Switzerland. 

The first article of the Covenant lays down the 
conditions of admission into the League, and of with- 
drawal from it. Tlie , original membership 
Membership consists of the thirty-two allied and" asso- 
and Con- ciated powers, with the new states which 
atitution of signed the peace treaty, and of thirteen 
the League, neutral states. All the original members 
were to accept the same obligations. The 
national sovereignty of each state was guaranteed, but 
it was provided that no state could withdraw without 
fulfilling all its itaternatifinal obligations and obliga- 
tions under the Covenant. The right of withdrawal^ 


subject to this condition, was granted on two years*^) 
notice being- given. f 

The Covenant also lays down that "Any fully self-. 
fi-ovemng State, Dominion, or Colony may become a I 
memoer of the League," under prescribed conditions.] 
This article is looked upon as establishing' what is 
praptically the independence . of the British Dominions. 
It is at least a theoretical recognition of their nation- 
hood, but there is room for doubt reigarding the scientific 
interpretation of "fully self-governing" as applied to a 
'Dominion or Colgny." 

The Covenant of the League also gives an outline of I 

the machinery or organisation which is to be establish- i 

ed to carry out the purposes of the League. 1 

The^ organs There are to be four organs of the League— | 

League. (1) the Assembly; (2) the Council; (3) the 

Secretai'iat-General ; and (4) the Permanent I 
Caurt of Justice. 

The Assembly is the supreme Council of the I 
League. It is composed of the official representatives 
of the various members of the League,. 
Assembly. including the British Dominions and India- 
Each state is, left to decide how its represen- 
tatives are to be chosen, and, according to the Covenant, 
members are not necessarily bound by the views of their 
Qwn governments. Eagh member of the Lealgue has 
one vof^e and may not have more than three representa- 
tives. The powers of the Assembly include the dis- 
cussion of all matters affecting the League, the admis- 
sion (by a two-thirds majority) of new members of the 
League, and the approval' of the appointment of the 
Secretary-General. All decisions of the Assembly, ex- 
cept in certain minor matters, must be unanimous. Un- 
animity is insisted on to prevent dissension among 
sovereign states who inight otherwise be forced by a bare 
majority to act in a way repugnant to them. It is 
presumed that absolute unanimity in the Assembly of 


the League by the moral force of such unanimity would 
compel states to act according to the League's desires. 
The Assembly is a large body, consisting of about 
150 members, and for the conduct of business a smaller 
-The Counoii ^°^ ^® necessary. This body is the Council, 
' whricl] consists of representatives of the " prin- 
cipal allied and associated powers," with representatives 
of four other members of the League, selected by the 
Assembly. With the apJ)rovstl of the majority of the 
Assembly the Council may nominate additional members 
of the League, whose representatives will always be 
members of the Council, and it also may increase the 
number of members of the League to be selected by the 
-Assembly for representation on the Council. The 
Council is competent to deal with all matters falling 
within the sphere of actiom of the League or affecting 
the peace of the .world. A member of the League not 
represented in the Council may be asked to send a re- 
presentative to meetings when matters affecting that 
member are discussed. Each member of the League 
represented on the Council has one vote and cannot have 
more than one representative. Its decisions, like those 
of the Assf^mbly, must be unanimous. 

The relations of the Assembly and Council are not 
■clearly defined in the Covenant. In practice the 
■Council will prove the more important bpdy, as on it 
will sit the national leaders of the chief powers of the 
world. The Assembly, also, is too large for the efficient 
discharge of business, and in cases of emergencj' the 
Council will have to act on its own initiative. The 
omission of detailed constitutional arrangements between 
the Council and Assembly is evidently intended : their 
.smooth relations can be. esta.]blished only after experi- 
■ence, and the original Covenant does not create cpn- 
fititutionai difficulties which might hamper the future 
Assemblies and Councils. 


- The Secretariat-General, the seat of which is 
Geneva, consists of a Secretary-General and such staff 

as may be required. The Secretary-General 
The (except the first, who is nQminated in the 

Generar.' annex to the Covenant) is appointed by the- 

Council with the apJ)roval of the majority of 
the Assembly, and the staff of thfe Secretariat-General 
is appointed by the Secretary-General and Council. The 
expenses of the Secretariat are to be apportioned among, 
th.e members of the League. All representative^ of tho 
members sf the League, and oflB.cials engaged on the 
official business of the League, enjoy the usual, diplo- 
matic pri\ileiges and immunities, as also do the buildings 
and property of the League. The functions of the 
Secretariat are to keep all records, procure information, 
and conduct the official correspondence of the League. 
Every treaty or international agreement entered into by 
any member of the League must be published by the 
Seci'etary-General, otherwise it is not valid. 

The Council is to formulate a scheme for^ a Perma- 
nent Court of Justice, which will act as a bench of 

judges to decide points of law referred to it. 
The per- and will heax and adjudge upon international 
co1ir*"of disputes referred to it. The detailed scope- 
•lustiae. and functions of the Court, and its relations 

to the Hague Tribunal are not given in th& 
Covenant. Thi Council is left to decide in these matters. 

A large part of the Covenant o£ the League of 
Nations is taken up with measures for the prevention of 
war. The prevention of war, indeed, is: 
of 'war."*" really the main reason for the existence of the 
League. The measures are:^ 

1. Limitation of armaments. The principle is re- 
cognised that ^he maintenance of peace requires ^the 
reduction of national armanvents to the' lowest point 
consistent with national safety and common action 
necessary for the enforcement of international obliga-: 
tions. The making' of munitions of war must also be; 



limited. The Council, and a permanent Commission, is 
empowered to advise and draw up plans on this subject, 
ihese plans being revised decennially. 

2. The members of the League mutually guaran- 
tee the territories and independence of the existing 
members of the League. 

3: The Covenant lays down tihe principle that any 
war or threat of war, whether immediately affecting 
the members of the League or not, is a "matter of 
concern'' ta the whole League, and that it is th© duty 
of the League to take such steps as will guarantee 
international peace. 

4. The members of the League agree not to go to 
war -till the matter in dispute has first been made subject 
to arbitration. 

0. The Covenant gives also an outline of the 
machinery by which "peaceful settlements may be 
effected. The Council, Assembly, and Court of Justice 
all have a part in this machinery. In tihe settlement of 
disputes publicity plays a considerable part. All point|. 
at issue are to be made public, and the peoples of the 
various countries informed regarding the dispute. Where 
individual states refuse to abide by the decision of the 
League, i.e., where an " act of war " againsit the League 
has been committed, the duty of recommending coercive 
measures is laid on the Council. The final measures 
contemplated by the League are the use of tlie League's 
farces, but in cases where sudden action is required ^he 
individual states may take action, 

6. The League also lays down the principle that 
no state, whether a member of the League or not, has a 
right to disturb the peace of the, world. Executive 
action in cases of disputes between states not members 
of the League among themselves- or between them and 
members- of the League, is left to the Council. 


The mandatory system is the result of the War, 
CoBsiderable sections of the defeated countries — such as\ 

Armenie, J Syria. Mesopotamia, Gei-man 
The Mandat- South West Africa, and the German Pacific 
orysysttm. islands were seized from the vanquished 

states. The question arose as to how they 
should be governed. The general principles accepted 
by the League are set forth in these words (Article 
XXII) — " To those colonies and territories which as a 
consequence of the late- war have ceased to be under the 
sovereignty of the states which formerly governed them 
and which are inhabited' by peoples not yet able to stand 
by themselves under; the strenuous conditions of the 
modern world, there should be applied the principle that 
the well-being and ideipelopment of such peoples form a 
sacred trust of civilisatiom, and that securities for the 
performance of this trust should be embodied in this 

" The blest method of giving practical effect to this 
principle is that ^he tutelage of such peoples should be 
entrusted to advanced natieUs who by reason of their 
resources, their experience, or their geographical posi- 
tioii can best undertake this responsibility, and who are 
willing to accept it and that this tutelage should be 
exercised by th^m as Mailda'tpries on behalf of the 
League. ' ' 

" The character of the mandate mijst differ according 
to the stage of development of the people, tl^e geogra- 
phical situation of the territory, ^ts economic conditions, 
and flther similar circumatanoes." 

The principles accepted were three: — (1) That none 
of these conquelred territories should be "annexed" by 
any one power; (2) that the r administration of these 
territories should exclusively be vested in the League; 
and (3) that the League could delegate its authority to 
one state, who would be its agent or "mandatory," and 
who,' if it did not perforan its duties acceptably, could be 
replaced. ; 


The constitution of the League is made very flexible - 
Amendments to the Covenant are valid when ratified, 

by the menibers ofi the League whose repre- 
Amendments sentatives form the Council of the League^ 
Covenant, and by a majority of the members of the 

League whose representatives compose the 
Assembly. If any member dissents fram an amendment 
it shall not be bound by it,' but in this case it must 
give up membership of the League. 
' The Covenant includes othep " important clauses- 
relating to existing and future treaties, and conditions 

of labour, but the above short sketch giveg 
conoius.on. -^^ ^^^^ purpose and the outline of 

its constitution. - iThe League marks a distinct 
era in the development of international relations. 
It puts the ' coping stone on the construction 
of the last few ■ centuries. It makes as definite as 
can be under the present, system of states the 
various international, institutions of our time. It, is a 
real attempt to translate into definite institutions the 
underlying forces of internationg,!, fellowship. At the 
time of w;ratingj howevei;., the League is in a nebuloiis 
state, owing t^ the defection, of tlie.tJnited States. The 
League is largely '<^ product of the statesmanship of 
President Wilson. Article V. of the Covenant lays 
down that the first meeting of the Assembly and the 
Council shall be summoned by the President of the 
United States, but the Preslclent has nbt been able to 
secure sanction in his own country for the League. At 
the present moment, thferefore, it is dormant. 

11. The Univeesal State. 

Many present-day .thinkers strongly favour, the 
abolition of single states and advocate the estajjlishment 
of an Internatiohal or Universal Statd. The idea of a 
universal state goes back to Greek philosophy, but only 
in the modem world have these ideas become prominent 
as actual practical issues . There are maife : indicatio^is 
tn the modern world that the organisation by individual 


states is breaking dawn. The Great European War in 
particular lias shown that modem national states are 
a danger both to themselves and humanity, _ and that 
some means should be developed to organise states on 
an international basis. The first real approach towards 
a universal state is the League of Nations. 
Evidenoesin The widpnoes favouring the idea of a 
unhlersa' " universal state are many. We may sum 
state. them up -thus : — 

1. Philosophical. Some philQsophera state that in 
human nature there are two tendencies, one particular 
1. Phiiois- and one universal, or one personal and one 
phroai. social. The particular tendency of man's 
nature is shown in practice by organisation in small 
groups, — tribes, clans, etc., while the universal part of 
his nature demands manifestation in the organisation 
of mankind as a whole. Such philosophers, too, point 
out that in all states there are the same charac- 
teristics which are emblems of universal similarities in 
human character. The nation, though it may be 
necessary at a particular stage of social evolution, is 
only a halting place on the road to a universal state, 
which will be the most complete and perfect embodiment 
of the human spirit. Just as the particTilar tendencies 
in man have made him organise in groups, the universal 
tendencies, which are stronger, will abolish group 
differences and unite man in one body. 

2. Historical. History shows us that though there 
is no universal state, there have been real attempts in 

. . the past to organise mankind as a whole. 
The most important attempts have been : — 

(a) The Empire of Alexander the Great. Alexander 
tried to unite the east and west in one Empire, but he 
died befoi'e he could establish his Empire om a firm basis. 
His Empire applied only to what was then regarded as 
the civilised world. The conflict of ideas between the 
Macedonians and Greeks, the mixture of; races, and the 
lack of general enlightenment prevented lasting fusion. 


(6) The Roman Empire. The Roman Empire 
stretched over the whole world, as understood in 
those days. Founded at first by conquest, the 
Empire was gradually welded tO'gether by a common 
organisation, local government, and a common system 
of law. The Roman Empire broke up because of the 
resistance of the Teutons. Roman institutions did not 
harmonise with Teutonic ideas. The Roman Empire, 
howeyer, left a permanent mark on the world, chiefly 
through its legal system. 

(c) The Holy Roman Empire, which succeeded the 
Roman Empire. The idea of a universal state was 
encoiuraged by the universality of Christianity. The 
Holy Roman Empire broke up because of the struggle 
between the Emperor and Pope, and the development of 
parts of the Eimpire into nation states. 

(d) Napoleon tried to establish a universal Empire. 
Not only did he fail to achieve, his purpose, but he 
kiadled the modem fires of nationality, which culminated 
in the great Eurflpean war. His method was conquest, 
the method by which the late German Empire hoped to 
achieve world dominion. Brute force however has 
never proved a lasting basis for states. 

History also shjQws that historical development moves 
from smaller groups, such as Greeks and mediaeval 
Italian City States, to larger groups, such as modern 
nation states and empires. At the present day, though 
the rights of small nationalities are to be respected, 
their existence can be guaranteed only by a League of 
Nations, which is really the first appi;oach to an Inter- 
national State. The evolution of history, theretore, it 
is said, is leading us to a universal state. 

3. Political. Even with the various antagonistic 
groTips or nations of the present day the existence of 
t. Political ^^^^^^®®.' leagues, and diplomacy generally 
shows the possibility of a permanent and 
complete league which will ultimately abolish the 
sovereignty of individual states and lead to the 
universal state. 


4. Clominercial. With modem means of oommunic- 
ation the interests of different nations are so bound 
«. Commero- up with each other that self-interest urges 
'a'- the abolition of organisations which lead to 
war and destructign. The whole economic world is a 
delicately constructed machine which can work properly 
only when there is no danger of sudden crises arising 
from war or rumours of war. With the growing com- 
plexity of economic life, nations are not self-sufficing: 
they are inter-dependent, each one producing what it is. 
Lest fitted for and supplying others with those things 
that they themselves cannot produce. 

5. Industrial. The manual workers of the various 
nations of the world ar^. gradually recognising their 

common interests, and are organising 
s. Industrial, themselves accordingly. Thus there are 

international organisations affecting trade- 
unions. Socialism is founded on an international 
basis and it has deeply affected not only the workers but 
the higher classes. These international organisations, 
it is pointed out by many, already show that state- 
organisation is in the process of decomposition. 

6. Legal. The legal aspect ef the universal state 
has already been mentioned in connexion with inter- 
national law. International law, though not 

*^* ' law in the ordinary sense of the term, is law 
in the making. Thts common will to enforce it like 
ordinary law is gradually being formed. 

7. Moral. This is seen in the growing tendency for 
nations to interfere in the affairs of other nations, to 

protect oppressed peoples, or to prevent 
wrong (e.g., as in Armenia). 

8. International, social and cultural. In the modem 
world there is, it is pointed out, much intellectual pym- , 
<■ internat- pathy shown between the peoples of different 
tonal. nations, particularly in university work, 
where learned men work at similar problems and use 


each other's- results. The increased study ©f social 
and political in^itutions of all countries also leads 
to intellectual synapathy. Then, again, there is the 
contact of what is known as "high society "—citizens' 
of one country living as guests or citizens in_ other 
countries, or travelling in ether countries. In this way 
a common understanding of each other's institution* 
and national characteristics is spread. This leads to a 
certain cultural' community among mankind that in 
time will break Bown the intolerance between men 
which at present makes them organise in separate and 
often antagonistic groups or states. In this connexion 
it is also pointed out that religion and language^ 
as barriers to inter-communication are also breaking 
down. Religion more and more is tending to be 
separated from politics and lei^t to the individual 
conscience. Newer states grant universal toleration in 
religion and old states are tendingi in the same way. 
With advancing education, the citizens of one country 
learn the languages of others. Some languages, such as 
English, are learnt almost universally. The attempts 
to start a new language such as Esperanto as an inter- 
national common language are indications of the same 
universal community. 

The various tendencies, it is said, are indications of i 
the formation of a universal state. Just as individual 
states are based on the minds of the citizens composing 
them, so the universal state will be based on a new type 
of mind, of which these various points are evidences. 
It will take a long time for these tendencies to develop 
the homogeneity necessary for international union, but 
that they will do so ultimately is not doubted. 

The variQus arguments produced to prove the coming 
of a universal state seem to give good ground for the 

belief that the present political system of the 
agf"n'Jt*the world is only temporary. Many arguments 
univei'sai have been voiced against the idea, but on 

examination, they prove somewhat illusory. , 


1. One argument is that, a universal state would 
abolish individual liberty. A vast organisation, it is said, 

is not compatible with the free development 
will aboHsh oi the individual. Against this it may be 
Irberty"" Pointed out that the universal state will not 

affect the ordinary lives of individuals. Its 
organisation will affect only the most general interests 
of individuals. The universal state will not mean 
uniformity of organisation. Groups will still continue 
to be organised separately within the world state, just 
as local government in modern states exists with central 
government. The international state will look to only 
such general interests as universal peace, freedom of 
commerce, and freedom from oppressijin of groups by 
groups. The universal state, moreover, need not 
interfere with matters of religion and private association 
any more than modem advanced democratic states do. 
The individual will continue to live his life as now, but 
his life will be giiaxanteed to him by the absence of 
wars, provided he does not break the laws. 

2. It is argued that' either the universal state must 
be a monarchy or that, if organised, it will break up 
a. That it again into separate and opposed groups. 
will not There seems little force in this argument, for 
"*'■ all modern political tendencies, even in indivi- 
,dual states, are away from monarchy. The rapidspread 
of the federal idea in state organisation also points to 
a probable type of or^anisat:on. Federalism is a system 
of government which reconciles local claims ^vith the 
claims of central government, and its popularity in 
recent years points to its likely success as an organis- 
ation of a universal state. 

3. It is impossible to have a universal state till the 
various peoples of the world have reached approxi- 
mately similar standards af development. 

3. That the This argument is a most powerful one 

ntted for it. against a universal state in tTie immediate 

future. But very few, even though they 

believe 19 the idea and ultimate possibility of a universal 


state, think it can be realised in a few years or even in 
a few centuries. Till the peoples of the world are 
educated they will fail to understand each other, and 
such lack of understanding will lead to conflicts. A 
universal state is only possible where there is a universal 
mind underlying; it, and it will take a long time for all 
people to be so enlightened as to give reason sway over 

Even with the existence of unenlightened peoples a 
universal organisation is possible, the less enlightened 
for the time being imder the guardianship of the 
more enlightened. In the British Empire there are 
many millions of ignorant and barbaric peoples, but 
their existence need not prevent the Empire organising 
with other powers for common purposes. 

4. The universal state is really no state. The very 
existence of a universal state is tantamount to saying 
t. That a *^^* every individual is so perfect that he is 
Universal a law to himself. This toay be the ultimate 
not'reany social ideal, but whether it is possible is quite 
a state at another question. Even with his imperfections 
it is possible to organise man in a universal 
state, with law and gove;mment much the same as exist 
now. The ultimate moral destiny of mankind may be 
the moral perfection of all men, with perfect social 
union, perfect institutions nnd perfect freedom. To this 
the international state will be a step : it is a higher 
manifestation of man's nature, but even with 
imperfections in man it is possible. 



1. The Meaning of Citizen. 

The word citizen literally means a resident in a oity, 

or a resident in a city who enjoys the privileges of such 

residence. Thus we speak of citiaens of 

Literal London or Calcutta, meaning those persons 
Meaning , • i • ,^ ',• ■ ,-,•■,, 

of Citizen, who reside in^ these cities or exercise the rights 

which membership of the cities confers. In 
this sense the word citizen is equivalent to the Greek word 
polites. which m&aUt a member of a polls or city. This 
is a very restricted and specialised use of the word. 
In its widest sense the word citizen is opposed 
to alien. People residing within the area of a state are 

divided into two classes, citizens and non- 
afid'^AMens. citizens or aliens. A citizen of a state is one 

who lives in the state and is subject to the 
state in all matters. Citizensi owe their allegiance to the 
states in which they residei. Aliens owe allegiance to 
another state. Aliens must, of course, obey the ordinary 
laws of the land in which they reside, and these laws 
may also include regulations which are made by treaties 
between the country of the aliens ajad the country m 
which they reside. Aliens receive the protection of the 
law for their person and property in the state they inhabit, 
and for such protection they must obey the laws even 
though the laws be different from those prevailing in 
the state to which they owe allegiance. The alien in- 
habitant must also, as a rule, pay rates and taxes accord- 
ing to the ordinary methods prevailing in the state or 
local area, but aliens do not receive political privileges. 
The privileges of voting, of election for public bodies and 
the holding of public offices are generally denied them. 


The privileges of citizenship broadly may be divided 
into two classes: (a) general protection of the law, and 

(b) the right tb vo^e in elections, the right to 
Citizen and be elected, or to be appointed to public office — 
Res^denV"'^ what may be called the political privileges of 

citizenship. In popular speech two senses of 
the word citizen are often confused owing to lack of 
discrimination between these two classes of privileges. 
In one sense, citizen is used to mean all those who reside 
in a state, enjoy the protection of its laws, and also |;he 
political privileges. In another sense, citizen is confined 
to those Only who enjoy political privileges. In modern 
democracies every one is theoretically equal before the 
law but not every one is allowed the privileges of 
citizenship. In Britain, for example, minors, a large 
section of the femalci poplulation and a consideirable 
number of the males have not' the privilege of the vote. 
In some other countries a distinction is made between 
those who are litera.te and those who are illiterate, . as in 
some of the American states, where illiterate, persons are 
not allowed to vote. In other states people who do not 
pay a certain atmount of taxation are noli allowed to vote, 
and in all states those who are of unsound mind and those 
who are habitually , criminal are excluded from the poli- 
tical privileges of citizenship. 

Thus a distinction . is sometimes made between 
subject or resident, (the wider sense) and citizen (the 
narrower sense). 

There are two classes of citizens : (1) citizens by birth 
or natural citizens, and (2) citizens by adoption' or 

naturalised citizens. Waiuralised citizens are 
oi'tizB^ns.'" those who come from another state and choose 

to give up their natural citizenship of thdt 
state and adopt, the citizenship of , the state in which 
,they have come to reiside. The rules governing natural- 
isation va^y from state to state. Generally speaiing, 
natural citizens Have superior rights to natxiralivS>ed 


citizens. Naturalised citizens are often excluded from 
holding tte highest offices of state. For example, the 
office of President of the Fnited States can be held 
only by natural-born citizens of the United States. 
The citizen whose whole traditions belong to the state «niay 
be expected to be a more loyal member of the state than 
one whose birth and traditions are of another state. 
Accordingly, it is safer to allow only the natural-bom 
citizens those government posts which demand th© greatest 
loyalty and patriotism in service. 

2. The Acquisition of Citizenship. 

Citizenship may be acquired in several ways, viz. : 

(1) Birth, which usually means birth within the 
country, but which may also be taien in a 

Methods of wider sense, e.g., according to English law birth an English ship or in an English embassy 
is equivalent to birth in England; 

(2) Marriage, whereby an alien wife becomes a 
member of the family and state of her husband; 

(3) Naturalisation. 

The first and chief mode of acquiring citizenship is by 
birth. There are no uniform rules in the different state." 
in this "matter. Some states, e.g., Germany, Austria^ 
Hungary, Sweden and Switzerland have adopted the 
rule that descent alone is the decisive factor. This is called 
ins samguinis , or the rule of blood-descent. Accordins? tn 
this rule, a child, whether bom within the state or in a 
foreign country, becomes ipso facto by birth a, citizen 
of the narent state. Other states, such as Argentina, 
have adopted the ins soli, or the rule thati the terri- 
tory on which, birth occurs is exclusively the decisive 
factor. Aqcording to this rule, every child born on the, 
territory of such a state, whether the parents be citizens 
or foreigners, becomes a citizen of the state, whereas 
a child bom abroad, even although the parents may be 


citizens, is an alien. Other states, such, as Great Britain, 
the United States and France, have adopted a mixed 
principle. According to the law of Great Britain 
and. the United States, not only children of their sub- 
ject! bom at home or abroad (ius sanguinis), but also 
childreoi of foreign parents born on thieir territory (tus 
soli) become their citizens. The French law considers 
the children of French citizens born abroad to be 
French citizens. Children of foreigners born in France, 
unless within one year after attaining majority they 
choose the citizenship of their parents, are also regarded 
as French citizens. 

The rule of birth-place is the principle of Roman law. 
Its simplicity is its chief merit. But birth alone is not 

The p ■ - * ^^'^^ ^®^*" ^^ ^^^ modern world particularly 
cipie of the place of birth is frequently accidental. 
Birth-Diaoe. ^ child may be bom when its parents are 
touring throughout the world, and it is obviously 
unjust to compel that child to adopt the nationality of 
the state in which it happens to be bom. It would be 
not only unjust but ridiculous to regard the child, say 
of an English officer who happens to be staying in 
Germany with his wife when his child is born, as a 
German citizen. 

The most equitable ruW is that of kinship or blood. 
Its chief difficulty lies in the complications that arise in 
proving the nationality of the, parents. The English 
and the American rule is the old feudal rule of the 
place of birth, but it is frequently found necessary in 
each case to modify the legal rule by the application of 
commonsense principles. 

The most important mode of acquiring citizenship 
besides birth is that of naturalisation in the wider sense 
Naturaiis- of the term. Through naituralisation a 
ation. person who is a foreigner by birth acquires the 

citizenship of the naturalising state. According to tEe 


law of different states naturalisation may take place 
through — 

(a) A foreign woman marrying a 
subject of a state becomes thereby ipso facto 
naturalised ; 
(6) Option. Children born of foreign parents 
after coming of age, may choose to be members 
of the state in which they were born, and thu» 
be naturalised ; 

(c) Domicile. Some states allow a foreigner to 
become naturalised by his tailing his domicile in 
their territory; 

(d) Appointment as a government official. Some 
states let a foreigner become iraturalised ipso 
facto on appointment as a government official; 

(e) Gram on application. In all sta^tes naturalisa- 
tion may be procured through a direct act on 
the part of the state granting citizenship to a 
foreigner who has applied for it. This is 
naturalisation proper ; ill; implies the reception 
of "an alien into the citizenship of a state 
through a formal act. The object of such 
naturalisation is always a foreigner who, if 
naturalisation is granted, becomes a citizen of 
the naturalising state. The government which 
grants naturalisation may prescribe such con- 
ditions as it likes. 

One of the most usual conditions is residence for a set 
period of 'time. Some states lay d'ov/n more conditions 

■ . . than others, but every state requires the fulfil- 
of Natural- ment of some kind of oonditions respecting 
laatfon. naturalisation. Sometimes naturalisation is 
only partial, that is to say, while a naturalised citizen 
may receive the ordinary benefits of citizenship such as 
protection of person and property botli in the country in 
which, be is naturalised and in other countries where his 
interests are looked after by the representative of his 


^adopted country, a± the same time lie may be excluded 
from occupying tlie chief posts in his country of adop- 
iion'. Thus in the United States the; President and Vice- 
rresident must be natural-bom citizens of the United 
States. In France and Belgium a distinction is made 
'.Ijetween ordi'najy naturaUsaiaoii and " grand "natural- 
isation. Only by grand naturalisation can an alien be 
made politically equal to a natural-born citizen, and grand 
naturalisation can only be granted when a specific num- 
ber of conditions are fulfilled. Ordinary naturalisation 
is granted on easier conditions. 

In Great Britain there isi a distinction between natural- 
isation and denization, Naturalisation is the result of 
• an Act of Parliament; denization is conferred by the 
-executive. Tfaturalisation in Great Britain confers 
upon an alien the same rights asi are possessed by natural- 
born citizens, whereas ai denizen possesses those rights 
•only partially. In the ordinary affairs of life there is 
•not much difference between the two. But in certain mat- 
ters the denizen is restricted, particularly in public life. 
He cannot be a member of the Privy Council or of either 
House of Parliament, occupy amy high, public ofiice, 
■or take a grant of land from the Crown. 

When a foreign territory is incorporated under a state 
sometimes citizenship is conferred wholesale on the basis 
other Me- ^^ residence on the newly acquired territory. 
thods of In this way the citizens of the acquired terri- 
•cmzenshfp. ^OTj Tjecome citizens of a new state. They have 
a new allegiance and new political obligations, 
but their relation to one another in private matters fe- 
•mains the same as before; in other words, their public law 
is changed and their private law remains the same. 
There are many Tiistorical examples of such transfer of 
citizenship. Florida, Lousiana, California and Alaska 
were all annexed by the United States . and 
-at the time of annexation arrangements were made to 


admit the citizens to the full rights aud privileges of the 
tfiiited States. 

Sometimes when territories are ceded from one statp- 
to aiiother the inhabitants retain their originaL citizen- 
ship, but this must be specially recognised in the Act 
of Cession. Otherwise the! citizens would become citizens 
of the superior state. 

The results of citizenship belong pai'tly to private^ 
partly to public law. In private law, as a rule, citizen* 
TheResutts ^^^ aliens are alike regarded as both possess- 
of citizen- ing full rights. In the sphere of public law, 
*"'"■ however, ttie distinction between the two is 

fully maintained. The following rights, except in case 
of special grant, are confined to citizens — 

(a) the right of permanent residence in the 

country ; 
(6) the right to the protection of the state, even if the- 
citizen is staying abroad; 

(c) the exercise of the franchise; 

(d) the right to hold public offices ; 

(e) sometimes such general political rights as those- 
of association, petition or free publication. 

This does not mean that aliens are absolutely excluded' 
from the exercise of th^se rights; it means only that they 
enjoy them on sufferance. Full citizenship implies- 
membership in the nation and complete political rights; 
it is thus the fullest expression of the relation of the- 
individual to the state. 

Citizenship may be lost in variou*ways according to 
the laws of the country in which the citizens are domi- 
ciled. . A woman may lose her citizenship by 
Loss ot marriage with am alien. Service under an 
Citizenship, alien government may lead to the loss of 
citizenship. Desertion from military service, 
acceptance of foreign decorations, judicial condemna- 
tion for certain causes, all lead to the loss of citizenship 
in the various states of the world. A very usual cause- 


of the loss of citizenship is long continued absence 
from the country of birth or adoption. The laws of 
several states declare that if a citizen is absent for a 
epecifie period of years and does not declare his inten- 
tion to contimie his citizenship it automatically lapses. 
The most common method of losing citizenship is 
the voluntary resignation of citizenship and adoption of 
a new citizenshifp. In this matter, as in most others, 
the laws of states vary exceedingly. Some states com- 
pletely deny the right of a citizen to resign his citizen- 
ship under any circumstances. Others allow the right 
of resignation under certain stringent conditions. 
Oihers allow a temporary withdrawal of allegiance so 
long as t£e person concerned is residing in another terri- 
tory. Several states refuse the right to lesign their 
citizenship to any males of requisite age who have not 
performed military duties. 

The modem tendency in matters of citizenship is to 
recognise the right to adopt a new citizenship if the 
individual so wishes. The English theory used to be 
tTiat an Englishman always remains an Englishman 
unless with the consent of the Crown he definitely re- 
nounces lis allegiance. The consent of the Crown was 
necessary, otherwise, in the eyes of the English law, nc 
act of a foreign government could change an English- 
man's nationality. In 1870 the British Government 
gave up the old tlieory and made a general rule that 
any British subject voluntarily na.turalis©d under a; 
foreign governmenf should cease to be a British subject. 

Most states allow for a naturalised citizen returning 
to his own country, i.e., for the reversal of naturalisation; 
iliey allow for repatriation after expatriation. 

3. Dttties of Citizenship. 

The state, with government, exists to further the 
general good of the community. But the state and 


gOTemment are not something apart from the citizens 
of the community. The attitude of many citizens 
seems to be that government is a tyrannical machine, 
specially invented for oppression. It is not; it is the 
machinery of the state, which consists of individuals and 
exists for them. In modern' democratic countries, where 
the government is accused of oppression, mismanage- 
ment, and so forth, in all likelihood the citizens themselves 
are at fault. The purposes of the state are their purposes, 
and if the state is to serve its purpose properly the 
citizens must fulfil their civic duties. The errors of 
government may be many, but the neglect of their civic 
duties by citizens is much more marked. Were 
the energy spent in destructive criticism of government 
spent in real constructive work, in the proper fidfil- 
m'ent of the duties of citizenship, citizens would find 
much less cause to carp at the acts of government. 

The chief duty of each citizen is obedience to the law. 
If one citizen disobeys the law, and is not punished, 
Obedience. *^®^ other citizens may also disobey the law. ^ 
If all citizens disobey the law, then the law prac- ' 
tically does not exist and the individuals are living without 
the benefit of the state. The interests of the state are the 
interests of the community. The interests of the com- 
munity are greater than the interests of any one indivi- 
dual. Laws exist in order to further the interests of the 
community. Obedience to the laws, therefore, is one 
of the most necessary things for securing the interests 
of the community as distinct from the interests of indi- 
viduals. It may indeed sometimes appear hard that an 
individual should be punished for this or that action. 
But the fact remains that punishment for breaking the 
laws is the chief instrument in the hands of the com- 
munity for preserving its own interest, and individual 
interest must always be sacrificed to the general interest. 


Anotlier duty of the citizen is allegiance to the state. 
Allegiance means that the individual gives his whole- 
' hearted service to the state. Tl^is implies 
Allegiance many things. In the first place, allegiance to 
Service. the sitate implies the duty of defending the 
state against danger, if the state is involved 
with another state in war. This means that the indi- 
vidual must serve the state in the way most suitable for 
the defence of the state. For able-bodied men this 
service ag a rule takes the form of military service. 
The individual must be prepared to siacrifice his own life 
for the state. In most states military service is compul- 
sory, that is to say, each male citizen when he reaches .a 
certain age is called upon to undergo a period of military- 
training in order to fit him for active inilitary service 
should necessity arise. If the individual deserts from 
the army or refuses to perform the duties for which he 
is called upon, he may be either imprisoned or deprived 
of his citizenship. In some countries, notably ,G(reat 
Britain, the voluntary military system prevails. There 
is a stgmding army in peace times which is recruited on 
- the voluntary principle. In cases of emergency, as in 
the Great "War, it may be found necessary to introduce 
compulsory service. 

Another form of service which citizenshiji implies is 
the support of the public officers in the performance of 
their duty. It is the duty of every citizen to 
Support of support the police and legally constituted 
men*'" authorities in the suppression of riot and re- 
volution. In fact, in Great Britain it is a 
legal duty of every citizen to support the authorities in 
preserving the public peace, and 'a citizen is liable to 
punishment if it can be /proved thai he deliberately re- 
frained from discharging his duty. It is also tAe duty 
of citizens to refrain from disturbing the public peace, 
to' refrain from instigating riots, sowing sedition or 
disturbing people's mind against the authorities. As 


the state aud goveruuieiit exist lor the common good it 
is impossible to expect that individuals with grievances 
■will not voice their grievances, but in ^voicing their 
grievances citizens should always proceed in the ordir 
nai-y constitutional method which the law of the land 
allows. It may happen, of course, that the existing 
type of government ^ay render it difficult to 
voice grievances, but it must be kept in raind that 
th© destruction of government by revolution or rebel- 
lion always brings .greater evils than it suppresses. The 
most recent example is Hussia. Practically everybody 
in Russia admitted that the machine of government re- 
quired remaking, but . instead of remaking it in an 
orderly aud constitutional way, the discontented people 
of Russia smashed it completely to pieces. The evils 
of the revolution were a millionfold more pronounced 
than those existing under the old system. Under the 
old system of Russia there was absolute monarchy or 
autocracy which, however inefficient it may have been, 
preserved peace and order, and gave security to person 
and property. Under the popular or Bolshevist rule a 
far more rigid autocracy was set up. without security 
to person or property and without a;bility to preserve 
peace and order. 

Allegiance also demands from the citizen the giving 
of his service for public duties such as holdinsr 
public office and recording his vote. Tn 
other modem democracies most citizens above a 

Duties. certain age possess a vote. "Not every one 
can occupy a definite public office, but every one 
who is physically able can vote. It is a fundamentJal 
duty of tHe citizen in a modem democratic country to 
record His vote even if he does not aspire to office. , The 
government rests on the will of the people, and unless 
the people express their will through their vote then 
they cannot complain if the government is not oon- 
ducted according to their own desires. The duty of 



voting is a simple and elective duty, but in a properly- 
constituted state it implies sometliing more. It implies 
that the citizen should be a student of public matter^, 
that he should acquaint, himself with the problems of 
the day, and by close ^tudy of thfe problems train' him- 
self to be as judicial in his decisions in political matters 
as he should be if serving on a jury in a law court. 

in many countries in bygone days public duty of 
some sort was compulsory for every citizen. For ex- 
ample, in some rural communities (areas of local gov- 
ernment) each citizen was forced to give certain days of 
the year for service on the public roads. This has now 
disappeared, but it has been replaced by two things — (1) 
voting for public bodies, and (2) the payment of taxes. 

Public bodies have to perform certain functions for the' 
community and these functions must l>e performed in 
the best possible way. Public officers have to arrange 
for the various public worts for which 
Payment ^^^ *^® elected, and in order to do so 
of Taxes, they must levy taxation. Foi the central 
government the money is raised in various ways, 
by income tax, customs duties, excise duties and so on. 
For local government the taxation (called rates) is levied 
according .to the requirements of the local areas. In 
this way citizens are able to commute the old service 
that they had to perform. A permanent staff of officials 
and workers is kept at the public expense for the per- 
formance of public duties. 

A little consideration will show that if there were no 
taxation there could be no government. The govern- 
ment servants must be paid, the government agencies 
conducted; and if the people agree that governnient lias 
to perform certain things then they must also provide 
the ways and means for the government to do so. They 
must, therefore, admit the right of. the state to levy 
taxes, or, if necessary, even txj confiscate private property 
for the public welfare.' 


Of course, every government tries to apportion its 
taxation among the people as fairly as possible. To tax 
one class at the expense of another, or to tax 
one industry or ti^de at the expense of another, 
would be grossly unfair. It is a very difficult 
matter for government to apportion its taxation satis- 
factorily. Everybody, whatever his status in society, 
complains when he has to pay taxes, and the government 
must do its best in order to make these complaints as 
unimportant aa possible, or, on the other hand, to prove to 
the complainants, if necessary, that they have very little 
grounds for complaint. 

The duties of government towards citizens are not fixed. 
Some people (called individualists) think thait govern- 
ment interference should be limited to the pi-otection of 
person and property. The opjiosite school (called 
socialists) thiiilc, that government should undertake the 
manag-ement of every branch of social activity. As 
modem governments rest on the minds of the people 
themselves it depends on the type of minds at any 
particular time whether the government is individualistic 
or socialistic. Before the Great War government did 
not interfere in any marked degree in industry and com- 
merce. During the Great War government found it 
necessary to interfere in many ways not only in indusitry 
and commerce but in the private life of the people. The 
circumstances of the case justified the interference. As 
soon as the war ended the cry arose among a large section 
of the community for the withdrawal of government 
interference ; amongst otbiers, the extension of govern- 
ment interference was asked. A large section of 
miners and railway-workers are now demaaidiiig^ that 
government should take over the manajrement pf railways 
and the management of mines. The future activity of 
government in this direction will be determined by the 
pubKc interest and the mind of the •people, as shown at 
the periodical elections. 


1. Definition and Classification. 

The constitution of tte state may be defined as the 
fundamental rules wliicli regelate t!he distribution of 
> powers in tBe state or which determine the form 
Deflnitions of government. Austin, the law-writer, calls it 
'tution. ' that which fixes the structure of the supreme 
government.' Lewis, the well-known English 
writer on Political Science, calls it 'the aiTangement 
and distribution of the sovereign powers in the com- 
munity, or form' of government.' This is practically a 
direct reproduction of the definition of Aristotle, who 
says ,that the constitution is the way in which citizens, 
who are the component parts of the state, are arranged 
in relation to one another. 

The constitution of a state, therefore, is that body of 
rules or laws, writiten or unwritten, which determines the 
organisation of government, the distribution of powers 
to {he various organs of government, and the 
general principles' on which these powers are to be 
exercisedl. Every state must have a constitution. H is 
true that some constitutions may be more cleiar and more 
developed than others ; but wherever there is a state there 
must be certain fundamental rules or principles govern- 
ing the exercise of power in the state. Even in whalt we 
know as ' advanced ' states the constitution may be 
somewhat indefinite. Thus in Great Britain it is difficult 
to say what exactly is the constitution. Nevertheless, 
the constTtution ex^pts. It is impossible to conceive of 
a state in which there is no constitution. 


The traditional claesification is written and unwritten 
corjstitutions. The distinction between the written and 
ciassifio- the unwritten constitution is founded on the 
Co'nstitut- distinction between the written and unwritten 
Written and ^^^' °^ between statute and common law. This 
Unwritten, distinction, however, is not satisfactory. An un- 
written oonstitlation is one which is based on custom or 
usage; a written constitution is onie which has been de- 
finitely enacted in a single legal instrument. On examin- 
ing constitutions of these two types we find that in i.:- 
written constitutions a large number of customs are de- 
finitely written down, and that in written constitutions, 
however definite they may be, there is always an unwritten 
element, an element of custom or usage. In the unwritten 
constitution, a custom, once written down, is as important 
as am enacted law. In a written constitution the element 
of custom is as important a? the constitution which is 
written. The distinction, therefore, between written and 
unwritten constitutions is not satisfactory ; but it has been 
accepted because of the difficulty of finding any other basis 
of classification. The classification evolved and enacted 
is adopted by some writers, the evolved constitution being 
practically the same as -the unwritten constitution, and 
the enacted the same as the written. Sir Henry Maine 
classifies constitutions as, firstly, historical and evolution- 
ary, that is, constitutions which have developed 
gradually according to historical exiperience, and, 
secondly, a priori, that is " founded on speculative as- 
sumptions remote from experience." Of the historical 
and evolutionary type the constitution of Great Britain 
is the chief example. Of the a priori type the consti- 
tutions of France of the eighteenth century are examples ; 
these constitutions were drawn up according to certain 
pre-conceived ideas of justice. 


The most satisfactory basis lor tlie classification of 
constitutions tas been given by Lord Bryce in bis book, 
Lord " Studies in History and Jurisprudence." 

Giassifio- Bryce classifies constitutions as Flexible and 
ation. Rigid. His argument is as follows: — 

Constitutions, past and present, are of two leading 
types. Some are of natural growth, made up of enact- 
ments, understandings, and customsi which have 
H« Basis practically the same force as enactments. They 
ciassific- are largely an accumulation of traditions and 

. " precedents, and, as a rule, are unsymmetrieal and 

unwieldy. Others are the -work of conscious art. Such 
constitutions are contained in one legal instrument^ which 
has been drawn up at one time by a definite body. These 
constitutions might be distinguished as old and new 
tjrpes, or they might be called common-law constitutions 
ond statutory constitution; but the latter description is 
open to the criticism alrea^ly given in connection with 
written and unwritten constitutions. 

. Bryce himself takes as the basis of distinction the re- 
lation which each constitution has to the ordinary laws 
of the state and to the ordinary authority which passes 
these laws. In some states the constitution is subject 
to the same machinery «s th^ ordinary laws of the land. 
In such cases the term constitution simpl;f means these 
statutes and customs of the country which determine the 
form df government and the arrangement of the political 
system. It is often difficult in this case to say what is 
constitutional and what is not constitutional. Some 
statutes,, while containing definite constitutional matter, 
at the same time may contain much that is not consti- 
tutional, and other statutes which at first sipht seem to 
have nothing to do with constitutional usage, may in 
reality contain important constitutional matter. 

In other statttes, the constitutional legislation in the 
staite is subject to a special process. In this case con- 
stitutional law is clearlv demarcated from ordinary statute 


law. Tie constitutional law is passed by a special 
authority and can be amended only by a speciaL authority, 
and, further, if the ordinary law of the land conflicts 
with constitutional law, the ordinary law must give way. 

Bryee adopts the terms flexible and ngid to describe 
the nature of these two types of constitution. The one 
type is called flexible because it is elastic, and 
and" Rigid ^^^ ^^ bent in various ways, and still retain 
constitut- its main features. ^The other is called rigid 
because it is definite and fixed. The flexible 
type is the earlier in date. In the other classifications 
mentioned, it is equivalent to the unwritten, the 
evolved, or historical. In the modem world flexible con- 
stitutions have almost died out. The one notable example 
is the constitution of the United Kingdom. Austria- 
Hungary had a flexible constitution before the Great 
War, but now that constitution has disappeared. Italy 
has a constitution which is balf way between the flexible 
and the rigid types. 

The rigid constitution has taken the place of the flexible 
constitution over practically the whole world. All the 
states of Europe haive adopted it, and even Great Britain, 
tie chief example of the 'flexible type, must adopt it if 
a scheme of Imperial Federation is carried into effect. AH 
the Self-Governing Dominions of Great Britain, 
Australia, Canada, South Africa and New Zealand have 
the rigid type^ of cons.titution . Their constitutions 
originally emanated from Great Britain herself. Thev 
are really Acts of the Imperial Parliament. The saraei is 
true of India, where the constitution cannot be amended 
or changed by the Indian Legislature, but by a, higher 
legislative authority of the King-in-Parliament — the 
legislative sovereign of the British Emnire. 

The well-known writer on British^ ajwl American consti- 
tutional practice, De Tocqueville, says "Technically, , 
there is no British constitution.*' This remark has often 
been quoted carelessly by speakers and writers, as if it 


were a discredit to Great Britain to have no constitution. 
What the statement means is that in Great Britain there 
is no definite constitutional enactment such as exists in 
the IJnited States or France. But that there is no consti- 
lution at all is far from the truth. Great Britain has 
a flexible type of constitution. Both constitu- 
tional and ordinary law can be enacted and amended by 
the same legislative process. It is true that no lawyer 
can definitely put his finger on any enactments or -num- 
ber of enactments that can be said to form the British 
ccinstitution ; but that does not mean that the constitution 
does not exist. 

The British constitution consists of a mass of 
authorities and. enactments such as the Greait Charter, 
the Bill of Rights, the Habeas Corpus Acts, the 
The Petition of Rights, the Act of > Settlement, the 

cSnstitut- various Reform Acts (1832-1918), the various 
ion. Municipal Acts, Local Government Acts 

and various Acts concerning the organi- 
sation of the law courts. All these Acts are de- 
finitely constitutional. Thpre are other Acts, such as 
the Scottish Universities Act, which though primarily 
educational, ecclesiastical or municipal measures, really 
contain important constitutional matter. In addition to 
these enactments there is a large number of customs, 
traditions and precedents in the British constitution. 
The whole system of cabinet government depends not 
on legislative enactments but on custom. The British 
constitution, therefore, may be defined, in the words of 
Lord Bryce, as " A mass of precedents, carried in men's 
memories or recorded in writing, of dicta of lawyers or 
statesmen, of customs, usages, understandings and beliefs 
bearing upon methods of government, together with a 
certain number of statutes, some of them containing mat- 
ters of ipetty detail, others related to private just as much 
as to public law, nearly all of them presupposing and 
mixed up with precedents and customs, and all of them 


covered with a parasitic growth of legal decisiojis and 
political habits, apart from which the statutes would be 
almost unworkable, or at any rate, quite different in 
their working from what they really are." 

It is, therefore, quite untrue to say that there is no 
British constitution. It is true that in Britain there is 
Meaning no difference betw-een an ordinary statute and 
" unoonstit-constitutional law as there is in America 
in*''tK'" ?r Prance. The word 'unconstitutional' 
British is often used in political debates, pafticularlv 
Constitut- . c ^ J. 1 J 1 iT.' 

ion. in reterence to new laws proposed by the 

government. If these laws imply new methods of goV' 
emment, or aaiy striking departure from the old methods, 
the word is used by opponents of the proposed law to 
discredit the government. "What is really meant by 
' unconstitutional ' is that the proposal, if carried into 
effect, will be am unusual breach of a principle which 
has come to be regarded as inviolable. 

Constitutional law and statute law differ from each 
other (a) in content. Statute law is simply the law 
Constitut- passed by the legislature in a state for the regu- 
statlita"" l'^'*^^^ of *^® l^'^^s 9^ ^^ citizens. Constitutional 
Law. law deals with fundamental principles anJ 

methods of government. (/))'In the method of enactment 
and amendment. This distinction, however, is applicable^ 
only in those states which have a rigid constitution. In 
Great Britain the constitutional law can be distinguisihed 
from statute law only bly its content or purpose, both 
constitution and statute law being subject to the same 
legislative prooedure. The Kingrin-Parliament, that is 
the King with the House of Lords and the House of 
Commons, is the legal sovereign in the British constitu- 
tion! and as such can pass a la'w raising the incomie tax 
by one penny in the pound, or a law making the prO- 
foundest constitutional change. 

The difference between staitute and constitutional law. 
in rigid constitutions is very marked. In the HniteJ 


States of America the legislature for ordinary legislation 
is_ Congress. For .constitutional legislation, however, a 
I -totally separate machinery exists, a machinery which 
makes an amendment of the constitution very difficult. 
The. constitution of tlie United States cannot be amended 
without the consent of two- thirds of Congress and threse- 
iourths of the states in the Federal Union. Very elalbo^ 
rate procedune exists for the proposal of amendment^ and 
the adoption of amendments. So elaborate, indeed, is 
the procedure that it is extremely diflicult in 
the United States to carry through any amendment 
at all. The same is true of the state constitu- 
iions in the United States. The whole theory of 
the constitutional law in the United States is that it is 
something higher, more fundamental, and more import- 
ant than the ordinary law of the land, and as such must 
not be interfered with ,too easily. In France also con- 
stitutional amendment is subject to a special process- Tlie 
brdinary legislature in France is the Chamber of Deputies 
and the Senate, which meet in Paris. But a.nv oroposed 
•constitutional amendment must pass through the National 
Assembly, that is, the two Houses sitting together at 
Versailles, as well as through the two Houses separately. 
In Germany under the old system the constitution could 
be amended viery much in the same way as ordinao-y legis- 
lation was passed. It required, however, a special number 
of votes. 

It is thus clear that in Great Britain constitutional and 
statute laws are subject to the same process. This is true 
of all flexible constitutions. In Italy though the con^ 
stitution is contained in one enactment, the ordinary 
legislature may amend it. In all rigid constitutions, 
however, there is a definite distinction between consititu- 
tional and statute law. The constitutions are made by 
a definite body distinct from the ordinary law-mating 
body and can be amended only by special process varying 


in difficulty from step to step, but always different from 
the normal law-making process. 

■2. The Merits and Demehits of Constitutional Types. 

Each type of consititution hs^s both its merits and its 
demerits. The fact that each tends to assimilate some 
compar- of the chara.cteTistics of the other s'eems to 
nierfts and proTe that the best type o*' constitution is a mix- 
neTbie" "'ture'of the flexible and rigid. The chief merit 
and Rigid of the flexible constitution is its' adaptability. 
ions I '- ' It is alterable without any difficulty and, there- 
fore, it easily meets new emergencies. The flexible con- 
stitution is thus very well suited, to an advancing 
community. It can be amended as ,eas>ily as' an ordinarjn^ 
law can be passed. When amendment is necessary there 
is no unusual disturbance in the law-making process of 
the country. The flexible constitution is also valuable 
inasmuch as it is not subject to popular passion. It is not 
recognised as particularly sacred by thp people. A rigid 
constitution, on the other hand, is often looked on as a 
sacred repository of .popular rights, and as such in times of 
popular excitement it is subject to popular violence. In 
France, for example, during the !R evolution the people 
concentrated their minds on constitutions as tbe guarantees 
of rights.' The extraordinary number of French constitu- 
tions, passed during the past century and a half, proves 
that rigid constitutions mav often bp a danger to national 
peace. Since th? Revolution France has had many con- 
situtions. Each of the constitutions was actually is 
operation f^r some time, but, except for the present one, 
no one of them continued in existence as much as twenty 
years. Flexible constitutions provide an eayy method of 
legal amendment and legal development. Whereas in 
national crises rigid constitutions may be completely 
shattered, flexible constitutions are so adaptable that they 
easily can survive political storms. Further, a flexible 
constitution provides an excellent mirror of the national 


mind. A rigid constitution may represent the national 
mind at a particular period ; but, especially if amendment 
is difficult, rigid constitutions do not move with, the times. 
This is obvious in the comstitution of the United States, 
where the rigidity of the constitution has necessitated 
several developments outside the constitution in order to 
suit the national \ii& of the United States. The most 
notable extra-constitutional development in the United 
States is the party system, which arose in order to bring 
about co-ordination between the legislative and execu- 
tive branclies of government which were so rigidly 
separated by the constitution. 

The great merit 6f rigid constitutions is their definite- 
ness. Being embodied in a single document, these con- 
stitutions are definite and certain. Beyond this definite- 
ness and certainty, however, the rigid constitution 
frequently is useless. Rigid constitutions very often lay 
down certain fundamental principles of popular liberty, 
but these principles, however definitely enunciated, are of 
little avail tmless they are accompanied by constitutional 
methods by which they can be guaranteed. For ex« 
ample, in the Belgian constitution there are fundamental 
ideas governing the liberty of the press and the liberty 
of speech, but no method is laid down whereby either the 
press or speech is to be made free. In Great Britain, 
where there are no such, constitutional guarantees, this 
liberty is secured far more effectively than in Bejgium 
simply by the rule of llaw. It is thus very easy to ex- 
aggerate the value of rigid constitutions as guarantees of 
individual liberty. General principles of liberty are apt 
to be enunciated more as the result of popular passion than 
as the reasoned basis of civic life, and popular passion 
loses its meaning to the succeeding generation. It is 
absolutely impossible in any one document, at one period 
in history to give a final statement or analysis of the 
principles of the' political life. Rigid constitutions 
attempt to do this but, unless amendment is ex- 


liemery easy, they attempt to do what is impossible. 
Progress demands adaptabality and flexi' ilityV aiid sutih 
adaptibility and flexibility can only be secured in 
countries with rigid constitutions by a suflicienlly 
easy method of amendment. This method need not 
be formal amendment; it may be amendment by 
usage or by judicial interpretation. In modern democracy 
one of the chief characteristics is party government. Some 
writers hold that rigid constitutions are' more valuable 
than flexible constitutions because they are less subject to 
party feeling. This, however, is not true. Uigid con- 
stitutions are the f ojus of national sentiment ; they are 
centres of national discussion and as such are more subject 
to party forces than flexible constitutions. 

The flexible constitution, it is sometimes said, is not 
suited to democracy, because democracies^ are suspicious 
of what they cannot understand. Flexible constitiitions 
are long historic growths not easily understood by the 
average man. Rigid constitutions are cleSr, and easily 
understood. Flexible constitutions, therefore, it has been 
said, are more suited to an aristocratic type -of govern- 
ment. This, however, is a theoretical objection. It is 
questionable whether in normal times the masses trouble 
about constitutional matters at all. In abnormal times, 
as we haive seen, the rigid constitution is in more danger of 
destruction than the flexible. It may also be pointed mit 
that the two most free countries in the world, each of them 
a democracy. Great Britain and the United States, are 
diametrically opposed iri constitutional type, a fact which 
suggests that both liberty and democracy depend on other 
baises than rigid or flexible constitutions. 

The modem tendency in constitutions is to?vards 

rigidity. It may safely be said that in a few years not 

a single example of the flexible type will exist. 

Reauisites ^ rigid constitution is the enunciated will of the 

Gonstitut' sovereign people, and, as such, should be defi- 

s 'on. niie, and as clear as kuman language can make 



it, SO that there should be no dispute or likelihood of 
dispute as to Tvhat tJie constitution means. The consti- 
tution usually has three sets of provisions : — 

(1) A series of fundamental righis, civil and political. 

(2) The outlines of the organisation and the 

(3) Provision for the amendment of the constitution. 
Tbesfe provisions have been called the three essentials 
of a constitution: namely, liberty, government and 
sovereignty. But as these provisions are fundamental, 
they should be as brief as possible. Brevity lessens the 
chances of dispute in subsequent generations. More- 
over, no one generation should venture to lay down the 
final laws of political life or organisation. Not only 
should the constitution be brief, but it should be amend- 
able without too much difficulty.' In some of the state 
constitutions, in the United States not only do the con- 
stitutions contain much detail {e.g., sumptuary laws) 
which properly belongs to the sphere of ordinary statute 
law, but they are difficult to amend. They err both in 
their content, which is too detailed, and in their process* 
of amendment, which is too difficult. 

3. Ceeation and Amendment of Constitittions. 

The constitution is the expression of the national will 
of a people, and it is not really correct to say that a con- 
crowth of stitution, whether flexible or rigid, is definitely 
con-_ created at a given point in time. The national 
stitutions. ^jj^ exists independently of its formulation in a 
legal instrument : in other words, the state does not begin 
when a constitution is drawn up. From the point of view 
of Public Law, not of Political Science, we can say that 
constitutions are created, or amended "in such-and-such a 
way lat such-and-such a time. From this point of view 
we can say that flexible constitutions are not created ati 
any particular point of history — they grow gradually and 


tLait rigid constitutions are definite instrument* 
enunciated at a particular point in history. 

- Edgid constitutious may be made in two ways ; — 

„ .u - . (^) ^^®y ^^y be made by a legislative as- 

Metnods of ui— 

creating sembly. 

s^ifutions."' ^^^ They may be granted by a superior govern- 

Examples of the first type are the constitutions of 
the United States, of France and of Germany. In each 
of these cases constitutions were formulated and adopted 
by special legislative bodies as the i*esult of war or of 
rsvoitition. The first constitutions of the United States 
were really granted by the English Government. After 
the War of Independence the American colonies drew up 
constitutions for themselves and for, the Federal Govern- 
ment. In Fnance during the revolutionary period 
several constitutions were drawn up by special legislative 
bodies, or ' constituent ' assemblies, Ijut they were all 
short lived. The present constitution of France is the 
result of the Franco-Prussian War of 1870. It was 
created by a National Assembly elected by manhood" 
suffrage. In the French c6nstitutioni! a distinction is made 
between the constitutional laws, which can be amended 
only by a special process, and organic laws which can be 
changed by the ordinary legislature. The constitution of 
fhe German Empire, as it was before the Great War, was 
also the result of wars and revolutions. After the Napo- 
leonic war the German Confederation was established, ■ 
but this Obnfederation went through seyeral changes 
before it culminated in the modem German Empire. After 
the Franco-Prussian war the German, constitution 
was draiwn up and ratified by a Parliament of the whole 
of Germany. The present (1920) German constitution 
was also the result of war. It was drawn. up by a con- 
stituent assembly (the National Assembly) elected after 
the end of the Great War. 


The Britisli Dominions have constitutions which were 
granted by the British Parliament. These constitutions, 
it is true, are only constiliutions granted to subordinate 
law-making bodies, but with the advance of time these 
subordinate law-making bodips are becoiriing more, and 
more independent. The form of their own government 
is determined by the constitutions which' thej- have re- 
ceived from the Imperial Parliament. 

We have already noted that even the historic flexible 
constitution of Great Britain is in danger of becoming 
circum- ^igid. The future seems to be with' rigid, 
stanoes. constitutions. Several circumstances favour 
the Growth the adoption of rigid constitutions. In 
P^n^l^f j,^. the first place, the citizens of modern 
ions. democratic countries desire to guarantee their 

rights by restraining the powers of government. 
In the second place, democratic ideas of self-gov- 
ernment have taken the form of granting constitu- 
tions to subordinate bodies, in order both to guarantee 
the rights of the people concerned and to prevent con- 
troversy regarding the principles of government. In the 
tKrd place, when a people changes its form of government, 
it naturally desires to make explicit the basis of the new 
government. In the fourth place, the rapid advance in 
favour of federalism as a form of government has given 
much impetus to rigid constitutions. Federalism is one 
of the most popular methods of modern organisation and 
in a federal form of government, it is absolutely neces- 
sary definitely to mark off the spheres of the central 
and of the local govemrhents by a rigid constitution. 

Rigid constitutions thus seem likely to survive at the 
expense of flexible constitutions. For many years no new 
flexible constitution has been established, whereas 
flexible constitutions haveil)een replaced by rigid consti- 
tutions. Fo rigid constitution, moreover, is likely to 


become entirely flexible. The whole tendency of demo- 
cracy is toTtards the establishment of constitutional safe- 
guards through the means of rigid constitutions. 

Obviously no assembly in drawing up a constitution 
can foresee all the circumstances that are likely to arise 
Amend- in the fu,ture. In the making of constitutions 
conltuuu some p]?ovision must be made for alteration or 
ions. amendment. In a , flexible constitution the 

question of amendment does not really arise because the 
ordinary legislature makes, and, can amend, both con- 
stitutional and statute law. In rigid constitutions, special 
methods of amendment are jproyided.. These inethodsi are 
four in number: — 

(1) The function of amendment may be given to the 
ordinary legislature, but at the same time be made sub- 
ject to a special process,! for example, a fixed quorum 
and a minimum majority. In Belgium for the amend- 
ment of the constitution two-thirds of the members of 
each house must be prpsent and a two-thirds majority is 
necessary. A minimum ma>j6rity only may be re;- 
quired, such as three-quarters of the total house, as in 
Greece. Two-thirds is a very common majority required. 
Sometimes the legislature is dissolved in order that the 
opinion of the people may be tested before the proposed 
amendment is carried out. The idea in this case is to 
submit the proposed amendment! to a new set of men. 
This arrangement of dissolution is as a rule com bin ed also 
with the necessHy for the special majority. The consti- 
tutions of Holland. Belpixlm, Tforway, Porftigal, Sweden 
and Eoumania are of this type. 

(2) A special bodv mav be created for, the amend- 
ment of the constitution. TKe most notaWe example of 
this is the United State? where ft Convention is called to 
consider constitutional questions. This method in 
America is combined also with special maiority in the 
legislature. Two-thirds of Congress and thrse-quarters 


of the states must consent to the adoption of the constitu- 
tional amendment. Amendmtot to the Duiled States' 
constitution may be proposed either': — 

(a) By two-thirds of the members of each house of 
Congress; or 

(6) By the legislatures of two- thirds of the states. 
These may petition Gongressi to call a Convert tion to con- 
sider the proposed amendment and this Convention may 
propose the changes. In either case the change proposed 
must be submitted to the individual states, to be voted 
upon either by their legislatures or by conventions called 
in the states for the purpose, as determined by Con- 
gress. Any amendment which is agreed to by three- 
fourths of the staites becomes a part of the constitution. 

In; Serbia and Bulgaria: amendments used to be twice 
passed by the ordinary legislature and then submitted 
to a special assembly elected in the same way as the 
legislature. This assembly had the final decision on 
the amendment. In France for constitutional amend- 
ment the two houses of the legislature sit together as a 
constituent assembly ait Versailles. The houses first 
decide separately that amendment to the constitution is 
necessary. The -amendment is adopted by the Houses 
sitting together at Versailles. 

It will thus be seen that in some states a combination of 
both the first an.d second methods is adopted. 

(3) Sometimes proposed amendments of the constitu- 
tions are s^ibmitted to local authorities, either for con- 
sideration or for . approval. This method is particularly 
suitable for federal states where, naturally enough, the 
individual states which compose the union must be con- 
sulted before the character of. the union is altered. This 
method exists in Switzerland, Australia and the United 
States. It is not, however, invariably adopted in federal 
governments. In the Argentine Republic^ for example,', 
ai majority of the legislature, wilh a special convention, 



and in Brazil the legislature alone by a two-thirds major- 
ity in three successive debates can alter th.e constitution. 

(4) Proposed amendflients may be referred to the 
people. This is the most delnocratic inethod of amend- 
ment. The theory behind it is that a constitution is a 
guarantee of popular rights and as such should not be 
amended without direct re:^erence to the people. This 
method exists in .Australia, in some of the states of 
the IJnited States of America and in Switzerlaud. 

One or two sepaiuj;© points arise in connection with the 
amendment of constitution. 

(1) Sometimes a constitution does not make spiecial 
provision for amendment. In ^uph a case either the ordi- 
nary legislature may amend it, a% in Italy (The Italian 
constitntioii although a definitely enacted instrument is, 
according to Lord Bryce's criterion, a flexible constitu- 
tion) ; or the authority which created the constitution 
may amend it^ 

(2) Constitutions are amended by other processes than 
by formal legislation. In rigid constitutions there is 
a certain amount of flexibility. No rigid constitution 
can exist without change of some kind. New conditions 
of life, new ideas of political brganisation and new ideals 
gradually change the setting of constitutional laws. Rigid 
constitutions thus gradually change by usage as well as 
by formal amendment. They are also changed by 
judicial interpretation. The courts have to determine 
cases connected with constitutional law and in doing so 
they bend the law to suit new and unforevseen circum- 
stances. This is particularly the case in the United 
States of America where the process of formal amendment 
is extremely difficult. Because of this the United States' 
courts have had to suit the constitutions to modern con- 
ditions by the doctrine of 'implied powers.' 



1. Classifications of Plato and, Aristotle. 

The first point to be noted in the classification of 
the forms of governinent is the «iistiiiction between the 
□istinotion ^^^^^ ^^^ government, tu nlany books the 
between claasificatioii" of the forms of government is 
covern- entitled the " forms of the state.'" Strictly" 
"■*"*• speaking all states are the same. ' ' The studerit 

must bear this in mind : the " form of state " is really the 
form of government. It is true that wp might classify 
states according to the type of mind evident in the state, 
or accordi?ig to population or territory. Such classi- 
fications, however, would be oJE little value'. It would 
npt, be helpful, for example, to divide spates according 
to the size of t^eir populaj;iqn, ma,king the classification 
fit large, medium and small. ,■, 

Many classifications of the forms of government have 
been given by writers of Political Science. The most 
common bases are (1) the number of peoplei in whom 
the supreme power rests, and' (2) the form of the state 
organisation or government. As we shall see, itl is ex- 
tremely difficult td find a satisfactory basis for the 
classifidation of moderh governnients. While certain 
general characteristics are common to some govern- 
ments, we often find along with these common elements 
marked diissimilarity. Moreover, ' the forius of goveiAf 
ment change very quickly, so that while a classification" 
may be satisfactory at the present moment it may be 
quite unsuitable a g'eneration hence. 


Ihe most famous of all classifications of forms of 
constitution or goTeinmeiit is that given by Aristotle in 
The liis Politics. Aristotle's classification is not, 

ati**ns«°f 'b"^^'e"^^r, an original,. classification. He him- 
piatD and sel,f wajs a pupil of, Platto, and Plato's classi- 
Aristotie. £cation, thpugli not sq w^ll Imowu, is almost of 
equal value and importance. 

PJatQ>,pl^ssification has not the definiteness of that of 
Aristotle. His views,, moreover, are not consistent. He 
Plato's ^i'^^s a different series' of forms in thle Republic 
Ciassi- and 'the Statesman. In the Republic he gives 
floation. ^^ forms which are noted below in connexion 
with the cycles of political changie. From the Statesman 
may be extracted a logical classification, which bears a 
striking similarity to the later classificaltion of Aristotle. 
As Aristotle hoi-fowed froni Plato, so did Plato borrow 
from Socrates. According to Socrates the three main 
forms of government ane monarchy, aristocracy and demo- 
cracy. Monarchy and tyranny each is the government 
■of a single person, but in monarchy, as contrasted Math 
tyranny, there is respect for law. Aristocracy is con- 
trasted with plutocracy, or government by the few rich. 
In nristocracy the capacity to rule is recognised : in 
plutocracy mere wealth is the test of rule. Democracy 
is the rule of ignorance. S'pcrates held that " only 
those who know shall rule." 

Plato adopts the Socratic criterion of knowledge as 
the supreme test of goodness in government. Working 
wiiih this principle he gives three grades of state:—- 

1. The state of perfect knowledge, where the real 
■sovereign is 'knowledge.' No such state exists, but this 
is the best state of all. It (Jods not count in ordinary 
classifications, but it is the ideal' state, and other states 
are to be judged by it. Plato seems to regard this ideal 
^tate sometimes as a monarchy, or the rule of an all- 
v.ise one, sometimes as an aristocracy, or the rule of 



the best (the, original meaining of aristocracy). It may 
best be. termed Ideocracy, the state of the sovereign 
idea or reason. 

2. States where there is imperfect knowledge. In 
such states laws are necessary, becaiise of manV im- 
perfection, and these laws' are obeyed. , 

3. States where there is a lack of knowledge: states 
of ignorance, •w^here laws exist and are not obeyed. 

Deducting the first class, which does not exist, we 
have two classes left — ^states where law is obeyed, and 
states where it ia not obeyed. With this basis, we also 
have the Socratic basis of the rule of one, of few and 
of many. Thus we have: — 

States in which 
law is obeyed. 


1 \ States in which 
law is not obeyed. 

Rule of One. 


Rule of Few. 



Rule of Many. 

Moderate Democracy. 

Extreme Democracy. 

Plato classifies these also in order of merit. Mon- 
archy is best: tyranny is worst. Aristocracy and 
oligarchy are intermediate. Democracy in states in which 
law is observed is, the worse typei; h\i,t in non-law staites 
it is the bettler. It is the wea]5;est for virtue and also 
th^ we|a!kesjt for vice. • • ; ■ 

Aristotle's classification likewise adopts a double basis. 
The first is that of Normal, and Perverted. The criterion 



in l^his case is the end of the state. As a moral 
Aristotle's entity,, the state pursues, or should pursue, 
atfoni"*" *^® ^°°^ ^^*®- Therefore every state which 
, pursues the end of the good life is a Normal or 
True State. , States which do not pursue this end are 
Perverted. Thus Normal, or True, and Perverted is thei 
first basis. The second is the basis of number, as in 
Plato's classification, or the constitution, which deter- 
mines the goverament. Thus we have: — 

Form of 

Normal forms, in 
which the rulers ' 
unselfishly seek the 
common welfare. 

Perverted forms, 
in which the rulers 
seek their own 

Eule of One. 



Rule of Fow. 



Rule of Many. 



" Polity " is a Greek word used to designate this 
particular type of government given by Aristotle. Its 
nearest modern equivalent is constitutional democracy. 
It is the unselfish rule of the many for the common 

Aristotle's classificatiion is thus founded on {a) the end 
of the state, and (6) the constitution,^ or number of 
persons who actually hold power. It is important to 
remember the first of these bases, because many, critics 
have rejected Aristotle's clalssification_on the ground that 
it is based purely on number or quantity, as distinct from 
quality. Obviously, however, Arisibtle atcepted number 
only as a secondary standard. His chief standard for 


ih.p definition oi all tilings was the end; hence his dis- 
tinctipn of normal and. perverted. Trhich is a distmction 
of quality. ; ,^ 

Aristotle's classification ihay be called the fundamental 
classification of the forms of government. The classifica- 
tion is not sufficient for modern forms of government, 
but it has' provided the historical basis of practi'dally all 
classifioaitions made hitherto. Even in mdderh classifica- 
tion the general ideas of Aristotle are frequently adopted. 

In addition to their clasisifications of government, both 
Plato and Aristotle, give wliat in tiheir opinions 
cyores *^® *^® cycles of political change. Plato's 
of cycle starts from the highest form. Ideocracy, 

Chanlf: t^^e form which is the resTolt of the 
Plato's highest type of mind. Plato classified states 
according to the qualities of mind shown in 
them, and his cycle of political change follows the same 
procedure. The highest type of state is that which has 
the highest type of mind as its basis, that is, the state 
where reason is supreme. The constitution resulting 
from this is Monarchy or Aristocracy, or, preferably, in 
the Platohic langiiage, Ideocracy, the rule of the idea or 
reason. Ideocracy degenerates in time into the type of 
state where spirit replaces reason. This type of 
government is known by TimocraCy. Timocracy means 
government by the principle of honour or s'piritedriess. It 
is a military type of state. In the Timoctatic state there 
are still elements of reason, but it also contaiins the 
element of desire, because of private property. Private 
propert'y leads to money-making and in time Timocracy 
• gives way to Oligarchy. In Oligarchy the wealthy 
classes rule- Graijually the people, revolt against wealth 
and the oppression which wealth brings. This leads to 
Democracy. In Democracy the ordinary man-in-the- 
street is the characteristic type.. It is rthe negation of 
order ^d freedom. There isi no .justice in Democracy, and 
no Tjnity. Gradually Democracy passes into the hands of 


<J«maigogues, and ultimately the most, powerful dema- 
gogue seizes- the reins of government arid becomes sole 
rulea?. This itorm of government, tyranny, is the worst 
type possible. 

According to Aristotle, the cycle of political change 
starts from monarchy. The iirst ' governments, he con- 

' ' siders, were monarchical. In early communities 

cyoVe""*'* ^^-"^ °^ outstandiilg virtue were' created kings. 
Gradually other persons of virtue and merit 
Arose and tried to have a share' iA political; power. 
This led to aristocracy. By the- deterioration of the 
ruling class, aristocracy passed into oligarchy; from 
oligarchy the form of j*overiiment chajiged into tyranny, 
and from tpranny the change was to democracy. Aristotle's 
theory of political chttn^e ias based on the end of 
the . government, just as was his classification of states. 
Plato's theory of politicar change is founded on the 
type of miild prevailing in the etatei"' 


Many other attempts at the classification .of the forms 
hi govei-nment hai^'e b^en.niade by political theorists of 
' all ages. Machiavelli, the Italian writer, who 
other Class- g]j J g ^jjg mediipval era and heralds the modern, 
adopts the Aristotelian classification, and adds 
the mixed form of goveminent; which, he says, is the best. 
The inixed form ij3 ^iven by both Cicero and Polybius. 
Machiavelli is mainly concerned with monarchies 
and democracies : different circumstances, according to 
him, require different formsi of governmental organisat- 
ion. John Bodin, the firsit comprehensive TDolitical phil- 
osopher of modern tiities, bases his classification solely 
on the number of men in whose hands sovereignty re^ts. 
When the sovereign power is in the Hands of an indivi- 
dual, the state is monarchic; when the sovereignty is 
in the hands of less than a majority of the citizens, the 
state is aristocratic ; and when sovereignty rests in the 


majority, it is democratic. Monarchy, again, is classi- 
fieid by Bodin into three species — («) Despotism, in which 
the monarch, like the ancient patriarch, rules his subjects 
as the pcst&r famiUas rules his ■slaves; (6) Royal Mon- 
archy, in which the subjects are secure in their rights 
01 person and property, while the monarch,, respecting- 
tjie laws of God and of nature,) receives willing obedience 
to tbe law he himself establishes; and (c) , Tyranny, 
in which the prince, spuxning the laws, of nature and of 
nations, abuses his subjects according to his; caprice. Of 
these three species, Bodin regards Royal Monarchy 
— if the matter of succession is .firmly fixed on the 
principle of heredity, primogeniture amd the exclusion of 
the female line — as the best form of state or government. 
Thomas Hobbes is a close follower of Bodin and adopts 
Bodin's classification unreservedly. John Locke gives 
a new classification : according to him " the form of 
government depends upon the placing the supreme 
power, which is the legislative." "^'Ihen the " natural " 
men first unite by compact into political society, the 
whole power of the community reside naturally in the 
majority. If this majority exercises that power in 
mating laws for the community from time to time, and 
in. executing those laws by officers of their own appoint- 
ing, then the fornj of government is a perfect democracy; 
if the power of making laws is put into the hands of a 
few select men, and their heirs- or successors , it is an 
oligarchy; if it is put into the hand of one man, it is 
a monarchy. Locke is careful to point out 

that there can be forms of government, but not forms of 
state. Montesquieu, the great French writer, classifies 
governments into (1) Republics, with their two varieties 
of democracy and aristocracy, (2) Monarchies; (of the 
West), and (3) Despotisms (of the East). Each form 
has its peculiar principle — of democracy, public service; 
of aristocracy, moderation; of monarchy, honour; of 
despotism,, fear. The duration of any of these forms 


depends upon the persistence in a given society. of that 
particular spirit which is characteristic of the form. 
According to Housseau, the famous contemporary of 
Montesquieu, a government" is called a democracy, an 
aristocracy, or a monarchy, according as it is conducted 
by a majority or a minority of the people or by a single 
m&giigtrate. There are, again, three forms of aristocracy 
—natural, elective and hereditary — of which the elective 
iristocracy is the best, and the hereditary one is the 
Worst. Rousseau also allows for the existence of the 
■'mixed" form of government, in which the various 
elements are combined. 

Bluntschli accepts Aristotle's classification as funda- 
mental, but' he considers that a fourth form, is necessary. 
This fourth form is Theocracy. Its perversion Bluntschli 
calls Id'olocracy. There is no real necessity for 
this additional form of govemmeit. It is useful, 
indeed, to have the term theocracy to describe that form 
of government in which the ruler is supposed, to interpret 
the will of God or in which God himself is actually Sup- 
posed to rule, but theocracies can; be classified under 
either monarchy, aristocracy, or democracy. The modem 
Political Scientist is not concerned with the intervention 
of God in politics. His duty is to decide where in 
the last reaort the supreme powpr .in the government lies, 
and that, supreme power, so far as hel knows, must always 
lie in either one person or a number of 'persons. 

The German writer, von Mohl, tries to classify states 
on a historical basis. His classification is (1) patriarchal 
states ; (2) theocracies ; (3) patrimonial States (in which 
sovereignty and the ownership of the land both belonged 
to the ruler); (4) classic states, such as those of Greece- 
and Eome; (5) legal states; (6) despotic states. Von 
Mohl giyes other types in addition to these and sub- 
divides classic states into Moijiairohy, Ari,$tbcracy and 
Democracy. E[is classification is based <3n no single^ 


prinoiple and it makes no attempt to disting-nish the 
state from government. ■ 

Many other classifications haive been giveni particul- 
arly by Gerlnan writerB of "Iksit century. But not one 
-ff^ oi . t]i«m gives a satisfactory basis on which to 

'■Mixed classify modern, governments. Before'' prb- 

^**"" ceeding to the classification of modern forms 

of, . government, we may first dismiss the cotiimon 
form of state, called "mixed state." In addition to 
monarchy, , aristocracy and democracy, Aristotle himself 
speaks of this inixed type. The Stoics considered the 
mixed type as a good type of state, 'and' Cicero and 
Polybius both speak of the Roman state as a mixed form, 
composed of monarchic, . aristocratic and. deinocratie 
elements. There is really no such form of state. The 
ijiixt]ire of,, monarchy, aristocracy and democracy does 
not inake a .mixed state. The state is sovereign and 
cannot be mixed. The form of- government, however, 
may contain elements of monarchy, aristooracv and 
democracy but to say that there is a mixed state is to 
confuse the state with government. 

For the classification of modern forms of govfernmenl, 
It is hardly possible to adopt any single basis. Mr. J. 
ly,^ I A. B. Marriott; the modem'' 'English writer, 

• Marriott's adopts " a tripartite basis. While acceroting 
■crassifica. " Aristcitle's cla,ssifications as fundamental, he 
tion. . regards monarchy, aristocracy and democracy 

as somewhat inadequate for ipodem governments. Thus, 
to take fl;ve; examples, England is a monarchy, Q-ermany 
;(before the.War) was a monarchy, France is a demo- 
cracy, Hussia (before the War) a monarchy, and the 
ITnited States a democracy. Yet Genu an v, noininallv a 
monarchy^ was really more' akin to the TTnited States. 
"which is a democracy, than it was to Englarid, which' is a 
monarchy. England, a, monarchy. i.<? reallv more 
akin to France, nominally a democracy, fliaii England was 
to the' monarchical Russia. This comparison sus-gests a 


principle. If we takes the pre-war Russia, Prance, 
Spain, Italy and Great Britain, they agree in this 
respect, that they are simple or unitary gqvemnient&. 
Germany, tjie United States, Switzerlajid, the old Austria- 
Hungary, ,. Canada, Australi^^ aud South Africa are 
complex, federal or composite. This is one basis 
of division. In a unitary type of goverument : tlie local 
organs, Sj^ch, as provincial and county bodies, are created 
by the central government; the central government pre- 
serves powef to abfllish or alter these bodies as it wishes. 
In a federal government, iioth the central or federal 
authority, and the provincial or state aathorities derive 
their powers from a constitution. In a federal govern- 
ment, each authority holds its power in such a way, that 
tl|9. powers cannot be altered without the alteration of 
the constitution. So long as the constitution rejmains, 
as it is, neitli&r ican affect the powers of th,e other. 

The next basis is that of rigid and flexible consti- 
tutions. In a^, rigid constitution there is a marked 
distinctipp between -^he ordinary law-making power;; 
and tiiie constitution-making powea-s. In a flexible 
constitution, thei ordinary legislature has ■con- 
st! tution-^inaking, , powers. , In this way we may 
classify the United Kingdoiji, and the old Austria- 
Hu,ngairy and all despotisms (whpre the will of, a singlp' 
individual is the law-making power) as, flexible, and 
the Unitcsd States, France, Germany — in fact all other- 
governments — as rigid. , . , , ; 
The third jbasis of classification is Monarchical or Pre- 
sidential government on the one hand, .and Parliamen- 
tary, Responsible, or Cabinet govemlnent on the other. 
This is imdoubtedly the most important basis of classi- 
fication for modern governments. The criterion in this 
case is the relation of the executive to the legislature. 
Executive power in government may either be co-ordi- 
nate wittti, $Tpiperior to. Or subordinate to the legislature. 
Where the ' executive is superior to the legislature, the 


"type of goTernment may be called despotic. The exe- 
cutwe's in practically all modern deiiiocratic states are 
either co-ordinate with or subordinate to the Legislature. 

In the United Staites, the executive is theoretically co- 
ordinate with the legislatlure. In France, Italy, tfreat 

Britain, the British self^goveroimg Dominions and many 
other countries, the executive is subordinate to the legis- 
lature. Where the executive isi subordinate to the legis- , 
lature, the type of government is called respoiisible 
government, because the executive is responsible tO' the' 
legislature. This type ' is also called' Cabinet govern- 
ment. The name Cabinet 'government owes its origin 
to the English system where the Cabinet, which is the 
executive, is responsible to the House of Coinmons. 

Thus we have, according to Marriott, three bases of 
divisrion : (1) Simple or Unitary and Composite or Federal, 
or, simply, unitary and federal; (2) Eigid and Flexible; 
(3) Monarchical, Presidential, Non-responsible or Non- 
parliamentary and Parliamentary, Responsible or Cabinet 
government. Applying these criteria, we find that 
Great Britain is unitary, flexible and . parliamentary. 
The United States is federal, rigid and presidential. 
I'rance is unitary, rigid and parliamentaiy. Germany, 
before the War, was federal, rigid and presidential, or 
raither monarchical. The present Gerriiany is fede- 
ral, rigid and parliametatry. Austria-Hungary 
was composite, but not fede'ral, flexible aind par- 
liamentary. The British self-governing Dominions, 
Canada, Australia, New Zealand and South Africa 
are federal, rigid and parliamentatry.i India, at 
present, is difficult to clasiBify, because it is in a transit- 
ional state. Its constitution isi partly flexible, partly 
rigid; according to the Goveicnmeint of India Ac* iof 
1919, it is partly parliamentary and partly non-padia- 
mentary. At present India is more unitary than federal, 
but the ftiture organisation pf. India as a :w^ole, include 
ing British India and the Native States, is likely to be 



Professor Leacock of McGill TTniversity, Montreal, 
gives almost a similar classifieation. Professor Leacoci 

adopts as the fnndamental distinction despotic 
Lekcook's ^^^ democratic. Democratic, states he sub- 
ciassino- divides into Limited Monarchy, in whiph the 

nominal headship of a. piersonal sovereign is 
preserved, and Eepublican Goverjiment, in which the 
head of the executive is appointed by the people. Each 
of these kinds, he subdivides into unit^ary and federal, and 
in turn each of thes»he subdivides into parliamentary and 
nonrparliamentary. Professor Leacock's clasRifiration is 
besti explained by his own taibb;: — 

Modern States. 






Limited Monarchy. 

- ■ 



itary. Federal. 





Parlia- Non-Parlia- 
mentary, mentary.' 




Non-Parlia- Parlia- 
y. mentary. mentary. 


, .1 . 




The (ilassification of Aristotle we have seen to be 
applicable only in a very general way to modem forms 
of government. The manifold new developments of 
modern democracy, and of government organisation in 
<?eneral, have materially altered the traditional classi- 
fication. We have now to adopt new bases of classi- 
fication, but, mainly for historical purposes, we must 
analyse shortly the Aristotelian forms of government by 


(1) Monarchy 4s the oldest type of gov&rnmeut. 
laiown. It i& the type invariably found in 
eaiiy societies. In connection with the origin 
Monarchy. ^^ ^^^ state, we have already seen how from 
both the religious and civic senses of early man evolved 
a monarchical form of government. ' Whatever may be 
said against the various < historical types of monarchy, 
there is no doubt that in the ruder stages of social 
development, the- monarchical system was the most 
beneficial. Monarchy is ma.rked by singleness of pur- 
pose, unity, vigour and strength. It secures order and. 
strong government. The monarch in early societies 
combined in himself the functions of law-maker, judge 
and esecutive, and was thus able to hold together by his 
own personal force a society which otherwise might 
have broken up into many elements. 

Monarchy may be classified in various ways. The 
most usual classification is Absolute Monarchy and 
liimited or Constitutional Monarchy. Another 
^Hereditary classification , is Elective Monarchy and 
Elective Hereditary Monarchy. Hereditary monarchy 
is the normal type, but there are s;everal 
historical examples of elective monarchy.. In early 
Rome the kings, were elected, as also were the empei'ors 
m the Holy Eoman Emflire. The Polish kings used also ' 
to be elected. In early societies, too, there was a con- 
siderable elemen-fc of election. . Sometimes the crown fell 
to the lot of the ablest general of the royal family, who 
was elected by the chief men of, the tribe or people. All 
modern monarchries are hereditary, although sometimes, 
as in the Fnitefd Kingdom , th'ei legislature regulates the 
succession to.; the throne. . 

Absolute Monarchy means that ultimately the mon- 
arch is the final authority in making, executing and in- 
terpreting law. . His will is the will of the state. 
Absolute There are many historical examples of absolute 
Monarchy, monarchies. The most notable is the French 


monarchy under Louis XIV., who declared " The state is 
myself." Absolute monarchy is still common in parts of 
Asia and Africa, but with the spread of enlightenment it 
IS rapidly dying out. 

Hobbes is of opinion that of all forms^ of government 
absolute monarchy best answers; the purpose for which 
Hpftbe's sovereignty' is instituted, and that for the fol- 
views. lowing reasons: — 

(1) A monarch's private interest is more intimately 
bound up with the interests of his subjects 
than can be the case with the private interest 
of the members of a sovereign assembly. 

(2) A monarch is freer to receive advice from all 
quarters, and to keep that advice secret than 
an assembly. 

(3) Whereas the resolutions of a monarch are sub- 
ject only to the inconst/ancy of human nature, 
those of an assembly are exposed to a further 
inconstancy arising from disagreement be- 
tween its members. 

(4) A monarch " cannCt disagree with himself out 
of envy or interest, but an assembly may, and 
that to such a height as may produce a civil 

Absolute Monarchy is sometimes combined with theo- 
cracy. In theocracy, the ruler is supposed to 

bei either ithe interpretbr of the will 
ThwH of God or the direct instrument of God. 

Such a theory of government can have 
only one organisation, and that is absolute monarchy. 
If the ruler is directly equivalent to God, then there 
is no appeal against his will. History gives many 
examples of theocratic government. The Jews con- 
sidered themselves directly governed by God whose in- 
strument was the King. The only states that can be 
called theocratic at the present day are the Mahommedan 
states, the fundamental law of wi.ich is the Koran. But 


in the modern Mahommedan states absolute monarchy is 
gradually beiing temjjered by constitutional elements. 

By Limited Monarchy is meant a monarchy that is 
limited by a constitution. Sometimes constitutional 

rights have been wrested by the people from 
Moriarchy unwilling monarchs: sometimes monarchs have 

granted constitutions on their own initiative. 
Limited monarchy is thus a constitutional type df gov- 
ernment, and as such is the same in principle as the 
republican type of government. The only difference 
between the limited monarchy and a republic is that 
in a republic the chief executive is elected, whereas in 
a monarchy the chief executive is hereditary. One of 
the chief merits of limitied monarchy is that it secures 
continuity in the executive head of !|ovenim©nt. The 
main defect is that the hereditary principle is not a 
sound basis for the selection of the head of an execu- 
tive. As a matter of fact, in modem limited monarchies, 
the monarch as a rule has only nominal powers. 
In the United Kingdom, for example, the chief execut- 
ive, though nominally the king, is really the Cabinet. 
Tor every public act of the king the ministers are actual- 
ly responsible. 

The limited monarchy of the United Kingdom occupies 
a special place. For one thing, the monarchy has been 

continuous, with Only a slight break, ever 
Limited ^^ce England became a nation. The institut- 
Monarchy ion is ingrained in the popular mind, and 
United when other monarchies haive been attacked or 
Kingdom, destroyed, no voice has been raised against 

the English kingship. The constitutional 
position of the king; makes him powerless in govern- 
ment affairs, nevertheless by his personality he is able 
to exert considerable influence on his ministers,. But 
the chief virtue of the English monarchy is the sense 
of security which it fosters among the people. 
Monarchy, too, has the virtue of impressiveness. The 


pomp and dignity surrounding a tHrone not only attract 
the people, but give additional impressiveness to 
both the institution of monarchy and the personality of 
the monarch. The usefulness of the king's personality 
■was amply demonstrated in the Great War, when by 
practice and precept he encourage^, guided and warned 
the people. 

The English monarchy is also invaluable as an Imperial 
asset. The king is the chief bond of union in 
the vast Empire: as Professor Lowell has pointed out, 
" the Oroiwn is the only visible symbol of the union of 
the Empire, and this has undoubtedly had a consider- 
able effect upon the reverence felt for the throne." 
General Smuts, the South ^African statesman, recently 
expressed identical sentiments when, speaking of the 
Empire, he said: "We are an organic union forming 
one whole with the king ae the connecting link." 

S. Aristocracy may be of various kinds; it may be 
aristocracy of wealth, of heredity, of intellect, or 
Aristo- ^^ ™*y ^^ military aristocracy. The real mean- 
craoy. ing of Aristocracy is the government of the best 

(the word "aristos" is a Greek word, meaning best). 
According to Aristotle's, classification, aristocracy is a 
normal type of government, the perversion of which is 
oligarchy, or the rule of ,a' few for their own interests. 
Unfortiunately, aristocracy is veiy frequently confused 
with oligarchy, hence the sinister meaning usually 
associated with the word aristocracy. Aristocracy is 
popularly regarded as equivalent to the rule of the higher 
classes in their own interest. Throughout the history of 
political thought the aristocratic type of government has 
been held up as the ideally best type. To avoid 
the word aristocracy, some writers use the term " aristo- 
democracy," which means that form of democratic gov- 
ernment in which the best types of men wield the power. 


Although aristocratic governnnent, in the sense ol 
the rule of the higher classes, is a thing of the past, 
it is noti to be thought that aristocracy is 
Merits Of essentially evil. Its chief quality is that it is- 
'conservative. It . does not like change, and 
strongly resents rapid change. It reveres custom and 
tradition and tries to prevent the quick inrush of new 
ideas into government or society as a whole. In every 
government for the sake of stability there should be 
a certain amount of conservatism. The best principle 
of both social and political progress is the principle of 
conservative innovation. This means that every reform 
should be integrally connected with past institutions. 
A reform which is either too new or too unexpected 
distributs popular feeling and as such is a danger to 
the stability of government. It is, therefore, of the 
greatest importance in social and political progress that 
the principle of progress or liberalism should always be 
joined to the principle of stability or conservatism. 

We shall see ih connection with the organisation of 
the legislature that most modem governments attempt 
to preserve a certain amount of aristocracy in govern- 
ment by the system of Second Chambers. For Second 
Chambers the basis of selection is sometimes aristocracy 
of birth, sometimes aristocracy of wealth, sometimes 
aristocracy of intellect. Where the Second Chambers 
are elected, the elections are usually so arranged as to 
make the Second Cham'ber representative of the heat 
minds in the nation. Such a system, therefbre, is aristo- 
cratic in the best sense. 

The chief weaJ^ness of aristocracy is that division of 
the people into classes pleases nobody. It is impossible 
weakness ^°^ ^^^ .™^^ °^ hodj of men to divide a people 
of Aristo. into social classes by any satisfactory criterion. 
oracy. ^ ^^^^ common basis of classification is pro- 

perty or wealth. In any society the propertied or 


wealtliy class is relatively small, and rule by this class 
is resented by the large or non-propertied classes as 
oligarchical (■oligarchy literally means the rule of the 
few). It is equally impossible to divide any community 
into classes by intellectual or moral quaiificatious. 

-(3) Democracy is pre-eminently the modem type of 
government. It is the type of government to which 
all other types are moving. Democracy 
■ literally means the rule of the people (the 
Greek word "demos" means the people), or popular 
government. It is the government o£ the people, by 
the people and for the people. It is of two kinds : (1) 
pure or directi democracy, and (2) representative or in- 
direct democracy. 

In the first type, pure or direct democracy, the will 
of the state is expressed directly through the people 

them«elves. Such a type of democracy is 
Democracy. Possible onjy where the area of the state is 

very small, — where the jpeople of the state can 
all meet and deliberate together to make laws. This 
type of democracy existed in all the Greek city-states. 
It must be remembere(i that in these oity-states, only 
tlie citizens were allowed to take part in the proceed- 
ings of the Legislative Assembly. Not all the inhabit- 
ants were citizens. The citizens were often in a 
minority of one to two; the majority was made up of 
slaves. The direct deimocracy of the ancient Greeks 
was possible only because the manual work in the state 
was done by slaves. In modem democracy the very 
•class which was exdluded in Greece — the workers — ^is the 
most important. Greek democracy was a democracy in 
relation to the citizeps in the state, but it was a very 
close aristocracy in relation to the totafl population in 
the state. 


Modern Dejnocracy is indirect or representative. Ib 
modern large nation states it is pkysically impossible 
for all the citizens to meet together and de- 
indirect or liberate. Even if it, were possible, the work 
•tlwo^Demo- o^ legislation wonld be so great that the ordi- 
cracy. nary industrial and commercial life of the 

country could not b& carried on. Modern 
democracy,- therefore, rests on the principle of repres- 
entation. Instead of everybody attending^ tlie Legis- 
lative Assembly the people elect representatives by vote. 
These representatives attend the Legislative Assembly 
and act on behalf of the citizens. If the citizens are 
not satisfied with their representatives they may reject 
them in the next elections. This system of representat- 
ive democracy combines the principle of aristocracy — 
in the sense of the rule of tlhose best qualified to rule — ■ 
with that of democracy. 

Representation is only an approximate way of ex- 
pressing the will of the people. As yet no perfect 
system of representation has been found. Tie 
Dangers of chief defects of democracy are due to the fact 
Democracy. *^^^ "P *^ ^^^ present time, it has been found 
impossible to make a perfect organisation for 
democracy. In theory democracy is the best form of 
government. It is the government of the people as 
distincli from the^ government of an individual or of a 
class of people. It mates all the citizens interested in 
their country by giving tliem a voice in legislation. It 
educates and ennobles the individual citizen: it gives 
each a sense of personal responsibility which gives a new 
meaning tg.his personality. 

Another virtue of democracy is that it is less liable 
to resolution than other forms of government. Popular 
government is government by common consent. From 
its very nature, therefore, it is not likely to^be revolut- 
ionary. On the other hajid there is always the danger 
in democracy that it may develop into what Aristotle 


regarded as the perversion of democracy, namely, mob 
rule or ochlocracy. The Greek writers continually 
bring before us the danger of demagogues and this 
da-nger is as marked in modern democracy as it was in 
ancient democracy. , The word demagogue literally 
means a leader of the people: actually it means one 
who tries to stir up popular passion against either the 
government or the higher social classes. 

The greatest of aJl the dangers of Democracy is, as 
Plato pointed out, that it may be the rule of ignorance. 
Democracy, it is often said, pays attention to 
Rule of qtiemDity amd not to quality. The business of 
ignoranoe. government is highly technical. It re- 
quires expert administrators, and expert legisla,t- 
ors. Jfot everyone can be a profound thinker 
on, government matters, but every citizen should 
acq,\iaint himself with current problems so as to pass 
an intelligent opinion on them. The danger of demo- 
cracy is that the citizens may not be sufficiently educated 
to appreciate the meaning of the issues which come 
before them at elections. They may be misled either 
by demagogues or by class passions. Great responsibility 
is thrown on them at every election, for upon the type of 
representatives they choose will depend the future course 
of legislation. The popular vote must be given to the 
best men. Both in Britain and in America it would be 
possilble to show that the best thinkers of their^ time, 
if indeed they wished to be elected io the Legislative 
Assembly, could have been elected. In modern demo- 
cracies, on the whole, the popular vote has proved a 
good selective agency. The modem "demos " has not 
proved so lacking in iudfirment as many of the opponents 
of democracy would have us believe. 

The only certain antidote to demagogy is the snund 
education of the masses: in f act the ba«k-bonei of_ all 
democracies is sound education. Where each indivi-, 
dual has a voice in government, he should be instructed 


in public matters to marke his voice intelligent. In 
modem democracy the necessity of a sound eduoationail 
system as a rulei has been recog-nised. Democracy is 
the result of popular education, and soiunfl popular edu- 
cation is the chief need of democracy. 

4. Cabinet oe Responsible Ooveenment and 
Peesidential oe Non-Responsible Goveknmeni. 

It is necessary to give a little more attention to the 
above types of government because either they are, or 
they are tending to become the prevailing types of 
government at the present day. The Cabinet system of 
government owes itsi origin to Great Britain, and the 
present system of government in Great Britain is the 
best existing example of Cabinet government. The 
government of the ITnited Stattee provides the, best 
example of Presidential or non-responsible governif/4nt. 
The Great War has tested both these systems of govern- 
ments and enables us to pass certain definite judgments 
upon them. 

In the English system the Cabinet is the head of the 
executive aS well as the directing power in the legisla- 
ture. The Cabinet is chosen from the political 
cabinet party which commands the majority in the 
ineirit'^?n House of Commons., The head of the Cabinet, 
Kingdom!"' ^^® Prime Minister, is appoints i by the ting 
and after his appointment he selects his 
ministers who also are technically appointed by 
the king. The Cabinet is representative of both the 
House of Lords and the House of Commons, but is 
responsible only to the House of Commons. As a rule 
it incltides the heads of the great executive departWaents 
of the government. Indirectly it may be said that the 
Cabinet is chosen by the House of Commons for. although 
the Prime Minister can exercise his own will in the 
matter of choice, he is bound to select the ■ chief men 
of the political party in power. The Cabinet is jointly 


responsible to the House of Commons for tile action of 
its individual members and in the case of defeat by the 
House, the Cabinet must resign. The Cabinet, more- 
over, has the power, through Ihe Prime Minister, to 
advise the king to dissolve the House of Commons. 
Although the Cabinet is but a committee of the legisla- 
ture, it really is master of the legislature. 

The Cabinet system /in .Great Britain is a direct con- 
tradiction of the theory of the separation of powers of 
w^hich we shall speak later. The theory of the American 
constitution is that the legislative, executive and the 
judicial branches of government should be independent 
of each other, but in the English constitution, both the 
legislative and the executive control lies in the Cabinet. 
The Cabinet links together the executive and the legisla- 
ture. In theory the king is the head of the executive, 
but in actual practice the king is not responsible for 
ihe acts of his ministers. The Cabinet also is a per- 
manent linik between the people as a whole, and the 
legislature. In virtue of its power to recommend a 
disisolution of Parliament, it helps to preserve harmony 
between the will of the people and the legislature. 
Further, during the War, by the Defence- of the Realm 
Act, the Cabinet was able to interfere- with the ordinary 
Tights of the citizens as enjoyed in peace tSme. Durirg 
the war the Cabinet was able to circainvent the funda- 
mental fact of English liberty, namely, the rule of law. 
This action was necessary in order to sttengthen the 
executive, as a strong executive is essential for the con- 
duct of war. 

According to the American Oonsifcitution, the President 

of the United States is the independent executive head. 

The founders of the constitution recognised 

'c'overnment *hat ^^ essential of good government is a 

u \tM vigorous head of the executive. To make the 

states. executive independent from interference, the 

Americans adopted the theory of the separation 


of powers. Tkey established an independent legis- 
laiiure, an independent executive and an independent 
judiciary. The President is head of the American execut- 
ive- He is elected for four years and, according to the 
custom oil America, cannot be elected more than twice. His 
powers are definitely limited by the constitution. Some 
of his executive, authority he holds in conjunction with 
the Senate : the greater part of his authority he exercises 
by himself. He appoints his own ministers and can re- 
move them. His ministers are not members of the legis- 
lature nor are he and his ministers responsible to the 
legislature for their acts. The limits on -the power of 
the President arei: (a) the limits laid down in the Con- 
stitution; (b) tihe. limits laid down by the statute law of 
the land (if the President or any of bis ministers exceed 
their legal authority tbeir acts will be nullified by the 
courts) ; and (c) the political limits. The President is 
elected by the people. He is the nominee of a political 
party and as such to a certain extent must try to pleasfe 
the party, but as no President may bei re-elected more 
than once the political liipit is only temporarily efi'ective. 

In time of peace Cabinet government has several 
advantages. In the first place, it' secures men 
c It! a i on °^ outstanding ability as leaders in the legislar 
"ture and in the executive. In modern demo- 
cracies it is difficult for men without ability to rise to 
Cabinet rank. The Prime Minister especially must have 
qualities wbich mark him out above his fellow-msn. 
Not only is the Prime Minister itesponsible for the 
making and the execution of the laws, but he is also 
the leader of bis own party. ' As a leader of his own 
party his policy very largely is the policy of the party. 
The Prime Minister must therefore be a man of comm- 
anding personality; and it is to bis advantage to have 
round hiin the ablest men we can find. 

In the second place, the Cabinet system'^of Great Britain 
is educative. The party system, on which it is founded. 


demands high organisation, and the duties of party 
organisations are to win elections. To win elections- 
means securing the voteS of the people, and, as each 
party is as keen as the other to win, the people have- 
always before them the various sides of the questions 
before the country. In America, too, the party system 
prevails, but in the Cabinet system of Great Britain the 
responsibility of the Cabinet to the House of Commons, 
or its ability to secure the majority of votes in the- 
House gives an additional zest to party politifcs In 
America the executive, once in office, cannot be tairned 
out by any party till his period of office is over. In 
Britain the Cabinet may be turned out of office by an 
adverse vote at any time. 

In the third place, tihe Cabinet, by virtue of its posi- 
tion as heaid of the executivie and as directing power in 
the legislature, is able to carry through measures which 
for executive reasons are necessary or advisable. In 
America Congress need not carry through a slng-le 
measure recommended by the President. 

In the fourth pla,oe, the Cabinet is continunasly res- 
ponsible for its executive actions. The members of the 
House of Commons by means of questions, motions, etc., 
exercise continual supervision over thiei executive 

In the fifth place, the debates in the House of Com- 
mons aire patry debates. 'They give both sides of the- 
question at issue, and, to avoid defeat, the Cabinet has 
to present as sound a case as possible before the House. 

The Great War has shown also that the Cabinet system 
18 flexible. It is well known that! in times of crisis, such 
as a great war, one directing head is better tlian many 
heads. The government in England was able to pdapt 
itself to the new^situaition created by the war by evolv- 
ing from within . itself a small body whose sp'ecial duty 
it was to conduct; the war. But the advantage 
of flexibility was more than discounted by the 


lack of unity which became apparent in England 
soon after the beginning of the War. Tln- 

■doubtedly the greatest defecti of Cabinet government is 
that it cannot at once adapt itself to meet grea.t emer- 
gencies, such as wars. For emergencies a dietiator is 
more useful than a council. On© bad- general, as 
.!Napoleon said, is better than two good ones. 

Presidential government is shown at its best in time 
of war. Once war was declared in America, President 
Wilson became a dictator. He was able to 
The Experi- direct all resources of the United States with- 
Great War, out any interference to one end. lU is true, 
particularly in the very early, stages of the 
War, that the Cabinet was ablfe to do very much the 
same for Great Britbdn, but as the War progressed, it 
became more and more necessary to concentrate the 
power of direction in the hands of fewer men. Through- 
out the whole War, the Cabinet in Great Britain was 
subject to the will of the House of Commons. If the 
House of Commons had so cared, it might have turned 
the Cabinet out of ofiSce at any critical period in the 
War. As a matter of fact, in the later stages of the 
War it' is well known that there were considerable dissen- 
sions in the Cabinet and in Parliament itseM. One 
Prime Minister had to resign, and several appoint- 
ments were mad© not for purely executive reasons, but 
from the desire to conciliate the party leadesrs 
in the House of Commons. While the Presid- 
ent of the "United States beiongs to a political party, 
"he is completely independent while he holds ofiBce. In 
war he is an autocrat. He dictates to Congress legis- 
lative measures necessary for the conduct of the war, 
and in the executive conduct of the war he can carry 
on ,hjs work without fear or favour. 

It may be said that a dictatorship of this kind is a 
■danger to public liberty. The liberty of the American 
■citizens was no more adversely affected during the War 


than the liberty of the British. In both Britain and 
America everything had to be subservient to success 
in the struggle, and the old ideas of individual liberty 
were complfetely submerged for this end. 

It is clear, then; that in times of war the presidential' 
is -the better system. Although both the Cabinet and 
the president are the result of party elections, yet the 
president is able to shake himself free from party ties 
more easily than the Cabinet. In Cabinet government, 
too, a great deal of time may be lost in useless dis- 
cussion. During the War a considerable part of the 
time and energy of those responsible for the conduct 
of the War, was taken up by meeting objections to- 
various points raised by members of the legislature. 
While discussion in times of peace is one of the benefits 
of Cabinet government, in time of war it is one of its 
greatest defeo]ts. 

Presidential government of the type existing in the- 
United States, although it is more beneficial in war, 
does not appear to be so beneficial in time of peace. 
Thus in the United States of America, the great presi- 
dents have been those men who have had to cope with 
national crises. The history of the United States has 
been marked bjr relatively few national crises, so that 
the good qualities of presidential government have not 
been frequently tested. In times of peace the presid- 
ent's general duties are to execute the laws as effi- 
ciently as possible. His executive work is largely done 
by his ministers, and if he is careful in his choice of 
ministers, the tenure of his office may be uneventful 
and easy. The only statesmanlike act which the presid- 
ent is called upon to do in normal times is to review 
the position of the country in his presidential messages 
to Congress. These messages may be or may not 
be acceptable to Congress. The president has no power 
to compel Congress to pass any law. The future of his 
messages is entirely at the mercy of the good' 


feeling of Congress. By tte party system in the United 
States, the president usually belongs to the same political 
party as the majority in Congress for the time being. 
But although the party organisation in the United 
States is the strongest in the world, the actual dividing 
lines between the pai-ties in matters of political opinion 
or proposed legislation are so indistinct that the party 
similarity of President and Congress is no guarantee 
that the president's views will prevail. 

To sum up, the English Cabinet syst)em compares 
favourably with the presidential system in times of 
peace, but unfavourably with it in times of war. 


1. Statement of the Tueokt. 

In every government there is a large number of activ- 
ities or functions, and these are usually placed in 
three distinct classes — legislative, executive 
Sns oV"**' ^^^ judicial. In India the division is effected 
menV" ^^ ^^® existence of legislative councils, 
executive councils and the courts, with the 
judicial services. The legislative function is concerned 
mainly with the making of laws, or the laying down of 
general rules to guide those within the state. The 
executive " executes " or carries out thesei general rules; 
the judicial decides how these rules apply in given cases. 

The classical statement of the Theory of the Separation 
of Powers is given by Montesquieu in the " Spirit of the 
Montes- Laws" (1748) i Montesquieu's statement occurs 
statement in his analysis of the Constitution of England. 
Theory The sttatement is : — 

of separa- " In every government there are three sorts 
Powers. of power: the legislative; the executive in 
respect to things dependent on the law of nations ; and the 
executive in regard to matters that depend on the civil law. 

By virtue of the first, the prince, or magistrate, enacts 
temporary or perpetual laws, and amends or abrogates 
those that have been already enacted. By the second, he 
makes peace or war, sends or receives embassies, estob- 
iishes the public security, and provides against invasions. 
By the third, he punishes criminals or determines the dis- 
putes that arise between individuals. The latter we shall 
call the judiciary power, and the other simply the 
executive power of the state. 



The political liberty of the subject is a tranquillity of 
mind arising from the opinion each person has of his- 
safety. In order to have this liberty, it is requisite thi& 
government be so constituted that one man be not afraid 
of another. 

When the legislative and executive powers aire united 
in the same person, or in the same body of magistrates, 
there can be no liberty, because apprehensions may arise, 
lest the same monarch or senate should enact tyrannical 
laws, to execute them in a, tyrannical manner. 

Again there is no liberty, if the judiciary power be not 
separated from the legislative and executive. Were it 
joined with the legislative, the life and liberty of the 
subject would be exposed to arbitriEury control, for the 
judge would then be the legislator. Were it joined to 
the executive power, the judge might behave with 
violence and oppression. 

There would be an end of every thing, were the same 
man, or the same body, whether of the nobles or of the 
people, to exercise those three powers, that of enacting 
laws, that of executing the public resolutions, and of try- 
ing the causes of individuals." 

Blackstone, the English jurist, in a much-quoted pas- 
salge, expresses the theory in these words: — " Whenevef 
Black- *^® right of making and enforcing the law is 
stone's vested in the .same man or one and the same 
statement, ^^^y pf men, there can be no public liberty. 
The magistrate may enact tyrannical laws and execute 
them- in a tyrannical manner since he is possessed, in 
his quality of dispenser of justice, with all the power 
which he as legislator thinks proper to give himself 

Were it (Ihe judicial power) joined with the legislative, 
the life, liberty, and property of the subject would be in 
the hands of arbitrary judges whose decisions would be 
regulated only by their opinions, and not by any funda- 
mental principles of law, which, though legislators may 


depart from, yet judges are bound to observe. Were it 
joined with tie executive, this union might be an over- 
balance of the legislative." 

Although Montesquieu's statement was made only in 
the 18th century, the existence of various " powers " 
Historitai ^^ recognised long before then. Aristotle, 
Divisions of Cicero, Polybius, and other writers of Greece 

"* *"* and iLome recognised various functions in gov- 
ernment. Aristotle (in PoUtics, IV, 14) divided tJnm thus — 

1. Deliberative. 

2. Magisterial. 

3. Judicial. 

The first, deliberative, he said, was concerned with such 
general questions as war and peace, treaties, law-making, 
finance, death-puniahment, exile and confiscation. Delib- 
eration was al'so concerned with general political 
questions. The scope of the deliberative function of gov- 
ernment was thus very wide, including more than ihe 
modern legislatitve function. Some modem writers use 
the term deliberative to denote a function of government 
which is not properly speaking the legislative, but the 
power behind the legislative power, i.e., public opinion, 
the press, etc. This is the thinking function, preliminary 
to legislation. Aristotle's magisterial function is roughly 
equivalent to the modem executive; the third is our 
modern judicial. 

Aristotle's division is a rough one and as such it re- 
presents' the actual practice of his time. In Greece there 
was no clear distinction between the "powers." The 
Assembly in Athens considered the laws (deliberative) and 
made the laws (legislative), and it also had wide execu- 
tive and judicial powersi. The archons were executive 
officers chiefly, but they were also judges. Likewise in 
Rome, there was no legislattive clearly demarcated from 
the judicial or executive, although there wa-s not so much 
concentration in one body as in Greece. The comitia ii* 


Rome was predominantly legislative, yet it did both 
executive and judicial work (e.g., it decided on death 
sentence appeals'). The magistrates were mainly execu- 
tive, but by their edicts they were legislators and they 
had also jurisdiction as judges. The Senate was both 
legislative (its resolutions bad the force of law) and 
executive. Polybius, the Greek historian of Home, gives 
the idea of separation when, in describing the constitution 
of Rome, he praises the balance of power between senate, 
consuls and tribunes. 

In the mediaeval world there was little distinction. The 
king was regarded as the maker of laws, the supreme 
executor of the laws and the supreme judge. This 
theory held also for subordinates of the king. In 
England, for example, the king was the final repository 
of justice. For purposes of administration he had to 
delegate powers, e.g., to the Lord High Chancellor who 
was technically the " keeper of the king's conscience " 
and as such the dispenser of equity in the king's name. 

Bodin in his work. The Republic, voiced the theory 
much in the same way as Montesquieu did later. He 
urged especially that judicial functions should be eiveii 
to independent judges. This in fact was an actual hist- 
orical tendency, for in France the king had, in part, 
given over the administration of justice to tribunals, re- 
serving powers of confirmation to himself. Bodin argued 
that if the king were both law-maker and judge then a 
cruel king might give cruel sentences. Justice, he said, 
and the prerogative of mercy should not be mixed up 
together. Later, in English history, the union of tlie 
powers was shown by the " suspending " and " dispens- 
ing" powers, whereby the arbitrary earlier Stuart mon- 
archs, in virtue of tbeir combining legislative, executive 
and judicial functions in themselves, could depart from 
law either in their own cases or in the cases of others. 
The reaction against this is seen iin the constitution of the 


Protectorate where the executive and legislative were 
separated. Locke, whose theories of government were 
meant to justify the Great Rebellion, divided the powers 
into legislative, executive, and federative. 

The division into legislative, executive, and judicial is 
The Modern ^°* universally accepted by modern writers. 
Division. Other powers that have been given are : — 

(a) The deliberative, as distinct from the legislative. 
The making of laws, however, really includes 
this, though it is a useful distinction to make 
m order to study the organisation of the in- 
tellectual and moral forces in a state. 

(6) The moderating power, or co-ordinating power. 

(c) The administrative power. 

(d) luspective power. 

(e) The representative power. 

Eluntschli divides the powers of government into legis- 
lative, administrative or governmental, and judicial, but 
to these he adds two other groups of functions or organs, 
each subordinate to the administration or govemnuent (a) 
superintendence and care of the elements of civilisation 
(in German, Staatscultur) ; (b) the admiilistration and 
care of material interests (the earlier sense of Political 
Economy). Eluntschli regards both these matters as not 
properly belonging to the administration; they are oiit- 
side government, and all that government can do in their 
case is to superintend and foster. The place of such 
additional functions depends on the more fundamental 
conception of the province of government. 

A modern American writer, Professor J. Q. Denley, 
divides the functions thus : — 

Professor (IV The executive, from which is differentia t- 

Dea ley's ,■_„ 

Classifle- ,J: S,i 1 ■ ■ ^- I.- 

ation. (2) The administrative, 

(3) The law-making department, from which 

should be distinguished. 


(4) The legal sovereign, 

(5) The judicial system, from which is Separating (in 

the United States), 

(6) A special court for the authoritative interpreta- 

tion of the written constitution ; and 

(7) The electorate, which is steadily increasing its 

powers at the expense of the three historic de- 
partments of government. 

Such a classification opens the way to almost endless 
subdivision, all of which may be useful for description, 
but it is not useful for general classification. 
There is no essential difference between the ordinary 
judicial system and constitutional judicial system; "Not, 
again, is there any reason why the classification should 
stop at the electorate. The electorate is in modern demo- 
cracy all important, but as an electorate it does not make 
laws. The pulpit, press and platform might be added. 
If the legal sovereign is separately mentioned, still more 
should the political sovereign be mentioned.' 

Some modem writers (mainly French) prefer a twofold, 
to a threefold division. They give a division into legis- 

Two- lative, and executive, regarding the judicial 
fold as a /part of the executive. The judicial power 

Division. __tjjg danger of the misuse of which first led 
political thinkers to distinguish functions at all — is thus 
regarded as essentially executive. TEe wnters who give 
this dual theory usually subdivide the executive into 
purely executive, administrative, and judicial. The 
purely executive consists in supervision and direction, 
Ihe administrative in the actual performance of the de- 
tails of the work, the judicial being the interpretation of 
the general laws and their application to individual cases. 
Continental theory and practice sharply distinguish also 
the judicial_ executive from the administrative executive. 
Tn ^this distinction the system of administrative law, by 
Tvhich public officers are subject to a separalo law and 


legal procedure from private individuals, is the deciding^ 

To regard the judicial function as part of the execu- 
tive is unsound. The reason for the union is that most 
legal decisions as a rule involve executive 
C'it^.ism action. A judge says whether a law applies 
Division. or how it applies to a given case, and action is 
taken accordingly. Law courts make orders, 
it is true, but that is not essential to the judi- 
cial function. In fact many judicial decisions do 
not involve execution. In certain spheres of legislation 
there is no execution, whereas in even ordinary cases 
actual execution (as between parties in a law suit) does 
not depend on the courts. Of course, there is a distinct 
connexion between the executive and the j^idicial : they 
cannot' be separated from each other absolutely. Nor 
for that matter can the legislative and executive or legis- 
lative and judicial. Judges make laiws by setting up 
precedents, and to refuse the distinction between legis- 
lative and judicial would be as logical as to ref usei that 
between executive and judicial. The Theory of the 
Separation of Posvere is not an absolute rule ; properly 
understood, it indicates! only general theoretical and prac- 
tical tendencies. 

The practical effect of the theory after its enunciation 
liy Montesquieu was very marked. Among the many 
doctrines of liberty which have influenced 
Eff*eV*of 'Me^'s minds this more than any other has 
Monte*. affected the actual working of government. 
ThMry. Concentration of power favours absolute mon- 
archy or despotism, and after the many blows 
dealt to monarchy in England in the seventeenth century 
and in France in the eighteenth century, it was natural 
that some practical theory of governn'ent should be pro- 
duced. The Social Contract of Locke was democratic 
enough, but it was a mere theory, and partially an 


unsound one. The separation of powers, however, was a 
practical issue of the most far-reaching importance. 
Montesquieu's doctrine becajue a political gospel, which 
here fruit in the reorganisation of government*; in France 
after the Revolution and in the United States after the 
War of Independence. 

Most of the leaders of opinion in America after the 
War of Independence favoured the theory. The indi- 
vidual state constitutions adhered to the piin- 
in Amenoa. ^-pj^ ^^ ^^^ ^^ possible. One of the most 

typical is the constitution of Massachussetts (1780), 
which declares that in the government of Massa- 
chussetts " the legislative department shall never 
exercise the executive and judicial powers, or either of 
them, the executive shall never exercise the legislative 
amd executive powers or either of them, to the end that 
there may be a government of laws and not of men." In 
France, too, the Declaration of Rights, at the time of the 
French Revolution, expressly accepted the theory, saying: 
that where there is no separation of powers there is no 
constitution. The actual scheme formulated as a result! 
was a legislature not dissolvable by the head of the 
executive; ex-officers could not sit in the legislative 
houses and judges were elected. The king had no initia- 
tive and a very limited vetn 

I- 2. — Criticism of the Theory. 

The greatest defect of the Theory of thei Separation of 
Powers is that, aa expressed by Montesquieu and Black- 
AbTOiute stone, it states as a universal theory what can 
atloifis °^^y ^6 partially realised in fact. The theory 
imposaibie. expresses some general tendencies, but there can 
be no rigid demarcation between th© so-called "powers." 
There may be distinction, but no rigid separation, between 
the powers- The estate is an organic unity, and just as 
the various parts of the body depend on each other sol the 
various parts of the state machinery are interrelated. A 


glance at the actual practice of governments will 
show this. It may also be noted, considering that 
England did not resort to an absolute separation of 
powers or of the departments, and that England was 
the example referred to by Montesquieu, that the French 
philosopher did not intend to advocate the entire dis- 
junction of the powers or departments as has been done 
by so many of his followers. As pointed out by 
Madison (in the Federalist) Montesquieu's meaning 
is this — that where the whole powers of one department 
are exercised by the same hands which possess the 
whole powers of another department, the fundamental 
principles of a free government are subverted. 

In the government of the United States, where the 
theory was consciously adopted, the legislature is not 
America absolutely sepairated from the executive. The 
an ' head of tie executive, the President, exercises 
Example. ^^^ considerable influence over the legislature 
(Congress). He has a partial veto over acts passed by 
tihe legislative bodies, and, although not himself a mem- 
ber of Congress, by his presidential messages he can 
influence the course of legislation. The Senate also has 
certain executive functions, e.g., ratification of trealiea 
and of certain appointments. 

The President, with the advice and consent of the 
senate, appoints the federal judges, and the federal courts 
have an enormous influence, on both the legislature and 
the executive. In a federal form of government the 
judicial branch of government occupies a unique place in 
relation to both the executive and legislature. The 
existence of the federal constitutional law colours every 
act of the legislature. Constitutional law being above 
ordinary law, the courts have to decide whether legislative! 
and executive aicts are vltra viiies, that is, within the legal 
powers of the l°gislature or not. The same is true of 
the judiciary and executive. In fact the all-pervading 


nature of the judicial element shows the complete impos- 
sibility of absolute separation. In the state govern- 
ments in the United States separation is more marked. 
In the states the system of separate election of the vari- 
ous legislative, eixecutive, and judicial officers of gov- 
ernment prevails; but even there the governors have as 
a rule a certain power of veto over the legislatures, and 
the system itself has proved far from satisfactory, 
particularly in the election of judges and subordinate 
executive officers. 

In the United States the whole system of party 
organisation, the most elaborate in the world, has grown 
up as ai protest against the rigid demarcation of powers 
insisted on by the folunders of the American Constitution. 
Where, as in America, there is no guarantee that the 
head of the esecutive and the majority of the- legisla- 
ture will be in general agreement, there is the possibi- 
lity of friction and deadlocks. The party system has 
grown up to ensure that the legislative houses and the 
president should be of the same political ideas, and thus 
secure harmonious working in the government 'machine. 

The British Constitution is the best example' of the non- 
applicability of the theory. The Lord ChanceU- 

••••i B 'f h °^' ^^° ^^ ^* once a member of the 
Contiitu- Cabinet, of the House of Lords, and the head of 
*'«"»• the J|Udiciary, is a standing refutation of the 

doctrine of separation of powers. This is all the more 
peculiar, beoaiuse Montesquieu greatly admired the 
British system. Instead of the executive and 
legislative being separate in Britain they are virtually 
one. Nominally, of course, the legislature (the King- 
in-Barliament) is distinct from the executive (the King 
and ministers), but as a matter of Fact the controlling 
force in both executive and legislative is the Cabinet. 
The Cabinet consists mainly of the heads of departmentis 
who carry on the actual executive work of government, 


aad, as a Cabinet, they guide the whole course of legis-i 
lation. The House of Lords, \^hich is the upper chamber 
of the legislature, is also a supreme court of appeal. 
Thus in Montesquieu's favourite type lies the negation of 
his theory. The union of powers in the Cabinet, ho\^ever. 
was noti so marked when Montesquieu wrote as it is now. 
Blackstone, as a jurist, did not recognise the Cabinet, 
which is an extra-legal organisaition. 

In France and Germajiy there is no thiough-going 
separation. In France, the President is elected by the 
In Fran e *^° houses of the legislature conyened 
and together. His ministers are very much like the 

Germany. English Cabinet, only as ministers they have a 
sepairate name (" Council of Ministers "), and have a 
slightly different organisation from their organisation a« 
a Cabinet. The members of the Cabinet are the represen- 
tatives of the majority in the popular house, and in 
practice they are the ministers of the President. The 
Cabinet is a political body, which controls the 
President: the Council of Ministers are his servants. 
Yet they are the same body. The President is head of 
the executive — in fact, the executive departments are 
created by his decree : yet no decree of the President 
holds good unless it is assented to or countersigned by 
the minister who is head of the department affected. 
The President has no veto over legislation, but 
he can demand reconsideration of a measure, and, with 
the consent of the Senate, he can dissolve the Chamber of 
Deputies. He has also considerable powers in matters of 
adjournment and in re-election. In the new Germany, 
the " powers " are combined as in France, except that 
the President has more power of interference in legisla- 
tion. In aiM Bespottsible governments, the executive is 
subject to the legislation, thus the ' powers ' are really 

In the prfe-War Germany, the Emperor was the head of 
the executive for the Empire ; but he was also King of 


Prussia and as such could influeiice the legislation of the ~ 
Empire in any way he pleased by means of his all-power- 
ful Prussian reipresentation in the Bunde&rath. The 
Bundesrath, too, had large administrative power^. As 
the federal organ it had the oversight of imperial ad- 
ministration. It had large powers of appointment, in- 
cluding the appointments to the chief Court or Eeiches- 
gericht. It was also a judicial body with extensive 

On the continent of Europe the prevalent system of 
administrative law is a contradiction of the Theory of 
Adminis- Separation. By this system government offi- 
trative cials, in respect to their official acts, are subject 
to a separate judicial process from ordinary citi- 
zens. They are judged by Administrative Courts which 
are composed partly of executive officials and partly of , 
judges. On the continent this system is regarded as 
essential to the liberty of the citizen. It may be noted 
that it is continued in the new German constitution, 
which was adopted by a very democratic National 

In no constitution in the world can there be absolute 
separation. The functions of modem governments act 
covernment and react on each other like the parts of a 
Organ!- delicately constmcted scientific instrument. A 
sation state is an organic unity, and any attempt to 

Organic break up the unity by a.bsolute separation of 
Unity, ^j^g parts must necessarily fail. Actual ex- 

perience Has shown that where the most thorough-going 
attempts at separation have been made, sores have broken 
out in the body politic. Where the constitution, as in 
the United States, is difficult to amend, extra legal or- 
ganisations have grown uv to remedy the sores. Liberty, 
moreover, does not depend on the mechanical separation 
of powers. Great Britain, where the organisation of 
srovemment is a complete negation of the theorv, 
Ts one of the freest countries in the world. The 


Unitied States, where the theory has been tried, 
Liberty ^^ ^^^° ^ "^^^J ^^^ country, which points 
has other to the fact that freedom depends on 
factors other than the separation of powers. 
Freedom depends on the spirit of people and their laws 
and institutions, not on the mechanism . of institutions 
themselves. In Britain, the rule of law secures free- 
dom; and America borrowed the legal principles of 
Britain. Both peoples are free in spirit, therefore their 
institutions are free; 

Again, as John Stuart Mill points out in his. Repre- 
RP.ntative Gove'mment, if every department were rigidly 
Depart- cut ofE from every other department of go^ 
mentaiiem. ernment, one department would be so jealous 
of the other that it would try to defeat its objects. The^ 
result would be loss of e&ciency in the government. 
This argument would be particularly^ true where an ex- 
ecutive wajs opposed in political opinion to a legislature. 
Either consciously or unconsciously the executive would 
not carry out the laws of the countiy according to the 
spirit in which the laws were pabsed. 

The theory, further, may prove actuall;/ harmful in 
practice. Thus in tJie United States, the election of 
judges and executive officers ha? resulted in 
may even'^'' much evil, and these elections were jneant pri- 
harmfui. iiiai'ily to secure the independence of the vari- 
ous branches of government. What bar, haip- 
pened is that the individual citizens have suffered in 
order to test a theory. The principle of separation may 
thiis be actually antagonistic to liberty. 

Further, each department at once exercises all three 
fimctions. Thus an executive officer has to .judge in every 
act he does whether such and such is legal or not. 
ion'of "* ' Likewise he may make many bye-laws. It is 
Funetions. impossible to out off any one function or any 
combination of the functions from the other or others. 


Again, t£e theory leads to the mistake of the equality 
of the poycers. Eeadly the departments are not equal, for 
^^^ the legislative is superior. It makes the frame- 

" Powers" work in which the machinery operates. The 
not Equal, expression of the will must come before the 
movement of the hand, or as Bluntschli says " as the 
whole is more than any of its parts of members, so the 
legislative power is superior to all the other particular 
powers." The supremacy of the, legislative is particul- 
arly confirmed by its power over the purse. By its 
control over finance it limits and controls the executive, 
however theoretically independent the executive may be. 

One point of separation which the theory demands has 
been adopted in the independence of the judiciary. How 
far the judiciary is actually independent will be dis- 
cussed later. 

The Theory of the Separation of Powersi thus indicates 
only general tendencies. It is not an absolute law, and 
experience proves that where it has been most 
conclusion, ^j^jj-oughly applied, it has not proved satis- 
factory. The cause of its existence, the liberty of the 
people, does not depend on the rigid division of powers, 
but upon other things. 



1. Theoeies of Representation. 

We bave seen that democracy is of two kinds, direct 
and indirect democracy. In direct democracy every 
citizen takes a direct part in making the laws 
"ndlreof"'' °^ *^® state; in indirect democracy the citizens 
Democracy, elect representatives to voice their opinions. 
Modern states are much larger in area than 
the old Greek city states, and it is a physical impos- 
sibility for all citizens to meet together to propose or 
discuss measures. Modem democracy rests on repre- 
sentation, the system by which citizens, instead of 
attending the law-making assembly themselves, elect 
others to act for them. 

In every modern state there is an electorate, the people 
who are qualified by the law of the state to elect mem- 
The bers of the legislative assembly. In modern 

Electorate, democracies there is considerable variation in 
electoral laws. In some states theoretically every adult 
has a vote ; in others many are disqualified from voting. 
The tendency of democracy is to widen the electorate. 
" One man, one vote " is a central maxim of democracy, 
and in the most advanced democracies women are 
allowed to vote on equal terms with men. 

During the last century and a half an enormous 
amount has been written on the theories of represent- 
ation. The exercise of the vote, or suffrage, 
RepresMi"-' ^^'^^ °"^ school, is an inherent right of every 
ation. citizen in a state. This theory owes its modern 

vogue to the theory of Rousseau that sovereigntv residps 
in the general will. This theory was held by many 


leaders of the French E^volution, who, however, did not 
put the theory into practice when they had the chance. 
The opposite school says that not every citizen should 
have the vote. Only those should vote who can under' 
^tand the questions on which they vote and thus are 
able to contribute something to the common welfare. 
Among well-known modem enemies of the theory of 
universal suffrage may be mentioned John Stuart Mill, 
Lecky, Sir Henry Maine, Professor Sidgwick, and 
Bluntschli. These writers are not enemies of demo- 
cracy ; they are enemies of a particular type of democracy 
or of particular tendencies in democracy. 

What we find in actual practice is a middle position. 
Those who hold that every citizen should have a vote 
must first define the word citizen. If the word means 
every able-bodied, sane, grown-up individual who can 
understand the elementary relations of things, and who 
by birth and loyalty belongs to the state in wbich he, 
or she, votes, then there would be little' to say against 
the theorj' of universal suffrage. But if the word citizen 
means merely residents in a particular territory without 
owning allegiance to the state in which they live, then 
modern practice is against the theory. In modern states 
not eveiy one is allowed to vote. Generally speaking 
only those who know, what they are voting about are 
allowed to exercise the suffrage. Thus children and 
lunatics are excluded. It is difficult to say, of course, 
when a person is grown up. Some are more intelligent 
than others ait an eai'lier age, but what we find is that 
for other purposes besides voting each government re- 
cognises an age of majority. Minors are not allowed to 
vote : similarly people of unsound mind, who cannot 
understand public questions, are universglly excluded. 


Jom Stuart Mill, in a well-known passage in 
bis Representative Government, voices the tteoiy 
^^ of the educational qualification thus: — "I 

Educational regard it is wholly inadmissible that 
atfon?*' ^7 person should participate in the suffrage 
John' without being able to read, write, and I will 

Mm^"^' ^^^) perform the common operations of arith- 
oMt**"*"' ^^^t^*^- Justice demands, even when the 
suffrage does not depend on. it, that the 
means of attaining these elementary acquiremeuts should 
be within the reach of every person, either gratuitously, 
or at an expense not exceeding what the poorest who 
earn their own living can afford. If this were really 
the case, people would no more think of giving -the 
suffrage to a man who could not read, than of giving it 
to a child who could not speak ; and it would not be 
society that would exclude him, but his own laziness. 
When society has not perfcrmed its duty, by rendering 
this amount of instruction accessible to all, there is some 
hardship in the case, but it is a hardship that ought to 
be borne. If society has neglected to discharge two 
sojlemn obligations, the more important and more 
fundamental of the two must be fulfilled first : universal 
teaching must precede universal enfranchisement. No 
one but those in whom an d priori theory has silenced 
common sense will maintain that power over others, over 
the whole community, should be imparted to people who 
bave not acquired the commonest and most essential re- 
quisites for taking care of themselves, for pursuing in- 
telligently their own interests, and those of the persons 
most nearly allied to them. This argument, doubtless, 
might be pressed fui^her, and made to prove much 
more. It would be eminently desirable that other 
things besides reading, writing, and arithmetic could be 
made necessary to the suffrage; that some knowledere of 
tbe conformation of the earth, its natural and political 
divisions, the elements of general history, and of the 


History and institutions of their own country, could be 
required from all electors. But these kinds of know- 
ledge, however indispensable to an intelligent use of tliu 
suffrage, are not, in this country, nor probably anj-where 
save in the Northern United States, accessible to the 
whole people; nor does there exist any trustworthy 
machinery foT ascertaining whether they have been 
acquired or not. ' The attempt, at present, would lead to 
partiality, chicanery, and every kind of fraud. It is 
better thait the sufFi-age should be confen-ed indiscrimin- 
ately, than that it should be given to one and withheld 
from another at the discretion of a public officer. In 
regard, however, to reading, writing, and calculating, 
there need be no difficulty. It would be easy to require 
from every one who presented himself for registry that 
he should, in the presence of the registi*ar, copy a sen- 
tence from an English book, and perform a sum in the 
■ rule of three ; and to secure, by fixed rules and complete 
publicity, the honest application of so very simple a test. 
This condition, therefore, should in all cases accompany 
universal suffrage, and it would, after a few years, ex- 
clude none but those who cared so little for the privi- 
lege, that their vote, if given, would not in general be 
an indication of any real political opinion." 

On other grounds batnkrupts and criminals of various 
kinds are excluded from the vote. The exclusion from 
owier *^® ^°*^ ^^ ^°^ ^ P^^ °^ their criminal sentence 

Excluded but the logical result of their acts. People 
Classes. ^-j^^ cannot be honest 'or who will not obey the 
criminals, j^ws of the land cannot be expected to contri- 
bute to the public welfare by their votes. 

In some states government servants are excluded from 
the vote — particularly soldiers on active service. The 
reason for exclusion in this case is that it is 
menT" not good either for the government or the 
servants, soldiers themselves that they should vote. 
Large bodies of men congregated together, servants of 


government, might unite to overcome the government; 
or the influence of electoral excitement might undermine 
the discipline so necessary in an army. 

In most states the government officials i-espoiisible for 
the conduct of the elections are debarred from the vote, 
fieotien Exclusion in their case is meant to make them 
Officials. fair minded and neutral. 

A very common qualification for the exercise of a vote 
is the property qualification. The theory underlying 
The the property qualification is that only those 

Qualffio^ ^^° "^"^ ^ certain amount of property maj 
ation. fairly be regarded as having a stake in the 

country. One aspect of this qualification is that only 
those who pay tases should be allowed to vote. John 
Stuart Mill, in his Representative Government, 
holds this view. "It is important," h© says, " that the 
assembly which votes the taxes, either general or local, 
should be elected exclusively by those who pay something 
towards the taxes imposed. Those who pay no taxes, 
disposing by their votes of other people's money, have 
«very motive to bei lavish and none to economise as far as 
money matters are concerned, and acny power of voting 
possessed by them is a violation of the fundamental prin- 
ciple of free government, a severance of the power of 
control from the interest in its beneficial exercise." 

If it is true that only those who pay taxes should be 
electors, modern' democracy holds it equally true that 
Taxation there should he no taxation without represen- 
Rlpretenta- Nation. If an individual pays taxes, it is now 
tion. recognised that he hais a right to have a voice 

in legislation. It will be remembered that this prin- 
ciple was at the basis of the 'American War* of Independ- 

In modern democracies tKe control of national finance 
lies usually in the' lower house of the legislature, i.e., 
thle house which is elected directly by the people. In 
Britain, for example, the Hnuse of Lords has no voice 


in the annual Budget, so Uiat in a sense, although the 
Lords compose a legislative chamber by themseh-es, 
they really are unrepresented in financial matters. 

Another test, which is now rapidly disappearing', is 
sex. Only in recent years have women been allowed to 
Sox vote. Female suffrage is discussed later in 

It'o'ii?"" this chapter. 

The actual practice of modern governments will be 
seen in the analysis given in later chapters of the con- 
wtadern stitutions of these countries. The actual 
Praotioe. Jaws prevailing may be shortly summarised 
here : — ' 

1. In the United Kingdom, till 1918, the laws# govern- 
ing the suffrage used to be exceedingly complex. So 
complex were they that no one save those whose 
In the special duty it is to know pretended to know 

Krngdom. their detailsi. In England, by the Representation 
of the People Act of 1918, there is an approxima- 
tion to universal manhood ^suffrage ; and in, 1918 a 
limited system of female suffrage was also introduced. 
Those excluded from the vote by law under the old 
system were Peers (except Irish Peers'), election 
agents, canvassers, returning officers (except in 
case of a tie), felons, aliens aJid certain pau- 
pers, domestic servants, bachelors living with their parents 
or occupying no premises of their own, and persons 
changing their abode frequently. Several of these were 
excluded because of historical reasons, and others by 
accident. There was no single electoral law in England. 
The result of the sum total of the laws bearing on the 
suffrage was the exclusion of several of the above classes 
of people. Except those usually excluded by all coun- 
tries (aliens, felons, convicts, etc), there was no 
general theory in the British system whereby domestic 
servants and bachelors living with their parents should be 
excluded. What happened was that they were not 
included in the various laws pa^ssed. 


Every voter must be regiatered. In ail countries 
Voters' registers are kept in wtich. the lists of voters are 
periodically revised. 

2. In Framce, universal manhood sufErage exists. Save 
for lunatics, convicts, etc., and men on active military 
France. or naval service. 

3. In the late German Empire, there was a near ap- 
proach to manhood siuffrage. The age limit was twenty- 
cermany ^^^' ^°^' ^^ ^^ England and the United States, 

twenty-one. In the individual states of Ger- 
many there was no unity of system. The most notable 
of all the systems was the three-class Prussian system. 
One-third of the electors for the popular assembly 
(Landtag) were chosen from the three classes arranged 
according to the amount of taxation paid. In this way 
the richer classes had a much greater representation 
than the poorer. According to the new German Con- 
stdttution all Germans, male and female, over twenty 
years of age have a vote. 

4. In the United States there is great variation of 
detail among the individual states. Some hatve a pro- 
perty qualification, some have not. Some 

sta'te""''*" iDipose an educational test, some not. In some 
states only males are allowed to vot? ; in others 
both males and females may vote. In the United States, 
too, where there is a large immigrant population the 
rules of citizenship as qualifying for a vote vary. In 
some states, definite naturalization must take place; in 
others residence for a minimum period, and in others 
a declaration of intention to become a naituralised citizen 
of the United States is necessary. 

5. In India the electorate for the Provincial legisla- 
tures has been considerably widened by the Government 

of India Act of 1919. Generally speaking, every 
" "■ person is entitled to have his name registered 
on the electoral roll of a constituency who has the quali- 
fications prescribed for an elector of that constituency. 


and who is not subject to any of the following disquali- 
fications, viz. : — (a) is not a British subject, (6) is a 
female, (c) has been adjudged by a competent court 
to be of unsound mind, or (d) is under 21 years of age. 
The qualifications of an elector for a general constituency 
are generally based on — (a) community, (b) residence, 
and (c) occupation of a building, or payment of muni- 
cipal or cantonment taxes, or rural rates or cesses, or 
payment of income-tax or the holding of land, or the 
receipt of a military pension. 

2. Electoeal Districts. 

In order to elect members of a legislature in a 
modern state it is necessary to subdivide the country 

into electoral areas. Theoretically there is no 
of"Areas'''" ^^^^on why all representatives should not be 

chosen from the country at large, but inl prac- 
tice, except when states are very small, it has been found 
difficult for electjors to have sufficient knowledge about the 
candidaites in a large area to vote intelligently for them. 
Modem states, -thereforte, are usually! isubdivided into 
areas for electoral purposes. TJ'hese areas are fixed as a 
rule according to numbers, but it may happen that dis- 
trict limits fixed for other purposes, such as local or 
municipa.1 government, may be adopted as electoral 
areas. These areas should be as equal in population as 
possible. With modern industrial and commercial condi- 
tions population changes very quickly, and it is often 
found that where originally electoral districts were equal 
in number, now, owing perhaps to the rise of a nfew 
industry in a hitherto agricultural area, or to the decay 
of an industry In a hitherto industrial area, that the 
population has completely changed. In almost every 
state there aire esample® of this, which leads to 
very glaring discrepancy between the numbieir of 
elector^ and number' of representiatives. For electoral 
areas, therefore, frequieint revision is necessary. This 


is called Eedistiibution of Seats. By redistribution 
seats may be abolished in one area and -added 
in another area. In countries with a rapidly 
growing popul3,tion periodical revision is very necessary. 
This revision may not only necessitate redistribution of 
seats but an actual increase in the number of representa- 
tives, unless a new basis of numbers is adopted. 

In most countries every ten years a Census is taken, 
and the best way to decide distribution is to follow the 
Census. This is done in the United States, 
as*Basis!"* ^^^re the basis of representation according to 
numbers shifts from census to census. Thus 
after the census of 1910 there was one representative to 
about every 210,400 inhabitants. In Great Britain 
periodic Redistribution Bills are passed (the last was 
passed in 1918) by which the inequalities resulting from 
changes in the population are rectified as far as possible. 

In the .actual making of electoral districts there are 
two leading methods. One is to subdivide the total area 
Methods Of into as many districts as there are representa- 
Ei'otorai tives to be chosen, one membfer to be chosen 
Areas. from each. The other is to make a. smaller 

D^frfot number of areas from ea6h of which several 
General members are chosen, the number from eacK 
Ticket. being proportionate to the size of the district 

as compared with the total number of members to be 
chosen. The firs* of theis© methods is known as the 
single district system, or, in French, the scrvtin d^arrond- 
issement (voting by arrondissement, or district). The 
other is the general, ticket method, or, in French, the 
scrutin de liste (list voting). 

In actual practice most states favour the single distiict 
method, although in many both systems have been^ tried 
at various times. In Great Britain the single district 
plan is the general rule, though some larger constituen- 
cies return more than one member. In France the 
single district was adopted for the Chamber of Deputies 


at first, but in 1886 it was aibolished for the general ticket 
metho'd, which in 1889 was abolished in favour of the 
single district plan formerly in vogue. In 1919 the 
scrutin de liste, with proportional representation, was 
again adopted. In Italy the general ticket plan was 
adopted in favour of the single district system in 1891, 
and, in 1919, proportional representation was in- 
troduced, as in France. Where proportional re^ 
presentation has been adopted, the general ticket method 
necessiairily prevails. In municipal and local govern- 
ment elections the greatest variety prevails. Often 
where the single district method is adopted for central 
government the general ticket method is adopted for 
local government, and vice versa. 

The advantages of the single district plan arei several. 
In addition to performing his duties as a legislator for 

the whole state, the member chosen also 
of" "tho"^" knows the particular neieds of his district, and 
Si."*'? brings these before the central government. 

In all systems of government, however great 
may be the decentralisation, the sanction of the central 
government is necessary for many types of work. Thus 
in Greait Britain #e Local Govemme^nt Board possesses 
large powers of sanction in many matters, and district 
members are useful in he]|ping to secure the necessary 
salnction. N"ot only so, but often for local purposes sanc- 
tion is necessary from Parliament itself.. Bills of this 
type are usually non-contentious, but the local member 
must guide them through the House of Commons. 

Another advantage of the district method is that the 
member is known to his constituents : often the mem- 
ber is either a native of the area or has lived in the 
area for a considerable period. In this way the electors 
come to know their member, a fact which in Great 
Britain especially is important because re-election of the 
sitting member is common. 


Another advantage of the, district method is that it 
eecurea a reasonable balance of interests, especially 
where there is strong party organisation. Where the 
general ticket method prfevails, the stronger party ran 
secure all the seats, but in the single district minorities 
have a chance of representation. Agricultural areas, 
for example, may secure representation, whereas in the 
general ticket plan it may easily happen that, in highly 
industrialised countries, the town interests will always 
outvote the rural interests. The district method thus 
secures variety in representation, and as such is a better 
method of representing the will of the people than the 
general ticket method. 

Another advantage of the single district plan is 
simplicity of organisation and ease in counting votes. 

The disadvantages of the single district plan are, 
firstly, tEe fabt that ' population changes rapidly and 
that the basis of representation may become 
fagesoMhe unjust. This can be remedied by frequent re- 
Method* ■vision of areas. This defect applies equally to 
the general ticket method. Secondly, it is often 
said that election by single districts leads to particularism 
views in politics. To secure votes members tend to look 
after local interests more than general interests. This, 
however, is more an academic than a real argument, as 
local interests tend more and more to become matters for 
local bodies, and members of the central legislature are 
judged by the electors according to the opinions the 
members hold on matters of general policy. It is true 
that members do look after local interests, but in modem 
governmental orgaftiisation, this, far from being a defect, 
is a positive advantage of the district plan. 
Thirdly, the single district plan, it is said, restricts 
the choice of the electors, with consequent lossi of man- 
power in the legislative assembly. Here, again, facts 
prove the argument fallacious. Most electoral areas 
may cEoose their candidates as they wish. Where, as 


in some municipal elections, tlie candidates must reside 
in their electoral areas or wards, it is true that a mora 
general method of election m.ay secure better men, 
but in central politics electors, as in Britain, may choose 
any one they please.. Often, it is true, the member is a. 
native of or resident in the electoral area, but in that 
case, he is usually one of the most prominent inhabit- 
ants. But frequently it happens that non-naitives or 
non-residents are elected. In modern democracies, 
where eveiy man and woman is educated, it is not easy 
for second-rate men or women to be elected.. The 
normal civic sense of the people is strong enough to pJ'e- 
vent inferior men even from contesting elections. 

The single district plan has proved a fairly 
satisfactory basis of election. That it has drawbacks ia 
obvious, but all /plans of representation have 
drawbacks. The single district method requires 
careful control and management, especially in periodical 
revision, to preserve the balance of num biers. Oh the 
whole it is the most favoured electoral method for central 
government at the moment, though the general ticket 
plan, with proportional representation, is malting rapid 
headway against it. In local government a combinatiion' 
of the single district and general ticket methods seems to 
be most satisfactory. 

In all_ democraitic elections the principle of the ballot, 

or secret voting, has come to be reeognisied. The ballot, 

not ^°^ ^^ principle and procedure, may best be 

- "explained bv the following extriafct from the 

English Ballot Act of 1872 : — 

"In case of a poll at an election the votes shall be 
given by ballot. The ballot of each voter shall consigi 
of a paiper, showing the names and description of the 
candidates. Each ballot paper shall have a number 
printed on the back, and shall have attached a counter- 
foil with the same number printed on the face. At the 
time of voting, the ballot paper shall be marked on both 


sides with an official mark, and delivered to tlie voter: 
within the polling station, and the number of such voter 
on the register of voters shall be marked on the counter- 
foil, and the voter Ij^ving secretly marked his vote on the- 
paper, and folded it up so as to conceal his vote, sha:ll 
place it in a closed box in- the presence of the offi('er 
presiding at the polling station. . . . 

After the close of the poll the ballot boxes shall be- 
sealed up, so as to iprevent th© introduction of additional 
ballot papers, and shall be taken charge of by the re- 
turning officer, and that officer shall, in the presence of 
such agent, if any, 6f the candidates as may be in at- 
tendance, open the ballot boxes and ascertain the result 
of the poll by counting the votes given to each caindi-- 
date, and shall forthwith declare to be elected the candi- 
dates or candidate, to whom the majority of votes have 
been given." 

3. Methods of Voting and Problems of Suffrage. 

In all systems of election, the candidate chosen is the- 
one who receives the majority of the votes cast. But it is 
clear that if A. B. C. and X. T. Z., two candi- 
Minority dates for a legislative assembly who rejpresent 
atlon?**" opposed political ideas, receive respectively 
5,000 and 4,999 votes, the 4,999 voters will not. 
be represented as they wish. A. Bi C. is elected by a 
majority of one, but he cannot be said to represent all the 
voters in his constituency. 

Many /politidal thinkers hold that no true democracy 
can exist where mere majority election of this type pre- 
vails. Lecky and John Stuart Mill, in parti- 
john Stuart cular, are strong advocates of minority repres- 
StateiYiBnt. entation. -Mil in his Be.presen^atvve Gov-- 
ernment devotes considerable attention to this 
aspect of the representative system. " A completely equal 
democracy," he says, " in a nation in which a single class 
composes the numerical majority, cannot be divested of 


certain evils ; but those evils are greatly aggravated' by 
the faeti that the democracies which at present exist are 
.not equal, but systematically une(iual in favour of the 
predominant class. Two very different ideas are usual- 
ly confounded under the name democracy. The pure 
idea of democracy, according- to its definition, is the 
government of the whole people by the whole /people, 
equally represented. Democracy, as commonly conr 
ceived and hitherto practised, is the government of the 
whole people by. ai mere majority of the people, exclu- 
■sively represented; The former is synonymous with the 
equality of all citizens ; but strangely confounded with 
"it is a government of privilege, in favour of the numeri- 
cal majority, who alone possess practically any voice in 
the state.. This is the inevitable consequence of the man- 
ner in which the votes are now taken, to the complete 
disfranchisement of minorities," and, after saying that 
the majority will prevail in a representative body actu- 
ally deliberating, he goes on to say : " But does it follow 
that the minority should ha;ve no representatives, at all? 
Because the majority ought to ..prevail over the minority, 
must the majority halve all votes^ the minority none? 
Ts it necessary that the minority should not even be 
heard? Nothing but habit and old association can re- 
concile any reasonable being to the needless injustice. 
In a really equal democracy, every or any section would 
1)6 represented, not disproportionately, but proportion- 
ately. A majority of the electors would always have a 
"majority of the representatives; bui a minority of the 
fllectors would always have a minority of the represen- 
"tatives. Man for man they would be as fully represent- 
«d as the majority. Unless they are, there isl not equal 
erovemment, but a government of inequality and privi- 
'lege : one part of the people rules over the rest : therei is a 
part whose fair and equal share of influence in the repre- 
sentation is withheld from them, contrary to a)ll just 
^government, but, above all,contfaTy to the principle of 


democracy, which professes equality as its very root and 

Many expedients have been suggested for the repre- 
sentation of minorities. Of these most important is 
Methods of P^^oportional representation. The aim of 
Minority proportioneil representation is to give every 
atlon!**"* division of opinion among the electors cor- 
proport- responding repiresenfeition in national or local 
Represent- assemblies. A distinction is sometimes drawn 
ation. between proportional representation and 

minority representation. Minority representation gives 
representation of some kind to minorities whereas 
proportional representation gives representation in 
proportion to voting strength. 

The scheme most commonly connected with proportion- 
al representation is called the Hare or Andrse system. 
The Hare This system was first proposed by an English- 
system, man named Thomas Hare in 18-51, in a book 
called the Election of Represeritatives. It was strongly 
supported by John Stuart Mill (in his Ee.presentat9me 
Q ov eminent) , by Lord Avebury, Lecky, and Lord Court- 
ney. It was introduced into Denmark in 1855 by 

There are many variations of the Hare system, but 
they aill have the same underlying principle. The 
scheme is also known as the preferential system, or trans- 
ferable vote System* The basis of it is that each elec- 
toral district or constituency should have ai minimum of 
three seats. No maximum, is necessary. Lord 
Courtney suggested a fifteen-membered constituency a.s 
a reasonable limit. In Belgium th© largest constituency 
returns twenty-two members. The candi^a,tes stand on 
the "general ticket" (or, in French, the scrutip, 
3.e liste). The elector may vote for only one 
candidate, or for a limited number, and on the 
T)allot paper he may write also 1, 2, 3, or more, indi- 
cating his first choice, second choice, and so on. To 


secure election the candid ate need only have a certain 
number of votes. The number is fixed by dividing the- 
total number of votes cast by the number of seats 
vacant. This number (known as the "quota ") secures 
election as soon as a candidate reaches it. At the 
first count of votes, only first choices are taien into 
account. As soon as a candidate receives a sufficient 
number of first choices to give him the " quota " neces- 
sary for election, he receives no more votes. The surplus 
votes "which otherwise would have gone to him are 
given to the second choices, If these second choices do 
not bring ujp the necessary number of candidates to the 
electoral quota, then the third choices are counted, and 
so on till all the seats are filled. 

This system has been introduced not only in Denmark 
(where it was modified, in 1901, for the list 
system), but in Tasmania and in municipal elec- 
tions in Ireland. During the last two years 
proportional representation has made rapid progress. 
In 1920 it was introduced in Winnipeg, Canada, for 
provincial elections, and in New South Wales in> Australia. 
It has been adopted in Malta, and it is used, for certaiit 
constituencies in India. Itl has also been introduced in 
both Holland and Germany. 

A variety of the same system prevails in Belgium,- 
Sweden, some Swiss Cantons and Finland. The systems of 
these countries are known as List systems. The 
system! candidates are nominated by i3^& various 
political partiies or groups of electors. 
According to the list system, candidates are group- 
ed in lists, and all votes given to individual candidate*^ 
on the list are counted first as votes for the list itself. Each 
voter may cast as many votes as there are seats vacant, 
but he cannot give more than one vote for one candi- 
date. The number of votes necessary for election is, as^ 


in the Hare system, decided by the total number of 
Totes cast by each party and is then divided by the elec- 
toral quotai, which gives the number of seats to which 
-each party is entitled. If there is any deficiency, it is 
made up by the parties which have the largest frac- 
tional quotas. 

In spite of the evident reasonableness of tlie 
principle of proportional representation it has not found 
AKument i^i^^iversal favour. It waa proposed in the 
for and drajft of the South African constitution, but 
1»ro'port. ultimately given up. It was proposed and re- 
{•na^^^^j^ Jected in England in 1918. The chief 
tion. diiBculty of proportional represeniiatinn is 

itg complexity. Where constituencies have a 
large number of seats the minds of electors may become 
confused. Thus in Belgium the largest constituency 
has twenty-two members, and electors find it difficult 
to sort out their various choices. The process of count- 
ing is also very difficult. The practical difficulties of 
ihe scheme have hitherto prevented its wide adoptaon. 
Recently proportional representation has been strongly 
•supported as a means of countering the claims of small 
minorities, such as Trade-Unions!, to control Government. 
\By proportional representation such minorities would be 
placed in their proper perspective in the voting strength 
of the countffy. At present thiey claim to represent the 
whole of one class of men and women ; whereas actually 
they represent perhaps even a minority of that class. 
Proportional representation over a whole country would 
make the results of electSonsi correspond more closely witb 
the actual public opinion of the time. 

Some writers point out tbat minority representation of 
this kind tends to produce a type of " minority thinkiiig; " 
resulting in class prejudice and class legislation. Not only 
-so, but it argued that by such schemies, the ablest men 
in the country are excluded by those who pander 
to a partiicular class. It may also be mentioned that 


the supporters of tlie Hare scheme argue that it makes- 
more room for able men, insomuch as though party 
supporters give their first choice votes to their own can- 
didates, tihey give their second cho'ices to the best men 
of other parties. 

The chief argument against minority representation in 
general is thait by dividing* up political opinion it encour- 
siges sectarianism in politics at the expense of the general 
v^elfare. Ultimately minorities have only one right — the 
right to convert themselves into majorities. If^ tfceir 
•opinions are acceptable to others as ^yell as to themselves 
they may be able to convert these opinions into actual 
law. It, however, minorities were represented there wouid 
be no end to subdivisions in society. Further, sometimes 
an opinion is unfitted for the times in which it is voiced, 
but it may be adopted under other conditions. It might 
also happen tihat any set of what is known as," cranks," 
people who hold very peculiar opinions, might demand 
representation. Government by discussion depends on 
the power to convince. 

Several other methods of voting have found favour for 
the representation of minorities. The Limited Vot« 
• system provides a method of sjecuring minority, 
Limfted but not proportional, representaition. The limit- 
sysfem. ^^ ^^te system requires a constituency of at least 
three members. The voter in the district is 
alldwed a smaller number of votes than there are seats, 
and he may not give more than one vote tb any one candi- 
date. Thus, if there were five seats' the voter may only be 
allowed three votes, the minority thus having a reason- 
able chance of getting two seats. The objection to this 
is that in practice it secures representation only for 
fairly large minorities, and that it is unsuitable for, a 
party system where there are three or more parties. 
This method has been used at various times by Great 
Britain, Italy and Jaipan for- elections to the lower 
houses, but it no longer prevails. In Portugal it is still 


in vogue for all elections to parliament, and, for special 
purposes, injltaly (in local govemmeint), in Spain (fortha- 
election of depnties where there are more than two seats 
in the constituency), and in Brazil (in local government 
and in national government, in constituencies with three- 
to five seats). 

Other methods that may be mentioned are, substitute 
voting, by which cai\didates may cast surplus votes, that 

is, votes over and above what is necessary for 
votinB!"*' election (the electoral quota), and insufficient 
votfng votes, those under the electoral quota, and thus 

fill up the places not filled by the vQting of the 
electors; and proxy voting, by which a representative 
may past as many votles as he receives multiples of the 
electoral quota. 

The cumulative vote system allows each elector to - 
have as many votes as there are seats vacant, and to 

cast his votes as he wishes. Thns if there are 
Cumulative five representatives, he may give all his fiv« 
System. votes to one member, or four to one and one 

another, -and so on. This system, known popul- 
ariy also as " plumping " when all votes are given to one- 
candidate, is successful in giving representation to small 
minorities. These minorities must be well organised in 
order to ensure the election of their candidate. The 
cumulative system does not secure piojportioual represent- 
ation, and it is also wasteful insomuch as candidates for - 
minorities often receive far more votes than are neces- 
sary to elect them. The system is in vogue chiefly in 
local areas, when different interests require representa^ 
tion. Thus in the old School Board in Scotland, it enable 
small communities representing the Roman Catholic or 
Scottish Episcopal Church interests to secure representa- 
tion, and it frequjently haippened that the can(lida+e» tor 
these minorities, though the minorities were very small, 
were retturned at the top of the list. In this way the- 
system often engendered sectarian ill-feelin.3: and strif«^ 


Anotlier plan for securing a just electoral system 

lis tie second ballot. Wlhere there is one seat and 

only two candidates, the simple majority 

seoond system is sufficient, but where there are more 

laiiot. than two candidates it may happen that 

the candidate elected may secune. only a 

relative majority, not an absolute majority. Thus in a 

t^ree-cornered election A may receive 5,000 votes, B. 

the second candidate, 4,000, and C, the third candidate. 

S,000. A has secured a> majority over B and C, but 

B and C between them have 2,000 more votes than A. 

"The second ballot makes a new vote necessary between 

-A and B, C dropping out of the contest. Those who 

voted for C may then redistribute their votes, and if 

i;hey all voted for B then B not A would be elected at 

the second poll. . 

The second ballot (there might be a third or further 
ballot where iihere are manyi seats) secures a more just re- 
'flection of the opinion of the electorate where tliree or 
more candidates seeik election. In the pre-war British 
elections it often happened that Liberal, Labour and Con- 
servative candidates contested a single seat, and the Con- 
servatiive candidaite succeeded because the general or 
progressive! vote was split between the Liberal and Labour 
candidates. The second ballot, n^ course, does not 
secure proportional representation. 

There is also the question of the representation of 
interests. In many countries there are arrangements 
which allow for the representation of special 
at1on*of"*' classes or interesits. The most notable modem 
Interests, example is the pre-war Prussia, in which tie 
electors were divided into tliree classes according 
to the amount of taxes paid by each. To each class was 
given a third of tie se:ats in tie assembly, so tiat tie rici- 
-est class, wiich iad fewest members, iad tie same repre- 
sentation as tie poorest class, wiici was most numerous. 
"The class system also pirevails in ti'e comptosiiiion of 


upper Houses, such as in tke British House of Lords. The 
British system is the historical descendaiit of what used 
to be universal representaition by classes. In the early 
stages Bf representative government in the mediaeval 
and early modern world there used to be three classes 
or "estates," each of which had its own representatives. 
The French Parliamentary organ was known as the 
States-General, and iihe origin of both the British Houses 
(Lords and Commons) is, both in name and fact, due to 
class representation. The old classes were the nobility, 
clergy and commons, and the House of Lords is really 
the descendant of the greater nobles and clergy, and 
the House of Commons of the lesser nobles and common 
people. Eiepresentation of interests, known as com- 
munal representation, prevails in India. 

Class representation is objectionable from many points 
of view. In the first place, it is impossible to draw a 
satisfactory line of distinction between one cJass and 
another for purposes of representation. Secondly, if 
each tradse, profession and industry, were to be repre- 
sented the legislative assembly would be an assembly 
of individual interests, not of the common welfare. 
Each class would be at variance with every ether class 
in its desire to secure its own interests. The best way of 
securing class representation is for the government to 
ask the views of classes or interests before they make 
laws which aiffect them. 

For the representatioti of classes there are expedients 
such as plural voting. By means of plural voting certain 
individuals receive more than one vote. Thus 
voti^ng. "^^^ ^i*^ sufficient property in more than one 
electoral area — if property is a qualification — 
may vote in each area in which they are qualified. This 
is only possible where the areas are sufficiently near 
each other to allow the candidate to go from one place 
to another in time to vote. Sometimes the qualification 
for plural voting exists but is neutralised by elections 


being held on one day, thus preventing one man from 
recording votes in widely scattered constituencies. 

Another form of piural votitig is what is known 
as the " weighted '" vote, which was! strongly sup- 

ported by John Stuart Mill. Weighted voting 
Weighted means that the persons who haive gi-eater in- 
*"'*■ terests at stake or persons better qualified to 

vote receive more votes than those less qualified or A^ho 
have smaller interests in the country. Oniei type of this 
is the "University vote, by 'which a University 
graduate receives a vote as a "University gradu- 
ate in addition ilo a vote on other grounds. It may be 
argued that rich men have more interest in elections than 
poor or that the more educated are better fitted to voice 
their opinions than the less educated. Against this are 
the arguments that the poor have more need of protec- 
tion, and that the educated classes are as much ruled by 
self-interest as the uneducated. 

The chief difficulty in weighted voting is the absence 
of any standard of judgment. Thus, while a University 

graduate may receive a special vote, the civil 
Difficulty engineer or architect, who is as highly 
■'Weighing '' qualified in his particular branch of work, may 

justly complain that he has no extra vote. It 
is absolutely impossible for any man, however wise, to 
"weigh " ike claims of either financial or intellectual 
interests. Everyone, for example, who was left out of 
(the leduoatidnal ,addeld yote, would justly resent the 
omission if he were an efficient main at his own work. 
In countries where everyone can read and ■\^rite, it is 
impossible to say that a graduate school teacher deserves 
two votes and an efficient coal miner only one. Not only 
so, but against the statement that an employer should 
receive more votes fOian aln employee, it may bei said that 
the employee may be more interested in poli- 
tical matters and have a better understandinir of them 


than his employer. A " weighted " system would give 
f-atisfaction to few. 

An actual exam(ple of plural and 'S\eighted " voting 
exists in Belgium. Every male citizen of twenty-five years 
of age and above is allowed one vote. An additional vote 
is allowed to certain landowners and to men of thirty- 
five years of age and over it they pay five francs in taxes 
find have legitima.te children. Two additional votes are 
allowed to male citizens of twenty-five years of age and 
over who receive certain educational certificates, or who 
hold certain offices. No one has more than three votes. 

It is some(times held that each citizen qualified to vote 
should be compelled, to vote. In Spain and Belgium 
there is actually a legal obligation on ihe citizen 
Compuis- to vote; cei'tain punishments follow the failure 
VMing. ^ ^^ ^^- ^ew governments, however, compel 
electors to vote. If an elector does not) vote, 
it may be taken for granted that the country is better 
withouti his vote, as he is not interested in political 
matters. If he did vote he might vote wrongly, or ^'ote 
for ai candidate because of a bribe. It is a moral duty 
of every citizen to interest himself in affairs of go\ern- 
ment, but to compel everyone to vote by law would be 
to take away the moral stimulus arising from the public 
good. It may be said for compulsory voting, however, 
tha.t it teacKes the citizen his duty. What might be 
compulsory voting in one generation might be regarded 
as a moral duty in the next generation. 

The question of female suffrage has really- solved it- 
self. Half a century ago John Stuart Mill's book on 
The Subjection of Women was considered far 
Female beyond its times, yet ilill himself prophesied 
Suffrage. ^-^^^ before a generation had passed the poli- 
tical disabilities of women would be removed. 
Though not lifierally correct in hjs forecast as to time, 
he was correct in principle. On© by one the democracies 


of the modem world have admitted women to the vote, 
the last notable example being Great Britain, in 1918. 

The question of female suffrage has been, like all 
innovations, hotly debated. In favour of women's 

suffrage it is held that sex is no critlerion for 
Arguments giving the vot«. Where women are educated 
Against. in the same way as men, where they 

halve proved intellectually fit fo» the exercise 
of the vote, it is ridiculous to refuse it. lliKtory shows 
us examples of great queens, authoresses, social workers, 
and so on, and why should women auch p,s these be 
debarred from the vote when relatively igAorant male 
labourers are given the privilege? Then again it is pointed 
out that wQmen need protection against unjust legislation:. 
Up to now laws have been made for men by men, and 
women have been siubjected to many civil disabilities. 
To remove those disabilities women must be represented'. 
Women have proved their value in public life in local 
bodies — for women, illogically enough, in many states 
are allowed votes in local government but not in central 
government. In Australia, where women have the vote 
on equal terms with men, they have not exercised any 
sinister influence on legislation. In fact it might be 
proved thait the advent of women into politics has helped 
to purify public life. 

The usual argument against woman's suffrage is that 
the political life is not woman's proper sphere. Her 
proper sphere is the home, and to entice her from her 
home is to endanger her proper functions as a woman. 
It is argued too that women cannot serve in the army, and 
the suffrage depends really on the ability to serve as 
soldiers. It is also argued that to allow women to 
interest themselves in politics will bring discord into the 
home because of the possibility of disagreement between 
husband and wife or mother and children. It is also said 
that women do not deserve the vote because the majority 
of them do not want it. 


All these arguments are somewliat jpuerile. Experience 
has proved that women can both vote and fulfil their 
functions in the home. The Great War ha» proved that 
women, as nurses and workers in all kinds of employ- 
ment, are as necessary as soldiers in war, and in Russia 
there were even female battalions. That the granting of 
the vote to women will bring discord to the honie is as true 
of the man as of the woman, and that women do not 
interest themselves in politics is untrue, and even if it were 
true it was equally true of many men enfranchised, say, 
by the Reform Acts in England. 

In democraitic countries women are recognised as legal 
persons as well as men. Only in the modern world have 
the many mediaeval civil disabilities been removed 
in the case of women. In particular they 
now are educated very much in the same way 
as men, and the proof of their civil capacity is 
simply the fact that they are capable of civil and political 
life. For many centuries in the West, and still in many 
countries of the East, women have been looked on as 
nnfittted for education. Only in recent years 
Has education been general even for men. The spread of 
universal aaid compulsory education to both men and 
women has completely altered ideas on suffrage and jus- 
tice, and only in recent years have the new ideas been 
made applicable to both men and women alike. 

The varilouis devices which have been proposied for 
voting all go to show that a representative system of 
government can only approximately represent 
aHon'an"" ^^® ^^^^ °^ *^® people, ^o scheme of election 
Approxi- can be perfectly satisfactory. Direct democracy 
Instrument allows every opinion to be heard, but even in 
direct democracies the laws must be made by 
majority votes. The simple fact is that no method can be 
43eyised to give its due position to every phase of political 
opinion. Apart from this, it is questionable if every 


type of opinion deserves representation. Many indivi- 
duals told theories which, thtey consider in prac- 
tice would ~be the salvation of society, but how- 
ever good these opinions may be when judged by 
absolute knowledge, they may fail completely to> 
appeal to the common consciousness of the time. There 
will always be unheard minorities. If they wish to be 
heard they must convince others. If a man with a new 
message is able to convince others then in time he will 
have his opinion adopted sinjply because the people re- 
gard his opinion as better than other opinions. 

Thg electorate increases with importance as democracy 
advances. So important indeed is the electorate, that, a^ 
we have noted above, it is sometimes looked on as a 
special branch of government. In modern legislation, 
and where election prevails, in both the executive 
and the judicial departments of government, the elec- 
torate is the continuous "power behind the throne." 
Though it does not actually legislate, it iiltiinately con- 
trols legislation, and, consequently both the execution of 
and the interpretation of the laws. For the success of 
democracy, therefore, it is essential that the electorate 
should be as highly eduoa,ted as possible, and in modern 
democracies we actually find that education always ranks 
A'ery highly as a basis of government. Only by educa- 
tion (in its widest sense) can the people attain the neces- 
sary enlightenment, mental and moral, which guarantees 
democracy against its terrible enemies, ignorance and 

4. Indirect Election-. 

In some states election is indirect. In direct elections 
the electors chose the representatives by their own vote : 

but in indirect election the electors choose an in- 
Direot and termediarj' "body which' ultimately chooses the 
Election*. representatives. Indirect election prevails' at 

present in only a few states. In France the 


secoiid Chamber (Senate) is elected by electoral colleges 
in the departments. Theoretically indirect electiooa holds 
for the Presidentship of the United States, though to all 
intents and purposes the election is now diflect. One of 
the most notable instances was the system of three classes 
in the Prussian system. 

The idea underlying indirect election is that it helps 
to put a check on popular passion. Where the electors 
do not have the final choice there is more likely 
Purpose Of to be ai filtering of pojpular feeling, as those 
Eleotfon. elected by the electors may be expected to be 
freer from the waves of passion than the ellectors 
themselves. Not only so, but the intennediate body 
may also be expected to contain men of more intellectual 
force than the average elector. The" system introduces 
also the element of delay in elections, which means that 
the final election is more passionless and calculated than 
direct election is. 

The system 'was tried in France after the Eevolution 
and lasted till 1830, when it was abandoned for direct 
election, save for the Senate. The chief > reasons 
for the existence of second chambers are that they act as 
revi'sing bodies for the lower housesi, elected Tby the 
people, and as checks to hasty legislation. Lower houses 
are elected directly, and many publicists support indirect 
election for second chambers. Such indirect election is 
more likely to secure men of mature judgment and more 
conservative temjperament, both of which are qualities of 
prime impjortance in second chamlbersl. Tn modem 
democracies, with their party systems, the lower houses 
are usually elected on a party basis, and the indirect 
system has been supported as a meang to avoid party elec- 
tions in second chambers. 

Where, however, the party system is highly developed, 
the indirect elections are likely to become party elections 
jvist as are direct elections. An excellent example of 
this exists in the elections for the President of the TTnited 


States, where the party system, in spite of indirect elec- 
tions, ia supreme. 

The greatest argument against indirect election is that) 
it tends to make the people apathetic, In direct elections 
each representative feels that his "vote counts 
agains*"'* ^or something because the representative 
El"'?" chosen by his constituency is the member of 
Parliament. Where his vote is only for an 
elector to elect the member of Parliament, the citizen 
cannot but feel that his vote is comparatively unimport- 
ant. He is not sure how the intermediate elector may 
act, and his interest will naturally be lukewarm. In 
modem democracy if direct elections sometimes excite 
popular passion, they also stimulate interest in jpolitical 
affairs among the people. It is for these rea.«ons that the 
system of direct election has been adopted for the Indian, 
Legislative Assembly and Council of State in jpreferenciB 
to the system of indirect election Avhich prevailed under 
the India Act of 1909. It may also be said that if an 
elector may elect an elector he may also elect a represen- 
tative directly. There is not the same obiection to 
indirect election where, it co-exists with direct election, 
as in France., The interest of the people is kept alive by 
the direct elections for the (popular house, while the 
indirect elections for the Senate help to introduce those 
elements of reason and passionless consideration which 
are so important in second chambers. 

5. Length of Office and iNsxErcxED 

The purpose of representation is the expression of the 
will of the people. In order to secure this, it is neces- 
sary to provide means whereby changes in 
optnion* '" popular opinion may be represented in the 
legislatures. Werei representjatives elected 
for life it might easily happen thac they were 
representatives only in name, not in fact. The term of 


xepresentation therefore must be definite. The term 
Taries from country to country, and also in the same 
country according to the type of body elected. In Great 
Britain, for example, the maximum statutory length of 
tenure for the House of Commons is five years, but in 
local elections three years is a, common term. Four or 
five years are the most favoured terms in modern legisla- 
tures. In second chambers tenure is usually longer. In 
the House of Lords tenure is hereditarj' and for life; 
but in elected second chambers tenure is usually longer 
"than itt popular aRsemblies. 

Annual elections, it is sometimes held, are necessary for 
a real test of popular feeling. The objections to annual 

elections, however, are overwhelming. In 
'Elections. ^® ^^®* place, there is no real necessity for 

them. Popular opinion changes quickly, it is 
true, but not so quickly as to justify the dissolution of the 
legislature every year. Normally the legislative process 
■extends over a considerable period, and there is ample 
time for th^ legislature to consider the opinioJisi of the 
people as expressed on the platform, in the press, in 
memoriala, and such like. Annual elections, moreover, 
would seriously interfere with the work of legislation. 
In the short space of a year few important measures 
could be passed, and to elect new legislatures every year 
•would mean a certain unwillingness on the part of a 
legislature to start measures which it mjght not be able 
to pass finally or which it might have to sub- 
mit to the next body. The loss of energy and 
time would be enormous. Apart from these objec- 
tions, there is the most serious drawback of all, 
namely, tSfie repeated excitement of the people 
caused by elections. In modem democracies, with {party 
government, elections mean mufch agitation throughout 
the country. An equally strong objection may be ad- 
"vanced from the opposite point of view, that frequent 
elections might tend to make the people disinterested. 


The agitation caused by canvassers, party agents, ete.^ 
might so disgust the masses by its frequency, that the 
elections might pass into the hands of cliques and fac- 
tions. In some form the electoral agitation would dis- 
turb the country and lead to evil. Moreover, represen- 
tatives of the best type would not submit to the ever ■ 
recurring- strain and excitement — and expense — caused 
by annual elections. 

Annual elections, therefore, are essentially bad. They 
lead to dislocation of piiblic business, unhealthy party 
agitation and excitemeoit, and cause an undue strain on 
the representatives. Nor do representlartives change 
their opinioiis so suddenly as to demand the censorship 
of the voters every year. 

Another type of the same theory is that electors should 
have mandates from their constituents. This is some- 
instructed ^i™®* known as " Instructed Eepresentation." 
Representa- Representatives) it is said, should receive in- 
*'""■ structions from their constituents, and if they 

do not obey these instructions, the representatives sliould 
be recalled. The idea behind this is that the very mean- 
ing of reipresentation is that the elected representative 
should record the will of his constituents, not his own 
will. He is in a sense a; servant, and must do what he 
is told. 

Few responsible writers support this view. Tt will be 
remembered that' Austin, the English law wrjter, looked 
Objections °^ ^^® represeoiltatives as' "trustees" of the 
To people. The meaning of tliis is thati the re- 

Represent- presentative normally does voice ,the feeling 
ation. (jf ^j^g,'. majority of his constituent's, but 

if he does not the only remedy his constituents 
have is tlo eject him. at the next election. They 
cannot take legal steps against Eim for changing" hi? 
opinions or breaking his "trust." The objeetioiis to in- 
structed election are manifold and strong. In the first 


place, the system of election aad re-election, with a reason- 
able maximum term for the life of the legislature, is 
sufficient guarantee that representatives will not to any 
dangerous extent misrepresent the feeling of their con- 
fitituencies. With moderu party government, the 
opinions of both electors and elected are to a great extent 
made for them hy party leaders. If a sitting member 
changes his partj-, he may continue to sit till the elec- 
tion or he may submit to re-electiou if his conscience 
urges him so to do. Changes of partj- in this way are 
rery infrequent, and if they are frequent the likelihood 
is that the party in powei" (if the change is frotn it; ^vill 
be beaten, and the legislature dissolved in order to ap- 
peal to the electors. 

Secondly, representatives for central legislatures are 
not elected for local but for general interests. Local 
matters are dealt with by loqal bodies, of which, as a 
rule, the life is shorter than those of central legislatures. 
Central legislatures exist for the whole, not for the 
parts, and instructed representation would result larg'ely 
in the representation of local interests. 

Thirdly, able men coiild hardly be expected to serve 
in legislatures where they could only say what pleased 
their constituents. Every repcnesentative to a certain 
extent must consider the will of his constituents, espe- 
cially if he desires re-election, but to bind him abso- 
lutely would be to deprive a nation of the best mind 
force in it. The veiy essence of representative govern- 
ment is government by the people for the people, but 
the representaltive system is qiiite sufficient for this with- 
out instruction. 

Fourthly, were instruction necessalry, it is not clear 
Aow instruction could be provided. How could a con- 
stituency be so organised, and how could the interest of 
the people be so kept alive, that real instruction could 
be given on every proposed law? The insftruction would 
f)e mere repetition of party formulae or the opinions of- 


local factions who took" the trouble to record an opinion. 
The average elector is not interested in every law that is 
proposed, and on many laws the average elector is in- 
competent to give am opinion. In local organisations for 
instructing representatives, the opinionsi of the few ex- 
perts in a constituency on a special or technical law 
might easily be drowned by the voice of factions. 

Fifthly, it may be argued, that, as the representative is 
usually an abler man than the electors, it is as much 
his duty to give instruction as to receive it. In election 
campaigns the best efforts of candidates are put forward 
to persuade electors. No body of electors is so unreason- 
able as to expect a representative to be a mere cork on 
the ocean of popular opinion. A representative is res- 
pected by his constituents not for supineness but for 
strength, and if his ability isi shown bv disagreement 
with the electors on certain points, the electors regard it 
not as weakness but as streng-th. 

Sixthly, it is difficult to see how the work "of legisla- 
tion could proceed at all if every representative had first 
to receive instructions. It would take a long time to 
secure the qpinion of a constituency and the necessity 
for a particular measure might have passed before the 
representatives could vote. Instructed representation is 
thus not only unnecessary but bad. There is, however, 
one case in which instruction may be reasonable. This 
is in a federal government, where, as in the 
late German Bundesrath, the repitesentatives were 
representatives of individual states and had to 
vote according to the instructions of their 
own _ governments. The representative in such a 
case is really a kind of ambassador. Such instruction, how- 
ever, though more defensible than instruction dn ordinary 
le^slatures, is by no means good. It preserves provincial or 
' ' state " differences at the expense of the unity of the state. 
In ether federal unions the representatives of states are 
^so _ representatives of the commBn interests, and thus 


telp to complete national unity. In a federal system of 
government there is a continual tug-of-war between the- 
central and state governments, and it is better to keep 
the common welfare in the first place, and not to keep- 
separatism alive by needless separatist organisations. 

6. The Qualifications of Representatives . 

In all states certain qualifications are necessary for 
ationsl"' election as representatives. These are: — 

1. Only those who are citizens of a state either by birth 
or loyalty can be elected to legislatures. Clearly 

■ aliens, whose sympathies belong to another 
siifp"" state, should not become law-makers in a state'; 
Were any alien to seek election in a legisla- 
ture his aim would either be personal in order to push 
his own interests, or to secure favourable legif-lation for 
his financial interests; or political, in order to secure 
legislation favourable to his own country, and, in 
all probability, against the interests of the country in 
whose legislature he served. 

2. Legislation being (vital foil the interests of the 
people, it is necessary that only mature or relatively 
n mature people be chosen as representatives. 

Twenty-one or twenty-five are common age 
limits iii the West. For second chambers often a higher- 
age limit is necessary, such as thirty, thirty-five and 
forty. Belgium, France and Italy, for example, require- 
forfy as £he minimum for the second chamber. 

3. In many states a property qualification is necessary 
for election. Where members are not paid, the 

property qualification though not necessary 
Property. ^^ statute becomes necessary in fact, as only 
men with leisure can become members of the legislature. 
The property qualification is rapidly disappeaHng, 
though it still holds even in advanced democratic coun- 
tries. In Canada, for exanijple, membership of the- 


eecond chamber is reserved for those who have 4,000 dol- 
lars worth of property. In England Members of Pai-lia- 
ments are now paid from public funds, so that poor 
men, if they oain succeed in the elections, may sit in the 
House of Commons. 

There is a theoretical justification for a property 
qualification — namely,' that the possession of property 
shows that the representative has a stake in the country 
and is therefore likely to be cautious in legislation. 
Possession of a considerable amount oi property, if it is 
not inherited; may also argue for business ability in the 
pos,sessor, and, whether inherited or notj, it provides 
him^ with the leisure forlegislative work. 

On the other hand, modern opinion favours the equal 
chances of citizens for election to the legislature, whether 
they have property or not. The lack* of jproperty of con- 
siderable value should not deprive the coxmtry of the 
services of able but propertyless men. Further, the 
labourer is worthy of his hire. The modern work of 
legislation is so heavy that it can scarcely be held that 
the mere honSur of being il ember of Parliament is 
sufficient repayment, especially for those who' have diff- 
iculty in affording the honour. Payment of members, 
therefore, is now common. The payment often combines 
a fixed salary and free travelling. 
' 4. In every state,, holders of certain offices are ineligible 
for election to legislatures. In the United States, 
(,^5g_ where the theory' of the separation of 
powers governed the creation of the constitu- 
tion, the executive is divorced from the legislature. In 
Cabinet governments the heads of the chief executive 
departments of government are also members of the legis- 
lature, but the permanent officials are not. Judges also 
cannot be members of the legislature. In Great ISritain 
when a Member of Parliament (tha.t is, a member of 
the House of Commons) is selected for the Cabinet, he 
must be re-elected by his constithiency. 


5. Eeligious disabilities^ exist chiefly in countries 
where, for historical reasons, it was necessary ill 
Religion. ^^^. interest of the public to exclude from the 
legislature individuals holding certain religious 
opinions. Thus the Je^vs and Roman Catholics were ex- 
cluded till the nineteenth century in England, and even 
to-day ministers of the established churches in Bi-itaiu 
cannot be elected to the House of Commons. The 
■clergy of the Roman Catholic Church, though it is not 
:the state (or established) church are also excluded. 

't. The Legislature. 

The relations of the legislative, executive and judi- 
idal have been compared to the major and minor pre- 
The Legis- ^^isses and conclusion of a syllogism.. The legis- 
lature, lative authority forms the major premiss: 
and'" *" the judiciary, the minor ; and the executive, the 
Judicial. conclusion. The legislative lay.s down the 
general law applicable in all cases; the judicial says 
whether this or that case may be treated according to 
the rule; the executive, carries out the decision of the 
judicial. A simple example will illustrate. The law 
■says all that tresupass on private grounds will be pro- 
secuted : A is declared by the law courts to be a tres- 
passer, and the executive punishes him., The syllogism, 
inakes more demarcation between its premisses and con- 
clusion than the acts of government do between the 
legislative, executive and judicial functions. Every 
executive act, it may be said, involves the three aspects 
of law, execution and judgment, whether separate 
authorities are' involved or not. But the syllogism ana- 
logy is useful in showing one important point, viz., that 
the so-called three powers do not stand to each other in 
the relation of equality. As the major premiss is more 
important than the minor and the conclusion, so the 
legislature is more important than the execntive or 
judicial. Laws must exist before judgment can be given 


or the executive take action. The legislative is the more 
important — indeed the fundamental — function of govern- 
ment; without it the executive and judicial cannot exist. 
Whether a government be a stable or unstable one, 
whether or not the laws are observed in their letter or 
spirit, every executive act involves primarily a legis- 
lative act. Save in cases where sheer unreason rules, 
every executive and judicial act logically involves a 
legislative act. 

In our analysis of the three powers, we must therefore- 
analyse the legislature first!. The legislature is 

the law-making power. It includes two kinds 
Legislative of work which are sometimes looked on a* 
Hberattve. separate " powers " — the puxely law-making 

and the (deliberative. It is really impossible 
to separate these two functions. The purely law-making 
may be taken to include the actual mechanism of 
making laws — drafting, etc. — a not unimportant function. 
John Stuart Mill considered this function so imjportant 
that in his scheme of government he recommended a 
special committee for it. But the mechanism of law- 
making is a duty for specialists in that particular work. 
The wording, formulating, etc., of laws is not of the 
most vital The content and end of the law 
are the most important things, and it is the deliberative 
function which has to decide these. The deliberative 
function does not belong to any particular branch of 
government. It is the thinking of a nation and that is 
done by various agencies such as the pulpit, press and 
platform. In order that this thinking may become de- 
finitely formulated, it is necessary to have some central 
organisation to act as a focus for it. That organisation 
is the legislature, or, as the English call it. Parliament. 
Parliament comes from the French, word parlement, 
which means originally a meeting for discussion (from 
tEe verb parler, to speak). Parliament being, as it were, 
tEe ejpitome of the nation, expresses its centralised 


thought, and that thought when formulated in proper 
langiiage and " passed," becomes the law of the state. 
Parliament thus performs the double function of deli- 
beration and law-making, but in neither does it 
act by itself. The sum total of the thinking forces ot 
the nation — ^as given in books, newspapers, speeches, 
advice by experts^ — moulds its deliberation. In the 
actual making of laws Parliament uses the services of 
expert officials. 

In mqdel'n states there are many problema in th& oi-ga^i- 
isation of a legislature or Parliajnent. Even in 
organis- the smallest state there exist many interests, each 
Leg^iature! of which asks to be heard. In Greek city- 
states the Parliament included all interests; 
but in modem nation-states only represeJitatives; can 
attend Parliament. All interests had an equal chance of 
being heard in the old city-stsites, but now w© have only 
an approximation. Not only so, but legislation affects 
everyone in the state, amd laws necessarily must be made 
with much caution. The chief problem in the organisa- 
tion of modern legislatures is to represent the will of 
the people, and, at the same time, prevent hasty legisla- 
tion. Laws should, as Aristotle said, be reason without 
passion, but men often give way- to momentary impulses. 
Passion is very dang-erous in law-making. The experi- 
ence of ages has led most modem legislatures tio adopt 
means to avoid the dangers of hasty legislation. These, 
and other considerations have to be taken into account in 
organising the legislature. Whaffc actually happens will 
be seen when we examine the constitutions «of individual 
states. At present we give a short account of the chief 
means adopted by modern legislatures to secure Harmony 
and unity in the state. 



One of the mos.t common characteristics of legislaitive 
bodies is that they are divided into , two bodies or 
Unicameral houses — the upper and lower. This in knowji 
and as the bicameral system (camera is the Latin 

Srianfsa" iur ' chamber.') The bicameral system is all 
tion, bu^ universal in modern governments ; in 

only ai few cases does the unicameral or oue-chamber 
system exist. Modern examples of states that have, or till 
recently have ha/d the unicameral system are Greece, 
Serbia, and several units of bigger states, e.g., some of the 
old German states, some of the Swiss cantons, and the 
Canadian provinces. None of the latter is typical in- 
somuch as they are all subordinate law-mating bodies. 
In modem independent states the bicameral ?ystflm is 
the rule. The constitutions analysed in this book show 
several types of the two-chamber system — the House of 
Lords and House of Commons in the United Kingdom; 
the Senate and House of Deputies in France; the 
Eeichstag and Bundesrath in th& pre- War Germany, the 
Reichstag and Eeiehsrath in the present German con- 
stitution;^ the House of Eepresentatives and the Senate 
in the United States; and the Legislative Assembly and 
the Couneil of State in India. 

The unicameral system has, generally speaking, been 
weighed in the balance and found wanting. The most 
.,.|^g conspicuous historical examples of it are 

unicameral furnished by France. The National Assfembly 
system. ^^ j^gj^ ^^^^^ ^^^ Eevolution, decided in its 
favour, but the experiment did not last ma^ny years : the 
very conditions of its existejice foreshadowed its failure. 
A xmicameral system leads to hasty legislation, internal 
strife, class struggles, and general instability. These 
self-same conditions allowed it to exist in France and 
caused it to die. Another example of how unsettled 
political conditions brought about a single chamber is 
furnished by the English Commonwealth which followed 
the Great Eebellion. In this case the House of Lords 


was abolished in England, soon however to be restored 
Unicameral systems result from unstable conditions oi' 
government and, once existent, are a cause of them. 

Political experience condemns the unicameral system, 
and even the most xampatnt champions of popular 
rights hesitiate before condemning the 
Bioamerar bicameral system. The House of Lords in 
System. England is very frequently condemned now-a- 
days, not because it is a secoiid chamber but because 
it is an anomalously constituted second chamber. What 
the enemies of the House of Lords want is not a single 
house of legislature, but two houses properly constituted. 

The reasons for the existence of a two-chambered 
system of legislature are many. The chief one is the 
Reasons prevention of hasty legisla'tion. It is one of 
Systenf. ^^^ three methods for such prevention, the 
went" HasVy °^^'' ^^^^ being a constitution and procedure. 
Legislation. The electorate also is a preventative of hasty 
measures, but often it is the chief compelling power in 
hasty legislation. Where a second chamber exists there 
is less likelihod of ill-considered measures becoming law, 
because more consideration is given to tihem. A single 
chamber, specially in the modem days of popular gov- 
ernment, is liable to be carried away by momentary 
impulses or persuaded by the powerful rhetoric of one 
man ; but where there is another house to consider a 
measure, a brake is added to the wheel of legislation. 
Ill-considered legislation hais thus less chance of passing. 
On the other hand, the fact that one chamber feels that 
its responsibility is not final may lead to less considered 
amd balanced action than would be the case did final 
responsibility rest with it. 


Another reason for the existence of second chambers 
is the representation of interests and minorities. In 
modem nations suffrage rests on a wide basis 
Represent- with the result that there is a constant tug-of- 
"nterests ^ar of interests of class against class or trade 
Minorities, against trade. In the days of autocracy thene 
was no place for representation beyond the ex- 
pression of opinion to the autocrat by leading men in 
any (particular interest. With the expansion of the 
suffrage, however, the first or lower chambers hare be- 
come more and more " popular," i.e., representative of 
the proletariat as distinct from the moneyed or upper 
classes. These "upper" classes must have their 
interests safeguarded, hence their claim to be represent- 
ed in the second chamber. A second chamber is — and in 
fact should bei — conservative, in temperament. As we 
liave seen, the ideal of political progress is " conserva- 
tive innovation." The" popular houses are always ready 
to innovate and the conservative element should be sup- 
plied by the second chambers. From this point of view 
it may well be argued that the second chamber should 
be as free as possible from party bias. The actital facts 
of political life, however, show quite as strong party 
divisions in second as in first chambers. Special 
measures are often adopted to prevent such bias — special 
methods of election, — special qualifications of the repre- 
sentative, — special periods of tenure and s,pecial periods 
of election for part of the house, as in the French system. 

One of these points — ^special qualifications — suggests 
another of the main reasons for the existence of a 
3. For the sepond' chamber, viz., the^ necessity of choosing 
of'sSjie" specially able and experienced men for the 
Men. work of legislation. A popiilarly elected 

house might conceivably elect a number of men, who, 
though fit enough in one path of life, are ncft fitted tor 
the work of general legislation. The deficiency must be 
siipplied by a fitter selection in an upper house, which 


is less liable to be affected by passing political whims. 
Upper houses should be placed as far away as (possible 
from the tempest of popular elections, so that the mem- 
bers of them may consult not their own interests at the 
next election but the interests of the nation as a whole. 

It is only in this way that the tyranny of popular 
majorities can be avoided. Were second chambers com- 
posed in exactly the same way as lower chambers — dis- 
solvable in the same way, elected in the saime way, 
having the same tenure, etc. — then the upper would be 
merely a reflection of the lower chamber, and there would 
be no rational justification for their 'existence. 

There is still another reason which is a result of 
modern developmenti — the representation of individual 
«. Rapre- stiates in a Federal Union, e.g., Germany and 
of"8tates the United States of America. The Bundes- 
'^,*,'J,*^*''" rath and the Senate are composed on a state, 
ment. and not on a population basis. 

No general rule can be set down which regulates the 
relations of first and second cbambers. The &'st cha;mb- 
Raiations er initiates legislative measures j the second 
second* " chamber is usually a revising, criticising body. 
The "second But that is by no means universal, as some 
Chamber second chambers can initiate legislation by 
Body.*'*'"* themselves, tiius reversing the ordinary legis- 
lative process. Generally speaking, the second chamber 
is a revising and criticising body, its composition being, 
as we have just seen, directed to its fitness for this end. 

Second chambers have considerable influence in critic- 
ising ordinairy legislation, but in one kind of legisla- 
tion — financial — the lower or first houses have 
[iRfs"''*' as a rule supreme control. In the United 
lation. Kingdom, for example, the House of Lords 
has practically no power in financial legislation. The 
power of the purse belongs to the people in modem 
democracies, and though the second chamber represents 
caipital and land — the wealthy classes generally — yet it 


has no say in financial matters., Too much stress, how- 
cTer, must not be laid on the wealth element in second 
chambers. In newer countries — such as the United 
States and Australia — there is no social line of differ- 
ence between the fower and upper houses. The trend of 
development of modem democracies is to abolish such 
a line, though other means (especially the method of 
election) are used to make the second chambers serve 
their real purpose. 

Legislative bodies, as a rule, have powers of internal 
organisation by themselves. Sometimes the constitution 
organis! determines the main lines of organisation, as 
ation of. in the American Senate, where the vice-presi- 
Bodiesf '** dent is the Constitutional Chairman of the 
Senate. The permanent officials of legislative houses 
are, as a rule, appointed by the Houses themselyes. 

All legislative houses have organisations for the des- 
patch of business. Certain types of organisation are 
common tc modem legislatures, Fii-stly, and 
organis* niost important, is the Committee system. 
Despatch These Committees are appointed to examine 
of Business more closely than the full legislature could, 
measiires proposed in the house. Some- 
times the committees are temporary: they are 
appointed for a special temporary purpose and cease Avhen 
the purpose is served. Sometimes they are standing or 
permanent committees. The committees are as far as 
possible rqpresentaitive of all opinions. There is a 
tendency in some modern states to appoint party com- 
mittees, but party committees really defeat the very 
objects for which they exist. In the new German Con- 
stitution the Committee system is carried further. By 
it permanent Committees are formed, which continue 
in spitie of dissolution of the lower house. 


In all law-making bodies rules for the conduct of 
business are necessary. These rules or procedure of the 
D,«..ri.... "various parliaments of the world have two 
opposing objects : on© is to prevent iiasty legis- 
lation; the other is to prevent delay or con- 
fusion . The most importanti palrt of procedure is the 
number of readings through which a bill must go. Pro- 
cedure of this type prevents hasty legislation. The pro- 
cedure which pr'events undue delay relates to length of 
speeches, the end of debates and similar subjects. In 
latge bodies unlimited discussion on measures would 
make the actual work of legislation almost impossible. 

The general course of legislation in modern legisla- 
tures also shows certain similarities. Laws may be, 
initiated in either the upper or the lower house. The 
assent of both houses is necessary for the passing of a 
law; and a quorum, or minimum number of members 
must be present before a vote is valid.. The number 
of a quorum varies from house to house and state to 
state. A majority vote provided a quorum is present is 
•decisive in ordinary legislation. In modern states the 
lower houses of the legislatures are taking to themselves 
more and more the control of financial legislation. 
8. Modern Methods of Dibect Legislation. 

The theoretical and political difficulties of the repre- 
sentative system have led to the desire on the part of 
many to make the citizens as a whole respon- 
Direct" sible for legislation. The theory of modern 
?racy" direct democracy comes from Rousseau, and is 
expressed in his doctrine of the General Will. 
In practice the representative system has proved often 
very unjust. Minorities as a rule are unrepresented; 
legislatures elected for a period of time sometimes lose 
touch with the electorate, and before the members can 
be dismissed by new elections, new and undemocratic 
laws are passed. These and similar arguments have led 


the idea of people essembliaig is a mere chimsera ; but if 
initiative and referendum, or as the French call it, the 
plebiscite. One of the chief reasons of the modem 
agitatiion for the referendum is the example of Switzer- 

The initiative is the system by which a certain 
number of voters (the number being fixed by statute) 
The, may both petition and compel the legislature 

Initiative. ^ introduce, a certain type of law. In one 
kind of initiaitive, sometimes called the formulative 
initiative, the -voters may draft a bill and compel the 
legislature to consider it. After the legislature considers 
and passes the bill, they must resubmit it to the popular 

Literally the word " referendum " meaijs " iriust be 
referred," and the full meaning is " must be re- 
^^^ f erred to the people." In plain words the 

Referen- referendum is a popular vote on laws or 
""""■ legislative questions which have already been 

discussed by the representative body of the naition. 
The principle underlying any form of referendum 
i.s the democratic ideal of going behind the in- 
terpretatioij of popular will by delegates or re- 
presentatives to ihe fountain of authority — the will of 
the people as expressed by a direct vote of the majority 
of citizens qualified to vote. 

The idea of referendum is no new one. The people 
of Home assembled in the capital, and there esercised 
their sovereign authority; the Greeks, the Macedonians 
and the ancient Franks held councils of the ipeople. Iti 
his writings Bousseau did not hesitate to declare that the 
happiest people were a company of peasant"; sit- 
ting under the shade of an oak tree " conduct^ 
ing the afPairs of the nation with a degree of wisdom 
and equity that do honour to human nature." The 
idea of direct government by the people was nlso favoured 
by Eousseau, who wrote: "Some ^ill perhaps think that 


the idea of people essembling is a mere chimsera; but if 
it is so now, it was not so two thousand years, ago, and 
I should be glad to know whether men have changed in 
their nature." The modem institution . of referendum 
is based upon abstract theories of popular rights, 
derived mainly from these and similar teachings of 

The referendum may be (a) facultative or optional — 
that is, it may be brought into action on the petition 
of a certain number of voters; or ^6) compulsor^^ or 
obligatory, in which all laws must be submitted to 
popular Tote. The referendum thus means that matters 
are " referred " to the people, and that the popular will 
finally controls legislation. i 

The home of the referendum, Switzerland, the most 
democratic country in Europe, is a small state, organised 
The as a federal union in which the individual states 

Ref eran. are known as cantons. The supreme legislative 
swiuer and executive authority is vested in ai parliament 
land. qJ ^^q houses, namely, the State Council and 

National Council. ' The upper house has 44 mem- 
bers, two for each canton; the N«^tional Council 
of 189 members, chosei; by direct election, has 
one member for every 20,000 inhabitants. A. 

general election takes place every three years. Both 
chambers taken together form fchlei Federal Assembly, 
which is the supreme power in the state. The chief 
executive authority is the Federal Council (Bundesrath), 
consisting of seven members and elected for three years 
by the Federal Assembly. These members must devote- 
their whole attention to tbeir executive work. The 
executive body introduces all measures into, the legislative 
councils and takes jpart in the proceedings. The Presi- 
dent and VicjB-President of the Council are the first 
magistrates. Both are elected by the Federal Assembly 
for one year and are not re-eligiblc; for the same oflfice- 
till after one year's interval. 


The local government of Switzerland is by cantons, with 
full (popular control. In the smaller cantons the people 
xaeet together as a whole and make laws for themselves 
"(Landsgemeinden). In the larger cantons a legislative 
body is elected, but the initiative and referendum are 
also in force. 

The practice of referring proposed laws to the people 
.^/prevailed in the cantons before it was applied to Hie 
central government; It was applied in the cantoris 
primarily to constitutional mattters and afterwards to 
ordinary laws. The Swiss thus had a long tradition of 
(popular local government behind them before the refer- 
endum , became an instrument for the national 

In the federal government of Switzerland the 
referendum is compulsory fOr constitutional amendment, 
and is facultative or o^ptional, at the request of 301,000 
citizens or the legislatures of eight cantons, for ordinary 
laws. For constitutional amendment the initiative may 
be used at the request of 50,000 citizens. No federal 
initiative exists for ordinary laws. In all the cantons 
"the referendum is compulsory for constitutional changes. 
In all the cantons save one (Freiburg) , and those with 
direct assemblies (Landsgemeiilden) the referendum, 
either compulsory or facultative exists; the number of 
votes (in ihe case of the facultative) necessai-y for 
demanding a referendum depends on the population. 
In all save one canton the initiative may be used for 
constitutional amendment, and - in all but three for 
•ordinary legislation. 

The actual cases in which the referendum has been 
used in Switzerland show the i-ather surprising result 
that the people are more inclined to reject than to pass 
laws. It has proved a conservative, not a radical or re- 
■volutionary measure. The' referendum is thus a t3rpe 
of veto on legislation. Whereas in many modern states" 


ihe -veto or partial veto lies with the head of the execu- 
tive, in the referendum the veto lies with tiie people. 

The referendum has been adopted in several states in 
th© United States for particular purposes . There is n6 
national referendum in America; it is applied 
ii" it^S '^^^y i^ state govei-nments tor particular pur^ 
states. poses, or in local government (as in municipal- 
ities). The referendum is in vogue in several 
other countries for constitutional amendment. 

The supporters Ijf the initiative and referendum usually 
bring forward the following merits of such direct legis- 
lation : ^1) That it makes the sovereignty of 
foi?ancf"*' ^^ people a reality, compelling reluctant 
against legislatures to act in a certain way; (3) that it 
terencfum. destroys pkrty; and sectional legislation, the 
people as a whole being less likely to split up into 
parties when they are given individual proposals to 
consider; (3) that, in the case of local government it leads 
to harmony — all interests being taken into account; (4) 
that it arouses public interest in legislation as distinct 
from politics, or general , political interests; and (5), one 
of the most powerful arguments in favour of a refer- 
endum, that it compels men carefully to think of the laws 
that govern them and that it saddles them with their 
share of national responsibility. 

Against the refe!pendum is the~ important objection 
thaiJ it submits laws to the most ignorant classes. Repre- 
s,entatives are usually better educated men than the mass 
of electors, and as such are fitter to control legislation. 
Actual experience, moreover, shows that the percentage 
of votes in a referendum is small. The referendum does 
not create interest in legislation, but it opens the way 
to party influences because parties are better organised 
than the electorates. Tt also encourages agitators. Again, 
if legislatures are compelled to obey electorates in every 
law, the legislatures will lose their standing and res- 
ponsibility. Able men would prefer to he electors, not 


representatives, in such a system. Further, it is impos- 
sible so to draft laws on complicated subjects, such as 
the taj-iff, to make them easily understood by the masses. 
It is claimed that the adoption of the referendum in 
Switzerland has resulted in a complete destruction of 
parliamentary government in. the English sense of the 
word and has reduced the National Chamber of 
Switzerland to a mere collection of " registering 

Finally, the Swiss example is misleadinff. The 
cantonal councils are really responsible for legislation, 
and their laws are rarely amended by the people. The 
Swiss referendum is successful because of the 
traditions of the Swiss people. It is also conservative, 
whereas its ordinary advocates support it as a measure' 
of radical reform or revolution. 

1. Meaning and Appointment of the Executive. 

The executive is that branch of govemment which 
carries out or executes the will of the people as for- 
mulated in the laws. In its widest sense the 
T""exSii. ^^^'''^tive includes all officials engaged in 
tiwe." carrying out the work of government except 

those who make or interpret the laws, i.e., the 
legislative and the judicial. In this wide sense, the 
executive includes every one from the highest official to 
the lowest menial, from the Governor-General to the 
policeman or village chowkidar. The word, however, is 
used in a narrower as well as in a wider sense. In 
the narrower sense it denotes the heads of the executive 
departments, for example, the President and the 
ministers in the Cnited States, apd, in England, the 
Prime Minister and the Cabinet. Thus when we speak 
of the executive in Great Britain we may mean either 
the Prime Minister and the inembers of the Cabinet, or 
all the executive officials from the highest to the lowest. 
Sometimes the highest officials are called the executive 
proper, while the others, that is, those who carry out 
the details of a policy laid down by the heads are called 
the administraition or the administrative officials. 

A distinction must be made between nominal and real 

executives. In Great Britain and India — in fact, in all 

. the British Empire-r-the exiecutive work is 

and Real carried out in the name of the Crown. The 

Executives, familiar letters 0. H. M. S. always indicate 

the head of the exiecutive in the British system . 


The king, however, rs the nominal head. The real head 
in Britain is the Cabinet. 

The most esaential quality for the executiTe is unity. 
Everj' executive act involves a single act of will. 

Unity of purpose, secrecy, quickness' of deci- 
Essentjai sion and action, are better secured by one 
in'ExeeuV than by many. For deliberation and legisl- 
[".. ation two heads are better than one; for 

execution one head is better tnan two, or more. 
Unity, finality, quickness, and secrecy, the essentials 
of good executive work, all require an executive organ- 
isation where one voice is finally supreme, i Thus in the 
United States of America, the President is the final 
executive authority. In Great Britain, where there is 
the Cabinet or a body of executive officers, the Prime 
Minister dominates the others. In a plural executive 
time is spent in argument and discussion. The mem- 
bers check each other, and, particularly in times of war 
or civil trouble, when quick decision isi necessary, this 
is dangerous. The executive is not a proper body for 
discussion. Discussion should take place in the laying 
down of general principles of action or legislation. 
Once the laws are enunciated or passed it is the duty 
of the executive to carry them out as ~~ quickly and effi- 
ciently as possible. It is, of course, also the duty of 
the legislature to make the laws as clear as possible in 
order to prevent subsequent discussion by the executive. 
In existing governments there is no uniform method' 
of appointing the executive; but three general ways 

may be enumerated; (1) by hereditary suc- 
The ^ cession; (2). by election, which may be of three 
men?'"" types: (a) directly by the jpeople ; (6) indirect- 
jexmSmm. ly by the people; (c) by the legislature ;. (3) 

by selection or nomination. ' 


Hereditary executives exist in the older countries of 
the world. According to this system, office goes by 
1. Hered- descent, usually according to the law of 
Emout- primogeniture. The tenure is life-long. In 
ivas. newer countries the hereditary principle has 

invariably been replaced by either the elective or selec- 
tive principle. Where the hereditary executive does 
exist, it has the merit of lon'^ historical traditions 
behind it, and the very length of its historical connec- 
tion gives it a stability which elected executives fre- 
quently do not have. The real stability of hereditary 
executives, however, does not diepend upon their histor- 
ical antecedents, but upon the extent to which they rest 
upon the will of the people. In many cases hereditary 
executives are nominal and not real executives, for 
example, in .Great Britain, Italy and Belgium. < In 
Great Britain, particularly, the hereditary principle rests 
on the will of the people. The Great War has shown 
in a most remayka-ble way how deeply rooted the hered- 
itary principle is in the English constitutional system. 
Whereas the War was resiponsible for the fall of the 
hereditary executives in Russia, Austria-Hungary, the 
German Ernpire and German states, and Bulgaria, it 
established the English Crown more firmly than ever, 
both in the English constitutional system and in the 
hearts of the people. 

Another merit of the hereditary princijple is that it 
gives a certain amount of both national and inter- 
' national glory to the executive. There is always some- 
thing more dazzling and more impressive in the cere- 
monies surrounding rovalty than there is in the simplic- 
ity surrounding an elected executive. In the case of 
the king of England this is particularly true, for the- 
king is not only the executive head of Great Britain, 
but ultimately the supreme executive in the largest 
empire the world has ever known. 

The general argument against the hereditary principle 
in the executive is that heredity provides no criterion 


for the choice of an able Executive. History abounds 
with examples where hereditary executives have ruined 
iheir governments. The recent examples of both Eussia 
and Germany show hp,w the hereditary head of an execut- 
ive may be either incapable of conducting the affairs 
of government or may pursue a policy which is destruc- 
tive of the very foundations of government. In both 
these cases, it is to be noted that the hereditary execu- 
tive was not responsible tio the legislature. Where, as in 
Great Britain, the executive is responsible to the legisla- 
ture, the danger of revolution is at a minimum. The 
hereditary executive is nominal, tiot real. It combines 
in itself the merits of the hereditary principle with those 
of an elected or a selected executive, i.e., responsibility 
to the legislature or, ultimately, to tie people. 

(a) In several governments the executives are elected 
directly. For example, in Brazil the president and tEe 
vice-president are elected by direct popular 
2. Elective vote. History also gives examples of elective 
<a?*DireoV" monarchies. Elective executives of this type 
Election, exist also in the states of the United States of 
America. The idea underlying popular 
election is that the executive should have the confidence 
of the people. An elected president or governor must 
feel a certain amount of responsibility, even though when 
once elected he may have very full powers. Supporters 
of the principle of election hold also that the 
exercise of the vote for the executive, just as^ 
for the legislature, creates an interest in public 
affairs on the part of masses. No doubt the 
people do receivei a certain amount of political education 
by electing the executive, but ei^erience has proved the 
disadvantages of election to be far greater than its ad- 
vantages. In the first place, the people, unless the 
area of choice is small, are not as a rule fit to judge 
the executive capabilities of a candidate. In the second 
place, the elective system involves intrigue, corruption 


and ill-feeling, not only during the period of election, 
but at all times. As soon as one candidate is elected 
those who Eispire to succeed him proceed to canvass the 
people. Party feeling is perpietually kept alive, and at 
the actual election times, it often becomes very bitter. 
Not only so, it may lead even to foreign intrigue. In 
Prance, in 1804, hereditary monarchy was reinstituted, 
because of the evil of popular election, and the power 
brought to bear on the election by foreign govemmemts. 
It is w;6ll known that during the Great Wair, German 
intrigue was rampant in America during the jresidential 

The evils of election are more marked when election 
applies to the lower as well as to the higher executive 
poste. In the state governments in America, where 
election is very common, it often happens that technical 
skill and personal capacity, the chief qualities necessary 
in an executive officer, are completely obscured by party 
feeling. The party system in America, with its complete 
organisation, combined with the short periods of. tenure 
of office, has done a great deal of harm in the American 

(6) Indireict election is common. In the United States 
of America, the president is elected by an electoral college 
in which every state has as many repreisentat- 
EiVotionf" ives as it has' in Congress. In the Argentine 
Republic, the procedure is similar. In Chile, 
the president is elected by delegfites nominated by ballot 
by the people. The aim of indirect election i& to re- 
strict the choice tio persons who are better qualified 
to judge than the masses themselves. Indirect election 
to a certain extent also prevents the rancour and ill-feel- 
ing which accompany direct election. In theory there 
is little to be said against indirect election. But ill 
practice the delegates or electors tend to become mere 
party puppets with no independence of judgment. The 
elections are indirect only in name. In the United States 



of America, for example, the election for the president- 
ship i^ nominally indirect, but really it is direct. In the 
early dayb of the presidential election the delegates acted 
independently, but nbw they vote as members of a party. 
The party system thus combines the pi'inciples of direct 
and of indirect' election. ^ 

(c) A type of indirect election is election by the legis- 
lature, lu France, the president is elec,ted by the 

National Assembly, wMeh consist-i of the two 
by jfhf"°" Houses of tlie Legislature sitting together at 
LBgisiat- Versailles. The idea underlying tiis type of 

election is that the legislature is the b^t quali- 
fied body of electors. In most modem democracies, elec- 
tion of aJl types, diuect or indirect, tends to become a mat- 
ter of party organisation. Legislatures are divided into 
parties, and their elections are party elections. The chief 
point in favour of election by the legislature is that the 
executive sa elected is of the same party as the majority in 
the legislature. He; wUl thus be able to work smoothly with 
the legislature. According to the theory of the separa- 
tion of powers, the legislative and the executive functions 
ill the tJnited States were so sharply dW off from each 
other as to endanger the smooth working of government. 
The party system with its almost direct method of 
election of the president grew up to secure harmony, for 
in actual practice government is very difficalt if the 
legislature and the executive do riot agree. The same 
is true in Britain, aqd in other countries with Cabinet 
governments, where the head of .the real executive) 
the Prime Minister, although technically appointed by 
the King, is virlkially elected by <Jhe party in power* in the 
House of Commons, for he must be the recognised leader 
of that party. 


This method of appointment to executive posts is 
applicable particularly to subordinate officers. It applies 

to all the subordinate governments in the 
ton or*"' British Empire. The .Governors-General of 
Nominst- India, Cana4a, Australia, etc., are selected by 

the British Government. The value of this 
method of selection is that personal qualities can be taken 
into account. Before the appointment, the record 
of work and qualifications of th© officers fitted for the post 
are carefully examined. The appointment takes place in 
a judicial manner. His past work and personal 
qualities are judged in relation to the work the official 
will l^ave to do in his new appointment. The method of 
selection is particularly necessary in lower executive or 
adminisitrative posts. Different offices requiire different 
qualifications. Some require general administrative 
ability; some require special or technical qi^alifications. 
The best judges for making such appointments are the 
men who have passed through the offices themselves, or 
who have a definite knowledge of the worl^ to be done. 
The official superiors of executive officers are best quali- 
fied to judge the abilities of their infeijior officers, and, 
therefore, to recqmmend or withhold appointments. 

2. Plural and Single Executives. 

A distinction is often made between single and plural 
executives. In a single executive, the final control be- 
The ^ongs to one individual. In a plural executive 

Meaning the control lies with two individuals or with 
Executives, a council of several individuals,. 

There are raauy historical examples of plural execu- 
tives. In Sparta there was double kingship; in Eome 
there were two consuls. In Fremce at the 
Examples time of the Revolution, the Directory was a 
Working plural executive. Several of the revolutionary 
of 'Jurajj executives of France were plural. Plurality, it 
xecu IV s. ^^^ reckoned, would prevent tyranny. France 


had had a long history of despotism;,' and not 
unnaturally the French people thought that the 
chief safeguard against desjpotism was the aboli- 
tion of a single executive head. Experience has 
proved that where plural executives have succeeded, 
the cause of success has been either personal or due 
lo the fact that the functions of government were so 
sub-divided that each function had practically a single 
executive head. In other words, plural executives have 
succeeded where they have adopted the underlying prin- 
'ciple of the single executive. In Switzerland, at the 
present time, there is a plural executive. The chief exe- 
cutivo in Switzerland is a board of seven persons called 
the Federal Council. This board is elected for three years 
by the two legislative houses sitting together. One of 
the seven members is elected president, but his powers 
are only the powers of the chairman of a meeting. In 
practice, the members of the council divide their work 
into departments; each member is in charge of 
a department. Thus the Swiss executive indireietly 
adopts the principle of the single executive. The 
existence of plural executives in Switzerland is 
due mainly to the history of tlhe Swiss people. 
They have been used to tiiis type of government 
for generations, not only in central, but also in 
Ifcal government. Another noteworthy point in 
connection with the Swiss plural executives is the control 
of the executive by the legislature. In a responsible 
government, the executive is responsible to the legis- 
lature, not only because their duty is to carry out the 
laws passed by the legislature, but also because by 
questions and interpellations the legislature exercises a 
continual supervision over the executive. It is, there- 
fore, difficult to understand why the manifest advantages 
of single executive government should be sacrificed' in 
responsible government to the dubious advantage of the 
plural executive. The unity, directness and swiftness 


of action which is possible in al single executive is impos- 
sible in pJural executive, save where the executive adopts 
the underlying principle of a single executive. 

The plural executive must not be confused with the sub- 
division or delegation of powers. In modern government 

no man can carry out all the executive work 
M power"? by himself. Worlf must be divided. This 

division of work may be made in various ways. 
The work may be sub-divided amongst subordinate officials 
and the ultimate responsibility rests on the man at the 
top. Or the work may be delegated to subordinate 
officials. Final powers of decision may be given to sub- 
ordinate officials, according to their position and to 
the importance of the question. Where work is sub- 
divided in such a way that ultimately every matter must 
be referred to the head of the executive, there is little 
distinction between this and a plural executive. In fact 
this method has often more evils than the plural execu- 
tives, because of the enormous waste of time it involves. 
In the system of government in India, for example, the 
decentralisation of powers to subordinate governments and 
subordinate officers is not yet sufficiently complete to 
prevent the very cumbrous process by which even minor 
questions have to be referred to higher officials before 
they can finally be decided. The present (1920) 
process by which the affiliartion of colleges takes 
place in the Universitiy of Calcutta illustrates the 
evil of multiple authorities. The process starts 
by an application from am dndividual College to 
the University. The University inspects the college, 
and if it recommends affiliation, it sends itis re- 
commendation to the Government of India. The recom- 
mendation must, however, first proceed fromi the Govern- 
ment of Bengal, and in -its process through the .Govern- 
ment of Bengal, ' the petition has to pass through' three or 
four distinct authorities — (1) the office of the Director of 
Public Instruction, (2) the General Secretary, (3) 


Member of the Executive Coxmcil in charge of Educatidn,. 
(4) the Goyernor. Finally, it proceeds to the Government 
of India, to go through a similar process there. If any 
difficulty arises on its way, the process becomes even more' 
intricalte : the case will not only be referred back to the 
original authorities, but it must gO' throug'h the same 
process all over again. With the fuller delegation of 
powers resulting from the India Act of IQl^ such cases 
will now be fewer. 

The delegation of powers, whereby powers of final 
decision are given to subordinate officers, is essential in 
all modem governments. Officials may have powers to- 
regulate their work, within limits, by departmental 
orders. These orders are of the nature of bye-laws. In 
a responsible governm/ent, the actions of all officials, 
high and low, are liable to be questioned at ahy time by 
members of the legislature. In a plural executive the- 
acts are the acts of no one individual, but of several. 
In goveniment-by-council of this type the chairman is 
usually responsible for the conduct of the council, but 
the chairman may be compelled to accei>t a majority vote. 
Ta such a case it is impossible to hold the chairman res- 
ponsible for the action of his council. In a single exe- 
cutive, responsibility can be definitely brought home to- 
, one individual, and this fact alone makes all officers care- 
ful in the conduct of their duties. 

The plural executive is also to be distinguished from 
the system by which the chief executive officer has asso- 
ciated with him an advisory council or a board. 
coundiTs' '^^^s council or board, in many cases, is merely 
nominal, such as the Boards of Education and 
Agriculture, aniJ the Local Government Board in Eng- 
land. Sometimes the board has certain powers of con- 
trol over the executive. Thus in Great Britain, the 
Prime Minister, although he is head of the Cabinet, must 
really suit his views to the views of the Cabinet. He 
must act along with them. In the ITnited States in 


iicatters such as the maikiiig of treaties and the appoint- 
ment of JTid^s: and other high officers, th6 Senate shares 
the executive authority with the president. In France, 
the ministers have considerable control over the president 
— not as ministers hut as a Cabinet. In the German 
Empire, tihe Bundesrath had certain executive powers. 

In thesei cases the principles of the single and 
the plural executive have been combined. The 
efficient working of the system has been evolved by ex- 
perience. A single executive has the advantage of unity, 
decision, quickness and secrecy: a plural executive pre- 
vents arbitrariness, oppression and encroachment upon 
the rule of law., A combination of the merits of the two 
is the most advantageous system. The organisation 
which does so as a rule gives al single executive ultimate 
responsibility and at the same time provides him with an 
advisory council. It is to b© noted iihat in the examples 
quoted the councils which work with ilie chief of the 
executive are not merely advisory: they share in 
executive control according to the constitution. In 
the British system, the Prime Minister, whether he 
wishes it or not, must take into account the views of the 
Cabinet. An advisory council without powers of 
control gives strengtii to executive officers without im- 
peding them. With modern specialisation it is perfectly 
impossible for any man to be expert in jevery branch of 
administraition. He must seeik the advice of experts, and 
in receiving advice he is able to gauge not only the various 
bearings of pariHcular problems, but to receive support 
when he is criticised. By an advisory council, the exe- 
cutive head is able better to interpret the temper of the 
people. The council also htelps him to jinderat^nd local 
comditicms and to judig^ how proposed measures will affect 
tihe areas of whitA he himself has no knowledge. Thus 
the advantages of siligle and plural executive are 


In Great Britain the chief executive council nominally _ 
is the Privy Goimcil. The Privy Council used to have 
wide executive, legislative and. judicial powers. 
(founoi'is** ^^ legislative powers have passed to Parlia- 
ment. Its judicial powers are now very much 
re&tricted, and its executive powers are now only nominal. 
The nominal assent of the Privy Council is necessary 
for the issue of proclamations, ordinances or orders 
in council. The Cabinet is the real executive. The 
Cabinet is a non-legal body : the Privy Council , is a 
legal body. The members of the Cabinet are created 
Privy Councillors and only as Privy Councillors can they 
issue ordinances, though the actual decisions are made 
in the Cabinet. 

In France there is the Council of State which is ap- 
pointed mainly by the President. This Council of State 
IE divided into four administrative sections and each 
section acts as ,an advisory . body to an administratiive 
department. It has also a judicial section for the adT 
ministration of administrative! law. This Council of 
State gives advice to Cabinet ministers on proposed bills. 
It is thus, partly advisory and partly executive. 

In the United States of America the Senate has exe- 
cutive power in respect to (a) the making of treaties 
and (6) the appointmept of ambassadors and federal judges. 
In the state governments in the IJnited* States councils 
are common, and sometimes the executive government is 
conducted according to the majority. Vote in these 

In Germany, the Bundesrath had extensive powers in 
connection with appointments, treaties and finance. It 
was also chief executive for the enforcement of federal 
Inw among the individual states in Germany. 

In India, associated with the Governor-General and 
with some -of the provincial' heads, there are executive 
councils with definite constiiutiBns, prooeduire and 
powers. These councils are composed of leading / 


oflScials, each in charge of a department, and Indian 
non-service members, who also take charge of a depart- 
ment when appointed. 

3. The Tenuee and Oeganisation of, the ExEcimvE. 

The period for which the executive holds office varies 
considerably from government to government. In here- 
ouration ^^*^^ executives, the fenure is for life. In 
of Office, the case of minors it is usually necessary to 

appoint regents. In elected or nominat- 
ed executives the term varies from one to seven 
years. In .the majority of the states of the United 
States of America the term is one or two years. 
In the case oi the President of the United States 
it is four years, the Swiss President three years, 
the President of Brazil four years, the Presidents of 
France and Germany seven years. The tenure of Cabinets, 
where the Oaibinet system prevails, depends on 
how long they can command the support of the 
majority in the lower house bf the legislature. In 
the British domrnions the tenure of the head of the 
executive is usually five years, as in the case of the 
Governors-General and Governors of the self-governing 
dominions and of India. These Governors may be re- 
called by the British Government before the expiry of 
their teito of office, or their period may be extended 
under special circumstances. The members of the 
Executive Councils, both in the Government of India and 
in the provincial governments, are also appointed for five 
years. During their tenure of. office they are subject 
to different rules from the west of govemnient servanfe. 
There is very little to be said for the short tenure of 
office that prevails m the state governments of the 

United States of America. In the first place. 
Tenure. ^* ^® obvious that if a man holds =office for 

only one year he cannot carry out any policy, 
even if he had one. In the second place, it frequently 


happens tbat those apipoiuted to the post have little 
experience, and the space of one year is not sufficient 
to enable a governor ■ to atequire experience. In 
the third place, frequent elections . for a governor are 
a Ver^ disturbing element in public' life. They lead to 
abuse and corruption. In ihe fourth place, the gov- 
ernor, if he wishes re-election, must pander to the people. 
This leads to lack of independence in action and to 
timidity in policy. The only argument in favour of the 
short tenur© is the security against abuse of power. 
This security can be achieved by other methods, with 
longer tenure. If an executive head is to be at all efficient 
he must have not oiily adequate powers, but also 
adequate time in which to make his powers felt; No 
man can be efficient with a one or two years' tenure of 

The question of re-eligibility for office is very fre- 
quently debated, especially in Atoerica where short 
Re-aiigib- *6nure is so common. In some constitutions 
iiity for it is impossible for one individual to be 
Office. elected a second time to office. In other 

cases, though there is no constitutional limit to re- 
election, there is an unwritten rule; for example, no 
President of the United States may be re-elected more 
than once. Re-eligibility tends to make the executive 
head court popular falvour, whereas the impossibility of 
re-election gives him strength and independence. 
For example, in his first term of office the Pre- 
sident of the TJnited States cannot be unaffected by the 
consideration that he may seeik re-election and that his 
re-election depends on the popular vote. In his 
second term he need have no such feaa* and may pursue 
as vigorous a policy as he calces. Re-eligibility, of 
course, secures the continuance of good men and good 
policy. It also secures the responsible behaviour of 
the occupant of the executive office if he wishes re- 
election. It may well happen that if the executive 


head cannot be re-elected he may lookf' upon the tenure 
o£ his office as a period- in which be may do the maximum 
lor his own interests. Re-eligiHlity, of course, depends 
largely upon the length of the " term of office. In 
i'rance, wher6 the President continues in office for seven 
5 ears, the question of re-eligibility scfereely arises. 
Seven years occupancy of tlhe Presidency of France- 
usually satisfies tlie occupants. Not only so, but the 
President must take into consideration the fact the- 
honouT must pass to others. 

The .executive work in modem states is very wide 
and complex. It is; usually sub-divided into various- 
j„g J. depiairtrq.eiits, and each department has its own 
a«on"of' oJ^gi^'^isation. Various classifications of the 
the departnaents of government are possible, but 

Executive, ^j^g following five show generally the sections 
into which modem governments are divided : (1) 
Foreign; (2) Internal, Home, or, as iti is sometimes 
called. Administrative, which includes various financial, 
commercial and agricultural and educational sub-divi- 
sions; (3) Military; (4) Judicial; and (5) Legislative. 

These headings are yery general. They* indicate only 
the general functions of the executive, tiot the indivi- 
dual departments into which executives in 
Exartipies modem governments are divided. In Britain 
ation^*"'*' and othea" countries with Cabinet government 
Executives. ^* *^® head of the executive stands the Prime 
Minister and the Cabinet. Besides the Prime 
Minister, the other executive officials in the British 
Cabinet are the Chancellor of the Exchequer, five 
Secretaries of State (Home, War, Foreign, Colonial and 
Indian), the First Lord of the Admiralty, the Presidents 
of various boards, namely, the. Local Government Board, 
the Boards of Trade, of Agriculture and of Education, 
the Postmast'er-General, tie First Commissioner of Works 
(heald of tJie Board of Works), the Ministers of Labour 
and Pensions, several legal officers' such as the LorJ 


Chancellor an4 Solieitors-jGeneral for Ireland and Scot- 
land, offioers withi special functions, sucli as the 
Secretary for Scotlamd and the Chief Secretary for Ireland, 
and holders of old historical offices, such as the Chancellor 
of the Duchy of Lancaster and' Lord Privy Seal. 
Better examples of the division of executive work are 
the governments of newe.r countries, such ais the United 
Stailes, or of newer organisations, such as India. In the 
United States the President is the head of the executive. 
He appoints his own oificers, namely, the Secretary of 
State (who deals with foreign affairs) ; the Secretasry of 
the Treasury; the Secretary of War; the Secretary of 
the Navy; the Secretary of the Inferior, whose functions 
include the Census, Pensions, Education, Railroads, 
Public Records, Public Lands, Patents and Indian 
affairs, each haviiig its own office; the Secretai'y of 
Agriculture; the Secretary of Commerce; the Secretary 
of Labour; the Postm.aist3r-General and the Attorney- 
<3«neral. In India the Governor-General is the head of 
the executive and he is also in charge of foreign affairs. 
In his executive council, are the Commander-in-Chief, 
who is in charge of the army, the members in charge 
of the home, education, finance, commerce and industry, 
revenue and agricultural departments, and the legal 
member. In, the provincial governments in India 
^isuaily there aie two to four members of the Executive 
Councils, the arrangement of whose functions depends 
on the individuals selected and the work to be done. 

(1) Thq foreign department. — Every individual state 
has relation's with other political communities and to 
regulate these! relations therfe must be an execu- 
1. Foreign, ^j.^^^ department. This department draws up 
tieaties, agreements, etc., and advises in all matters of 
foreign affairs. .- SBmjetimes the legislature co-opeh'ates 
with the executive in foreign affairs. Jn the United 
Slfcaites, for examiplef, the S'eaa<t© theioretically' shares 


with the President the appointmenfi of ambassa- 
dors. Foreign affairs require high technical skill, 
accuracy of information, personal tact, and secrecy, 
all of which can best be achieved by the executive. 
It would be impossible to preserve the secrecy 
necessary in diplomatic ' matters were they sub- 
ject to discussion in a legislative assembly. Sometimes 
tlie legislature must pass special laws for the legal 
execution of measures recommended by the executive 
in foreig^n matters, but, as a rule, the departments of 
foreign affairs conduct their businesis as far as pos- 
sible without the intervention of the legislature. 
Further, foreign politics, as a rule, are not party politics. 
Legislative bodies change with the change of political 
parties, but foreign politics must be continuous. 
Sudden changes in diplomatic matters would be- 

In most modem constitutions the legislature has a 
voice in the ratification of treaties. The Senate in the 
United States may amend or reject treaties (as it has 
done recently in the Peace Treaty following the Great 
War), although the President l^as ipower to make certain 
kinds of treaties by himself. The French chambers can 
accept or reject but not amend treaties involving peace, 
commerce, or financial or territorial readjustment in the 
state, or the personal property of Frenchmen in foreign 
states. In Germany under the old system the Houses 
had the right of assent to treaties which embodied 
matters falling within the domain of legislation. As 
tlie lower houses in modern democraicies control finance, 
treaties involving financial consideration must, to some 
extent, be influenced by the lower houses. 

The appointment and receiving of diplomatic repre- 
sentatives usually lie with the executive. This is a 
most important matter, as much depends on the per- 
sonality of ambassadors or envoys. Legislatures are 
not capable of selecting men for delicate posts of thia 


kind altihougli indeed .in the United States the technical 
■consent of the Spuate is neqessary for diplomatic appoint- 
ment. Actually, however, the appointment is made by 
the President. i , 

(2) Internal Administration. — The chief duty' of the 
-executive in internal administration is to carry out all 
laws. For this purpose there may be one or 
'. several departments, the executive heads of 
which must have conbiderable powers of appointment, 
dismissal and supervisitm, of issuing ordinances, ■ and of 
making' bye-laws. 

'(3) Military and Naval. — Under this head comep the 
supreme command of the army and navy. Sometimes, as in 

the United Kingdom, the power to declare war 
3. Military belongs to the executive. In France, Germany 
or Defence, and the United States the legislature must 

con,cur in the declaration of war, except in the 
•case of sudden attack. In war,- the executive 
becomes practically supreme. The legislature, unless in- 
deed there is a complete deadlock, must be subordinatie to 
the executive and o'bey its' directions- In war, unity and 
■quickness of . decision ape of paramount impqirtance;" 
these demand one directing head which gives final 
orders. In the recent Great War the executive in all 
the countries involve^ completely dominated the legisla- 
ture, and nowhere was this more marked than in the 
United States where theoretioally there is complete 
separation between the two. 

(4) Judicial,— Under this head comes the power, of 
appointing judicial officers and the power of pardon. 
In the appointment of judges and judicial 
^ ■ pfficials generally, the best method is appoint- 
ment by the executive, although it is by no njeans the 
universal methq4> Iji the matter of pardon the judicial 
authorities, ag a rule, ad.vise the executiye, but it; is the 
executive which gives final decision. , - 


(5) Legislative. — The legislative powers of the 
«xeoiitive include the right of assembling, dis- 
solving and adjonming the legislature, the 
fatl¥«f' *" right of veto and the right to initiate 
legislation either directly or indirectly. 
Under this head also comes the duty of the executive 
of promulgating the law. Usually the legislative func- 
tions of the executive are regulated by statute or common 
law. . , 

IniCjireat Britain there is also the executive power 
known as the royal prerogative, which is, in the words 
of John; Locke, "the power (to acti according to 
/rarogative. discretion for the public good without the pres- 
, , cription of law." In other wolds, it is 
the discretionary auth-ority' left in ihe hands ■ of 
the Crown. The prerogative applies to those things 
for which the law does not make provision. Such 
residuary powers i,e., those powers the exercise 
of which is not provided foir in tihe constitution, 
are left in the United States to .the state legislatures 
and the state executives. In France they are left to 
the legisUiiturie., In the United States, . Gerariany and 
France, the head of the executive has definite statutory 
powers: in England the Crown has general powers 
over all , things not definitely regtilated by statute or 
tjommon law. ■ ' 

4. The Civi'l Service. 

The Civil Service consists of th&paid officials serving in 
the government administrative departments. The Civil 
Service does not inqlude judges,. officers of the 
ohfii army and navy and law-makers. Properly 

service. speaking not all government officers are in the 
Civil Service, although the terms Civil Service is fre- 
quently used in a general way to designate all those 
paid from government funds. In India, the term Civil Ser- 
vice is used in a special sense. The Indian Civil Service. 


together with the Provincial and Subordinate Civil Ser- 
vices, is used in a very, narrow sense to designate the 
number of officers appointed on special terms of service 
for functions of various kinds. These functions are partly 
administrative in a general way (such aB those of district 
magistrates), palldy judicial, partly fiscal or financial, 
and patrtly political. In other governmental sys- 
tems the Civil Service includes what in India 
compose the clerical eetablishments of the various 
departments. The Civil Service in most' countries 
is divided into two classes : (1) the higher or 
class I, which includes heads of departments, and 
those who may rise to be the heads of departments, and 
(2) the lower or class II, which includes the 
clerks and minor officials. All these are officers 
of the central government but tjie system varies 
according to the type of executive machinery 
adopted. There are two systems for the organisation 
of the. Civil Service: (1) the centralised system where 
the chief official head is at the capital and his sub- 
ordinates are spread over the districts; (2) the system 
whereby local bodies may elect their own officers, but to a 
certain extent these bodies work under central supervision. 
These officers are responsible to the local bodies and are 
under the central government only iii so far as the central 
government controls the local bodies. The officials of 
local bodies are not properly speaking civil servants, 
though they may be controlled by the Central Civil 
Service officials. 

The examination system has proved the most satisfac- 
tory system of selection for the Civil Service. In some 
form the examination system isi now almost 
Examin- univel"sal. Sometimes a certain standard of 
tystem atitainment, or sometimes nomination ma^^ be 
necessary along with examination; sometimes 
the examination is direct. The pure nomination 
system has proved itself liable to abuse and is therefore 


Tinsatisfactory. This was particularly noticeable in 
America in the days before the reform of tiie Ciyil 
Service, when executive posts were given as rewards for 
•help in elections. The whole executive department was 
liable to be changed after the periodical elections. No 
good work was possible under such a system. In most 
modem governments there is continuity and seciJrity 
of tenure in the Civil Seirvice. In countriesi with Res- 
ponsible Government the political heads of the depart- 
ment change with the change, of the Cabinet. In 
the IJnited Kingdom, the Cabinet member for any de- 
partment and his Pailiamentaiy Under-Secretary change 
with every change of government, but the Permanent 
Under-Secretary, who is a Civil Servant, does not 
change nor do the officials under him, so that the 
continuity of action so necessary in executive work is 
secured in spite of party or political changes. 
In India the custom has grown up of high officials, sluch 
as Secretaries to Government, changing periodically — 
tthree years ia the common length of tenure. The office 
staff of these officials is permanent. 


1 . Meaning of Jtjbiciabt and Judioiai, Appointment. 

The term "judiciary '* is really an Americanism used 
to designate those officers of government whose function 

it is to apply the existing law to individual 
Functions cases. To a judge it is a matteT of no im- 
j'uiHcfary. portance whether in his opinion the law is a 

good or bad law morally. His duty is to 
apply law as: it existsi. He is primarily an ilnterpreter 
of law. Tfo law, however, when it is made, can possibly 
foresee all cases that may arise under it, and frequently 
judges have to decide cases in which no direct law is 
afvplicable. Such cases are decided on various prin- 
ciples, such as equity or common «ense, aod thus what 



is known as precedents are formed. These precedents 
are followed by other judges in similar cases. In thi» 
way judges are law-makers as well as interpreters of law. 

Two tilings are supremely necessary in a judge — (o) 
knowledge of law, (6) independence. A judge must be 
a fair-minded, reasonable man whose pecuniary 
Essent.iai prospects and personal comforts are not de- 
in"*a*"* pendent on his judgmients. He must, there- 
Judge, fore, be free from any outside pressure or 
temptation to better his pecuniary circum- 
stances by illicit means. The method of selection and 
the tenure of judges in every government is thus a 
matter of ihe greatest importance. He must also know 
the law of the land and be able to apply it to individual 

There are three methods for the appointment of 
judges, and the goodness and badness of these methods 
Method of ^^ *° ^ judged according to the amount of 
Appoint- freedom and independence secured for the 
"••"*• judge. 

(1) Election by the legislature is not a common 
method. In fact, there is only one European example, 
1. Election Switzerland. Very little can be said for this 
Legis"-' method. In the first place, modem party 
lature. government is so highly organised that elec- 
tion by the legislature usually means election of party 
candidates. This in its turn leads to the usual party 
intrigue and interest. In most cases the peculiar quali- 
fications necessary in ai judge take second place to party 
interests. To be a party candidate at all a judge must 
show strong bias in one direction. Such party election 
encourages a type of judge far removed from the ideal 
of fairness and reasonableness which judicial decision 
demands. Again, election by the legislature is not in 
accordance witK the spirit of the separation of powers, 
particularly that part of it which demands the separa- 
tion of the legislature and judiciary. After the 


American Itevolution this method was actually emiploye<l 
by some of the American statesi, because the makers of 
the constitution feared that both executive appointment 
and popular election might fail to secure the proper 
type of judge. Except for one or two states the system 
is now practically dead in America. 

(2) PopuJlar election prevails chiefly in the individual 
stafes of the United States of America. The eixecutive 

apipoints federal judges in the United States. 
Iieotion"'^ Popular election is the worst method conceiv- 
able for the appointment of judges. In 
modem democracy popular election means party elec- 
tion. Party election means the subservience of the 
individuals seeking election to a section of popular 
opinion. Candidates have to pander to the pre- 
vailing opinion of the time. In no way can 
theyi show that independence of attitude or free- 
dom from fear or favour which are essential in 
a good judge. Furthfer, the eiectorate cannot pos- 
sibly be a goodl judge of the qualities necessary 
for judicial office.. In the United States there are in- 
numerable examples in which good judges have been 
beaten at the elections by popular candidates. Popular 
election is still worse where the tenure is short and 
the judge is eligible for re-election. Where re-election 
depends on popular favour no judge can be independent 
of popular opinion. 

(3) Appointment by the executive is the most common 
and most satisfactory method for the choice of judges. 
a. Appoint- The executive government is the agency best 
by "tho "^^® ^ judge the personal qualities necessary for 
Executive, judicial office. The executive can always asik 
for the advice of the highest experts as to the qualitiea 
required for a particular post, and they can search about 
until they find the proper type of man for the ix>st. It 


may be pointed out that wtere the executive' is respon- 
sible to the legislature, freedom from party politics can- 
not be expected from the executive any more than from 
the legislature or the electorate. In actus il practicej 
however, appointment by the executive in free from 
party politics. The appointments are made according 
to the recognised requirements of honest judiicial work. 
The tenure of judges is as important as fche method 
of appointment. The almost universal rule for tenure 
is tenure during good behaviour. In some of 
Appoint- the American states where electi.on by the 
"""'■ people prevails, there are short iieriods of 

tenure with the possibility of re-election. Tenure of this 
kind is as vicious as the method of popular appointment. 
Independence in a judge demands security of tenure in 
his post. Removal from his post must be a difficult 
(process. Removal, however, must not be made impos- 
sible, as it would be intolerable to allow a corrupt judgfe 
to continue to hold his office for life, but it should be 
n process involving much consideration'. It should pass 
through the hands of more than one pei-son. The system 
which Cnce prevailed in Great Britain, that the King 
could remove judges at will, proved very bad, because 
the King was able to have cases decided in his own 
way by removing judges he did not lik«3 and by appoint- 
ing those he did like. In .Great Britain now, and, in 
India, too, a judge can be removed by the King only 
on an address from both Houses of Parliament. In the 
United States of America, the method of removal by 
impeachment prevails, that is to say, the Lower House 
accuses the judge and the Upper House tries him. To 
prevent party trials, b. large majority is necessary for con- 
viction. In Germany, the court which tries a judge is a 
court of which the judge himself is a member and the 
saane court may also recommend his dismissal. 
■^ It is obvious that if judges are to be independent 
tliey must be made as free as possible from pecuniary 


temptation. They must therefore be given good salaries 
and theii- salaries should not be alterable dtiring thqiir 
tenure of office. This rule is prevalent in mojiern gov- 


Certain ieatures are common in the orgauilsaiion of 
courts in the various states of the world. In the first 
place, courts are arranged on a scale from 
common J,ower to higher. There is also a right of ap- 
in Judicial peal from the lo^^er to the higher courts. ITlti- 
afion?'* mately there is a supreme court with powers 
of final decision. The higher courts may re- 
view, revise or break the decision of the lower courts. In 
the seooaid place, courts are divided, although this divis- 
ion is n.ot universal, into sections according to the work 
done. The most usual division is civil and criminal; 
but courts are frequently set up for particular purposes 
such as land acquisition courts. In the third place, in 
federal governments there are usually two sets of courts ; 
these are the federal courts and the state courtii. Thus in 
the United States of America, each stat6 has its own 
judicial organisation and its own law and procedure. 
The federal government has also its own judicial organ- 
isation. The state judges have to take an oath that 
they will faithfully follow the laws and treaties of the 
United States, and that they will enforce the greater 
law, i.e., the law of the United States, in cases of con- 
flict. In Germany, there is only one system of courts, 
procedure and law- This system was organised by ihe 
Empire, with s^n imperial code. Although the govern- 
ment of Germany is a federal one, the federal principle, 
was not applied to the judicial organisation. There is 
one central court, the Eeichsgericht. The other courts 
are state courts, with state officials, but the procedure 
and law are those of the central court amd government. 



(1) For a full description of the orjg^nisation 
of ttie judicial system in England, the student must 
refer to the chapter on the constitution of the 
or|an?- P^nited Kingdom. From early days the admin- 
?atji»n istration of justice in England was centralised. 
Govern- The king was the souroei of both law and justice, 
"^England. ^^^ ^^ ^° king possibly could carry otit all tiie 
functions of a judiciary, his work was sub- 
divided. Judges went on circuit from London, and the 
Court of Chancery, which remained permanently in Lon- 
don, controlled the courts. During the nineteenth cen- 
tury, from 1873 to 1879, the jurisdiction of the courts 
was re-organised. A certain amount of decentralisation 
was introduced^, , and th© county courts were established. 
These county courts took upon themselves many of the 
duties of the old circuit judges. At the present time, 
the judicial system in England is organised in the fol- 
lowing way: The House of Lords is the last court of 
appeal. Technically, the whole House of Lords is a 
judicial body, but in practice the judicial work is done 
by the Lord Chancellor, law-lords specially created 
because of their proficiency in law, and peers 
who have held high judicial office. Next to the House 
of Lords comes the Supreme Court of Justice, divided into 
two parts which are really two distinct courts, viz., the 
Court of Appeal, and the High Court of Justice, an appeal 
lying from the latter to the former. The High 
Court of Justiice is divided into three divisions : (1) 
tKe Chancery division, consisting of five judges, and the 
Jjord Chancellor; (2) the King's Bench division consist- 
ing of fifteen judges, of whom one, the Lord Chief 
Justice, is tKe President; (3) the Probate, Adiairalty 
and Divorce division, consisting of two judges of whom 
one jpresidea over the other. Judges of these courts 
go on circTiit to various parts of the country for what is 
known as asaizes. Beneath these courts are the county 
courts and the justices of peace. The J. P. acts singly 


and conducta preliminaaT^ examinatioiis or issues wax- 
rants. Two or more J. P.'s may hold what is known 
as petty sessions of the justices of the county, iand may 
meet four times a year for more important judicial worfc 
in quarter-sessions. 

The jury system is universal in England for all crimi- 
nal cases, ecEcepting petty offences. In civil oases the 
jury is not so common although any party may demand 
a jury. 

^he Lord Chancellor, who presides over the House of 
Lords, is the head of 'the legal system in England. He 
is a member of the Cabinet and is appointed by the 
King on the recommendation of the Prime Minister. 
The Lord Chief Justice, who presides over the King's 
Bench, is also appointed by the King on the recom- 
mendation of the Prime Minister, but all other judges 
are appointed on the recommendation of the Lord 

(2) In France there are two sets of courts : (a) ordinary 
courts for the trial of private individuals; and 
(b) administrative courts for the trial of offi- 
■ "^ ■ cials. The Cassation Court aiti Paris is the final 
judicial authority in the case of the ordinary courts. 
Below this court there are courts of appeal which hear 
cases brought from the lower local courts. There are 
also justices of peace who have certain powers in petty 
cases. The administrative courts are headed by the 
Council of State ; below this Council of State is a number 
of courts all of which are directly subordinate^ to it. 
There is also a Tribunal of Conflicts to decide disputes 
as to whether the jurisdiction in a particular case be- 
longs to the administrative courts or to the ordinary 
courits. The jury system in France is used for criminal 
cases only. An important ofBoial in the French judicial 
sysfem is the examining magistrate, who conducts pre- 
liminary examinations in criminal cases. This examin- 
ing magistrate (or juge d' instruction) may dismiss a 


case, and, if .he thinks it fit, he may send it to th» 
ordinary courts to be tried. 

Judges in France are appointed by the president and 
the Minister of Justice. Their tenure is for life or 
during good behaviour. 

(3) In GTermany, the supreme court of appeal is the 
Reichsgericht, which sits at Leipzig — not at Berlin. 

The judges of this court used to be appointed 
3. Germany y^^ ^^^ Emperor on the advice of the Bundes- 
rath. Beyond this court there is no federal judiciary in 
Germany. The courts of the various staites are subject 
to the states, but the procedure and law are thps© of the- 
Reichsgericht. The judicial districts are determined by 
the judges, who are appointed by the individual states. 
The organisation and procedure of the courts are decided 
by federal statute, so that in spite of the many states, 
there is uniformity of legal organisation. Administra- 
tive courts and a court of conflicts to decide the jurisdict- 
ion, also fbrm part of the system. Juries are used only 
for serious criminal cases. In the new constitution of 
Grermany, the old system is in tihe main continued. 

(4) In the United States there are two series of courts,, 
federal and state. Each state hag its owni courts for both- 
civil and criminal law. These are arranged" 

United ^^ grades with appeal from the lower to the 
states. higher. The method of appointment for 
judges varies from state to state. Sometimes^ 
they are appointed by the executive, sometimes they' 
are elected. In the federal courts, judges are appoint- 
ed by the President with the consent of the Senate. The 
Federal Court consists of a Supreme Court, two sets of 
circuilj courts and several distric-t courts. 

'(5) The judicial system in India is centred in the Hig-h 

Courts established at the capiltals of provinces. Appeal 

E. India. ^^'^ ^® made from the High Court to the Privy 

Council. The present sysltem dates from the- 

Indian High Courts Act of 1861. By this Act the Crown 


was empowered to create High Courts of Judicatur& 
for Bengal, Madras, and Bombay, and, later, for 
the tTnited Provinces, for Behar and Orissa, and 
the Punjab). The jurisdiction of these courts is 
fixed by the Crown. In Bengal the High Court 
is vested with ordinary original jurisdiction in 
regard to all suits except small cases within the presi- 
dency town. Appeal may be made from a judge on the 
original side to a bench on the appellate side. By its 
extraordinary original jurisdiction, the High Court may 
try any suit on the file of the subordinate court on the 
application of the parties or in the interests of justice. 
The High Court is also a court of appeal from all the 
lower civil courts. It has, in regard to the persons and 
estates of infants,' idiots, and lunatics, the powers which 
have previously been invested in the Supreme Court. 
The Supreme Court was the result of the Regulating Act 
of 1773. It consisted of a Chief Justice and puisne judges, 
who were professional lawyers. The High Court also has 
jurisdiction over the relieif of insolvents and oases 
between Christian subjects and the King. It also has 
the jurisdiction over admiralty, ecclesiastical, and testa- 
mentary matters which belonged to ■fihe old Supreme 
Court. It has ordinary criminal jurisdiction within its 
own area, and extraordinary original criminal jurisdic- 
tion over all jpersons T^thin the reach of what is known 
as the old " sadar adalat," or court of the headquarters 
area. Trial by jury is the rule in original criminal 
cases before the High Court, but juries are not employed 
in civil suits. 

After the creation of the High Courts, the Chief Court 
of the Punjab was established. It was recently abolished 
in favour of the Punjab High Court. The system 
of appointing Judicial Commissioners, who virtually re- 
place the High Court in areas where High Courts do not 
exist, was also adopted. 


The constitution of the inferior criminal courts is fixed 
hy the Code of Criminal Ptrocedure. The courts are 
«alled sessions courts, and outside a presidency town 
magistrate's courts. Each province is divided into ses- 
sions divisions, which may comprise one or more admin- 
istrative districts. For every sessions division there 
must be a sessions judge, and, if the work demands it, 
there mary be an additional or an assistant sessions judjje. 
The function of these sessions courts are similar 
io those of the judges of the High' Court in 
England when they go on circuit. They can 
try all persons duly committed for trial, and 
can inflict any punishment allowed by the laws. But 
«very sentence of death must be confirmed by -the higher 
court of criminal appeal in the province. Sessions 
judges are usually members of the Indian Civil Service 
but, particularly in Bengal, additional and assistant 
sessions judges as well as sometimes sessions judges 
themselves are recruited from the provincial service. 
Below these courts are the magistrate's courts, at the 
head of which is the district magistrate, who is a mem- 
ber of the Indian or Provincial Civil Service. The 
magistrate's courts are divided as a rule into three 
•classes according to their jurisdiction. The local gov- 
ernment has powers to invest magistrates with powers 
of the first, second or third class as the case may be. 
There are also honorary magistrates with statutory powers 
Ibbth in urban and rural areas. 

Beyond these courts there are presidency small cause 
courts invested with power to try suits up to two thou- 
sand rupees in value. In Madras there is a city civil 
<»urt with power to try suits up to two thousand five 
Tiundred ' rupees value. There are otlher judicial 
institutions such as revenue courts, to deal with cases 
connected with the land revenue, courts for land acqui- 
sition, coroners' courts, and courts for special purposes, 
■such as insolvency. 


The supreme court of appeal for India is tie Judicial 
■Committee of the Priyy Council, which was constituted 
by Parliamentary statute in 1833. This statute requires 
thati the Committee shall be composed of those privy 
counoijlors who are, for the time being. Lord Presi- 
dent of the Privy Council and Lord Chancellor, those 
who fill or have filled high judicial offices, two other 
councillors specially designated by the Crown, and two 
councillors with Indiain and Colonial experience (of 
whom one is now an Indian). The members of this Com- 
mittee are appointed as Privy Councillors by the Crown, 
and are subject to dismissal by the Crown and to im- 
peachment by Parliament. 

3. The Eelations between the Judiciary antj the 

Legislatttee and between the Judiciaey and 

the Executive. 

The normal relation prevailing between the judiciary 
and the legislature is that the legislature makes the law 

and the judiciary interprets it' in individual 
Hefa?iorr°' cases. In many states the legislature itself or 

one of the houses of the legislature retains judi- 
cial powers in its own hands. For example, the House of 
Lords in England is the highest court of appeal although 
in practice its legal work is performed by the law-lords 
and the Lord Chancellor, all of whom are highly qualifi- 
ed lawyers. In the United States of America, although 
the theory of the separation of powers prevented any 
considerable judicial power being given to the legisla- 
ture. Congress has the power of impeachment. The 
Oerman Bundesrath had, and the Reichsrath, the modern 
successor to the Bundesrath still has considerable judi- 
cial powers. The French Senate has also t!he power of 


In states with rigid constitutions, tJie. courts often exer- 
cise an enormous power over both, the legislaliure and the 
In Rigid executive, because they can declare any law un- 
constitut- constitutional. In England the only type of 
""■ laws which the courts can declare ultra vires at 

beyond the powers of a law-making body are laws made 
by subordinate legislative bodies., In the United 
States of America, the courts may declare the laws made 
by the supreme law-making body unconstitutional. Thus 
the legislature must always keep in mind the fact that , 
if the laws it makes clash with constitutional law the 
courts will declare them null and void. What aietually 
happens in the case of a law which coniiicts with consti- 
Itutional law is that the courts, when a case is brought 
before them, simply declare that the law does not Sjpply. 
In other countries with rigid constitutions the courts 
do not determine the constitutional character of 
law passed by llhe highest legislative authority. 
In Germany, which is also a federsJ country 
with a written constitution, the Ileichsgericht decides 
whether laws passed by the state are in harmony with 
the federal law, but it does not declare a federal law 
ultra vires if that law is not in harmony with the 
constitution. The German legislature decides for itself 
whether a law is constitutional "or not. The same is 
true in France. The theory underlying this practice is 
that if the representatives of the people wish to make 
a law, the constitution should not sftand in the way. 

In the English system parliament is, of course, its 
own judge. Eyery law passed by the parliament in 
England is constitutional. In the British Colonies and 
India the laws passed must be in harmony . with the 
constitutions which are based on parliamentary statutes. 

The relation of the judiciary and the legislature is also 
seen in case-law or judge-made law. Judges not only 
interpret the law : they also make law. V 
Every law is general, and in drafting a law, a 


law-maker oannot possibly foresee all the cases or cir- 
cumstances that may arise iiinder his law. Judges have 
to decide all disputes which arise under the law, and 
in cases where the law does not give clear and adequate 
provision, the judge must fill in the gap. Such decisions 
are followed by other judges. Judges, both by their 
position and by their training, are the fittest people 
for such interpretation. The executive has often con- 
siderable powers of deciding ajid interpreting matters 
in which there is no definite rule, but in all important 
and final matters the duly constituted judges should be 
the deciding agents. 

The relations of the judiciary to the executive are 
various. In the first place, the executive itself has 

always considerable powers of adjudication. In 
Judioiary ^^ second place, the judiciary has considerabla 
e"" t" a Po^s^s of aidminisitration, and control over 

the executive. In the thrid place, tihe 
executive as a rule controls judicial appointments, 
and also is responsible for the carrying out of judicial 
•decisions. In the fourth place, there are various kinds of 
executive courts, especially for government servants. 
e.g., the court-martial. There is new a tendency to give 
statutory powers to courts of this type in order to pre>- 
vent the arbitrary use of power. In the fifth place, the 
pardoning power belongs to the executive. 

4. Administeativl Law. 

The most important relation between the executive 

and the judicial exists on the continent of Europe in 

what is known as the system of administrative 

Adm/nis-'" la,"*^- III Glreat Britain, the United States, and 

trative in India, every citizen of the state is subject 

to the same law and to the same process of 

law. The ordinary law courts deal with private indivi- 

'duals and public officials in both their private and their 


public capacities. Every one in England, from the Prime 
Minister to the police constable or to a pauper, is sub- 
ject to the same law. Even soldiers are subject to the 
ordinary process of law although for matters of military 
discipline they are subject to military courts. On /the 
continent of Europe the system of administrative law 
prevails. By this system special law and special 
machinery exist to deal with government officials in 
their relations both with private iadividuals and be- 
tween themselves. All controversies arising from the 
public duties of these officers, are settled in these admin- 
istrative courts. 

The existence of the administrative courts i» 
partly explained by the theory of the eeparation 
of powers. Executive officers, according to the 
theory, should be free, to carry out their duties 
without interference from the ordinary courts of 
the land. Expert courts compoaed of men who 
have experience iin civil administration, are the be-t 
courts for dealing with administrative cases. Courts of 
this type do not, like the ordinary courts, hamper, or mar 
the efficiency of the administration. The judges of the- 
ordinaiy courts of the land have a bias in favour of the- 
private citizens against government officials, which, 
means a lack of justice in official cases as well as less 
efficiency in the administration. According to this^ 
theory, therefore, the administration possesses a special 
body of rights and privileges as against private citizens.. 
Special rules and laws are made for officials. The law 
is made by government officials and, as iti is largely case- 
law, is ve(ry elastic. Ordinary tribunals have no con- 
cern with administrative law. Eemedies can be exacted 
by administrative decisions, but these remedies can be^ 
got only from the administrative courts themselves. 

The system of administrative law is contrary to 
the whole spirit and practice of the administrative' 
system prevalent throughout the British Empire and ini 


the United States. Acc^ording to the English ideas the 
liberty of the individual is far mBre secure if the official 
as well as the ordinary person is subject to the ordinary 
courts of the land. The judges of the ordinary courts^ 
are looked on as capable of giving absolutely fair 
judgments in all oases. Their appointments are secure 
from interference by the executive. In France, 
on the other hand, the administrative judges- 
have no security of tenure. They are appointed 
and removable by the executive itself, and not 
unnaturally their jttdgments are sometimes based in 
favour of officials. To English ideas administrative courts 
are unjust and undemocratic : one law for every- 
body is better than one latw for the privileged class of 
government servants and anoilher for private individuals. 
It is true that in times of national crises, such as war, 
the administration may be more efficient if the executive 
officials are free from judicial interference; but in Eng- 
land, where the parliament is supreme, it is easy to secure 
temporary immunities for such occasions by legislative 

Where administrative courts exist alongside of the 
ordinary courts of the land, conflict of jurisdiction must- 
arise., In France a Tribunal of Conflicts deter- 
conflict of mines whether cases belong to the ordinary or 
diction. to the adminisitxativa courts. A great deal 
defpends upon the constitution of this Tribunal 
of Conflicts! Professbr Dic/ey, in surveying the French 
system of adminisrtrative law, concludes that the French 
Tribunal of Conflicts is more an official thaoi a judicial 
body, and that its decisions as a rule are made in the 
interests of the administration. As Professor Dicey points 
out, the natui^ idea of Englishnxen is that conflict 
should be tested by a normal judicial court, a court com- 
posed of the ordinary judges of the land. This if^ 
directly opposed to the French principfe that administrat- 
ors sih'ould never be disturbed by the judicial power in 


the exercise of their own duties. In. England the judi- 
■ciary often interferes in executive matters, sometimes 
with far-reaching results. In some cases it actually has 
happened that the executive has been very senouaiy 
hampered by the courts in the execution of its duties, 
but this very principle is regarded by Englishmen as 
one of the chief guarantees of individual liberty. The 
independence of the judiciary in England thus is in 
accordance with the spirit of the Separation of Powers. 
Administrative courts, though in origin they may be 
explained by the theory of Separation of Powers, are 
really a negation of the theory. 

1. The Meaning op Political Pabtt, Paett 
Division, and the Mebits and Deuebits of 
, the Paett System. 

One of the meet notable developneuts of modern 
deiaocratic government is the rise of political pturties. 
So universal are they that it may fairly he 
General said that jparties are essential to democracy. In 
of Parfy. its widest sense party means a number of people 
joined by common opinions on a given subject. 
Thus there are parties in ai church, a municipalil^y or a 
university. As a rule these parties recogI^se someone as 
leader. The leader usually is the man who is the 
ablest exponent of thei particular views held by the party, 
and so it often happens that the line of action taken by 
t¥e leader is followed even though the individual mem- 
bers of the party do not entirely approve of it. Behind 
party is the idea that union is strength. Whereas in- 
dividuals acting alone cannot secure victorj- for their 
opinions in councils, they can do so when joined together. 
Often it is advibable for individuals to sacrifice their owi> 
opinions in order to join in with the i»arty leader av 

Political parties are the same in principle aa parties 
in municipalities or universitaes. People holding similar 
opinions on political questions form a party .^ In political 
Political matters often a great variety of opinions exists. 
Parties. and theoretically there may be as many parties 
as there are opinions. In actual practice, however, 
what happens is that the opinions tend to flow into a 
few more or less definitely marked channels. The 



oiecessity for organisation in matters afiecting the central 
government is even more marted than in smaller 
councils, and parties tend -to be organised as broadly 
as possible. Each party tries to gain as many in numbers 
as it can, sB tha^ if there is a certain general agreement 
among members in important matters, disagreement in 
matters of detail does not count. A political party may 
thus be defined as an organised group of citizens who 
profess to share the same political views and who, by 
acting as a political unit, try to control the government. 
The chief aim of a party is to make its own opinions and 
poKoy prevail. To, do so it is necessary to control the 
legislature in the state. To control the legislature .means 
that. party representatives must be in a majority in the 
legislature. Parties, therefore, are highly organised in 
order to manage elections, as the more members they 
can comimaud the more control they have over legisla- 
tion,. Sub-division ^n a party is disastrous; introduc- 
tion of any sort of cleavage immediately splits the vote 
and gives opposing. pai-ties an opportunity of winning. 

The best system to secure party ends accordingly is 
the minimum number of parties — or the two-party .sys- 
tem. This is the type in the Fnited States, 
lystemf** ^^^> ^^^^ recentlyi, it was the type in 
Great Britain. In the United Stattes 
there are ikro great parties, the Repuhlican and 
Democratic; in Great Britain there are, or raither 
used to be, the GOhservative and Libei-al parties. 
In each of these states ai new party, the Labour Party, 
has appeared in recent years. In Britain till very 
recently the Labour party used to vote with the Liberal 
party. Now ijb is organised as a! pai-ty by itiself, and with 
it may , soon fuse the advanced Liberals or Radicals; 
the moderate Liberals may join the Conservatives. On 
the Oonffcinent of Eurt^e, however, the two-party system 
i^oe-s motfprevail. On the Continent there is the multiple- 
party system. The lines of cleavage are too many to 


admit of a clear-cut division into two parties. In 
Germany there used to be about a dozen parties and in 
France about five toi seven parties, with various 
sub -divisions. 

The party system in all countries is an extra-legal 
growth. Parties have grown up gradually outside the 
legal systems of democracies, but they are as indispens- 
a.ble as law itself. It is not too much to say that the whole 
machinery of government depends on them. Thus in 
America the election of the President and the members 
of Congress depends on party organisation. As we have 
already seen, the party system is really a method by 
which the too great rigidity of American constitution has 
been broken down. In Great Britain the central fact of 
'government, the Cabinet system, depends on the party 

It has been pointed out by some writers that party 
division is a very natural outcome of government by dis- 
cussion. Party cleavage, it is said, is the result 
Tf'par'tS's? of the fact that there is a Yes and No to every 
quBvStion. This, indeed, would be true were 
all parties divided on particular questions. What is 
iound in practice is that parties divide on various 
grounds. Some parties are formed to farther class 
interests. The I/abour palsies of various modern coun- 
tries exist to represent the interests of labour. Other 
parties are based on particiilar theories of the ends of 
the! state. The socialists, for example, believe that a 
socialistic organisation of society is better than the in- 
dividualist type at present prevalent. Still other oarties 
exist for particular political purposes. The Irish INation- 
alistJ party, for example, exists to secure Home Rule for 
Ireland. Once the object of such parties is secured, they 
automatically cease to exist. Other parties, again, 
fltfise for the defence bf a sect or branch of the Church. 
■Such parties, though many of them' have Ibst their 
•original character, are common iil continental politics. 


Economic interests frequently lead to tlie formation oi 
parties, or to the alteration of existing parties in such, a 
way as to make them practically new parties. The 
question of free trade versus protection in Britain, for 
example, materially altered the composition of the old 
Liberal and Conservative parties. Race is still another 
basis of party division. This is common in countries 
where there are several antagonistic races — such as in 
the late Austro-Hungarian TTnion, and also where one 
race (e.g., the Jews in Gemnany) has to organise itself as 
a party in self-defence or for tbe promotion of its 

Except where general tendencies are obscured by in- 
dividual questions, it is generally possible to recognise 
at least four tjrpes of social or political thought t 
Four gene- (a) Radicals, those who wish the present in- 
of'pwty." stitutions to be altered root and branch 
(the word radical comes from the Latin word 
radix, which means a root)'; (b) Reactionaries, 
those who wish to return to the older state of 
things. These are the extremes; tbe means are — (d) 
Liberals, tbose who wish reform of present institutions, 
and (d) Conservatives, those who wish to " conserve " or 
keep existing institutions as they are. These four 
classes shade off into one another. In each class of these 
the same four classes might be detected. Thus in the 
Liberal )palrty there are some who are very near to the 
Conservatives on the one hand, and some very near the 
Radicals on the other. There isi also a considerable 
number of Moderates,. some with leaningsl to one extreme, 
and some to the other. The essence of political parties is 
organisation to attain control of tbe government, and this 
necessity keeps minor differences of opinion in ebeck. 
It often happens that in particular question? members 
of widely different opinions on all other matters wilt 
unite in the particular question. TKev agree to sink their 
other differences for the sake of unity on one question- 


3'lius, when the Irish Hoiae Rule question split 
Mr. Gladstone's Liberal party in 1886, several membera 
of the LiJjeral party wenit over to the Ck)nservatives (who 
after that were usually called Unionists) and, l)e- 
^ause of one important difEeirenc© with the Liberals, cast 
in their lot for ever with the Conservatives. 

In federal systems of government' another Une of 
distinction may be drawn, viz., centrifugal and centri- 
petal, i.e., Hke perties which support concen- 
8y$t«nsr" tration of authority in the central government, 
and the devolution of authority to the provia- 
cial or " state" governments. 

Although the party system has become essential to 
modern democracy, it is not without its critics. Much 
Marits and may be said for it, and much may be .said 
pSrty'"'** "' ^■Sai^st it. During the Great War, party dif- 
Covern- ferences in the countries at war were as a rule 
'" ■ sunk to secure national unity in the struggle, 

but even before the end of the ■ war the 5ld party dif- 
ferences Ijegan to re-appear. Many hoped that 
ihe war would kill the old party system, but everything" 
points to its resusciiiatioTi in its pre- War vigour, though 
perhaps not on the pre-War lines. 

The most serious objection to party government, espec- 
ially the two-party system, is that) it destroys individ- 
uality. It tends to make the political life of a country 
machine-life or artificial. The party in opposition or, 
as it is sometimes railed, the Outs, is always antagonistic 
to the party in power, or the Ins. It does not matter 
what the questiion may happen to be: the proposed IsiW 
may be perfectly good, but it must be opposed as a 
matter of party ,'principle. On the other hand, it is 
claimed that this artificial an.tagonism always ensures 
every aspect of the question being taken into account. 
It is the business of the opposition party to criticise and' 
to find as many faults as possible in any proposed law. 
This makes the party responsible for the law eager to 


ayi5id mistakes and to tiy as far as possible to meei 
every reasonable point of view. 

The destruction of individuality follows really from 
the party organisation. For /party govemm'ent party 
unity is essential. There is therefore no room for the- 
"independent" member. The " independeiitl " member, 
who prefers to hold his opinion even if it varies with 
the.jparty opinion; is a danger to the party as he destroys 
its unity. The party therefore must either pacify him 
by promising or giving him office when it is in power, 
or it must' g^ rid of him. Pi^rties are so highly organ- 
ised that they can easily get rid of a recalcitrant mem- 
ber by refusing him party recognition. Such a refusal 
means that he cannot be adqpted as the official party 
candidate at the elections, which, is tanta-mo'unt to his 
being unable to secure a seat. ■ ' 

It may also be said against the party system that ,i* 
tends to pass into the hands of caucuses, or private 
cliques, which arrange matters to suit themselves, not 
the generalpublic. Thus frequently t|ie best men of the 
country are excluded from the chief posts in government. 
This is true in two ways : first, ag in America, where the 
party machine is so powerful asi to exclude all from poweir 
wEb. do not work' with it; and, secondly, because the best 
men of the party in opposition cannot' be given office 
ir. a system of Cabinet government. It is an open ques- 
tion., however, whether these men do not perform even 
a better function by being in o|pposition, that is,; the 
function of responsible critics who may be called upon 
at any njoment to Shoulder the btirdens ot government. 
As teritics their functions are not ^vholly destructive, 
and they undoubtedly secure ' carefulness- in the 
CQnstructive work' of the pai-ty in power. And the 
party in power must put its ablest. men in office in ordeF 
to survive against the party in opposition . 

"Party government, its enemies point ou,t, also means 
excessive jpandering to the people. This' results in 


popular legislation, which, is passed not for tjie good o-f 
the country m a whole but to catch wtes. Popular 
legislation, it is held, is usually unscientific or bad 
legislation. On the other hand it may be said that the 
govemmeiLt really rests on piablio opinion, andl to reflect 
that public opinion in laws is really the purpose and aim 
of government. Party government therefore: is really a 
powerful instrument for the fulfilment of the purposes 
of the state. 

The eleotors, again, are mis-educated by organi-'ation. 
Parties try to impress on eleotors the truth of their own 
views and the falsity of the views of the other parties. 
In this way parties are often guilty of the two sins of 
swppressio veri and suggestio falsi. On the other hand, 
each elector is well sujpplied with the views of all 
parties, however distorted they may be, and he is left 
to draw his own conclusions. 

The party system, further, raises artificial difiiculties 
for the executive. In Britain, where the Cabinet is 
formed from the party in power, and where it is the 
head of both the legislative and executive branches of 
government, party feeling often raises difiiculties for 
the executive dejpartments which need not be raised. On 
the other hand, the party system means strict supervi- 
sion of the executive, The party in opposition is always 
on the alert for any executive blunder or scandal, a fact 
which cannot but have a good influence on the executive. 

One of the oldest and most frequently quoted draw- 
backs of .party government^ — that it encourages loyalty 
to party at the expense of loyalty to, the state-^has been 
partialiy disproved by the Great War. At the beginning 
of t!he war the leading parties immediately , sank their 
peace-time ' difPerenoes and loyally co-'pperated Avith each 
other to secure victorv. Thi^ co-operation resulted 
ultimately in the Coalition goveminent, which was r'el 
presentativei of all parties. In normal times, on the othe;r 
hand, the party in opposition sometimes adopts meaii^ 


which are disloyal or dangerous to the public peace in 
order to embarrass and discredit the party in jJower. 

One of the worst features of party government is the 
bitterness of feeling, rancour, and spiteful, undignified 
speeches which result from it, especially at election times. 
Party elections bring extraordinary excitement among 
the people ; so much so that it is not uncommon to find 
men who have never seen each other before, enter into the 
most heated arguments at meetings or on the stireets ; and 
among the lower classes, it is not an unusual thing to 
see a free fight as the result. To many such things 
mean amusement; but they certainly do not lend dignity 
to public life. 

Summarily, it may be said that the dual party, systtem 
tends to diminish the instability that attaches to parlia- 
mentary government, and to render the criticism of 
governmental measures more orderly and circumspeet; 
but it often tends to make party spirit more comprehen- 
sive and absorbing, party criticism more systematically 
factious and the utterances of ordinary politicians more 
habitually disingenuous. 

2. The Modern Pahty System. 

No two countries have the same party system, b«t a 
general distinction can be drawn between those which 
have the two-party system, and those which have the 
multiple-party system. Of the two-party system the 
chief example is the United States. In Britain till 
recently the two-party system, was in vogue but there are 
indications that in the future there may be more than 
two parties. It must be remembered that the two-party 
system may exist even though more than two parties 
nominally exist. Thus in Great Britain the two main 
parties used to be the Liberals and Oonservatives, and till 
recently the Irish Naftidnalists and Labour party, though 
fiey are really separate parties, voted with the Liberals. 


For present purposes of exposition the present (1920) 
party system (Coalitionists, liberals and Labour) is left 
■out of account owing to the very uncertain future of tliis 
■division of parties. The pre-war Irish Nationalists are 
now few, their places having been taken by Sinn Fein 
t)r Irish Eepnblican members, who do not recognise the 
British Pai-liament. Similarly, in Europe the parties are 
in a. position of unstable equilibrium. 

A "hort analysis of the party systems prevailing in 
<5reat Britain, the "United Sta.tes, and on the Continent 
of Europe will illustraite the party systems of the modern 

1, The party system of Great Britain dates back 
to the Elizabethain age, when the Puritans 
The Party opposed ^ the Ctown. The Puritans repre- 
Britain. sented the current desire to secure consti- 
• tutic)na,l government as against the arbitrariness 
of the royal prer5gative. With the increasing arbitrari- 
ness of the first two Stuart kings, James I. and 
Charles I., the Puritans gained in strength. They were 
united, and were able to secure seats in parlia- 
ment. Their opposition to the Crown became very 
marked in the Long Parliament of 1641. In this parlia- 
ment we have the first example of real parliamentary 
parties. The one party supported the Crown and prero- 
gative, the other supported cons:titutional government. 
The opposition resulted in the Great Rebellion or Civil 
"War, which ended in 1649 with the execution of Charles 1. 
The parties were known as the Cavaliers, the supporters 
of the king, and Roundheads, the supportiers of parlia- 
mentary government. These names, like the later 
names of Whiar and Tory, were given in derision. 

After the Restoration of the monarchy, in 1660, with 
the return of Charles II., the Cavaliers were complete 
masters in pBlitioal matters, but party divisions agrain 
became marked in the debates on the Exclusion Bill in 
1679. The purpose of the Exclusion Bill was to prevent 


the Kiug's bjpotbe;' (later James II.) from asceudiag. tka- 
.throne., The, names " ^^bhorrers,'? th<)fle who abhorred 
petitions sent to ,, the C,riOW,n. for th© summoning of 
parliament, and "Petitioners," thps& i?fho, petitioned 
thp king to summon parliament, were given to these 
parties, These names, were soon supplanted by the welU 
known nicknames of Tory (an Irish word meaning 
highwayman) and Whig, (a word meaniiig whey-f acej^ 
The Tories were the suppor.ters:5f the royal prerogative; 
the , Whigs were advocates of parliamentary sovereignty 
or constitutional goverpiment. , 

The names Whig and Tory continued for a century 
and a half, one of them indeed, Tory, still being used' 
derisively of the present Conservative party. The pre- 
sent party system however did not take root till the 
reign of George I., when Walpole became the first Prime 
Minister, and the modern ...Cabinet system started. 
William III. had chosen his minist&rs from the more 
numerous party, th© Wl^is'**; ^ ministry known in history 
as the .Junto. This .JuntG„;,however, , did not resign like 
a modem . party ministry, when it was not in a majority 
in thp House of Commons. 

With the change in th,e political complexion of the 
country, tEe views of. the parties changed. After the- 
Revolution of 1688, when the Stuart dynasty was eject- 
ed, ma.ny Tories who were supporters of the 
Crown became Jacobites, or supporters of the Stuarts, 
as against the Houses, of Orange: and Hanover. The 
death-blow was dealt, to the Stuart cause in 1745, and, 
with the disappeajance of the Jacobites as a poli- 
tical force, the Toriei'si .^enrtered into the national 
life as it existed; under the Hanoverian kings. The 
parties became divided : on . general principles of govern- 
ment. With parliamentary supremacy a realised fact, 
the old distinction no longer applied. The Tories came 
to be looked on as upholders of the present condition of 
things, of stability and order; the Whigs were regarded 


as the promoteis of reform and progress. In the nine- 
teenth Century the party names changed to the more in- 
telligible ones of Cons&rvaitives; (Tories) and Liberals 
(Whigs). With' the union, in 1801, of (jreat Britain and 
Ireland, there came another party element, which grew 
in strength as the century advanced'. These were the 
Irish Nationalists, who demanded "Home Rule" for 
Ireland. In Mr. Gladstonte'a ministry of 1886 a Home 
Rule Bill was introduced which completely brote up the 
Liberal party. Those who refused to accept the Bill 
went over to the Conseirvatives, which from then onwards 
was also called the Unionist party. >The term Liberal'- 
Unionist was used for many years to designate those who 
previously had been Liberals but who refused toi continue 
in that party after the Home Rule Bill> 

Another party — the Labour Party — ^has come to the - 
front in recent years. This p.arty came into existence 
to support the interests of the working classes. It -is to 
be distinguished from the , Socialists of whom there is 
also a party in England, but as yet it ha^; npt secured 
appreciable representation in the Hoiise of Commons. 
, Thus, at present, the British party system has iqur 
organ,iaed parties — the C'onservaitives (also known as 
Unionists, and sometimes derisively called 
Posfuon. Tqries), the Liberals, the National igts, and 
the Lalwur. Pairty. Up to the beginning of 
the Great War the Liberal, Labour, and Nationalist 
parties wprked together, aiid by so doing pffeservfid th.e 
two-party system of government. Within two 
rnain parties there was considerabk varia+ion of opinion, 
especia.lly marked among the Liberals, who were com- 
posed of two types — the less progressive (or Liberals 
•proper) and tjhe, more progressive (or Radicals). Some 
of the less progressive Liberals have joined the Conser- 
vatives and some of the Radicals the Labour party. 

Though the general dividing, 'line between Liberals 
and Conservatives is thje desire, for. progress and refora» 



Aad.tke desire for the continuance of the present scheme 
of things, it is to be noted that this line of division is 
somewhat illusory. The Consei-vative party has been 
• responsible for social and (political reform as well as the 
Liberal party. T£e extension of the basis of siiffrage, 
for example, in the Reform Actls was mainly the work of 
' "Conservative governments. 

The theory of parties' in England is well stated by 
"May in his " ConEftitutional History": — "The parties in 
'which Enrlishmen have associated have represented cardi- 
nal principles of government — authority on the one 
•side, . popular rights and privileges on the other. The 
former principle, pressed to extremes, would tend to 
absolutism, the latter tio a republic; but, controlled 
witihin proper Ifmits, they are both necessary for the safe 
working of a balanced constitution. When the parties 
lave lost sight of tliese principles, in pursuit of objects 
less worthy, they have degenerated into factions." 

16 Britain the organisation of the party machinery is 
<?entred in the /party leaders in Parliament, particularly 
the House of Commoiis. One man is definite- 
"Organis- ly recognised as the head of the party, and his 
-ation. views form the prevailing views of the party. 

The leader does not act alone, of course, but in conjunc- 
tion with other leading party men. The parliamentary 
■organisation of the parties is centred in an official known 
as the Whip, whose duty it is to secure the maximum 
vpte possible for his party in the House of Commons. 
Each party hais a central office ( the Centtal Conser- 
vative Association and the Central Liberal Association), 
"With ar executive committee as the central orfjanisation 
-of the party. Its main object is to win seats at elec- 
"tions, and for this end it issues prorpaeandist literature, 
«uch as Tear Books fthe Liberal Tear Book and the Con- 
stitutional CConservatlve) Tear 3ook] and electioneering 
pamphlets. The central office also keeps a list of name^ 
©f party members who wish seats in Parliament. The 


actual choice of candidates for seats is left to loeal asso- - 
ciations, but the central organisation often asks (though 
it cannot coU^pel) the local associations to adopt a candi- 
date nominated by the Whip. The central organisations - 
have also considerable command of funds which are spent . 
in propaganda work and in paying the expenses or part 
expenses for the candidates who cannot afford to pay 
their own expenses. The accounts of these party or- 
ganisations are kept strictly secret, but it is commonly 
believed that the party funds are augmented by those- 
who expect to receive either office or honours from the 
party when it is in 'power. 

Besides the actual executive organisations there ar©' 
many other party organisations. Most iniportant among 
these are the great London Social Clubs — the Carlton 
(Conservative) and National Liberal — the membership of 
which is exclusively political. AH the party leaders, 
belong to these clubs ; thus the clubs are important centres 
of political opinion. Working men's clubs exist in con- 
stituencies. These clubs hold political meetings and^ 
. take an active part in elections. Other organisationsi^ 
Buoh as the Primrose Lea-giue (Conservatiye) and the 
Eighty Oub (Liberal), are important political bodies, 
though they are not so continuously active as the others. 

2. The party system of the United States, like that- 
in Britain, has passed through various phases. Before 
the American War of Independence the parties 
sys'tem^'n ill America were similar to the parties in- 
VtatesT'*"' England. After the Declaratiion of Independ- 
ence, parties of a purely American type' 
grew up. The first line of division was be-* 
tween the Federalists and Anti-federalists. The basis 
of this division was the form of government.. 
The Federal party desired the. establishment of a 
strong central government; the Anti-federalists wished' 


to retain st&te. rights. - With the adoption ot the Con- 
stitution, the ^iD^ti-iederaliats were beaten, and disap- 
peared,., but their place was taten by the E^piiblicans, 
whafavoureid the restriction, of the- powers of the' central 
government. ;The Bepublicans, basing their theoriies 
on the geineral theories, of rights which were so popular 
. at the time of the French Revolution, gradually con- 
quered thei Federalists, or supporters of centralisation. 
The itepublicans, who ca,lled themselves Democratic Ee- 
publicans, were also helped by dissensions among ihe 
' Federalist leaders and by the passing into law of certain 
Unpopular acts. Coming into power in 1801, the Repub- 
licans adopted the most popular of the Federalist 
doctrines, which led to the eixtinction .;of the 
Federalist party. For some time there were no distinct 
parties (from about 1816 to 1830) — a period known 
in American history as the era of good feeling. About 
1830 new parties begaji to arise, one, the Democratfe, 
led by Andrew Jackson, the other, the Whigs, led by 
Henry Clay. The Democrats, the successors of thei Demor 
craitic Republicans, held extreme individualistic views of 
the rights of the people, and strongly opposed the pro- 
tective tariff, tiie national bank, and natSonal 
improvements' in roads and canals, all of which Avere sup- 
ported by the Whigs. 

The nest party controversy was slaveiy. This, ending 
in the American Civil- War, split up the Whig 
party. The holders of ■ anti-slavery opinions 
posftion. came together as the Republican pa;T*ty. After 
the Civil' War, and the abolition of slavery, the 
■party basis of slave-i-y was destroyed, but the party 
organisations continued. The present party organis- 
ation, though' the same in name, is not divided by any ' 
clearly miarked . difference of opinion. The chief element 
in the party system is the party organisation, which is 
all powerful. It is impossible to say. clearly what doc- 
trines a jRepublican or Democrat holds. They are 


divided on questions as they arise. Thus while the Ke- 
publican party favours protecticta.; the DemoOTats do not 
Appose it. - The gold standard is favoured chiefly Jby the 
Republicans,, but also by many of the Democrats. As a 
matter of practice each party seizes on the opinion that 
is likely 'to be popular, and the only way to distinguish 
them is by their orgauisa/tion. 

In America there are several smaller parties suoh aw 
the Prohibitionists, who are temperance reformers, and 
the Labour party. These, however, have as yet made n« 
mark on American national life. 

The organisation of the American party system is the 
most thorough-going in the world. Several reasons 
Party have contributed to this. In the firsti place, 

jsatiori, the separa>tion of the legislature and executive 
branches of government, and the difficulty of 
amending the constitution, ' have necessitated some 
method of co-ordinating them, both in central and state 
governments. Secondly, the frequency of elections, and 
the large number of elected officials, have helped to 
strengthen organisiaition. In America, also, re^'election 
is unusual. Fourthly, tihe large area of the United 
States, as well as the existencei of two gpviem- 
ments, federal and stpite, makes it necessary for tie ex- 
pression of the popular will that the machinery of elec- 
tion be highly organised, Fifthly, in America there is 
no central authority like the Cabinet which is repre- 
sentative of the party in power and acts as a f ociis of 
party opinion. 

The central fact of American party organisation is 
the convention or meeting of representatives to choose 
candidates for offices.. These itepresentatives are selected 
by the political parties. The actual working of the 
system starts at the primary election or caucus. This 
* primary ' is a meeting of the qualified - voters in the 
smallest electoral area. It sellects a local pa/rty committee, 


makes party, nominations for the local offices opem to elec- 
tion, and sends delegates to the next highest meeting. In 
the primary eletotions only a small number of electbrs a» 
a rule take part.' The main body of cAtizens stay away 
either from lack of interest, lack of technical qualifica' 
tions to attbnd, or because of unfair means adopted T>y 
party leaders. ^ 

In the larger electoral areas it is physically impossible 
for all qxialifiqd voters to attend. The business of these 
areas is . therefore done through bodies of delegates, or 
conventions. The duties of this convention are sijuilQir tO' 
those of the primal^ convention. It appoints a com- 
mittee, nominates party oandidaites and sends delegates 
to the state convention, which, in its turn, nominates 
the party candidates for the state governorship and 
sends delegates to the natisnal convention. 

The national convention is the head of the whole organ- 
isation. It is composed of twice as many members for 
each state as the state has members of Congress. Two 
delegates are sent from each congressional electoral area, 
and from each state at large. Each territory sends six 
delegates, whicb makes up 994 delegates in all. As a 
rule, resei^e members, or " alternates," as tihey are called, 
are chosen to replace members falling out. The national 
convention makes the party, nomination for tlie president- 
ship and vice-presidentship, and derides on the policy of 
the party. The national convention is held once in fdur 
years. There are differences in procedure in the two 
parties. In the Republican party the delegates sent from 
a state may vote as individuals for different candidatesi 
in the /democratic the delegates must vote in a body for 
one person. For election the Republican party re- 
quires only a simple majority; in the Democratic partiy a 
two- thirds majority is necessary. ' 

The party system in America, though f^omplete and 
sytflmetrical in its organisation, has unfortunately 
developed many abuses. The frequency of American 


elections has proved too severe a tax on both the time 
and interest of the electors, and the elections have passed 
into the hands of party orj?anisations. Hence have arisen 
what are known in America as the party " machine," the 
party "ring," and the " boss." The "boss" is the 
party leader who manages the election for his own 
friends or his own particular interests; the "ring" 
is composed of his followers who help him in 
elections and expect to share in the benefits flowing from 
success in the elections. The "machine" is the party 
organisation by which the "boss" is able to carry out 
bis purposes. The party "boss" is not primarily in- 
terested in general political issues. His business is to 
win electionsi, amd to do so he must be a master of 
intrigue and persuasion. His chief enemies are those of 
bis own party who try to weaken Ins power, as, particular- 
ly in municipal elections, he can often make a " deal" 
with the "bosses " of the ojpposite party to share in the 
final distribution of offices. 

The elections, (from the "iprimariea" upwajyls are, 
accordingly, more or less farcical., The voters:, aware of 
the system, do not attend, and the selection of candidates 
takes place at the bidding of an inside "clique" 
whicji' prepares beforehand the names to be adopted 
(known in America as a " slate "), The very existence 
of the " machine " system keeps voters away, as they 
know that their individual votes are of no avail against 
the machine. In the /primary elections only a very small 
number of the qualified voters' ever take the trouble to 
attend the meeting. 

One of the evil results of the American system is 
known as the "spoils" system, by which government 
offices are given to jtsHriyl supporters. The close connexion 
of politics with industrial and commercial life results also 
in the evil of what is known as " graft," by which busi- 
ness bodies by helping "bosses" or party leaders with 



money are able, to secure legislation tavouraWe to their 
own interests,. 

. During recent years many methods have been proposed 
for the reform of the American system. The fundamental 
difficulty is really the apathy of the electors themselves, 
but the " machine " is now so perfect that it is question- 
able even if increased interest in j^olitics by the massest 
would be able to amend it. Another suggested reform is- 
the abolition of elective administrative posts. i'<.r the 
" spoils " system reform in the civil service is necessary. 
Some states have drawn up /primary election laws to 
prevent abuse in primaj.'y elections. Another method' 
adopted in the state of ISIinnesota is to allow every quali- 
fied voter to name the candidate he prefers, and. 
ultimately, by the double-ballot system, to elect the man 
who has the final majority. 

3. Parties on the Continent, of Europfe. The system 
prevailing in Europe is the multiple-party system- 
Parties in Instead of two parties, there are several parties 
continental not oixe of v^hich, as a rule, is able to control 
urope. ^j^^ others. Where the party system co-exists 
with Cabinet government, the multiplicity of parties 
is particularity dangerous. The Cabinet is liahle 
to he beaten at any time, as it can never count, on the 
support of any groUp or groups. The frequent changes 
of Cabinet in continental countries possessing Cabinet 
government are due to this. 

In France after the 1914 elections there were no less, 
than ten parties represented in the Chamber of Deputies, 
of which four had a hundred or more members. The 
French party divisions are by no means clearly marked, 
and the lack of party organisation has prevented unity- 
For long the party divisions were decided by the questions 
of the form of government — monarchiral or presidential. 
Among the monarchical party were sub-divisions repre- 
senting, the olaim-s of different royal houses to the throne,, 
s-uch as the Bourbons and Buonapartes. The monarchical 


basis has died out and other theories of government have 
taken its place. The Nationalists and Conservatives, for 
example, are the successors of the old monarchists, while 
the Republicans, Socialists, Radicals, form other divisions, 
with sub-divisions of their own, in French political life. 
The instability m characteristic of French political life is 
helped by the system of interpellations, by which a mem- 
ber of the Chamber of Deputies may ask a question of a 
member of Cabinet, raise a debate, and demand a vote. 
This often results in unexpected defeats of the Cabinet 
and consequent resignations. 

The method most favoured in France to secure stability 
is the tAvo-party orftunisation. On the Continent as yet 
party organisation is not highly developed, and this lack 
of organisation is largely accountable for the weakness 
of the system. 

Italy, with about five parties, is in a similar position 
to France. In Germany before the W'ar, of about ai 
dozen parties represented in the Reichstag, five were very 
strong. But as in G'ermany there was no Cabinet govern- 
ment, the party system did not affect the stability of the 
executive government. In the National Assembly elected 
after the end of the Great "War six parties were repre- 
sented by twenty, or more members. Under the new 
Constitution Germany has adopted Cabinet government, 
so that the executive will now depend on party support- 
It may be remarked in conclusion that the partj- system 
has been adopted in all the British self-sjovemijiq' domi- 
nions. In Canada the Conservative and Liberals, in 
Australia and New Zealand the Liberal and Labour, 
are the chief pairties. In South Africa there are several 
parties, Owing to the peculiar political complexion of 
the country. The chief parties are the South African- 
TJnionist and Nationalist parties. In India the only 
traces of a party system which may aris& with responsible 
government is the divifiion into Extremists and 



1. The Vae-totjs Types of Union between States; 
Intehnational Alliances, Intehnational Administsat- 
ive Unions, Personal Unions, Real Unions. 

The word federalism is derived from the Latin word 
fced^s, which means a treaty or agreement. The essent- 
Federaiism ^^^ feature of a modern federal state is that 
two or more hitherto independent states agree 
to form a new state. Federal states are a species of 
a genus, the genus being unions, or states which exist in 
virtue of some form of governmental union or agreement. 
Before analysing federalism, it is , necessary first to 
differentiate iti from other types of union. 

Union between states varies in completeness from in- 
ternational alliances (such as an agreement between 
independent , states to guarantee certain rights 
Inter- or territory) on the one extreme, to federalism 

Amances. on the other. In the case of international 
alliances the indi\ddual states concerned have to 
carry out tl^e agreement: there is no organisation to 
compel any of the states that may fail to fulfil its 
guarantee. Alliances entail no organisation beyond the 
governments of the individual states themselves. They 
are the weakest type of union. 

Most unions have some sort of organisation definitely 

marking the union. These organised unions may 

be divided into (a) International Administrat- 

Or^anised ive Unions; (6) Personal Unions; (c) Real 

Unions. Unions; {d) Confederations; (e) Federations. 


International administrative unions differ from inter- 
national alliances in having a definite organisation for 
nSfonai carrying out ofi the purpose for which they 

Adminis- *^^ established. Such unions exist only for 
om'inl ^ definite administrative purpose— such as the 

management of the Suez Canal by Britain and 
France, or the joint administration, by the same powers, 
of certain Pacific islands. 

Personal Fnion and Real IJnion (both these terms 
are taken from the German language) are very much 

alike. Personal union occurs when two distinct 
u'nfonf' , states come under the same ruler. The states 

are indeipendent, each having its own constitut- 
ional laws and organisation : the only bond of union is 
the common ruler. Choice by one of the states, succession, 
or any other casual circumstance may be the 
cause of personal union. Each state preserves 
its own identity. Each sends its own international 
representatives to other states, and receives theirs. 
The common ruler may have different functions 
in the several states of the union. He may be a con- 
stitutional ruler in' one and absolute in another. He 
has different personalities for each unit. As soon as the 
ruler ceases to exist, the personal union ceases. In a 
personal union, therefore, the only bond of union is the 
person of the ruler, and when it ceases to exist, either , 
by death or by legal extinction, the union ceases. Ah 
example of such personal union was the TJnion of 
England and Hanover from 1714-1837. The Hanoverian 
kings of England were at one and the same time Kings 
of England and Kings of Hanover. This relationship 
ceased with the accession of Queen Victoria, because the 
Hanoverian laws did not permit female succession to the 


Beal Union goes a step further than Personal Union. 
In Beal Union there is a common ruler but the individual 
states, while preserving their own constitut- 
unfon ional laws ^md local institutions, create a 
common authority to secure certain com- 
mon ends. The states are closely united, and 
act as one in international matters. The old 

Austro- Hungarian Union is an example. In Austria 
Hungary there were two units — the Austrian Empire and 
the Kingdom of Hungary. The Emperor of Austria was 
also the King, or, as he was officially known, the 
Apostolic King of Hungary. The Compromise of 1867 
settled that each state should preserve its institutions, 
with its own legislature and executive departments. In 
foreign, military and naval affairs, and in financial 
matters relating to these common affairs, there were 
common administrative agencies. With certain small 
exceptions the Union had emtire control of these 
subjects, though the executive agency for the assess- 
ment and collection of the financial contributions of 
the units was the individual governments. In com- 
mercial matters there was an agreement, renewable 
at intervals of ten years, by which the two states were 
practically one in customs, coinage and weights and 
measures. The legislative power in common matters was 
vested in the Parliaments of the states, but the Delega- 
tions, nominated from the Legislative Houses of each 
state, decided the requirements of the common services. 
These Delegations were summoned annually by the 
Emperoi^ and King, aind met alternately at the capital of 
Austria (Vienna), and the capital of Hungary (Buda- 
Pesth). The three common ministries (Foreign Affairs, 
War, Finance) were responsible to the Delegations, not 
to the Austrian and the Hungarian Parliaments. 

Another modern example of Beal Union was the union, 
from 1815 to 1905, of Norway and Sweden. This union 
was not so con^plete as the union of Austria and 


Hungary; Foreign affairs were managed by Sweden, 
mot by a separate organisation. Each country presei-ved 
its own parliament and flag. There was no joint legis- 
lature or joint ministry. The desire for separate foreign 
Tepresentation by Norway led to the disruption of the 
union in 1905. 


Though the words Confederation and Federation come 
from the same root, the two are distinct. Confedera- 
Federation *^**°' ^® P^ior to federation both historically and 
and Con- logically. Federation is the most complete 
form of union. In a federation the states 
hitherto sovereign lose their statehood altogether; they 
give up their sovereignty to another state, the federal 
state. In a confederation the union is only partial. 
Each state preserves its original sovereignty, but for 
certain common ends a new organisation is established. 
The confederate organ of government binds each state 
only with the consent of the state concerned. Ifo new 
fitate is formed, though there is a new organ of govern- 
ment. This new government is, as it were, the result 
■of a treaty between independeiit states, except that the 
treaty has no definite duration and that it creates a 
■separate organisation to recommend or carry out certain 
•common^ ends. Any state in a confederation can secede 
if it wishes. The only restraint is the fear that the 
•other states of the confederation may enforce the original 
treaty from the idea that they have been endangered by 
ihe secession. 

In a confederation the central organ of government 
deals wiili the individual governments which it controls 
■only so far as its statutory powers permit. A confeder- 
ation does not deal with the citizens of the individual 
•states. In a federation, however, a new citizenship is 
•created. The federal government has direct relations 


with, the citizens. In a confederation each citizen is a 
citizen of his own state'; in a federation he is a citizen 
ir. a double sense, of a " state " (which, is only nominally 
a state in a federal union) and of the state, the federal 
state. To take a simple example, suppose India were 
united in a confederation, there would be a gOTernment, 
say at Delhi, which would control Bengal, Bombay, 
Madras and the other provinces in certain matters agreed 
upon by the provinces. Yet the provinces would remain 
independent of each other. A Madrassi would remain a 
Madrassi, a Bengaii a Bengali. Bengal or Madras could 
secede from the union if either felt that it could no 
longer consent to it. In a federal union, however, 
Bengal, Madras, Bombay and the others could not seeed& 
from the union. Each Bengali and Madraissi, in addi- 
tion to being a Bengali or Madrassi would be also an 
Indian. He would be a Madrassi-Indian or Bengali- 
Indian, for the stat« to which he owed his chief alle- 
giance would be India. Bengal, Bombay, Madras, etc., 
would no longer be independent states, but provincial 
governments with certain guaranteed powers. 
, The distinction between confederations and federations 
may thus be summed up : firstl, a federation makes ai new 
state; ai confederation is a union of existing states; 
second, a federation has a body of federal law which is^ 
the law of the new state. This law represents the will of 
the federar community. In a confederation there is only 
a joint government for certain pui-poses., The continu- 
eil existence of this governtoent depends on the consent 
of the states. Third, in a federation a new sove- 
reignty is created. The sovereignty rests in the federa- 
tion, not in the states, as in a confederation. Fourth, 
the states, or more correctly, provinces, of a federation, 
cannot secede, for a federation is perpetual; in a con- 
federation, the consent of each state being essential to 
union, secession is possible. Fifth, in a federation a new- 
nation is formed, the central government dealing with 


both provincial governmeuts and citizens : in a confeder- 
ation the common organ of government deals only with 
state governments. 

In the German language the distinction is well brought 
out by the words Staatenbund, meaning union or system. 
of states (confederation), and Bundestaai, a unified state 
(federation)., Confederation is a weaker tj'pe of union than 
federation. Confederations often precede federations, 
insomuch as the conditions leading to confederation lead 
ultimately to a stronger form of union'. In the modern 
world the United States, Switzerland and Germany are 
outstanding instances of federal states, and in each of 
these the federation was preceded by confederation. 
Confederation, however, often results from al temporary 
emergency, and experience has proved that as soon as 
that emergency is past, the confederation breaks down. 
Federalism must rest on something more secure than- 
temporary exigencies. 

There are many historical instances of confederations. 
Unions of this type (called "systems," "groups,"' 
" joiiit:-states," or " commonwealtlis ") were 
oi^coR!** common amongst the Greeks. In ancient 
federation; (Jreece there was a large' number of independ- 
ents cities, and from time to time the needs of 
defence or the demands of commerce led to leagues ^oi* 
confederations. Certain conditions favourable to union 
alwavs existed in Greece— especially common lan- 
guage, religion amd culture. Everj^ Greek wa« 
proud of the fact that he was a Greek, whether a 
Spartan, a Corinthian or an Athenian, as distinct from 
a foreigner or barbarian, as the Greeks called non-Greeks. 
In spile of many all-Greek institutions, such as the- 
religious festivals, the Hellenic games, and the Amphic- 
tyonic Council, the ancient Greeks never achieved unity. 
The mountainous nature of the country, tlie intensely 
local form of government, whether democratic or 
oligarchic, and the local jealousies, prevented complete- 


-fusion. The Boeotian, Delian, Lycian, Achaean and 
^tolian Leagues all flourished for some time, but none 
achieved permanence. The most notable of these was 
the Achaean League. 

The Achaean League was the result of the conquest 
of Greece by Alexander the Great, After Alexander's 
.f^j death, the Macedonian domination over Greece 

^chsan continued, but the ten cities of Achaea, taking 
advantage of the Macedonian pre-occupation 
with an invasion by a northern tribe, established their 
independence. They wer« soon joined by the whole of 
■Greece, except Sparta and Athens. The Government 
•of the -Achaean League was organised according^ to the 
"'tyjpe prevailing in the cities forming it. There was an 
Assembly of all tihe citiz&ns, which met half-yearly, an(J 
:a Senate, of 120 members, which was practically al com- 
imittee of the Assembly. The Assembly elected magis- 
trates to carry on the work of the League. These magis- 
trates were responsible to the Assembly. The citizens 
in the Assembly voted by cities, not by head, each' city 
'having equal representation. The Chief Magistrate, or 
Oeneral, was the equivalent of the modem President. 
The Achaean League was in many respects more like a 
federation than a confederation. Common laws, magis^ 
traces, coins, weights and measures, however, did nof) 
prevent disruption. Structurally the League was defec- 
"tive in the equal representation of unequal cities, and 
"in the unfon of civil and military power in the! general- 
■ship. The first -led to local .iealousies, the latter to 
■defeat. Athens, moreover, and Sparta, refused to Join, 
and, though the name of the League existed long after 
the Macedonian ypke was oast off, its actual life ceased 
with the realisation of the object which gave it being. 

The Acha\an League was the most thorough -going atr 
tempt at federation in the ancient world. The Lycian 
"League, earlier historically than the Achaean, is notable 
insomuch as, profiting later by the experieneei of the 


Achffian, it allowed proportional representation to the 
•city-states forming the League. The %cian League, 
it may also be noted, attracted the admiration of Montes- 
"quieu, and the American, Hamilton, and through their 
influence it was a strong stimulus to the modern federal 

Before the rise of Eome there were, in Italy, leagues 
T\'ith certain federal characteristics. The chief was the 
in Rome. League of the thirty Cities of Latium, of which 

perhaps Rome was one. The rapid rise of 
Rome, however, prevented any confederations in Italy. 
Rome, as mistress of Italy, was too strong to join in any 
equal alliance with others, and strong enough to prevent 
any union against her. Nevertheless in the heyday of 
the Roman Empire certain principles of government 
"were observed which have sdnce been applied with great 
success in the British Empire. After her military con- 
quests Rome usually tried to incorporate her provinces 
in the Empire by extending the privileges of Roman 
citizenship to the conquereld peoples. The Roman domin- 
ions were allowed a large measure of self-government, 
as well las the Roman franchise. The- latter was a 
failure because of the physical impossibility of the con- 
quered peoples to take direct part in the Roman elections ; 
and self-government really depended on the whims of the 
administrative chiefs at Rome. Though neither federal- 
ism nor representative govisrnment succeeded, Rom« 
almost achieved success in both. 

After the fall of Rome, politicEul organisation of all 
kinds became very unstable. With the feudal system, 

however, the federal principle again emetged. 

The Feudalism, the essence of which was a social 

Iges.' classification basised on ownership of land, was 

in a sensei federal. The King was the social head 
and the vassals were his subordinates. Instead of pro- 
ducing union, this system produced disunion. _ The 
greater landlords tended to become independent kings. 


To the protest against feudalism by the cities, modem 
federalism owes its birth. Feudalism was essentially 
a land system. Commerce and industry were much 
hampered by the exactions of territorial magnates, and 
for long there were severe struggles between the strugg- 
ling industrial centres audi the feudal landlords. Com- 
merce and industry led to the formation of towns, the 
wealth of which attracted the greedy overlords. Defence, 
therefore, was the firsrt task of the towns. Several 
leagues of towns sprang up, notably the Lombard League, 
the Ehenish League; the famous flan«eatic League and 
the Cinque Ports in England. These leagues, which 
sprang up throughout all western Europe, existed to 
oppose the rapacity of feudal chiefs. They were pri- 
marily commercial. They had common military organi- 
sations to guard their commerce. They were not really 
political unions, and in no case did the union outlive the 
commercial necessity which caused it. 

In one case, howeiver, the basis was laid for a later 
confederation and, ultimately, federation. In 1291 
Switzer- three mountain cantons in the Alps leagued 
land. together against the absolutisni of the German 

king and the preyailintg feudal lawlessness. This Swiss 
League gradually developed in strength and organisation 
till the independence of the cantons was recognised by 
the Peace of Westphalia in 1648. 

The Holy Roman Empire, by a long process of decen- 
tralisatioii, gi;adually became a loose confederation. The 

Emperors were gradiially forced to give cohces- 
The Holy sions to the territorial magnates, many of whom 
Em"fr". ultimately became independent. Till 1806 the 

Emperor continued to be elected by the Diet of 
the Germaoa Empire, which represented some three hun- 
dred, states a^d free cities. The dissolution of this 
confederation was followed by a new confederation, and 
later by the federation of the German Empire. 


One, more historical confederation must be noticed, 
viz., the Netherlands, feudalism, though it had a firm 
y^^ hold in the Netherlands, rapidly decayed with 

Nether- the rise of the towns. Thfe' natural indus- 
triousness of the people, coupled wiiii a flat 
country which provided no baronial strongholds, enabled 
the people of the Netherlands to achieve liberty early. 
This liberty, however, was soon to be infringed by the 
passing of the Duchy of Burgundy, to which the pro- 
vinces (rpughly Holland and Belgiumi) owed allegiance, 
to Spain. The E«formation, which was supported 
particularly in Holland, led the Spanish Kings, Charles 
and Philip, to adopt severe repressive measures, the result 
of which was that all the hitherto iiidependeAt trading 
republics lost their ancient charters and liberties and 
were made completely subservient to Spain. Both 
Catholic and Protestant proviiuies disliked Spanish in- 
terference, and in 1579, by the Union of ¥trecht, five pro- 
vinces united in eternal union to oppose the foreign 
power. The. articles of union show that these provinces 
all but became a federal union. The provinces decided 
to defend one another by iheans of the "generality " of 
the union. The expenses of common action were to be 
met by equal levies from the provinces. Peace and war 
were to bo decided unanimously by the provinces, as also 
was the levy of the federal taxes. On other matters the 
majority was to decide. The central organ was the 
States-General, which represented governments, not in- 
dividuals: No, state could make separate treaties with a 
foreigm power without the consent of the others, and any 
alterations in the artibles of "Union required unanimous 
consent from the meinbers. The States-General, it must 
be noted, represented sta,tes, not the i>eople, and the votes 
twere by states. No executive corresponding to the 
States-General was appointed till the Spanish yoke was 
definitely renounced. 


The Dutch confederation lasted only so long as the 
Spanish menace. The union never went beyond a union 
of stateg; no new nation was formed. The individuals 
of the states were never affected by the central govem- 
ment. The deaith of the menace killed the spirit of 
lanity ior centuries, and, when it was revived, the idea 
of r federalism was losit. 

The two most notable modern confederations are the 
TJnited States of America for the few years 1781-1789, 
and the German confederation from 1815-1866. 
sta%s"and'' ^^® American confederation existed for mutual 
the German defence. Each state reserved its independence 
at?on. *' except, so far as the common end of defence 
demanded its surrender. A congress of dele- 
gaites was formed to, make provision for , defence, but 
no common executive or judiciary was instituted. The 
confederation passed ultimately into what is the chief 
example of a modern federal state. 

The German confederation consisted of various types 
of states, kingdoms, free cities, Grand Duchies and prin- 
cipalities. The aim of the union was the external and 
internal security of the states. There was a central Diet, 
presided over by Austria. This Diet consisted of repre- 
sentatives of the states, who voted according to the in- 
structions received from theiT own governments. The 
Diet had supreme control in foreign affairs, though the 
individual states could maike treaties if these treaties 
did not endanger the unioii or any state of the union. 
AVar and peace alike were matters for the Diet, and 
machinery was created to settle inter-state disputes. No 
federal executive was established; each' state acted ai 
the executor of the resolutions of the union. 

This confederation, after various vicissitiides, includ- 
ing severance from Austria, became the federation of 
the German Empire. 


3. Federalism. 

No type of government organisation occupies a larger 
place at the' present time in the public mind thau 
federalism. Not only is it, regarded as the solution of" 
many of the internal problems of states, but many poli- 
tical thinkers look upon it as the key to the organisa- 
tion of a world-state. With, the United States of 
America as a model, many modern states have adopted 
the federal system and at the present moment even the 
most conservative of all constitutions; that of Britain, is 
in danger of losing its old flexibility to meet the ever- 
increasing demand for a federal empire. 

One of the earliest definitions of federalism is in Mon- 
tesquieu's " Spirit of the Laws," in which he says that 
federal government is "a convention by which several 
similar states agree to become members of a larger one." 
It is, as Hamilton says (in the Federalist, IX, though 
Hamilton did not draw an accurate distinction between 
federation and confederation), "an association of states 
that forms a new one." FedteraJiam tries to reconcile the: 
existence of hitherto independent states with the creation 
of a new state, to which alone sovei^ignty belongs,. , It 
is, as Dicey says, "a political contrivance inten,ded ta 
reconcile national unity with the maintenance of state 
rights." It represents a compromise between large states 
and small states. It combines small states which up to, 
the time of union have been independent units, into a 
larger state. The small states preserve as much local 
axitonomy as is consistent with the object of union. They 
lose sovereignty, for the sovereignty passes to the new- 
state. They become units of provincial government wit Ik 
definitely guaranteed powers. 


It is unfortunate ttat the language of ordinary life 
should so haye overcome the more exact language of 
oiflieuity of Political Science that the word state is used 
""state"'"'' for both the united federal state, and the units 
which compose it. In the United Statesi of 
America there is, properly speaking, only one 
state, but Maine, if assachussetts, New York, Ohio, Cali- 
fornia, etc., are always called " stdtes." Scientifically 
speaking they, are states only by courtesy. It would be 
more correct to call them provinces (a® in Canada), as ihey 
do not possess the essential characteristic of a^tate, which 
is sovereignty. Again in Germany there is, only one 
state, though Prussia, Bavaria, etc., are calleci " states." 
In S'^^itzerland the word Canton is used, ai use which pre- 
vents confusion. It must also be remembered that by 
the words " federal state " ii really meant federal govern- 
ment. "Federal" applies to government, not to state. 
A federal state is not a compound state with divided or 
dual sovereignty. The state is one and sovereign; the 
form of government is federal. Both ordinary and 
scientific language are inconsistent on these points and 
it is necessary to keep these caveats in mind. 

Certaili favourable conditions are necessary to 
the success of a feder£|,l^ union. The first is 
The Basis geographical contiguity. It is hopeless to 
nlm,"'*"" niake a federal sysjbem real if the component 
phica*"*"*' P^^*s are widely separated by land or sea. 
contiguity. Federal government demands that each pro- 
vince should take part not only in its own affairs but in 
the affairs. of the central government. Distance leads to 
carelessness or callousness on the part of both central and 
local governments. National unity is difiicult to attain 
where the peofple are too far apart. Thus while federal- 
ism is possible in Australia, Canada, South Africa 
or India, it could never b© real in the whole British 
Empire, where London would be the federal centre of 


countries so far apart as Canada, South Africa, India 
and New Zealand. 

A second essential is community of language, culture, 
religion, interests and historical associations. These, it 
(b) com. will be remembered, are the usual elements of 
Langiiago, nationality. The aim of federalism is to pro- 
eiMture jupg a unified nation, and complete unity 
intarasts. demands thait the boundaries of state and 
nationality coincide. Federalism makes a new state, 
and the new state, if it is to be successful, must have 
behind it the national force of the people. Thus in 
Germany, Prussiams, Bavarians, Saxons, etc.,, became 
Germans ; an,d in the United States the American nation- 
ality co-exists with the local patriotism of the "states." 
Federalism implies two types of allegiance, a smaller and 
a greater, and the smaller must never come before the 
greater. Discordant states, sttaies^ that do not " pull 
with " the central government, weaken it. Success in 
federal union depends on agreement: discordant ele- 
ments must, therefore, be excluded or won over. There 
should be opposition of will on the jrait of neither in- 
dividuals nor governments to the union. Federal gov- 
ernment, then, is most likely to be successful where there 
are the conditions favourable to the development of a 
new nationality, or the resumption of an old one. 

The thil^d essential of federalism, viz., a sentiment of 
unity, flows from the second. This basis implies a com- 
mon purpose, a purpose which finds its fuMl- 
mant of ment in a common (political union. The senti- 
''"'*^' ment of unity is the index of a common national 
mind. The first attempts at the organisation of such 
national fellow-feeling may not always be successful, 
but the likelihood is that in the course of time the various 
local jealousies will be lost in a common loyalty. 



To prevent lopal- jealousy, another basis is necessary. 
As far as possible, there should be equality among the 
Eauaiitv ''o™P''^6nt parts, both between themselves and 
among . in relation to outside powers. A " state " 
the Units. ji2aj.]jedly lairger or more powerful than the 
others may be too ■ proud and domineering for sinalljer 
ones. Because of its strength, it may be selfish or re- 
gardless of the interests of the others. This, for .ex- 
ample, was true of Prussia in Germany. A strong statfe, 
again, may endanger the union by its ability to resume 
its own foreign relations with other po"wers. For an 
ideal federal union perfect equali1;y of the states in size 
and power is desirable. Such, exact equality is, of 
course, impossible. Only a rough equality is attainable. 
Proportionate representation on the federal organs does 
not eliminate the jealousy and envy which result from 

Fifth, federal government requires a basis of political 
competence and general education among the people. 
Federal government, because of its structure, 
Abinty."""' ^s the most difficult of all systems of govern- 
ment, while the recognition and appreciation 
of the double allegiance to province and state require a 
high level of general intellige^nce among the people. 

The federal process usually proceeds from the smaller 
to the greater, i.e., small "states " combine to form a 
single large state. It is thus usually 
Federal a process of centralisation. Sometimes 
isa°tton' ' the federal form of government is used 
as an administrative instrument. A large state 
may sub-divide itself on federal principles to secure mors 
efficient govemlnent. This is a process of devolution or 
decentralisation. Mexico and Brazil are of this type, 
and at the present time there is much talk of federalis- 
ing the British Isles, If not the British Empire. It 
must also be noved that the provinces or states should 
follow, as far as possible, historical boundaries. This 


was the case in Germany, hvLt in the United States the 

state boundaries are mattei-s largely of geographical and 

admimstrative convenience. 

Given these conditions, federal government is likely 

Essential *« ^e adopted and to be successful. In federal 

Eieirtertts in government there are three essential ele- 
Foaeralism. ^gjj^^._ , ,, 

1. The supremacy of the constitution. 

8. The demarcation of powers betx^een the central 
and ' provincial governments. 

3. The existence of a judicialpower to decide dis- 
' putes arising on the first and second heads. 
A little consideration' will' fehow Jiow all these three are 
essential. A federal form of gdvertment is, as it were, 
a contract between certain parties, these parties 
Jtitufionl"" being the "states " or provinces, and the new 
government. The smaller units agree to form one 
state, which must be sovereign. ' At the same time they 
wish to preserve as much local autonomy as they can*. 
Obviously there must be an agreement defining the posi- 
tion of the central or new government and that of the 
provincial governments'. This agreement is the con- 
stitution. The constitution is not a moral treaty: it 
is the fundamental expression of the will of the parties 
forming a neXv state: it is the basis of the new state. 
To the new state all the pi-bvinces and citizens, what- 
ever their former positiion, have t!he same relation. The 
provinces now become units of provincial government 
with their position guaranteed by the fundamental con- 
stitution. The citizens all owe allegiance to the same 
state : they have a new citizenship. 

It will also be obviotts that if the constitution is to 
be stable it should not bte too easy of amendment. We 
have ' already seen the distinction between flexible and 
rigid constitutions. A flexible constitution is one which 
can be amended by the normal lawrmafeing' process : a 
rigid constitution is one in which amendment is possible in 


a way different from the ordinary law-making process. 
Tte nature of a federal constitution is such that it must 
be rigid. Were the constitution amendable by the nor- 
mal process of law-ipaking the states wliose rights are 
guaranteed by the constitution would feel insecure : and 
such insecurity would inevitably prevent the welding 
process so essential to a good federal union. If federal- 
ism were applied ^o the Fnited Kingdom the old flexi. 
bility of the British constitution would haive to be sur- 
rendered. A new constitution with the rights of Seot- 
land, Wales and Ireland definitely guaranteed would 
have to be made, and made in siich a way that the 
ordinary legislature could not alter its guarantees. 

The second essential of federal government, viz., the 
demarcation of powers between the states and central 
Government, arises from the first. Theoretic- 
2. Demar- ally the constitution need go no fxii-ther Ihau 
Powers. the general delimitation of pov^^ers; actually 
all federal constitutions go into considerable 
detail in the mattex" pf the divisitin of powers. They not 
only indicate the scope of the various powers, but, as a 
rule, say how they are to be exercised. Once the gener'ai 
principles of division are laid down, there is no reason why 
the central and state governments should not work them 
out themselves according to their particular circum- 
stances. In practice, however, federal constitutions 
give detail's for the guidance of the new governments. 

In the actual division of ,powers there is considerable 
variation among existing federal governments. Certain 
broad lines of demarcation may be laid down. 
Division The fundamental division is between central and 
of Powers, i^jjg^j . affairs ot common concern must be under 
the common, i.e., federal government; affairs of local 
concern should be under the "state," or provincial gov- 
ernment. In the earliest modem federations defence as a 
rule was the immediate cause of union. Common defence 
implies the federal management of the army and navy, 


of foreign relations, and of financial resources sufficient to 
pay the common expenses. Foreign relations, war and 
peace, and tke power to raise money for these purposes 
must belong to the federal government. These functions 
are essential t'o the very existence of the federal govern- 
ment. All matters of common interest should also bei under 
the common management, e.g., coinage, patents, copy- 
rights and the postal service. A large number of func- 
tions relating to commerce and trade require common re- 
gulation, e.g., transportation, including railways and 
tariffs. Cbmmon railway control is necessary, particularly 
for co-ordination of railway gauges. In Australia, for ex- 
ample, at present it is impossible to have a through rail- 
way service from Melbourne to Sydney, because the rail- 
way gauge differs in the two states of Victoriai and New 
South Wales. Tariffs, both internal and exteriial, must also 
come within the powers of the central government. Inter- 
state tariffs are ai serious bar to federal unity. In the 
German confederation of 1815 not only was each state 
a separate tariff area, but Pinissia alone had over sixty 
separate tariff areas of her own. Whatever the external 
tariff policy may be, free inter-state commerce is neces- 
sary. Such free commerce implies federal control. 

For the national interest it is also advisable that 
education &nd marriage and' divorce shoiild be under cen- 
tral supeiwision. There is, however, considerable van'ation 
in praciftoe in this respect. The modem tendency 
is to bring more and more functions under the 
supervision or general control' of the central government. 
The actual management of these affairs is left to the 
provincial governments. Matters of purely local interest 
should be left to local governments. 

In regard to the division of powers there are two 
general types of donstitution : the United States or Ameri- 
Types of ^^^ ^^ype. and the Canadian. Before the union. 
Feii*rai ,in the United States, each eovernment had its 
Unions. ^^^ three " powers " — ^legislative, executive 


and judicial. , The creation of the fedetral constitution 
limited these powers in, a two-fold way — first, by the 
federal iEonstitution ; spcpnd, hy the new state constitu- 
tions. To the -central government were given the mini- 
mum powers necessary .for.,|he working of a federal gov- 
ernment; the residue of functions was left to the states 
themselves. The functions of, the central gov- 
ernment were definitely limited by the constitu- 
tion. Thus, iq, the,, United States,^ the central 
government performs certain stated functions,- with such 
other functions as are implied in these; everything else 
is left to the states. In Canada the opposite policy was 
adopted. Certain subjects or classes of subjects are defi- 
nitely given to the states. The federal government 
leg-islates in all matters not definitely given tlo' thei states. 
TEe legislative powers of the Canadian central govern- 
ment are thus much wider than those of the American 

In both Germany and Switzerland the, central govern- 
ment has more powers than iji the United States. 
Though the legislative pow^ of the central government 
in Germany is wider, the ex;ecutive is narrower, for the 
states largely execute the federal, law fori themselves. This 
is true of both the pre-war and post-war G&rmaax govern- 
ment. The more recent , federation of Australia 
Q900), though its modpl was the United States, 
Is burning towards the Canadian model. The 
modem tendency is in this direction, i.e., to give 
areater rowers ,to the central government. In most of 
these federal governmei^ts, use is made of thei principal 
of concurrent jurisdiction, whereby,! if the constitution 
does not definitely exclude certain things from the 
states, the slates are free, to act for themselves, provided 
the central government. doe3 not act. .Of course the law 
of a' state or province must not, be in opposition to any 
law of the central legislature, ; as the less cannot super- 
the greater, just as no law . of the centra! 


government itself can supersede any article in the 

The third essential of a federai constitution is a body 
to decide disputes. Where there are two powers, local 
3 ^ and central, each with stated powers, cases of 

JuSfoiary. 9°"-^^?* ^^7 arise. This not only makes a 
judicial body necessary buit gives that body great 
power over both the legislature and executive. Thus, if 
either a state or central legislature passes a law which is 
not within its .powers according to the constitution, that 
l«.w becomes void beoaluse the courts will, refuse to 
apply it in any given case. Such a law is ultra vires, 
or beyond the constitutional powers of thel making bodyj 
and, therefore, is inapplicable. 

Federal governments show various types of judicial 
organisation. The best provision is made in the United 
States and the Canadian (and other British- 
'praotioe.' Colonial) constituitioHs. In these there is a 
definite federal judiciary which is constitution- 
ally independent of the other branches of government. 
This independeaice enables the Courts fearlessly to 
enforce their decisions. In Canada the Governor* 
General also, has the power of disallowing a bill as 
ultra vire?, but, hjs decision does not affect the. right of 
the Supreme Court to pronounce a law unconstitutional. 

On the continent, the courts have not the same power. 
Though courts exist in botih Switzerland and Germany 
which might -veil exercise the function of deciding^ con- 
sititutional limits, yet they have no right to question the 
legality of federal laws. In Switzerland, where there is 
a, near approach to direct popular government, the 
ffieory seems to b© that the federal, laws depend on the 
will of the people. Once passed, the laws must be ac- 
cepted as suchj whether they: are constitutionally legal 
or not. , On the continent, too, the prevalence of adminis- 
trative law, whereby official acts are subject to a separate 
jurisdiction from other aots, rulesi eonstittttional disputes 


out of the sphere of the courts. They belong to the 
sphere of administrative law; the government itself 
therefore decides on the constitutionality or non-con- 
ftitutionalily of any given law. In Germany the 
Imperial Court, or Beichsgericht, has pronounced laws 
paissed by states as ultra vires, but it has never pro- 
nounced any Imperial law unconstitutional. The legis- 
lature itself decides whether or not a proposed law is 
within its own powers. 

Some further points must be noted. In the first place, 
there is no such thing as a model system of federalism. 
Points. Experience has definitely proved that this or 
There is that element in federal government is good or 

""deral' ^^*^' ^^* ^^ ^° ^^^^ ^^^^ ^* ^^ *^^*^ *^^* ^^^ 
System. given organisation will be successful. The best 

type of federal government is that which is best adapted 
to the people. Although Ihe general spirit of federalism 
is the same all the world over, the details must vary ac- 
cording to the type of institutions on which it is sujper- 
imposed. German federalism, for example, could not be 
produced elsewhere, because German federal government 
was founded on German institutions. When a federal 
system is established, local institutions should be utilised 
or adopted wherever ,po8sible. To impose new ideas or 
invent ai new political machinery where the indigenous 
ideas or machinery can be us^d is to court failure. As far 
as is consistent with the objects to be attained, 
federalism should mould old institutions to new ideas 
without violently breaking with tradition and established 

A secondary characteristic of federal unions is double 
representation. The bicameral principle finds here a 

natural method of division — one house for the 
Doubip Be- people, one for the state governments. The 
"r'n"' American principle of equality of citizens and 

equality of states has been widely followed in 
this respect. Each citizen is equally represented in the 


citizens' house (the House of Representatives), and each 
state in the stat'e-Houae, the Senate- In the German 
Empire thoug-h the states were not equally represented, 
■there was ai rough proportionate equality. 

It is also to be noted that a federation may exist in a 
subordinate government. The British colonidl federa- 
Federaiism l-ions, for example, are theoretically subordinate 
ordfnate"' *° Imperiial Parliament, which can make 

Covern- or unmake their constitutions at will. Or, 
""•"'■ again, a federation may exist within a feder- 

ation. Thus, if, in the future, there is a federal British 
Empire, the fedeial government will be supreme over the 
existing federal unions. 

The chief advantage of federalism is that union gives 
strength. Not only does it give strength, but, paradoxical 
Advantages *^o"8'^ i* ™ay seem, it gives dignity To be a 
of member of a great nation like the United States 

'*"*■ is more dignified than to continue a citizen of 
an independent Virginia or Texas. The loss of in- 
dependence by small states is amply compensated by the 
fuller life and vigour which membership of a more power- 
ful and richer state gives. Not only does federalism 
give this added dignity, but it preserves distinctive local 
features, and, in many cases, the existing nationality of 
the provinces. Economically, too, there is a distinct 
gain. To preserve their dignity, small states must keep 
up various expensive organs of government, particularly 
their foreign offices. If such small states unite, one 
foreign representative is sufficient for all. Some of the 
smaller German states found their foreign relations 
so costly before the unification of Germany that 
they were represented in foreign courts by others. 
Not only is there a saving in expenses of govern- 
ment management, but there is also the saving that arises 
from I the abolition of ruinous tariff wars, amd the organi- 
sation of free interstate communications. There are 
many other savings, similar to the savings of large scale 


production. Useless duplication is often avoided, though: 
there is the inevitable duplication and delay which a 
double system of government entails. Then, again, the 
demarcation of powers between central and state gov- 
ernments makes for efficient government. The citizen 
can concentrate on local affairs. The central government 
cannot interfere with the individual beyond its constitu- 
tional powers. The individual has. more freedom in 
moulding his own destiny. His voice in his own 
state is more powerful than it could be in the state as a 
whole, for the population is less and he counts for more. 
In the everyday matters of life he is concerned mainly 
with his own sitate or province. At certain times he is 
called on to give his vote in national matters, but his 
more intimate relations are with his local or state 

Critics of federal government have pointed out many 
weaknesses. Particular forms of federalism have par- 
oisadvant- titular weaknesses. In the United States, for 
ages: example, most citizens would prefer to see the 

cuiar regulation of marriage and divorce given to the 

Defects. central government. Weaknesses of this kind 
are remediable by amendment of the constitut- 
ion. In the United States amendment of the constitut- 
ion is a very difficult, and comnlicated process. Ex- 
perience is the best guide in federal organisation, and as 
yet the experience of the world in modern iederalism is 

There are, however, certain defects Arising out 
inherent °^ ^^ very'iiature of federalism. They are 
Defects. three in number: — 

(a) WeakmeslB toiking from a double idystem of 

(6) Weakness arising from the fear of secession, 
(c), Weakness arising from the fear of combina- 
tions of statfes. 


The expense of a double system, and the delay, 

irritation and trouble caused by two authorities 

come under the first heading. Promptness 
(a) Double • t,T i. ■ i ■ V ^j. 

System of m public business as a rule is more easily at- 

ment" tained in a unitary government. In a well- 
drawn-up constitution, however, the powers of 
the central and state governments are clearly defined. 
In matters of extreme urgency, for example, such as 
war and peace, a federal government can act as promptly 
as a unitary government. A badly drafted or badly con- 
ceived federal constitution may lead to delay, but that is 
not the fault of the federal principle in itself. This 
weakness is often much exaggerated. The experience of 
both Germany and the United States in the Great War 
shows that promptness in action was evenj more easily 
attainable in a federal government than in a unitary 
government, as in Britain. Not only so, but the other 
side of the question has to be reckoned — ^the saving 
effected by the absence , of needless duplication of 

' The second weakness, fear of secession, always 
exists in federalism, though ai{>ainst this weakness must 
be set the strength achieved by union. Seces- 
secession.'" ^^^^ is much easier in a federal state than in 
a unitary state. Each state has its own 
government relady made, and a federal government would 
probably offer less resistance to secession than a unitary 
government. Secession, however, is more a theoretical 
than an actual weakness, for a recalcitrant state has to 
reckon with the other states. Thus the southern states 
of America had to be forced by a war to remain in the 
union. Secession, again, may be a source of strength. 
A state which wishes to secede shows that it is not com- 
fortable in its surroundings. It should, therefore, be 
allowed to go, otherwise it might he a centre for the 
spread of disease. Secession may thus prove useful in 
national unifioaition. Desire for secession ^ again, may 


show that the constitutionaJ girdle with which the state 
is girt does not fit. It may show the necessity of amend- 
ment in the constitution. Cohstitutional amendment 
arising from such a. cause may be very beneficial ta the 
union. No federal union can be successful if it is not 
bounded on the common will. Theoretically a federal 
union is perpetual, but it would be a mistake for the union 
to keep by force in its membership a unit which would per- 
petually chafe and be troublesome. 

The third weakness is really an aspect of the second. 

A combination of states may force one or more of the 

. _ others to act as they wish. The combination in 

combin- itself is based on the, principle of union. 

* ""■ Danger of revolt is a sign of mal-adjustment 
of areas, peoples, or governments, and den^iands either 
a re-arrangement of states or an amendment of the 


Some writers hold that federalism is only a transient 
form of government. It will be replaced, they say, by 
unitary government, either by further unifica^ 
tif.Feder- tion or by separation. Sidgwick, for example, 
" '*""■ says that " federalism is likely to be, in many 
cases, a transitional stage through which a society — or an 
aggregate of societies — paSses on its way to completer 
union, since, as time goes on, and mutual intercourse 
grows, the narrower patriotic sentiments that were origin- 
ally a bar to full political union tend to diminish, m hile the 
inconvenience of a diversity of laws is more likely to^be 
ielt especially in a continuous territory." History is no 
guide in this question. The Achaean League existed 
one hundred years and the United Netherlands over two 
hundred years; but these instances are no index to the 
possibilities of modern federalism. Not only are the 
■examples of federation multiplying, but the existing 
"federations are extremely vigorotis governments. In 


several instances unitary go\eruments have actual- 
ly been leplaced by federal governments for ad- 
ministrative convenience. If Great Britain, with her 
intense national unity, her unitary government and her 
flexible constitution, adopts federalism, it seems that 
federalism is more than a step towards unitary govern- 
ment. It is a, definite form of government, not 
a transitional phase of organisation. Many thinking 
men already visualise' the whole world knit together in 
peace and friendship by a federal bond. 

The subject of Impetial Federn-tion is dealt with in the- 
chapter on the Government of Dependencies. 



Most modern staites are so large tliat the aentral gov- 
ernment cannot possibly perform all the functions wlhich 
Dormally may te expected from goveimment. 
Consider- Even a small state like Monaco, ih© area of 
stions. whicW is only eight square miles, is divided into 
three areas, each ot which has an orgamization to manage 
local affairs. In each state the work of the central gov- 
ernment, with its legislature, executive and judiciary, is 
concentrated in tjie town known as the Capital. In this 
capital tihe laws are made and partly executed ; but for the 
proper administration of tbe laws officials are usually 
spread up and down the country. Thus, in India, the 
Imperial Legislative Councilsi meet in Delhi, and the 
Executive Council does its work mainly in Delhi and 
Simla: but there are Provincial Governments at Calcutta, 
Bombay, Madras, and other "Capitals." In Bengal, 
again, Calcutta is the ceatre where tihe Legislative! Coun- 
cil meets, and where the Secretariat and High Court da 
their work. Spread up and down the country are Com- 
missioners, Judges, Collectors, Sub-Divisional Officers,, 
Policemen, Excisemen, Inspectors of Schools and otlfers, 
who perform in tbeir several localities their respectiv© ad- 
ministrative duties. 

It is not to these, however, that the term local gov- 
ernment applies. As Sidgwick says, th© term " local 
Meaning government " in a unitary ■ state means 
of Local organs whict, though completely subor- 
ment. dinat© to the central legislattire, are in- 

de'pendent of the central executive in appointment, 
and, to some extent, in their decisions, and exercise a 


partially independent control ove-r certain parts of public 
finance. Local officials of tli© central government do not 
form '■' local government." The term is applied to those 
organs which exist at the will of the central gov- 
ernment, and which, while they exist, have certain 
definite powers of making regulations, of controlling cer- 
tain parts of public finamce, and, of executing their own 
laws, or the laws of the centtral legislaiture over a given 
area. These organs are essentially auboraina.te bodies, 
but they have independelnce of action within certain 
stated limits. They represent a subdivision of the func- 
tions of government for the purpose of efficient adminis- 
tration. The sum total or government work ie, as it were, 
parcelled out to bodies, each of which has its own area 
of administration. 

It is, however, impossible to give any exact definition 
of local government. It can be described, but not 
defined, for a definition requires limits, and local' gov- 
ernment and central government very frequently cannot 
be marked off from each other. It is more easy to say 
what local goverhment is not than what it is. It is not 
local officials of the central government. Nor, again, 
can a government like that of Bengal be said to be a 
" local government "in the strict sense of the term. The 
units of a federal state, such as Prussia and New York 
State, aire not units of local government. They are 
provinces in a federal union, with local govemmients of 
their own. In a sense they are local governments, for 
they are subordinate latw-making bodies with powers over 
a definite areai. But while organs of local government 
exist at the will of the central government, these fei^eral 
provinces have a position definitely , guaranteed by the 
constitution of the state, which can not be altered^ at the 
will of the central government. This distinption, indeed, 
is a useful one, but not universally applicable, for in some 
American states, organs which usually would be deeignaited 


organs of local gOTernment are definitely provided for 
in the constitution. And there is no reason whatever 
why a state, in drawing np a new constitution, should not 
give in cetail the constituiion ot bodies which admittedly 
might bo organs of local government. This distinction 
of constitutional position is therefore not a universal 

Neither the size of territory nor the number of popu- 
lation is qf the slightest value in helping us to determine 
what local government is. The independent State of 
Monaco, with eight square miles of territory, is far 
smaller than the local area of Yorkshire in England, and 
its population of about 23,000 is as nothing compared 
with the hundreds of thousands which come under the 
London County Council or Calcutta Municipality. The 
only real point of differentiation between local and cen- 
tral is the kind of work done. 

A survey of the various sBctivities of government shows 
two broad classes of work. In the first class are 
those activitdes which aa-e of general interest, 
guish^iig It is in the general interest, for example, that 
Chirac- fjig central govemmieint should conduct foreign 
of Looai relations, and matters of war and peace. 
Govern- Thftsp matters arc of national importance, 
F'"ctions ^^^ ^^ citizens benefit alike from them. 
Similarly it is in the general interest that 
the central government should control matters of crim- 
inal law, contract, tariffs, marriage and divorce. 
If these matters were managed by local bodies 
the nation's law would be a medley. There is a second 
class of functions which benefit only a section of the 
community, and this section of the community may pro- 
perly be regarded as responsible for them. pie 
lighting or water-supply, of a town, and the upkeep of 
certa^in roads and bridges are definitely local matters. 
The citizens of Bombay, for example, are not concerned 
with how the city of Calcutta receives its light or water, 


nor are the citizena of Calcutta concerned with,, tL^e 
buildipg of a culvert over a Kiri'shnagar draia^ In such 
cases the benefit resulting from the TCo^ksis as/sigaiahle 
definitely tp the people of the area concerned. 

Between these two^ types of functions, however, 
there ,, is another, ' and very large .class, which 
is partly of the first and partly of the second type. Takfe 
an example. Conceivably' the schoals of !!p[r^hnagajr 
might he placed under the municipality of Krish- 
nagar; and so with Calcutta, Dacca, Rajshahi, 
etc. This woulcf mean that Krighnagar, Calcutta, Dacca 
«nd Kajshahi could have any educational systems they 
pleased. This, however, might result in all sorts ot 
•educational aijid social evils. One municipality might 
say that it could not afFord education ; ap.other miglit 
say it could afford it, but only in a very inefficient way. 
Another might say that it was to have a thoroughly 
efficient system. It is, however, a matter of general 
interest that the' people should be educated, and that 
they should be educated on the same general plan. The 
central government, therefore, must assume contrbl, 
though it may leave the municipalities or other iQcal 
bodies to raise ftioney, or spend grants given by the 
central government; Recording to rules and regulaitions 
approved by the ceiitl'al government. 

An even more telling instance is that of' sanitation. 
If there were no central control then -all the good done 
Iiy an efficient local body might be undone by am in- 
efficient neighbour. If, for example, bubonic plagile 
were exterminated from Nadia by the efforts of^the lo,caI 
Disti"ict Board, and an inefficient' District Board in 
Burdwan took no steps to exterminate it^ the' good 
results secured by the Nadia Board would be largely 
neutralised by the carelessness of the Burdwan Board, 
Central control, therefore, is essential to Dinduee 
uniforlnity though' the actual executive work may 
be done by the local government bodies. In such inatteri? 



the ofgan representing tlie smaller' area stonlrl manage 
the practical details, ^hilfe the determination of princi- 
ples and -general supervision sho'uld be left to the gov-* 
ernment of the larger area, i.e., the ceutJral government. 

It will thus be seen that it is impossible to bring local 
gbvernment within the limits of a definition. Some, in- 
Looai Self. *^®'^'^' would include within ]t ,not only local 
Govern- bodies such as 'ne have mentioned, but lodal 
"*"*■ officials of the central government and prox'in- 

cial governments In a fedei*al state or governments such 
as that of Bengal. In India" the term local self-govern- 
ment has gained wide currency, and this term might 
be well used in text bppks to designafe what is usuaily 
meant by local government, leaving the term local gov- 
■ ernment itself to cover all kinds of govertiment, which 
are not definitely cientral government. 

■ The reasons for the existence and the benefits of local 
government are many. Firstly, local government 
Reasons ^^ necessary for efficiency. In an arear 
for Local where the people are m,pst ihtterested in 
mont. certain acts of, governmeut, it is in 

ien^y.*' ^^^ interests of the people to have these acts 
performed efficiently. For such efficient per- 
formance the people should be able to control these res- 
ponsible for the work by being able to censure or dis- 
miss them. 

Secondly, economy is secured bv local Efovemment. 
If certain acts of government benefit a defi!nite area, and 
s. Economy. ^^ other area, oWiouslv the expense ol these 
acts should be borne by the locaility which 
benefit.'. Sometimes it may be necessary for the central 
government to give grants, on certain conditions; or the 
central government may grant power to the local body 
• to raise a loan for certain specific purposes; or it may 
haive to set a limit to which the local body can tax the 
residents in its area. Taxation, or as it Is called, rating. 


is the chief method of raising money in locali areas. The 
people, ^ho pay the r*tes are able to elect their local 
boards o*' councils and thus largely control the expendi- 
ture ^as tv'ell as the management. 

Thirdly, local government js an impoi-tant educative 
agency: in modern representative g^vernmant. In 

normal mpdiErn states the citizen is called upon 
Eduo- *" ohlj- occasionally to take a personal part in the 
Agency i direction of national affairs, and this usually 

ampunts to the recording of a vote at intervals 
of three, 4^0 fiye years. This may lead either to apathy or 
discontent ; but local government provides an actual repre- 
sentative; system closei at hand, on the proper conduct of 
which the ordinary things of his everyday life depend. 
The citizen thus becomes acqudint«d with public affairs. 
The local bodies thus provide an excellent school of 
training for the wider affairs of central government. A 
survey of any Western ministry will show that a con- 
siderable number of national leaders first made their 
name as leaders in local government. Local government 
also exercises healthy political influence on the people at 

Fourthly, local government is essential to take the 
burden of work off the central government. Were there 
4. Distrib^ no local governmental bodies, the central 
"the" "' government would have to do everything 
Govern"' thrdugh its own officials. By a system of 
meni. local government the burden is distributed, 

and in these days when government interference is ex- 
tending, the use of local bodies is all the more apparent. 

Fifthly, local governing bodies are very i^seful as 

inembers of the " deliberative " organ of government. 

E. AS oeiib- ^^®y S^^^ advice on proposed legislation.— for 

erativa making known local conditions and difficui- 

tips, these. local bodies are invaluable.. 


Lt must be remembeied, of course, that, loca^ bfl^^es 
exist within definite limits Uid.down by the ceutraJ 
Demare- government.. They may have full powers, in 
Powers" and ^^^^ matters, but , in others they may only 
Areas. , h?,^© io cany oujb the orders of the central 
governmei^t,, , I^bcal self-government must be eir- 
cui^neca'ibBd, for, in the firs^ place, the haiTower the area 
of government, the greater is the chance of one poiyerf ul 
interest swamping all others. In such cases the 
central, goyemment must step in, eiiher as a vetoing 
power, or as regulating the local voting system so that 
all interests may be fairly represented. In the second 
place, many functions must be centrally controlled, though 
local bodies may Tiave large executive powers. Education 
and sanitation axe cases in point. 

It is matter of the greatest difficulty fbr both pol- 
iticaj scientists , and practical administrators to demar- 
The Diffic- cate where central control should end and local 
DemaVe- control should starti The 'same difficulty exists 
atibn., ih the apportionment of functions between 
smaller and larger units of'locaJi government. In some 
cases it is obviously adTisablei; to have central 
control, with its uniformity ; in other cases local 
control is both, i fair and ecoiioHvica,l, "Wiere a,U local 
bodies of 'the same moral standard, the apportionmeiit of 
functions would be easier;, but the central government 
is contanuailly faced with the difficulty that, all local bodies 
are not equally; efficient. Where, say, eight out of ten 
local bodies m,aiy be perfectly efficient, th.e remaining 
-two-maynbe so inefficient as,, to destroy the good w,ork of 
the otihJer«eighti,ii n, , ..,;..„• . ,, , 

One or two examples; of ^uch difficulties may }^^ given. 
In a municipality, the manag^enieiit of' street lighting 
ajhd paving is a matter for the inhabitants of 
^''^"""*'" i,.'tii®,to''^V . , It is true that visitor^ and others 
benefit by good, roads or' a, good lighting system, yet thje 
actual townspeople aW the chief beiie^ciaries. Though 


this is tl?ue generally, there are cases whore inhabitants 
of areas outside the town benefit; more 1^ good paving 
and lighting than the townspeople themselTes. Thus 
between the great commercial centres of Liverpool and 
-Manchester tbiere are towns the streets of which are 
largely highways if or traffic between the towns. • The 
ti'affic passes through, the towns without conferring any 
specific benefit upon them, yet the townspeople have to 
pay for the up^keep of the , street?. Or suppose that 
thcTe. are five main roads leading into a town, and these 
five roads pa«s through rural areas, , each with a 
different body for local goveminent. The inhabitants 
of these areas benefit far less from the roads than, the 
town itself or the inh^^bitauts of remoter areas. The cost of 
the upkeep of such rp;adpi, therefore, must he apportioned 
by an amthority lyider than that of the distriqt immediately 
surrounding the I town. The most difficult case of all is 
poor-relief. At first sight it may seem that. ea,ch local 
area should be ,res.ponsibl6 for its own poor-relief. Poor- 
relief! however, means local taxation, and it woiild be in 
the interest of any area to ,piakie the taxation as small 
as possible in order to make the poor emigrkte to other 
areas. Thus the more public-spirited areas would suffer. 
Obviously, therefore, some common control is necessary 
to give uniformity and prevent such unfairness. Cen- 
tral coptrol, however,, should be a,s slight as possible; to 
place a large part of the buriden on the local areas not 
only sti^iulates thteim tp take means to aivoid pauperism 
but has the additional adya,ntage of enlisting the co- 
operation ,pf private .pharity. 

Experience also shows that the greater the responsibility 
ihere is in a local body the more likely lit is that a better 
Respon- ■ ^^^^^ of I men yil} come fpTward to vserve the 
sibiiity pomnuipity. , /JSyiiere a local body merely inter- 
Fubiie prets and execute^ the will of the central govem- 
service. ment, and has little responsibility in making 
laws, it is difficult to secure public-spirited mieoi of the 


proper type to serve. It is dangerous, moreover, to girp 
ioo 'miicb power to a body wliere there are not jaWe men ; 
the • educative value of the experiment; might be, losit in 
bad results. . -'.>-, t ^ji 

Experience is' the only sure guide iil matters ot local 
goVemmeiit, both in the apportionment ot functions and 
' '-■'"' in 'the delimitatttoa of areas. As a rule central 
Experiehce control is necessary' 'at' the outset,' for the 
" ' central govdtTtiment has more ability and more 
experience at its command than any local body. As 
Siflgwicjs points out " iJhe central government has the 
superior ' enlightenment derived from greater general 
tnowledgie, wider eXpterience and mdre highly trained 
mtellects." Gradually decentralisation is possible to 
the limit where central and local requirements meet. 
Fot the decision of ' such a limit experience and the 
prevailing ideas of the day on governmental interfer- 
ence decide. 5^6 rule of thuiiib exists. 

; The above, general considerations hieip iis to answer 
the question, "How far can legislation be decentralised 

Lesislative P^ - P9^'^^^^.o "'' " ^^^®" ^^'^ .«P;eak of local go^- 
peaentrai- ernjnent we usually have administra.'^ive work 
■sation. -^ minjj bui' local bodies have also varying 
powers, of legislation. All such legislation is ' subord- 
inate legislation, for every local body is suljoidinate to 
the central srovernmerit. Their laws are iteally pitly bye- 
laws. In this respect they are coinparahlfe: exactly '; to 
provincial govdrninents irl a federal system. Th^y,-hiaiv(e 
their constitutions which define their po'wers. They can 
make laws within limits, and ianything done beyond 
these limits is'iiitra -utVes, or 'beyond their' powers, and 
therefore void'. 'Thb point of difference is, that, whereas 
the provincial, governments of a federal stateojaw 
a-uarantee'd, by a ,f undatoental cpnstitution linalteraBlerhy 
the ordinary process of leHslation, Jocal bodies exist at 
the -will of the idiefntral' legislature. " ' ' ' 


The- extent of the, powers granted,' depends on several 
factors— the mature of the subjects, the political ideas 
JvP«» Co - P^'^'^^l^nt in the country, and 6n historical 
tM. conditSons. ^ Generally speaking, there are 

three methods, of control :— 

1. Legislative centralisation with administrative de- 
centralisation, in which, for the sake of uniformity of 
adminiistration, ' the: central government passes lawa, 
leaving the local government to administer them. In 
such a casie the local government has certain powers of 
making bye-laws, which are really administrative rules. 
This syf.tem pievnil'. generally in Ungland iiiii ilie 
United States, but it may co-exist with .complete centrali"- 
sation, both legislative and administxative, in certain 
types of activities. ■ ! , 

' 2. Legislative decentralisation and administrative 
centralisation, in which large powers of legislation are 
8'iyen to local bodies, but the central government ad- 
niinisters these laws through its own officials. This 
system 'prevails in Prance and Gei-many. 

3. Part centralisation and part decentralisation in 
hoth the legislative and 'the administrative branches of 
government. ' This is' a compromise between the first 
two types. The Prussian system is an example, and 
there is a marked tendency in England and the United 
States to follow in this direction. 

It must be observed,, however, that the central 
government is always in the background even although 
the powers it exerts are merely .nominal^ as in the 
case of provisional orders in the British Itgisl'ature. A 
bodv like the London County Council, for ieKample, re- 
quires only nominal control, but in cases where local 
interests conflict, the central government is the only 
court of appeal. The central government preserves the 
legal power to forbid any proposed legislation of theLon- 
<Jcn County Council, save where final powers are legally 
granted to that hody itself. Such ultimate control of 


'local bodies is necessary for two importaait reasons^-first, 
the lack of statesmanship in local bodies. Naturally a* 
Parliament has more brains than a Parish Council, or, to 
give a local instance, a Legislative Coiinoil has greater 
ability than a local board. Secbndly, small areas tend to 
bfecome the centres of J actions or interests, and the central 
government must atjt as, a moderating ; power. It must 
Pither piovide means to seoiiie the representation "yf minor- 
ities on local cr.uncils. ci tea: the protests of minorities 
against the decision- ox-' majoiities. 

The areas of local government vary from country to 
country. Thus in England there are parishes, districts, 
Local counties; in France, communes, cantons, arron- 

Areas. dissements, departments ; in the United States 

township and counties; in India districts', subdivisions, 
and unions. There is no rule for the demarcation of the 
boundaries of units of local governments. Several fac- 
tors may be enumerated. (1) 5fistorical conditions. 
Each locality should be as homogeneous as possible, 
therefore local traditions should be respiected wherever 
possible. Organic unity is easier- where historic 
unity exists. In Britain, for example, the limits 
of counties and parishes were really determined long 
before' the modern system of local government was inti-o- 
duced. The nattiral areas were accepted, or only slightly 
modified, for the purposes of local government. i{2),Q-eo- 
graphical i conditions. Often areas are marked ' off 
definitely by ' rivers or mountains .'',(3) Density of 
population. This applies particularly in the case in cities. 
Two opposite ideas must be reconciled in this respect. 
T'he smaller an atea, the more each citizen is interested 
in the area, and, therefore, the more active a.. member, of 
the community he is. Small areas are thus the best school? 
of citizenship. But small areas have not. the, same com- 
mand of able. men as large areas, and they are more liable 
to be controlled by local interests or factions.' (4) Funic- 
tions. Functions may be arranged in an ascending scale 


of impcp'tance. The least important are given to the local 
bodies of the smallest areas; i.e., the bodies with the 
more circumscribed powers, the more importaml; are- 
given to the bodies of larg«r areas. The extent to which 
the functions are controlled by the central govemmenr 
depends laif^ely on the type of body to which local control 
is given. Where such bodies are capable of bearing large- 
powers and responsibilities, thef central government 
usually is ready to give them large powers. It may also 
be noted that the local bodies of a larger area frequently 
have considerable powfers of control over local bodies of 
smaller areas, or sub-areas, within its own jurisdiQtion. 
f 5) Deliberate creation by the central government. 
This is eajSily adopted in a new country; but, as 
in France, it inay be k,dopted as a solution to historical 

These bases by no means coincide. Thus though the- 
parish is the unit in English local government because 
of its history, the density of the population varies froln 
less than ten inhabitants to nearly 350,000. In Trance 
the communy, a historical unit, co-exists with the- 
canton, which is the result of deliberate creation. 

The more detailed analysis of local governments in 
the later chapters shows the working of tliese various: 



1. Dependencies and jCIolonier^ 

^ dependency is a, c6i|iitry with fi subqirdinate govern- 
ttentj'or, in John Stuart Mill's jnpre lengthy definition^ 
dependencies are "outlying temtpries of some 
i»ep"ndenoy. ®^^® and population, which are subject more or 
less tq .acts, of sovereign power, on the part of 
the paramount cpuntry, without beijig equally represent- 
«d (if represented at' all) in its legislature." Independent 
■states are sovereign ; they own allegience to no other st^te. 
In a dependency, hoiwever, there is no such sovereignty.. 
The go.yerpment in a dependency owes its existence to 
.some superior government. The degree of subbrdinafion 
varies .greatly ; but in every case tjiere is subordination of 
•some kiftd. In some cases it is more or less iiomii^ 
cthgr cases it is real. Dependencies are of two^.d^s^— 
dependencies which a countiry rules, aild. dependencies 
i> hich it settles. The first class comprises those lands 
which either are unsuitable for settlement, because of 
climate or are already thickly peopled. The second class 
includes the so-called "new" countries, which have 
plenty of room for immigrants and plenty of scope for 
-development, as well as an auspicious climate and fertile 

The second type is the colony. The Latin word " colo- 

■nia " originally meant a settlement for soldiers in some 

outlying province. Now-a-days the word colony 

'coion'y ^ " is often us6d loosely to include all dependencies. 

India, for example, is sometimes called a colony. 

This use of the word is quite wrong. Colony is a speriie.s 


•of the genus dependency* . ^11 oolonieg ace dependencies, 
■but only some dependencies are colonies.' A colony, pro- 
perly speaking, i& an area in whicli the ruling section of 
the inhabitants origiiDally migrated froin a parent country, 
which coittilamiies; to control them in some definite; way. 
The original Boman idea of settlement is essential to the 
word colony in its strict sense. The actual settlement 
may have ta,ken place many years ago, or it may have 
been a process Jaating over centuries ; and usually there 
is a tlendemcyt towards continued settlement from the same 
parent country. !phe, parent country is , knp'Wn to the 
colonists of ^ny opie area,?;iOit only as their, ^upi-eme head, 
but as t|ie centre to which their fellow colonists in other 
areas look. The terms "Mother Country" or ''Old 
Country " are frequently gdyen to the parent state, indi- 
cating a certain filial bond existing between the two. 

Other terms are Sgradually coming into use. The vari- 
eties of political dependence on the parent country are so 
numerous that the name colony is sometimes 
s/gnations. resented as indioatingi too much subservience. 
Thus the term Self-governing Dominion,' or 
simply; .Dominion, has officially replaced Colony 
as --(applying ! to Canada, ?f^wfoundland, - South 
Africa, Australia and New Zealand. All these 
have now responsible government.!' Other coloniete 
{e.g., Ceylon) used to be called Crown Colonies, but the 
name "Crown Colony" is now offidiailly ap-plierd only tb 
those Colonies in which the Crown retaanis control of the 
legislation;. The word Colony itself, in the official lan- 
guage of the English Colonial Office, is used as the abbre- 
viation of the official longer designatioHi " Co^lony not 
Xwssesfeing' fesptoksible government. '' But, it' Musi) be 
kept in Blind that, although Britain is the chief, she is 
not tie only coloniser of the world, and the British 
classification is only ' an official ckssificfe/ilH^n. of 
convenience, ' . ' ' ' 


Dependencies arise from a variety of causes. The 
earliest method of the acquisition of dependenfciiea 
• was ' conqueSt> accompanied by partial settle- 
Methods Of ment. The Boman colonies were of this 
Acquiring itype.,, When they were fii^t conquered by 
cies. Borne, dependent gOTemments were established, 

1. Conquest but only sometimes was there permanent 
iai set"e- settlement. In this way Spain, by conquering 
ment. Mexico and Peru, embarked en her colonial . 

i career in America . 
SometSiiies dependeiibies are acquired as a secondary 
result of conquest. A cotintry defeated in war 
in one part of 'the world may cede an 

2. Cession- Dutlying dependency as the price of peace. 

In this way several depiendiencies have 
changed hands. Canada was Ceded by France to Britain 
in this way in 1763, and as a result of the Spanish- 
American War in 1899 the Philippine Islands were ceded 
by Spain to the United States. Several of the smaller 
dependencies of Britain are due to -the process 
of barter in peace treaties. Conquest and cession 
often go together. Mauritius, conquered in ' 1810, was 
ceded -to Britain by the Treaty of Paris in 1814 . 
Hongkong was ceded by China in 1841; Newfoundland 
by France in 1713. 

Dependencies are sometimes bought, or leased.' The 
United Statsee bought Alaska. Wei-hai-wei was ceded 
by China to Grreat Britain. The reasons for 
DrLeasing'f ^cqilisitioni iin such a way are various; > Some- 
times the reason is to complete national, 
development by m&king territories compact. Such 
was the cause of the purchase by the United 
States of Louisiana, now a federail provixjce. Sometimes 
4e;fence is thp motive. , Grlbraltar. Malta, Egypt, 
Aden, Wei-hai-wei^ acquired in different xva,ys, exist 
for defence, or defence and comnierce. Commer- 
cial and naval reasons demamd coaling stations. Fre- 


quently . the method of! government is also decide.! 
because of these iconsiderations. The island of Ascen- 
sion in the, Atlantic Ocean, for example, is technicaJly 
regarded as a man-of-war,, and ae such is directly imdei 
the Admiralty. 

Colonies,, in , the proper, sense, arise primarily fi^om 
s^ttlem^ift. ,( This setldement or occupation may take 
pl,ace in various ways. Spme;fcimes it arises 
4. Ssttie- from discovery of a land hitherto unknown 
c2i?nies ^ *^® civilis|ed: countries of ;tlie world. The 
Proper. discoverer in this case claims the land lor his 
siHiement °^" state, on the grounds of prioiity 
1. Dis- "of settlenient. In this way Portuguese, 
oovery. Dutch and English colonies were founded 

in the fifteenth to the seventeenth centuries. 
Priority of claim is still recognised as in the 
new lands discovered in the Arctic and Antarc 
tic regions, though, of course, thfese are unfit for 
settlement. Priority of claim may settle the fact of the 
country to which the newly discovered land is said to 
* belongi,' but it^ does not constitute a colony. Colonisa- 
tion, as we havei seen, implies settlement. India was 
' discovered,' biit it did not become a colony. To be a 
colony, the' land discovered must be in an inferior state 
of civilisation, arid must not be permanently obbupied. 
If the land is 'settled, and a faii^ measure of civilisEltion 
exi^ts^ there ' may be' conquest but not colonisation. 
Ool'dnisatidn ihiplies settlement on IsLnO. where the exist- 
ing population is in a rude state, whel'e the land is un- 
settled and uncjultivated, where,, in 'shorti, there is an 
oppttrtunity for the population of a! more organised people 
to develop the resources of a country inhabited,' by a less 
organised people. Thus the British colonised America, 
Australia and New Zealand. In these countries, as a 
result of the colonisation, practically new peoples have 
grown Tipi — in Ckliada the Cainadians^ in Australia the 
Australiasns, and so on. Tn the United States, the War 


of Indepeddenc© terminated the colonial Telationahiip 
with Britain; btit even to-day large numbers of British 
subjects emigrate to the United States to profit by thfr 
larger chances in life which such a relatively undevelop- 
ed country gives. '' ' 

Besides adventurers and disooverers, inissionary enter- 
prise has been a valuable factor in discovering and' open- 

M' sion. iD^^& up 11®^ countries. It was missionary enter- 
•'ry Enter- prise ttait first Ifed the Portuguese ' to become 
pnse. discoverers and colonisers. 

The, chief impetus to colonisation is economic, and 
foremost among the reasons of colonisation must be 
3. poiitioai placed the economic. Tjiis implies several 
and Eoon- things. First it implies that the home coun- 
Causes. try is highly developed, that competijfcion is 
keen, and that conditions of life are bpcon^jng 
more difficult. Political reasons co-operate frequently 
with the economic. The first exodus from England to 
America^ for example, was due to religio-piqlitical 
causes. ( Before the Great War many from the oppressed 
nationajities of Europe used to go to America. ' These 
economic or politico-economic forces, arising from great 
density of population and ever-growing competition, 
incite people to emigrate to lands where the chances axe 
greater and the conditions pf life more hopeful. Life 
in these new circumstances often leads to the greatest 
hardship in the opening stages, and only the hardj, 
both in body and character, succeed. Where capital is 
available for the start often conditions axe easier,- but 
the most essential capital for the settler or colonist is 
vigour of mind; and body. 

An economic reason of another kind is the discovery 
of precious metals. The various "rushes," — Klondyke 
(in Jtforth-West America), the Australian gold fields, the 
South African diamond fields— all • these led to setije- 
ment, though many who took part' in the *' rushes " 


made tnoney quickly aud returned to their own land 

THen, again, there is the im'petus that arises froni tl^e 
desire of traders to open liew areas of activity. Compet- 
ition at Ijome may he so keen as to iaake returns on 
capital small. Goods are therefore * pushed ' in new 
areas, aJid tlie expansion of capital in this way leads to 
the influx of people to use the capital or develop it. 

For successful colonisation the mcrther country must* 
give protection to the colonists. The rude tribes of the 
new country may be troublesome, for example, or the- 
envious eyes of other naitions may ettdanger the new gains. 
Thus military and naval vigilance is necessary, both for 
personal security to the colonists and for security to their 
trade.' SliCce§8ful colonisation needs also adaptability, 
both physical and mental. Physical adaptability is re- 
quired for new climate and conditions, and mental adapt- 
ability for the tjrpes and manners of people to be met in 
new coumtries Tliis has been the secret laxgely of 
BritisTi success. The adaptability has meant not only 
the import of capital and labour to new countries, but 
the establishing among natives of a new type of civilisa- 
tion, local customs and usages always being respected. 

2. Stjrv^t of Colonial Policy. 

The first historical attem.pts at colonisation were by 
the Phoenicians. The Phoenicians were a hardy 
maritime people who founded many commercial 
coloiiies"" stations on the shores of the Mediterraneata 
sea. These stations, however, were more -than 
mere trading ports. In some places, notably Carthage, 
they formed permanient agricultural settlements, but 
^f more importance was the spread of Eastern civilis- 
ation under the Phoenician auspices among the rude 
peoples of the West. The Phoenicians, ttoo, achieved' 
their expansion in a peaceaible way. 


i (Q-reek colonisation started ajbput 1000 B-C,, wlien a 
large mimber of the inhabitante of the Peloponesus left, 
Greece after the JOorian invasion. Later in- 
''"■**''■ vasions ajad internal strife led to further emi- 
gration. The Greek colonies, howeyer, were quite 
different from our modem colonies, insomuch as the 
colonies, or cities, did not acknowledge any supe- 
rior government. These so-called colonial cities of 
'Greece were almost literal copies of Athens and 
Sparta.,., They, had the same type of, govern- 
ment, the same religion and customs, il^e sam,e 
attitude towards outsiders, or "barbarians." Though 
ujwning no political alle,giance to anoilher state these 
colonies by religion, langjiaige, customs and traditions 
were united to Greece. But, in no case, even though 
Athens, received tribute from some of ber cqlonJes, for 
■naval aid, did these cplonies become subordinate to j the 
parent cii^. Leagues were made with other colonies or 
the mother city ,for ,mu1;ual defence, tut these leaguies 
did not involve any sacrifice of sovereignty. ; . 

The Romans were conquerors, but conquest of-tjen led 
to colonisation.. The Boman Imperial theory of govern- 
ment was to give the conquered, provinces aa 
Roman. much home rule as was consisteint with' the 
supremacy of Rome. Roman officials were spread all 
over the world, and in many cases settled in tlie land 
nrhere they administtere^ the laws. Wherever the Romans 
went they took . with them liheir civilisationiC and theit 
chief contribution to the world was not the • settlement 
of individuals in any definite areas, but the spread of 
Western civilisation. The word " colony " (Latin, colonia) 
had a peculiar meaning among the Romans. It meant 
3 settlement' of soldiers on a. definite area similai 
-to the proposed settlement of soldiers, after the 
Great War, in Canada and Australia. Aftef' long and 
meritorious services, theSe soldiers were . rewarded! by 
the Roman government witli grants of land where tbey 


and iEeir families settled. The modem state of 
Roumania is descended from a ' colony ' of this kind. 

In the middle ages there was no real colonisation, 
though with the numberless, wajs waged there was much 
acquisition of dependencies. Modem colonisar 
Modern Dis- tion really begins with the discovery of, the 
lea^routes. sea-routes to the Eas^ Indies and , America. 
In this the Spanish and Portuguese were the 
leaders. [ The discoveiy of thieae routes was due partly to 
adventurous seamen, partly to, tte desire to propagate 
Christianity, and partly to commercial ambition. The 
Portuguese gradually worked their way to the Cape of 
Good Hope, India, the East Indies, China and Jap9,n, and 
started trading centres at various ports. They also founded 
plantations in Brazil. The Spaniards, after the dis- 
covery of America, directed their attention to the West 
Indies, Mexico and Central Amejrica. In 1493, the Pope, 
Alexander VI., divided the pagan world between Spain 
and Portugal. • Spain was given the New World, 
Portugal the Old. Later, by treaty, the Portuguese 
obtained Brazil and Labrador in the New World. The 
SpaJQiards vigorously followed up the papal grant by 
armed force, so that at the end of the sixteenth century, 
the New World, from South America to Mexico, was in 
Spanish haJids. 

Great as was the extent of the Spaoiish coloniei? in the 
seventeenth and eighteenth, centuries, her policy towards 
them resulted in complete alienation, and when 
Spanish Spaiu was occupied with the N"apoleonic wars, 
ponoy; the colonies seized the opportunity to declare 
their independence- Spanish colonial policy 
may be summed up in on© word — ^^c6ntralis,^tion. The 
colonies were ruled from Madrid. The colonial laws 
were made there and the officials appointed there. Trade, 
commerce, religion, and laws regarding the treatment of 
natives all w^re pei^tred ,in |he l^omp goyerhment. The 
trade in especial was re-gnlated in the interiest of 



Spaniards. Tlie colonies were allowed to trade with 
Spain only. This' policy had an evil effect both on the 
colonies and on Spain. It alienated the sympathies of the 
former, and, by bringing^ great wealth into Spain, led 
to luxiiry, profligacy, and corruption among the higher 
classes. The liberal principles adopted by Britain after 
the American War of Independence were recognised in the 
eighteenth century by Spain, but by that date the ener- 
gies of the coimtry had been totally sapped. The exist- 
ence of hug^ vested interests in lihe old system prevented 
the new system fromi appealing to them. The more virile 
peoples of Fna/nce and Britain outetripped: Spain, not 
only in their means of coinmunibation but also in th^ir 
adaptability, and when Spain was fighting against ^France 
and Britain in the Napoleonic wars, the colonies slipped 
from her grasp. 

During the period of Spain's prospferity three other 
European countries had entered the arena of colonial 
French enterprise, namely, Holland, France and 
Dutch, ' England. These were all maritime peoples, 
English. wtose more adventurous spirits had discovered 
new sea-routes and countries. During Elizabethan times 
England was particularly prolific in daring seamen. 
These received considerable enoouralgement from govern- 
ment, not only for the discovery of ne^. lands ,but for 
harrassing the French and Spaniards. Thei main period 
of Dutch amd English colonisation belongs to the 
succeeding century — Qie seventeenth. In Holland, 
the Dutch East India Company, which received its 
nharier in 1602, had the monopoly of trade in the East 
Indies. The only impetus to Dutch colonisation was 
"trade, but this company, after an existence of nearly 
two centuries, during which it made , vast fortunes for 
its members, declined because of corruption and trouble 
with the natives of the countries in which it traded. The 
Company was dissolved in 1789, and the Dutch depend- 
encies were taken over by the Crown. At th© present time 


Holland, thoug-li one of the small European states, has 
dependencies with a population seven times greater ttain 
that of the motherland. The proportion of Dutchmen 
in these dependencies is very small. 

The scene of the first colonial efforts of both France 
and England was North America. In 1603, tke French 

settled on tlie St. Lawrence. The British soon 
France followed. In 1606 the Virginia Company wm 
England given a charter for trading in the south of the 
'America, present United Stateg, and in 1620 tbe 

Pilgrim Fathers landed in New England. 
From that time settlers from both France and 
England went over to America in ever-increasing 
numbers. At first the homei government in Englajid 
paid little attention to the colonists. Charters 
were given to trading companies for their internal 
management, but beyond the granting of charters the 
government of England did not concern itself with 
colonial affairs. France in the meantime took up the 
subject of colonisation systematically and mad© plans 
for a vast New France. The French thought that the 
email English settlements on the seaboard could be cir- 
cumvented by settlements on the two big rivers, the 
St. Lawrence and the Mississippi. In marked contrast 
to the indifference of the English government to their 
colonists, the French government helped eolonist-s ^ with 
capital and ships. The English colonists themselves, 
bowever, made up in perseverence and strength' of 
chaxacter what they liacked in official support, and before 
half a century had elapsed they forced themselves on 
the nolice o^ England in more ways than one. 

The growing wealth, of the colonists . led the govern- 
ment to adopt a policy very similar to that of Spain. 
Both France and England saw an opportunity of 
enriching exchequ ers tha t repeated wars nad impover- 

ished by making the colonies pay. During the reign 


of Chaxlea II. the well-known Jfavigation Acts 
were passed, all of which were aimed at utilis- 
ing colonial commerce for English purposes. Foreign 
ships were forbidden to trade with English colo- 
niesi; foreigi^ produce was to be sent only to 
England or English possessions; aliens were not per- 
mitted! to trade in English colonies. Only English- 
built ships were to tralde with the colonies, and foreign 
goods could not proceed to the colonies without first 
being, landed in, England. Goods going from colony to 
colony were to have the same customs duty as if they 
were landed in England. These Acts, stretching over 
the period 1610 to 16i2, were obviously burdensojne io 
th? colonies. . X^ie colonists, however, by, securing con- 
cessions on certain goods and by evading the laws, con- 
tin];i,9d to prosper. Burdensome as the Acts were, they 
certainly helped to develop the merchant navy of Eng- 
land and the colonies. Other stringent regulations fol- 
lowed, all of which a,imed at making the colonies com- 
pletely dependent on the home country. Similar rigor- 
ous restrictions were made on manufactures. Th& 
growth of manufactures, it was considerecl, would 
gradually make the colonies independent. 

Selfish legislation of this kind gradually led to the 
alienation of the colonies from the> mother country-. The 
The climax was reached in the American War of 

AmerAsan Independence. England, whose; treasury had 
independ- been impoverished by many wars, held that the 
ence. coloijies should contribute regularly to the 

government for pui-poses of defence. The colonists held 
that there could be no taxation without representation. 
The colonists, indeed, did contribute, though irregularly, 
in men and money to various expeditions, but their man- 
power was more necessary for guarding their ow^ posses- 
sions from the inroads of the Indians. Neither party 
would accept compromise : indeed compromise was not 


seriously Suggested. War resulted, in which the colonists 
defeated the mother country, which even in war did 
not realise the gTcatness of the issues. The struggle 
ended by the colonies declaring their independence. 

This war, the red-letter event of British colonial policy, 
led to more stringent regulation of the other colonies- The 
Result ministers of the day thought that not their 
of the short-sigJitedness but their laxity had caused 
the colonial disaste'r. Certain colonies which 
already had partial self-governmeiilt (Nova Scotia, 
Jamaica, the Barbados and Bermuda)) contintied as 
before. Canada, though it had certain powers of elec- 
tion in each of two provinces, was placed under an 
executive council, with a governor nominated by the 
Home executive. New acquisitions, such as Trinidad, 
were pla'ced directly under the Home executive. Cape 
Colony, which came under British control in 1815, re- 
mained for twenty years under military control, and 
Australia, as a penal settlement, was directly controlled 
"by the Crown. Tt must be, remenabered of course, that, 
at the period of which we speat, the number of cblonistS 
outsiide the Eastern parts of Nortih , America was very 

The growth of numbers in the colonies led to the 
spread of the idea of independence or responsible gov- 
New ernment. The doctrines of the economists were 

tnlnu"" leading to new ideas of trade, in which freedom 
Durham ^^® ■'^^ *° ^® more profitable than restriction. 
Report. These new ideas were brought to the notice of 
goveimment in a practical way hy ijord DurEam in his 
historic report, in 1839. , Lord Durham was sent to report 
on the poiSition of affairs in Canada, alter a serioiis in- 
surrection, and in his report he strongly advocated res- 
ponsible government as the only yfAy to. save both, colonies 
and mother country from- another catastrophe like the 
American Revolution. 


Lord Durliam's Report of 1839 marked tjie beginning 
of a new era in the colonial policy of Great Britain. It 

' led to the grant oi' self-govemmeiit in the 

of the widest sense to the larger colonies, and it sowed 
Report. ^j^^ seeds of federation. It accorded with 
ihe more liberal ideas in both economic and political 
matters then coming into currency, and before many 
years were over, responsible governnaent yras introdjiced 
in Canada, (in 1840), New Zealand (1852), Cape Colony 
(1853), and, from 1854 to 1859, in the various states 
which now constitute the Commpnwealth of Australia. 
The main, principles were the same in each — an act of 
the British Parliament which formed the constitution of 
the area concerned, a government on the model of the 
English iparliamentary form pf goyeroment, and prac- 
tically complete freedom in internal matters. The two 
chief diiSculties then,, as now, were tariffs and defence. 
The prevalent free trade ideas current ;in the later nine- 
teenth century were considered , strong enough to 
guarantee a free-trade, Empire. The problem of defence 
was left largely to splve itself. The main political idea 
current was that each colony was destined to be an in- 
dependent state. How far the modern attitude differs 
will be seen in the section on Imperial Federation. 

3. CLAssiricATioif and. Goveenment or the British 


The British Dominions may be classified according to 
the type of government prevailing in each or according 
Basis of ^ ^^ authority in the British Government 
ciassifiE- which regulates theim. Many of the British 
'*"'"■ possessions cannot be claissified 'with any cer- 

tainty on the basis of their form of government. Partic- 
ularly in the larger dominions the form of government 
tends to change from time to time as the people of the 


territory axe educated and are able to take part in gov- 
erning their own country. The most complete dominions 
from that point of view of government are the Self- 
governing Dotdihions, such as Australia and Canada. 
The other dependencies are all moving towards self- 
government so that their classifications at any particular 
period in history may not be suitable for them 
a generation hence. At the other extreme are a number 
of possessions of the British Crown which are occupied 
for military or naval purposes. These possessions must 
continue to be governed according to the purposes which 
theyi serve. The question of full self-government in 
them is subservient to their utility as military or naval 

Adopting the two-fold basis of the form of government 
ciassifio- and the authority which regulates the gov- 
ation. ernment in the British executive, the dominions classified thus: 

(I.) The Self-governing Dominions or, simply, the 
Dominions. These are;* (a) the Dominion of Canada, 

I. Self. ^6") the Commonwealth of Australia, (c) New 
Domitilonl. Zealajid, (d!) Newfbundl'and, and (e) the Union 
of South ; Africa., 

(II.) Colonies which do not possess responsible gov- 
ernment, or, simplyi in the official language of the 

II. Colonial Office, Colonies. According to the 
colonies. jjj^Qgt recent definition, given in the House of 
Commons in May, 1920, these Colonies include all 
dependencies which dp not possess responsible govern- 
ment, whether or not , they possess an elective legisla- 
ture. This class does not include Protectpratesi or Pro- 
tected Stat;es. 

(III.) 'Crown Colonies form a sub-division of Colonies. 

III. crown The distinguishing feature of Crown Colonies 
colonies. jg that the Crown retains control of legisla- 



(ly.) Protectorates and Protected States. Many of 
these were originaiUy under the Foreign Office and later 
were transferred to the Colonial office, e.g., 
IV. protec- the East African Protectorate, Zaiizibaj*, and 
tor'ates. Somaliland. The PIrotecWate of TTganda was 
taien over from the British East African 

The three classes — Colonies, Crown Colonies, and 
Protectorates or Protected States — may be classifi- 
ed also according to the development of 
atfon'by ^^^ legislative bodies thus: — {a) Terri^ 
Develop- tories which possess an elected House 

Legis- of Assembly or reparesentativ© assembly and a 
lature. nominated Legislative Council or upper house. 
The iiypes of these are the Bahamas, Barbados and 
Bermuda. (S) Territories which possess a partly elected 
Legislative Council in which sometiinesi there is an official 
and sometimes a non-official majority. This class in- 
cludes Ceylon, British Guiana; Cyprus, Piji, Jamaica, 
the Leeward Islands, the East African Protectorate, 
Malta and Mauritius, (c) Territories, both colonies and 
protectorates, which possess a legislative coUhcil which is 
purely nominated by the Crown. This class includes 
British Honduras, BritisK East Africa,, thei Falkland 
Islands, Gambia, the Gold Coast, Grenada, Hongkong, 
the Nyasaland Protectorate, St. Lucia, St. Vincent^ the 
Seychelles, Sierra Leone, Southern Nigeria, the 
Straits Settlements, the Windward Islands, Trinidad 
and Tobago, {d) Territories, both colonies and, protec- 
torates, which have no legislative council. This in- 
cludes Ashanti, Basutoland, the Bechuanaland Protec- 
tomte, Gibraltar, Northern Nigeria, the Northern Terri- 
tories of the Gold CoEist, Somaliland, Swaziland, Uganda, 
St. Helena, Wei-hai-wei and various islands in the 
Western Pacific. 


(V.) Territories controlled indirectly by the Secretary 
of Stat© for the Colonies. Some of these are practically 

independent; others are administered by 
ori«s*in.'" chartered companies. This qlass includes 
cMtriiiid South, North-Eastem and North-Westem 
by the Ehodesia, North Borneo and Sarawat. The 
Secretary. ^^P^ of government varies similarly to that 

sketched in the previous paragraph. 

(VI.) Various territories administered by other 
authorities than the Secretasry of State for the Colonies. 

VI various '^'^^^ 9-^^^ includes (1) Egypt, which is under the 
Foreign Office, and which is to be , grant- 
ed independence J (2) Ascension Island: technically 
it is regarded as a man-of-war and is governed directly 
by the Admiralty; (3) the Channel Islands, which are 
under thfe Home Office ; (4) besides these, there is a large 
number of small islands and rocks in the various parts 
of the worid which technically come under the British' 
Crown. Some of them are uninhabited. Others axe in- 
habited only ,at certain periods of the year, as by whale- 
fishers. Others are used as light-house posts. Still others 
are leased by individuali or companies from the govern- 
ment for the collection of guano or copra, or for cocoamut, 
growing. One, Tristan-darCunha, in the South Atlantio 
is nominally British but its goveimment is carried on 
by the inhabitants themsblves under the oldest member. 
It has a permanent populaition of about one hundred 
and is rarely visited by any one from the outside world. 

India is distinct. It is controlled by ' the Secretary 
of State for India, but it is not a colony, and ia on a 
different plane from the other dependencies. 
India. j^ £g ^^ Empire, and has given the title 

Emperor to the King. India may therefore be placed in 
a class by itself. 


In several of the instances given in tlie above classi- 
fication ihe form of government at present is about to 
be changed. In Malta a type of responsible 
Form of government is about to b© instituted., with 
mentr" certain reservations whicli guarantiee the naval 
and cpmmercial qualities of the island. In 
Ceylon a type of half-responsible government similar to 
that adopted in India, is under consideration. 

The Self-governing Dominions, as the name implies, 
conduct their own business of government. They have 
all adopted the tyT)ei' of cabinet government 
The Self, prevailing in the United Kingdom. Some of 
Dominions, them, Australia, Canada and South Africa, are 
federal unions, and the " staites " or provinces 
of these unions have ^e cabinet- type of, government as 
well as the unions themselves. Each ha^ adopted a bi- 
cameral legislature, and in every case financial legisla- 
tion is controlled by the popular or lower house. The 
number of ministers in the cabinet of these Dominions 
varies from time to time. Generally there • are about 
ten ministefsi, although the number is ' smaller in the 
provinces of the federal governments. In Canada at the 
present moment the Cabinet, or, as it is also called, the 
King's Privy Council, includes twenty, members. In 
these Dominions the function of the Crown in England 
is performed by the Governor or the Governor-General as 
the case may be; in the provinces the functions are car- 
ried out by the state Governors, who, as in Australia, 
are appoiiite^ by the Crown, or, as in the case of the 
Lieutenamt-Governors of the provinces of Ca^nada, by the 

The cbnstitutions of all these cotintries are really act* 
passed by the Imperial Parliament and they, can be 


altered only by the Imperial Parliament, except where 
powers are specificaJly conferred for the pur- 
feature" in P'^se on the Dominion legislatures themselves, 
'l"^'.'.?""- Certain features are common to all these Self- 

StltUtlonSi -rv ' • • • t • t ' t 

governing Dominions m their relation to the 
United Kingdpm : — 

(i) The Crown appoints the Crovernor or G-ovemor- 
General, as the may be. In Canada and the Union 
of South Africa the C^gowu does not appoint the heads 
of the " states," or provinces, 

(ii) The S^retary of State for the Cplonieisi controls no 
officials withiui the Self-governing Pominions except 
the Gpyeimor or Governor-General- In other words the 
Secretary of State, for the Colonies never interferes in 
the internal administration of the Self-governing 

(iii) The Legislative powers of the Self-goyeming 
Dominions are gmvemed by Acts of the Imperial or British 
Parliament.., ) T,hese Acts lay down the limits within, 
which the legislature^ may act, and within these limits 
the legislatures are 9II powerful. . The chief limits laid 
down are that the Acts passed by the Dqn^inion parlia- 
ments,,_shall apply only to their own territories and that 
these Acts must not conflict with the l£^.w8 of England 
which are intended to affect the Dominions. Theoretic- 
ally,, of .course, the British King-in-Parliament is legislat- 
ive sovereign for all the British possessions, ajid as 
such has power to legislate in matters great or small 
affecting the Donainions. This power is never used. 

(iv) AH, laws pasi^ed by the legislatures of the Self- 
governing Dominions are subject to the same procedure 
as laws passing t|irough the Imperial Parliamen,t. They 
pass, .through both houses and must be signed by the 
G:ovei^nar as the representative of the King. 
r,(x) Thip governor is .empowered by the constitutions of 
these .Doniinions to give his consent at once to a law 
passed by the legislature; or he may refuse to give his 


consent; or he may reserve the bill for the decision of 
the Colonial Secretary. 

(vi) Certain types of hills must always h& reserved for 
the decision of the Crown and the Colonial Sieicretary. The 
GoTemor cannot give his assent to these bills without 
first consulting the Secretary of State for the Colonies. 
The subjects included in ihis cla^s of legislation are 
■ divorce', currency, the imposition of differential duties,, 
laws affecting imperial treatties, laws affecting the forces 
of the Crown, laws placing on non-European persons 
disaibilities which are not placed on European 
subiects, laws making grants either of land, money or 
anything else to the Governor, certain laws affecting 
shipping and laws which contain matter to which sanc- 
tion has already been refused hy the Grown. 

(vii) The Grown through the Secretary of Stat© for 
Colonies can also disallow legislation. This power must 
be exetcised within one or two years after the law has 
reached the Colonial Office, even if the Governor has 
assented to it. 

(viii) An appeal lies from the colonial courts to the 
King-in-Council, i.e., the Privy Council. 

In regard to the Colonies a large liumber of 
restrictions and reservations have) been laid down by 
thte Imperial Government. Usually the 
coronies Executive Councils of those colonies consist of 
the principal officers oi government, sometimies 
with, and sometimes without a non-o&cial member or 
members. Thd meinbers of the Executive Councils are 
the holders of posts definitely specified in instructions to 
the Gdvefnor, or persons appointed by royal warrant or 
by ihstructibni froin the Crown issiied through the Sec- 
retary of State. The Governor is usually empowered to 
maike provisional appdintments in the case! of vacancies. 
The members of the Executive Council can be dismissed 
by the Crown alone, although they may be temporarily 
suspended by the Governor. 


The ExecutiTe Council, according to the Colonial 
Regulations assists the Governor -srith its advice. The 
Governor is required iio consult the Council on all im- 
portant matters except in cases of urgency (when he 
takes measures by himself and informs the Council), 
and in cases whefe the Governor considers it might be 
prejudicial to the public service to consult the Council. 
The Governor ihay act in opposition to the advice of the 
Council, unless hfei is definitely instructed to accept the 
majority vote of the Council. In the case of disagree- 
ment he must repoii; his reasons to the Secretary of' State 
as soon as he can. 

4. Imperial Fedekatjon. 

The Great War has brought into more prominence than 
ever the necessity of some kind of organisation to secure 
the unity of the British Empire. The fact of 
The need imperial unity was proved in no unce(rtain way . 
iai Unity, by the Great War, when the dependeiacies 
spontaneously rallied round the mother-coun- 
try, contributing their full proportion of men and money 
to the common cause. The suddenness of the onset by 
the Central Powers, the idea'ls which they attacked, and 
their methods of' fighting, all helped to direct the efforts 
of the Empire into the common channel. Each of the 
units of the Empire seemed to vie with the other in its 
whole-hearted attempt to win the war. As the war pro- 
gressed, statesmen began to consider how the future 
Empire was to be organised. The need, as well as the 
fact of unity was evident. The common interests in- 
volved in tie struggle for some time tended to blur the 
real questions' involved in imperial policy. The two 
chief questions were, and now are, (1) the need for impe- 
rial defence. The dependencies of Britain, whether they 
are the Self-governing Dominions or not, are all liable to 
attack if Britain herself is involved in war. A scheme 


of imperial defence requires imperial co-operation, and 
such co-operation involves some organisation to consider 
policy and maJie plans. (2) Imperial defencei implies co- 
operation in foreign affairs. As thfe various dependencies 
grow in self-reliance, it can hardly he expected that they 
will eater a struggle the causes of which they disapprove. 
Some means must therefore be devised whereby the states* 
men of Britain should co-operate with the statesimen 
of the various parts of the Empire- 
Hi therto the most favoured scheme for organising the 
Empire has been imperial federation. Federalism, as we 
Imperial have seen, is a form of government which re- 
and'NaVion- conciles local independence and central control. 
Aiism. One of the most marked features of recent years 

has been the growth of national feeling in the various 
units of the Empire; In the Self-governing 
Dominions the populations are of the same race, 
language and religion as the people of Britain, 
but they have been drawn together by common economic 
and political interests into distinct groups, or what may 
be termed ' colonial nationalities,' — ^Australians, Cana- 
dians, etc. These ' nationalities " have most of the 
normal characteristics of nationalitv. but they have at 
the same time a\ love and respect for the ' old ' or 
' mother ' country, which urges them towards imperial 
unity. In the other dependencies, where the populations 
differ in race, languae-e, religion, history and traditions, 
national feeling is. still more distinct, especially where 
the oopulations have been sufBciently educated to voice 
it. 'None the less, they value their imperiial connexion for 
its security, if for nothing else. In India, for example, 
Indian nationalism is developing very markedly; but 
at the same time that nationalism normally does not 
demand any break-a,way from the Empire. The defence 
and good government of India are as much matters of 
imperial concern as are the defence and good srovernment 
of Canada. The same is true of East and "West Africa 

Political science. 463 

and the rest of ihe dependencies. As tiiey develop in 
^material resources and in education, they will follow a 
similar course. The two opposing tecadencies will be- 
come apparent, the one towards self-government, the 
other towards imperial unity- 

At the present time, beyond the sentiment of unity 
which exists in the Empire, there are certain definite 

institutions which bind the Empire together. 
Existing These are (a) the King. The King is the 
of**imperia*i Supreme executive and legislative head of the 
{"rh"' Ki E'liipire. All the executive acts of govemiment 
or King- aJ"© carried out in his name. Actually his 
Emperor, powers are more nominal than real, both in the 

United Kingdom and in. the Empire at large. 
But his position as King, or King-Emperor (aa he is in 
India) is all importaait. He is the focus of imperial 
loyalty. The King, » of course, cannot be present in 
person in the dependencies; but by periodical tours he 
himself, or the heir-apparent, makes the actuality of the 
kingship real to the peoples of the dependencies. The 
Governors-General, or in India the Viceroy (which 
literally means 'in the place of the kingi')? act in his 
name and to some extent shjure the pomp which 
surrounds the Royal house. The King is Commander-in- 
Chief of all the forces of the Empire; through the Privy 
Council, which promulgates its legal decisions as ' advice 
tq the Crown,' he is the fount. of justice. He also con>- 
fers all titles. 

(2) The King-in-Parliament. The British Parliament 
(technically the Kinsr-in-Parliament) is leerislative 
2 The King. Sovereign for all tibe Empire. In virtue of its 
in-Pariia- sovereign powers, Palrliament has granted such 
"*"'• measures of ' self-government to the various 

dependencies as it has considered adyisaible. The 
relation of the Parliament to thel deoemdencies 
is the most vital part of the whole imperial problem. 
While very full powers of local self-government 


bave been granted to both the Self -governing 
Dominions and India, a large number of reservations 
have been made in subjects on which the action of local 
legislatures is restricted, e.g., divqrbei, coinage, and acts 
affecting the forces of the Grown. According to the 
party systettn prevailing' in th|e United Kingdom, the 
dependencies, in matters oil tside their Own powers, axe 
really at the mercy of ti.e party-in-jJowet in the British 
Parliament. The same is alSso time of foreign policy, 
alt least in those parts of foreign policy which comel 
under party influence. The p^rty divisions in the Self- 
governing' Dominions do not coirespond to the divisions 
in tihe TTnited King'dom, and even if they did, iD \& 
Unlikely that tihe same parties would be in power all 
over the Empire at tihe' saiHie time. From this arises the 
very just claim of the Dominions to be represented in 
foreign affairs. 

3. Definite institutions, such as the Coloniail Confer- 
ence, the Committee of Imperial Defence, and the High 
3 Various Commissioners or Agents-General of the Domi- 
ihstit nions and India. The ofSeial governing ' agen- 
utions. cies-^Secretaries of State for the Colonies, for 
Foreign Affairs, for India, and, in exceptional cases, the- 
Secretary of State for War, Home 4ff'air8 and the First 
Lord of the Admiralty, as well as being the heads of 
departments -which control the dependencies, . also repre- 
sent their views to tbe British Goveminent. The 
Colonial Conference has been held at indefinite intervsds 
since 1897. Iti, was composed originally of delegates 
from thb Self-governing Dominions, btit latterly a repre- 
sentative of India was included. The Prime Minister 
or SecrietalTy of State for the Colonies presides over the 
Conference. It has now been decided to mate the Con- 
ference a definite institution, with a definite constitution 
and regular meetings, i The Committee of Imperial 
Defence started in 1895 a« a Committee of the Cabinet. 
At first this Committee was informal : it kept no 


minutes and had no regular meetings. In 1902, it was 
set on a more deiinite basis. It was to be composed 
hencefortli of the Prime Minister, the Secneitaries oi 
State, for War and for India the First Lord of the 
Admiralty, the First Sea-Lord, and the Directors of 
Navar and of Military Intelligence. In 1904, the Com- 
mittee was granted a permanent seoretariat. At the out- 
break of the Great War, the Committee ^t once assumed 
first-rate importance. Its executive powers were greatly 
increased, but in theory it still remained an advisory 
body under the CaiUnet. In 1916 its functions were 
taken over by the Imperial War Cabinet. 

With the creation of the Imperial War Cabinet 
during the War, there was a real attempt at imperial 
The im- organisation. In 1916, the Prime Minister of 
periai War Britain invited the Prime Ministers of the 
cabinet. Seilf-goveming Dominions to attend a meeting 
of the British War Cabinet to consider the question of 
imperial policy. India also was asked to send repre- 
sentatives. At first the representatives were the Prime 
Ministers of the Self-governing Dominions and the 
Secretary of State for India, with three assessors, and 
the S©creta.i;y of State for the Colonies, who represented 
the Crown Colonies and proteictoraftes. Further meet- 
ings were held and a more definite basis was laid down. 
The Prim© Minister of each of the Self-governing 
Dominions was to be a member, and hel was authorised 
to nominate a deputy to act for him at meetings held 
between the full sessions. India was represented by 
prominent! Indians. 

Th© last meeting of the Wair Cabinet was held after 
tK© ©nd of the War. The underlying idea of tK© War 
Cabinet, in Mr; Lloyd George's words, was "that the 
responsible heads of Hke government of the Empire, 
with those Ministers who are specially entrusted with 
th© conduct of Imperial Policy, should meet togetiiier 
ait regular intervals to confer abouti foreign policy and 



matters connected ther»witli, and come to decisions in 
regard to them which, subject to thfe control of their own 
Parliaments, they will' then seVeraily execute." , 

The Imperial War Cabinet W9,s a peculiar l^ody. 
Cabinet; Government in. the proper sense' means the res- 
ponsibility of the Cabinet to the lower house of legi:^la- 
ture. In the ImpeWal Cabinet, however, the memliers 
were responsible to various legislatures. Each was res- 
pousibj,^ to his own government. This difficulty! is 
fundamental in all schemes of imperial unity. No real 
type of responsible imperial government can be devised 
because of the existence of yaribiis governments to which 
the members are responsible. 

The same objection applies to another method of 
imperial repreeentaition. Canadians, Australians, and 
Indians have been elected by British constituencies 
to the House of Commons, or have been made peers, thus 
becoming members of the ^ House of Lords. Such re- 
presentation is only nominal and personal ; it is also purely 
adventitious. English constituencies cannot be depended 
on to secure regular and continuous Dominion or Indian 
representation, and even if they did secure it, the main 
obligations of the members would be to their own con- 
stituencies and their party. 

At the present moment, no definite scheme foj* im- 
perial organisation has been either formulated^ or ac- 
cepted.. The Imperial, Conference is to be resumed, and 
the right has been conceded to the Prime-Ministers of 
the Self-governing Dominions to correspond diEe(3tly 
with the British "Premier, and these Dominions may 
also be represiemted in the British Cabinet when 
matters affecting their interests are being discussed. 


A closer exauiination of iniperial federation 'svill show 
tbat it 18 a mUeh more complex metkod of organising the 
Critical limpire than is usuallr imagined. Super- 
Ition o"f ficially it seems aji excellent method of co- 
imperiai ordinating imperial control with . gfelf- 
government m the dependencies. T\ hen 
examinied it appears in a much less favourable light. 

Tn the first place, one of the normal riequisites of 
federalisiii' is geographical ooiitiguity. To attempt to 
1. Geogra- federalise dominions wliich lie so far apart' 

5ifficu'itifls. ^*^™ ^^^ '^^^^K ^® Canada, N'ew Zealand 
India, South Africa and England seems doom- 
ed to f ailiire. Even in the Self-governing Dominion^ 
themselves the process of federation was difficult because 
of distance — as in the cases of British Columbia' in 
Canada, and. West Australia in the Commonwealth of 

In the second' place, successful federal government re- 
quires a) basis of community,, in language, interests, 
_ traditions, etc. A successful federation de- 
e'noes , mands the presence of those elements which 

TEmpire"" constitute a normal nationality. At the present 
time it would be extremely dangerous to 
fedetalise dependencies which include so many racial and 
linguistic elements as the British Empire. The Great 
"War has been the occasion for bringing into prominence 
the common aims of the whole empire. In a very definite 
way' it has shown both the fact and the need of imperia,! 
partnership, but. on the other. hand, the no less definite 
ideas of responsible self-government in the dependencies 
show the elements of diversity within the Empire. The 
responsible self-government can only inean the develop- 
ment of local nationalities with their own local desires, in- 
ierest, pride and prejudices. The extent to which these 
ideas have had a.ctual effect may 'be judged from the 
second article of the Covenant of the League of Nations, 
which practicallv grants naitionhood to the Self-governing 


Dominions. iBoth they and India have the right to 
representation on the Assembly of the League oi' NatipB^s. 

In the third place, and this" is the most difficult ques- 
tion of all, hpw is the iedera.tion of the en^pire.fito be 
organised ? A federal orgaBisatipn requires a 
organis- rigid constitution with definit&f powers allocated 
ation. ^Q jj^g central government and to the compon- 

ent parts. How is the central government to be organised ? 
Is it to be organised ydOi proportionate representation 
of the various dominions? Aijd if it is so organised, 
can wa expeot that countries so far apart, in position, 
population and interests, as New Zealand,, India and 
Jamaica, can all agree to contribute the same amounll 
or proportionate amount to imperial defence on a scheme 
drawn in :which the views of Great Britain. Canada, 
Australia and South Africa have been decisive? Hitherto 
schemes of impe^al. federation have been formulated for 
the Self-governing Dominions mainly; bnt that is only 
partially an imperial scheme. 

In the fourth place, any scheme of federation would 
inevitably lessen the importance of the Dominiofls as 
Presttle"' compared with their present position. In an 
In a Imperial Parliament or Congress, presumably 

uhIoik' the representation would be on a proportional 
basis, at least as regards the Self-governing Dominions. 
This would mean that, as compared with the United 
Kingdom, the Self-governing Dominions would be over- 
shadowed, while as regards the whole Empire they 
Would have practically no place at all. At present each 
of the Self-governing Dominions is on an equality, what- 
ever its size. The British Government listans to its 
views, as expressed by the High-Commissioner, Agent- 
General, or Prinje Minister, as ■ffie case may be. The 
same is true of India and the other non-coloniail depend- 
encies. At presen* thMr position in relation to the 
British Government is more indepedent and powerful 
than it would be under a federal scheme. 


In the fifth place, the elEect of imperial fedeiration in- 
evitably must be to reduce thei status of the( present 
Positfon Imperial or British Parliament. In the place 
of the of the present Imperial Parliament would 
ParV^I ^ise a subordinate law-making body in 
ment. England, or, as. has been suggested, four 

subordinate law-making bodies one each for England, 
Wales, Ireland and Scotland. The abolition of 
the Imperial Parliameiit as it at present stands and the 
adoption d£ the federal constitution of the United King- 
dom, in the opinion of many, would be more destructive 
tha© favourable to imperial, unity. 

The fiiiture of imperial unity in the British, Empire 
seems to depend more on custom aaid good feeling than 
"on a definite constitution. Both foreign 
conclusion. ^^^^^^ ^^^ defence— the two _ chief sub- 
jects of imperial politics — may be amicably settl- 
ed by conferences and correspondence. Economic 
relations may be guided in the same way. If 
those means do not satisfy the dependencies, it is 
difficult to see how they wWl be satisfied under a federal 
government, which not only will create new difficulties 
but will actually lessen the importance and power of the 
dependencies- As Professor Dicey says " My full be^lief 
IS that an Imperial constitution based on goodwill and 
fairness may within a few years come into real existence). 
The ground of my assurance is that the constitution of 
the Empire may, lite the constitution of England, be 
found to rest far less on parliamentary statutes than 
on the growth of gradual and often unnoted customs." 



From the foregoing chapters we have seen that there 
are many kinds of government a^d many different ways 
in which similar types of government are 
General. organised. We must no^^' proceled to' examine 
various theories of the end of the state and the ftinctions 
of government. Every government exists to carry out 
the purposes of the state, and in the modem world 
the working out of purpose depends on the par- 
ticular theories prevailing at any moment or over a 
period of years. This is the age of democracy, of the 
rule of the people by the people, and according to the 
dictates of the people does the government work. The 
people decide how far the government is to control their 
lives, whether it is to have general powers or particular 
powers, whether it is to interfere or not to interfere with 
their daily lives and activities, or, to put it in technical 
terms, whether it is to be sooialistic, or individualistic, 
or partly socialistic and partly individualistic. 

The general thebries of the end of the state are inexr 
tricably bound up with the working of governments. 
Government, as ihe organisation of the starte, 
state and fulfils the purposes ol the state ; but it some- 
ment'^" times Happens that government defeats the 
purposes of the state. In a perfect state, with a 
perfectly orgamised government, the government must be 
in complete harmony with the state. In a perfectly 
healthy body politic all the parts should be healthy and 
should function harmoniously with the whole.' But in 
practice such harmony is difficult to secure. One or other 


of the parts is disftased, or fails in its functione. Some 
of the orgaBs go' out of joint, and the effort of the whole 
body towards harmony results i^ frequent oh«MigeS and 
renewal of parts, or in a general overhaul of the whole 
body. There ;s thus a continuous effort by the state to 
secure better government to cirry out its purposes. 

The individualistic theory is also known as the 
laissez-faire theory. ImsHZ'-fmrt is a French phrase 
which is geaierally translated %■ 'leave alone.' 
statement Each individual, accoJtiing to this theory, 
°ndivid- Should be restrained as little as possible by 
uaiiat government. Government in fact is an evil 

Position, ^iiich is necessairy for mankind. No ^social 
union at all ia poesdble without the suppress- 
ion of violence and fmnd; The province of 
government therefore should be limited to the protection 
of citizens ; beyond this the individual should b* left 
alone. " The sole end for which mankind are warranted 
individually or collectively in interfering with the 
liberty of action of any of tibeir number is self -protection. 
The only purpose for which power can be rightfully 
exercised over any member of a civilized community, 
against his will, is to preivent harm to others. His own 
good, either physical or moral, is not sufficient warrant. 
. . . . The only part of the conduct of any for 
which he is amenable to society, is that which concerns 
others. In the part which merely concerns himself, his 
independence is, of right, absolute; Over himself, over 
his own body and mind, tihe individual is soveiteign." 
This passage, quoted from John Stuart Mill's I/iherty, 
is one of the most classical statements of the individual- 
istic position. ' 

According to this view «very agency of government 
which is proteotivET^-e.y., the army and navy, -police, law 
courts, is justifiable;, everything '•which is not 
th?""vJ6w. directly proteotive-^suoh as the p68.t-office, tele- 
graphs, railroads, education, is an 'unjil^tfiaTiile 


sphere of governmental activity. The f mictions of 
governBaent. according to the individualistic theory 
maiy be stunmaxised thu8:-=— » "<>; ' 

1. Protection of the state and individuals iiom 
■ -■.-. foreign aggression. . .■■■'•• j, • '' 

2. Protection of individuals against each > other, 

that is, from iphysical injury; slandier, 
personal restraint. 
■■;>' 3; Protection of property:, t>oiia/_ robbery or damage. 

4. Prt)teotion, of individuals agaiiisit 'false cpn- 
' tr^^i^s or breach of contract. ,. 

5 . Protection of the i unfit. 

6. Protection of individuals ; against preventable 

evils such as plague or malaria. 

The last two are not accepted by many individualists. 

An extreme form of the individualistic theory is 
anarchism. The word analrchy liteorally means no rule. 
The ideal of both anarchism and individualism. 
Anarchism. ^^ ^^ same. Each considers that the perfect 
stage of society is that in which no government exists 
except the self-government of every individual by him- 
self. The individualists place great importance on the 
right of person and property, and recognise that owing 
to human frailty some form of organised government is 
necessary. They hold that this government should be 
the minimum consistent with protection, and thait when 
the human race is more perfectly moralised the necessity 
for even that minimum will disappear'. The ideals thus 
coincide; only the means for reaching the ideals differ, 
for the anarchist believes in voluntary association with 
occaisional coercion, while the individualist accepts gov- 
ernment as an unfortunate necessity/ although that 
necessity may be only temporaiy^ l 

The theory of iiidividualism first became prominent 
as a political force towards the end of the eighteenth 

_' ! ._ ' century. Its origin tn ay be traced tQ' Lock*^ 
'* ""^'"^rBenthsRm and the TJtilitarians carried it on. 


The EcanQBiists, from Adam Smith to Cobden and Bright 
adopted it; in fact many of the best known names in the 
histoiy of both Political Economy and Political Science 
might be quoted in its support. . Like most political 
"theories it had its origin in actual historical conditions. 
Over-government, that is interference by government in 
m;atters which many people regarded as the legitimate 
spheres of private life and endeavour, led to a theory 
"which emphasised the importance of the individual as 
■opposed to the government. The theory was a great power 
in practical politics, though it never had a powerful 
hold on the people as a whole. It led to the abolition 
■of old laws of interference, lespecially in trade and com- 
merce, and to new forms of governmental control. The 
•evils arising from the practice of individualism led to 
the fa!ll or at least severe modification of the theory, just 
as the theory itself arose from evils which were univer- 
sally admitted. 

The tKeory has been advocated from three chief stand- 
eases of points : first, the ethical ; second, the economic ; 
tha Theory, third, the scientific. 

The essence of the ethicail argument is that the end of 
man being the harmonious development of all his powers, 

_,^ each individual must have the freest possible 

ethical scope for the realisation of this end. A form of 
^**'*' society in which every individual can compete 

freely with everyone else leads to the best results. If 
government intetrfei'es beyond a certain minimum the 
individual is cramped, his powers have no outlet, with 
the result of a loss of man-power to society as a whole. 
<TOvemment inferference replaces self-reKanoe by re 
liance on government. Self-assertion, the guiding 
principle of each individual, leads to the full develop- 
ment of the powers of eaeh, but government' interfer- 
ence cramps it to the detriment of society as a whole. 
Seilf-help, says the individualist, is the spring of human 


progress: Once goTerntaent begins to interfere, the in- 
dividual is tempted to be laay. He expects otherg to do 
for him what he should do himself. In such a govern- 
ment^aideid society the result is a unif orpi level of ■ 
mediocrity : there is ho stimulus for the outgrowth of 
the best talent. m 

The end of the state, according to > this theory, is to 
perfect or complete the individuality of its citizens. 
Perfect or complete individuality will mean that 
government is no longer necessaiy : each man will be a 
law- to himself. The State is. a contracit, a 'joint-stock- 
protection society,' as Spencer called it, or a type of 
society due to aggression. The ' natural " right ' of each 
individual is to develop his powers to the, and 
government interference, so long as government is necess- 
ary for such development, should be a minimum. 

The individualistic argument has been applied with 
far-reaching effects to the economic world. Everyone, 
2 The says the i?:j(iijviduali^t, seeks his own intenests. 
Economic If, without lei- or hindrance by government, he 
"**"' is allowed to do so, ^qciety as a whpl^ will 

benefit. If each one is allowed to invest his capital in 
the way that will yield him the gTeateSt' return, if every 
labourer can freely accept the highest' wage, the com- 
munity will benefit. Free cpmpetitioii will bring the 
highest profit to everyone concbmed. Demand and 
supply will determine the channels in which capital and 
labour will flow- Prices, too, should be unfettered. 
Increased demand means increased supply. Prices will 
rise and' fall according' tO " the usual laws. '■ Foreign 
trade should be free, for eyery countrv' will produce the 
goods that give it the best return, and import thosft that 
other countries are in a better position to supply. In 
trade and commerce everything must adjust itself natural- 
ly, and this adjustment is in the best interests of all. 
Government interference in regulating prices, in set- 
ting up t^iriff dutiefe;, in giving bounties, in restrietiftg^ 


conditions of labour hampers the working of a machinw^ 
vrhich, if left alone, remains in perfecti order. 

In no sphere oi^life has the individlialistio theory had 
more effect than in this. The theory was almost 
Effa Of ^^i^^sally aCceptfed in the laitter half of the- 
the'Eoon- eighteenth century. The name of Adam- 
meiit.*™"' ^™ith in particular gave it great effect; 
supported also as it was by Eicardo, Ba«tiat 
and MaJthus. The effect in Eng'land was soon felt by 
the repeal of a number of long-standing laws, all of which 
were anti-individitalistic. The Elizabethan laws regulat- 
ing labour, lawsi regarding combinations of working men, 
the Navigation Acts of Charles II., which controlled the- 
relations of Britain and the Colonies in matters of com- 
merce, and, most important of all, the Com Laws, which 
were repealed in 1846', leading to the system of Free trade- 
in the United Kingdom — all these were anti-individual- 
istic. The laissez-faire theory had no place for govern- 
ment regulation in any of those departments. Artificial 
stipport to labour or commerce meant that- the weaker 
benefited at the expense of the stronger, -with consequent 
Ipss to the general wfill-being. 

The scientific argument is based on analogy: The- 
chief exponent of this side of the theory is Herbert 
3 The Spencer, whose biological analogy we have- 

SoUntiflo noted in an earlier chapter in connection with 
Basis. ^g organic theory of the state. Evolution 

in the lower fqrms of Ijtfe means the survival of the- 
fittest, a law which should apply to human society as 
well. The natural course of progress means that the poor,, 
the weakly and the insane must go to th? wall. Howr- 
ever hard tliiii may seem applied to individua,! cases, the- 
interests of humajiity demand it. Human interests as 
a, whole are more important than the interests of indivi- 
duals ; the hardship in individual cases is the price pai(S 
to secure the general well-being. 


Stichj in outline, are ike argumenis of the three 
schools. Whatever their basis, they all lead in the 
same directiqn,, naanely, to show the essential 
*"'""'"'^*" ., badness I of government interference. To 
support their arguments, individualists have not been 
slow to expose the undoubtedly bad result of govern- 
ment interference in particular case^. These bad" re- 
sults appear especially in the economic sphere, where 
examples abound of, the hopeless ; failure of government 
management as contrasted with private management. 
It is easy,, too, to compile instances, of bad laws, laws 
-which have had to be either repealed or amendied. The 
ever-recurring repeal and amendment of laws is, accord- 
ing to Spencer, a proof that the laws should nevter have 
been enacted. The administra,tion of laws, again, is 
frequently irksome, due either to officials or to the nature 
of the law. Much contejnpt has been poured on the so- 
called ' pateiiiail ' type of governmeat, a go-vernment 
which stands in the same relsrtion to a citizen, as a f athej* 
■does to a child. Apart from the general argument that 
:such a government does not allow the individual to, de- 
velop in the proper way, it is frequently ridiculed fis 
inconsistent with the normal dignity of man. ' Grand- 
motherly' legislation is another de/risive epithet fre- 
quently applied to the samie type. 

2. Ckiticism of the T^jrviDUALiSTic Theort. 

The individualistic theoiy is an extreme represent- 
;ation of an important truth. Arising, as the 
The theory did, at a time when governmental 

Theory is interference obviously injured trade and in- 
X reme, ^ dividual enterprise, it over-emphasised one 
aspect of social life at the expense of others. Excessive 
state regulation, particularly in England, led to much 
meddlesome legislation, and the individualistic theory 
«rose from the general impatience of the time with the 
anany petty laws which affiected the everyday life of each 


eitizen. An extreme in practice led to an extreme io. 
theory. It is to be noted, however, that not everyone 
who may reasonably be termed individualistic in thought 
is an extremist. The writers of the individualistic school 
vary considerably both in the general setting of the^ 
theory and in detail's. Some, like Spencer,, may well be- 
called extremists, but there are many moderaite writers- 
some of whom almost merge into thie ideas of certain, 
sooialists, though theoreticalljr socialism is the ppiposite- 
of individualism. 

The outstanding truth of individualism is that gov- 
einmental interference if carried too far does tend to' 
,_rf;„jH„„, lessen self-help. The mistake of the in- 
ism and Qividualists lies jn exaggerating this unduly, 
self-help. India as a whole and Bengal in particular pro- 
vides an apt illustration. In this countiy the govern- 
ment undertakes many functions whichi no individualistic- 
theory of state functions could accept. The charge is 
often brought against both the government and people 
of India ^at the wide extent of government aotivitiee- 
has sapped' the self-reliance of the people. In industry ,. 
commerce, and in many other departments, personal 
initiaitive is said to be lacking because the people expect 
governmemt to show the way. The example of the lack 
of industries is often given. Many Indians hold that 
only by government help or control can industries start 
or develop, despite the fact that the joint-stoot 
principle is so obviously successful in manifold instances. 
The attitude of the people in this respect has often been 
ascribed to the fact that government undertakes in India 
the many functions it does. 

The basis of individualism is unsound- It regards, the 
individual as essentially self-centred or egoistic. Self- 
assertion is considered to be the central 
onsound!'* characteristic of man; seeking his self-interest 
Meaning of ig the ' naitural ' order or things. " The state 
"Natural." and government are therefore 'unnatural,' 
for they stand in the way of self-assertion anJ 


self-interest. Stich' a view ^hows a misiknderstaiid'tng of 
both 'self" and 'natural.' Man is by nature social. 
Every individual is bom into society,' on whick lie is 
-dependent for Ms mental and pjiysical ©xistenoe. He 
has feally no meaning apait from society. \ nou-social 
individual is a mere abstraction. The state, again, instead 
of being . antagonistic to the individual is part of the 
individual. The very being of the state depends 
-on the individual. The state is not something 
separate from individuals. The state and govern- 
ment are a type of society of which the individual is a 
member. Man has instiHcts, interests, amd powers which 
exist in a social medium, and f!rom these arisgs the, 
iiindamental fact of his social life — the' state! 

To regard man as essentially self-centred, is therefore 
wrong. Society involves others a® well as the self, and 
the welfare of. a self is integrally connected with the wel- 
fare of others. The welfare of the self phis others is as 
vitally connected with , the welfare of the state. It is 
unsound t6 set the individual in opposition to the state 
■or its organisation," govemmient. W© may do so, indeed, 
to represent a certain point of view, as, when we speak 
of an individual resenting this or that act' of goTernment. ■ 
This however is quite a different thing from regarding 
the individual as essentially opposed to government. To 
say so is in a sense tantamount to saying that the indivi- 
dual is opposed to himself. 

Individualists continually speak of the ' natural ' 
right of the individual to develop, ) or of the 'natural'; 
order of development. The misuse of the word 
R^ hV""*' ' ^3't'Uii'a'l ' "^e have already noted in connexion 
Fallacy. with the Social Contract theory and, with; 
liberty. The state is as ' natural ' as the 
r'ght of the individual to self-assertion, for -flie state is 
the expression of the very nature of man. Man's rights 
are bound up with the state. His rights exist in and 
through the state, to which by nature he is indissolubly 


bound- \. Eeulisalioii of tliese rights' ia possible only 
through the state. 

A proper undferstauding- of. man as a social being, and 
of the state as an expression of man's nature thus com* 
pletely changes the meaning of self-government 
ferenoe"*"^" ^^^ interfei'ence. The, state exists for human 
implies. purposes; it exists to further ,the i moral 
emdsi of man, and as such it- must, through 
its orgaiiisatioij, pirotide a' suitable medium for the 
realisation of moral ends. A society .in which eveiyonfe 
is at war with everyone else on the principle' of self- 
assertion, even though . that self-assertion be limitted 
by an "individualistic minimum" of protection, of 
life and property, is not a medium for the reailSs' 
ation of true moral ends. Liberty is a relative 
tenja. It means; self-determination, but self-detern(iina- 
tion does not njean that the individual can do as hie 
likes with what is recognised by society as his own. Each 
self mTjst try to reach perf'ection,, and as other selves are 
involved in the same process, the self must submit to 
control, a control which the State must exercise. The 
free e?er.cisie of the human naind and activity demands 
control in order to allow the individual to achieve moral 
perfection, an^ this control is no^ external to the in- 
dividual but an essential paa-t of his nature. 

State control therefore is not an evil, but a positive 
good. Certain kinds of control or certain methods- of 
control are, it is true, bad. Laws which in- 
oifFerence terfere \*^ith disinterested moral action, laws 
state*" for example which weaken morality by inter- 
and"*' fering with religion, or those which take away 
interference individual self-respect or weaken family feel- 
ment."*"^" ing — such laiws are bad, and they are bad not 
because off any theory of icmsei-fcm-e but 
because they are injurious to society, because they do 


not create conditions of life suitable for the realisation 
of the highest moral ends. 

Governmental restraint may be exercised in irksome or 
disagreeable ways. Government and its officials may 

make mistakes, but to condemn all government 
of'^covern- I'^^st^'s^^t bpcause of this is similar to condemn- 
mant.and ing all education because we have a few. bad 
Agencies!* schools. As evidence to support their theory, 

individualistic writers have pointed to the- 
many mistakes . governments have committed in 
the past. It would be as easy to compile list* 
of indubitably good actions done by governmeaits. In 
maitters of judgment such as this, government is un- 
fortunately a' public body. Its mistakes are known to 
everybody, whereas the mistakes of private bodies or cor- 
porations are either not generally known or are lightly 
passed over. The good actions of government, too, rarely 
meet with praise such as similar acts by private indivi- 
duals do. It seems indeed that the normal expectation 
of the average citizen is that government, with its wide 
command of resources, should do things better than 
private individuals, hence arises the disproportionate 
blame for government in cases of failure, the failure- 
often being relative, as the fexpectations are higher. 

Condemnatlion of state-control on this score is in part 
based on a confusion between the state and -government. 
confusion -^^® failure of certain acts of government is 
of state by no means a condemnation of the state. The 
Govern- acts of government are variaible; the fact of 
ment. ^^ state is fixed and unchangeable. The end 

of the state at any given time may not coincide with 
the particular acts of goi^emment ^ven although the 
determination of the province of government must ulti- 
mately depend on the prevailing idea of the end of the 


Individualists find it extremely difficult tn be consistent 
in their own theories. We have already seen how Mill 
finds in self-piotection a working criterion of 
Further ^^ goodness or badness of laws. Mill's 
Examina- simple criterion, however, completely breaks 
J. s. Mill's down when aipplied to individual questions.' 
Theory. jy;ii][ himself says that large classes of indi- 
viduals must be excepted from his rule. It 
applies only to individuals in the maturity of their 
faculties. Children are excludejl, but, it might reason- 
ably be asked, when do children cease to be children, 
and what rules apply to them, when they are say under 
twenty-one years of age? Barbarians, he also excludes, 
but he gives no definition of a barbariaai. Maturity of 
faculties is a phrase admitting of many interpretations, 
each of which will be unsatisfactory to some individuals. 

Still a greatter difficulty emerges in Mill's theory when 
we come to interpret ' self -protection ' itself. " If a man's 
conduct affects the interests of no person besides him- 
self," says Mill, "the state has no right to interfere." 
This is the crux of the individualistic position. No act of 
an indivi'dita^ "has reference to himself alone, so that on 
Mill's own principle any action of the state is justified. 
State contl'ol of education, sanitation, foOd-suppIy, of 
conditions of labour — can all be justified on this ground 
of self-protection. The self must be ffuarded from it- 
self as well as from other selves. To Mill the individual 
is a self-centred entity. He confuses individuality with 
eccentricity or oddity. It is true that any form of society 
is richer and more progressive if the differences among 
men are fully utilised. Genius ,i for example, is an ex- 
ceptional thing and appears in an odd way ; buit Mill makes 
this oddity or difference among people an end to be 
pursued in itself. Any criterion of individualism is bound 
to break down in Hhe same way for from the outset its 
basis is unsound- 



The complexity of modem social organisation has 
brought into clearer light than ever the inter-dapendfence 
of individuals, and the necessity for state- 
Modern control. At the time when individualism was 
f(fr*?nt*er. at thei height of its popularity industrial and 
or'^state commercial life was undergoing a great change. 
control. The invention of machinery, particularly in 
the textile industries, and the application of 
steam-power, led to a complete revolution in industrial 
life, known to history a^ the Industrial Eevolution. The 
improvement of methods of transportation, especially in 
railroads and steamships, facilitated the growth of 
international commerce and competition. Large-scale 
production replaced the old home industries. Huge 
towns sprang up, workers crowded into them from 
the country districts. The old methods of govern- 
ment regulation, such as tolls, local duties and 
prohibitions on the mobility of laibour, were all 
unsuited to these new conditions. Complete free- 
dom seemed to be the solution of the difficulty. The 
current individualism led to the absence of restriction.; 
but the result of the absence of restli-iction very soon 
led to the discrediting of the theoiry. In fact no better 
argument exists against the iiheory of individualism than 
the practical results which followed its adoption in the 
political and industrial life of England. The evils 
which followed the growth of factories and big cities 
led to a new era of government control. Housing laws 
to prevent overcrowding and pestilence; labour laws 
to prevent child labour and ' sweating,' factory laws 
to forbid unguarded machinery amd undue danger to 
life — all these came into being and were niniversally ac- 
knowledged to be both necessary and salutary. The 
more complex the organisaltion of modern life becomes, 
the more necessary does state control become, and 
.'laturally so, for greater complexity of organisation means 


that the individual is more than ever dependent on his 

Individualism as a working theory for modem govern- 
ments is now discredited. There is now a distinct swing 

of the pendulum to the other side, to socialism;: 
Tendenoies. Experience has proved that the individual is 

not the best judge of his own good. Were 
everyone able to know perfectly his own interests^ 
individualism would be justified. 'Society, how- 
ever, has to guard against ignorance and moral 'Obliquity. 
The state has proved a better judge of both general and 
individual interests than the individual. Wowhere is 
this better shown than in matters of health and sanita- 
tion. One insanitary house in a neighbourhood may 
undo the good of a hundred perfectly clean ones. Good 
food, properly qualified doctors and chemists, these are 
matters of general concern, and in this matter too, ex- 
perience is a good guide. Dishonest traders are ever ready 
to profit by selling inferior food regardless of the con- 
sequences to other people. Quacks are always rieady to 
profit by ignorance. Only by government regulation 
can such deceit be met, and the end achieved is obviously 
for the general well-being- 

With the development of democracy, too, there is not 
the same reason to support individualism. Democracy 
gives the people the management of their own 
Individ- government. In a big state this may not 
and*™ amount to much. The direct interest of the 
Demooraoy. citizen in govemmenf varies in inverse propor- 
tion to the size of the state.. But all 
modern governments are subdivided. Local govern- 
ment provides a medium whereby the citizen can 
feel that he does manage his own affairs. This 
is particularly the case where there is considerable 
decentralisation in locail government. The line between 
socialism and individualism in this ease tends to become 
less and less clear. 


The biological argument of the - individualists is in- 
herently weak, because the very action of government 
which the individualists condemn may fairly 
Biological be regarded as part of the evolutionary pro- 
Fafiacious. ''^^- ■'■^ ^''^^ ^^^® ^® survival of iihe fittest 
may not mean the survival of the best. The 
theory forgets the essential difference between man and 
lower animals. Man can to a large extent master his 
environment. He can utilise it for various endsj in 
other words, flioral ideas enter into the notion 
of the survival of the fittest as applied to man. 
Man can improve his environment, and mould the 
course of history according to definite moral ends. 
The moral element in man would never consent to the 
ruthless waste of the physically weak or to the cruelty 
to the unsuccessful in life that th'e survival of the fittest 
iniplies. Private as well as public charity is forbidden 
by the biological theory, but obviously charity is a natural 
enough manifestation of human nature itself. The very 
acts condemned by the theory, tberefore, are really part 
of the snm-rtotal of the process of which we, are asked to 
accept a part. 

To sum up, the theory of individualism brings into 
prominence certain valuable truths. In emphasising 
Conclusion, self-reliance, in combating needless govem- 
' mental interference, in urging the value of the 
individual in society, it has contributed much to the 
virility of modem thought. It deserves credit too, for 
its effect in destroying useless laws of petty interference, 
and in enabling our modem system to develop. But 
it exaggerates the evils of state control when it,forg-ets 
that there are more instancies of good state actions than 
»f , b,ad. It givies a fundamentally false- conception of inr 
dividuality, and finally, it has proved quite unfitted for 
the complexity of modern life. 


THE END OF THE STITE— (continued.) 

3. Socialism. 

Socialism is. the opposite of individualism. Instead of 
decrying government control, socialism regards it as 

essential to the, welfare of individuals and 
statemant gociety. Government, far froni teing an evili 
posit ionV ■'^ ^ positive good. The, existing politjcal 

machinery sJjtould be used for economic pur- 
poses. Thfe nieans of prodjzqtion and distribution should 
gradually be taJien over by government from the private 
capitalist. Capital, indeed, is necessary, but not the pri- 
vate capitalist. Private ownership in the production of 
goods the socialist condenjins absolutely. Capital should 
be- used ,for the good of all, not for the benefit of the few 
who the lucky present possessors of ,it. It it is to be 
used for thei good of all, then the state^ ^hicji exists to 
further the common well-being should control it. Capital 
should be * socialised ' : in fact ' socialisation ' would in- 
dicate the main id^a, of socialism better than the word 
' socialism ' itself. The essential ideas of the best modem 
socialism are simply the substitution of state ownership 
of certain things for private ownership. Instead of 
secu3"ing the benefit of a few, it aims at securing the 
benefit pf all by substituting another economic system 
for the present system. , It does not seek to abolish 
private property. The socialist regards private property 
as essential, to tjhe devBlopment of the individual, but he 
considers that the dis|Tibution of private property is at 
present inequitable. 


The coimnon ownersliip of tlxe instrumentsVf product- 
ion for the general welt-beiiig implies common manage- 
ment. Individual ownership and management, says the 
socialist, has led to a lack of proportion in the economic 
world. Useless competition, shoWn in the multiplic- 
ation of machinery used for the same purpose, and in 
advertising, can be abolished by the substitution of a 
power which is by nature co-ordinaiting. Government 
will prevent productive power going into the wrong chan- 
nels : it will curb it in one direction and intensify it in 
another. Large savings will thus be effected, which ^^ill 
oe used foi' further production of the proper type of 
article for the general good in some other way. Social- 
ism, therefore, is a type of organisation, which' by sub^ 
Rtituting common or collective for private or indii^idual 
ownership and management of the instruments of pro- 
duction and distribution, knd by allowing the continu- 
ance of private property in other directions, aims at 
securing the general well-being as distinct from the 
benefit of a few. Under the socialistic system the indi- 
vidual is definitely subordinated to the community, in 
order that all, not merely a few, may receive their pro^ 
per reward. The measure of this reward is individual 
capacity and willingness to do the work assigned by the 
common authority. 

Socialism has often been confused with anarchism and 
communism, a confusion which! has brought upon it great 
discredit among people not conversant with its 
Anarchism, doctrines. Collectivism or socialisation would 
unism' more accurately connote its central ideas and 
methods, and prevent this unfortunate confu- 
sion. lAnarchism is, as we have seen, the direct 
opposite of socialism ; it proposes io destroy state 
control altogether. Cominunism, insomuch as it shares 
some ideas in common with socialism, which inake many 
casual readers identify the two, deserves further 


Communism is one of the oldest conceptions of an ideal 
form of society. The modem theory is that the labour 
and income of society should be disti'ibuted 
^n^m! equally by a common aiuthority. No such in- 
stitution as private property should he allowed. 
This theory may be called the economic theory of commun- 
ism. The earliest communists, however, regarded equal 
distribution not as an economic, but as a political and 
moral necessity. The most thorough-going of all comm- 
unistic schemes is given in Plato's Republic, in which he 
says that the best form of society, is that in which the 
words mine and iwf-mine sure similarly applied to the 
same object. He supportiad equality of wealth only 
among the upper or governing classes. Equality of 
wealth and labour among the whole population which 
modern communism demands, was wholly foreign to 
Plato's ideas. The Republic provided a basis for many 
later idealistic writers; Sir Thomas More, in particular, 
in the Utopia (1915)', gave a vivid representation of a 
communistic state. 

More pictures a community of about three to four mil- 
lion persons. They have no private property, and live 
under the direction of elected officials. The 
« u'topia." duty of these officials is to measure out the. work 
of the community and guide production. 
Every one lives, the simple life; ostentation is 
conspicuously absent. This, added to the fact 
that More provides abundamc© of food in his 
ideal state, makes distribution easy. As there is 
no want, no one clamours for more than his due share. 
Everyone must work, and, as agricultural labour is the 
hardest work of all, each one must take bis turn at it. 
More preserves the family, unlike Plato, who regarded 
the family as a hindrance to unity in his Eepublic. Over- 
population, More says, will be solved by emigration. 
Families should be as equal in size as possible ; adoption 
aids natural deficiencies. More allows slavery; the slaves 


consist of convicts, prisoners of war, and foreigners who 
voluntarily accept service in the Dtopian community. 

Mora's Utopia is the first modern presentation of the 
theory, but he did not regard his scheme as a practical 
possibility. The French Eevolution first brought com- 
munistic theories into the realm of practical politics. Tn 
fcngland communistic theories were popularised by 
Robert Owen (1771-1858) the foundation of whose theory 
was practical philosophy. Owen was a manufacturer 
whose eo'perience led him to draw up a new scheme 
of society for the relief of the labouring poor. He con- 
sidered that poverty was mainly the result of evil environ- 
ment. He accordingly tried to provide an environment 
such as wou'd allow children to grow up apart from the 
polluted air of tiompetitioh. Men would therefore be 
brought into communities where combined interest replac- 
ed individual interest. Labour would become temperate 
and effective in such a community Eind could be easily 
superintended by a communal aiuthority. Owen and 
others tried many experiments to prove their theories at 
Orbiston neair Glasgow, and at New Harmony, in thes 
United States of America. These and many other ex- 
periments were complete failures, and Owen is now re- 
membered not as a communist, but as the apostle of co- 
operation and labour exchanges. 

Many attempts at the foundation of communistic socie- 
ties have been made since Owen's time, chiefly in 
America. Religious societies, such as the Mora- 
Comm- vians, Essenes, and certain monastic orders, 

Soc'ietfes. have for long observed the principles of equal 
_ labour and equal distribution. Many commun- 
istic societies, of which the Shakers, Rappists, and Per-' 
fectionists m.ay be mentioned, hawe existed for a shorter 
or longer period. The Perfectionists of Oneida, founded 
in 1849, were a manufactiiriiig community who flourish- 
ed for a considerable time, but broke up ultimaitely owing 
to the lack of faith on the part of the younger members. 


These oommunistic settlements were far removed from 
the ideal communism of Plato. All the members were 
hard- working and had little opportunity to enjoy the 
leisure so greatly esteemed by Plato. They were not. 
moreover, true political communities. They were mostly 
held together by a common religious bond. A true poli- 
tical society, however, is joined together by definitely 
political ideals. Common purpose and common interests 
among a community lead to permanent political orgaiiiis- 
ation. These various societies, again, were possible only 
within a larger state.' The larger state ' was essen- 
tial to their security from external interference, and it 
also rece:(ved those members who did not find the com- 
munity to their liking. The dissentients, instead of beihg 
dangerous, simply left the community- Again, no pbli- 
ticai lesson can be gathered irom them .because they -were 
too small. ' They were smaller than modern small muni- 
cipalities. In a small community of a few thousand 
members, each individual can feel a certain amount of 
real personal responsibility for the community, and, 
where joint ownership ^xists, he can feel himi^elf in 
some way an effective join,t-owner. T^ith the extension 
of the community, the poYer of individual members 
diminishes and the power of the common, organisation 
grows. The whole meaning of communism, thps changes 
with the extension oF the limits of the community. 

The greatest objection to communism as ai whole is- 
that in abolishing " privaire property, and the family 
Criticism (thoUgh ,s6me communists think the, family 
of comm- may continue in a communistic society), it 
""'*"'■ taJces away the most essential' instruments of 
man for the realisation of his moral ends. Man cannot 
realise morEJi ends without the means to do so; property 
and the family are the means,, therefore they are 
essential moral attributes to inaJtt. From the 
economic standpoint, the abolition of private pro- 
perty would take away the chief ' stimulus to personal 


■exertion. Where no one can call anytihing his own, no 
one will -^vork. If i everything belongs to everyone else 
at the same time, the interest of any one individual in it 
will be very, small. Whatever may be the future of man- 
kind, the fact at present remains, that the normal 
man ^orks in order to accumulate personal possessions. 
Co-6pera'ltion, which has beieri so successful in recent 
years, is, as yet, a means towards the same end- Again, 
it may be urged against communism that no form of 
government can be devised which will regulate produc- 
tion and distribution to the satisfaction of everyone. 
Governments are not infallible; they are human mate- 
rial as well as the individuals themselves. Only with an 
all-wise government could communismi be successful. 

Socialism shares several common aims and methods 
with communism. The chief element of difference lies 

in private property, which thesocialist accepts 
lohMi's.'"' ^® essential. Socialists, however, vary much in 

their own opinions, and from these opinions 
certain definite schools of thought niay be extracted. 

1. The "Scientific" or Marxian Socialists. — The 
central figure in this school is Karl Marx, whose 

work. Capital, has been called the Bible 
J. Marxian ^^ Socialists. Marxian socialism is essen- , 
»•■ tially economic in character, though the state 

Socialism, is regarded as necessary to achieve its goal. 

Society, according to this view, is gradually 
moving towards collective ownership. The old 
system is breaking down before the new economic 
conditions. Collective ownership is the next stage 
in the evolution of society. Social structure to 
the Marxian is explained by economic conditions. Our 
whole life is in every aspect moulded by the economic 
conditions surrounding, us. Up to the present the 
workers hafve been mere tools in the hands of the capital- 
ists. Labour is the only measure of value an,d whait has 


happened in tlie past is, that the capitalists, whose pro- 
perty is the result of the aggression of the strong against 
the weak, are able to exploit the working ; man. The 
working, man is not able to compete with the capitalist, 
for modem machinery, added to the possession of land 
by the capitalist, makes the latter stronger and stronger. 
The workmaji has to work longer and harder than the 
wages he receiyes war;rant, and the surplus above what 
he actually receives is the source of the capitalist's 

Marxian socialism thus dlraiws a sharp distinction be- 
tween the capitalist and the working man, a distinction 
which led to the idea of class antagoiiism. The mass- 
mc of workers in factories wa.o faT-rmraMe to combined 
action, and tMs action, say the Majxians, should be 
exercised for securing parliamentary majorities. Jferx 
himself regarded the victory of the worker to b© a matter 
of evolution; others (revolutionary socialists) hold that 
the workers should aim at the complete upsetting of the 
present system by a definite revolution. 

2. Fabian Socialism. -^The Fabian Socialists, led by 
the English Fabian Society, . differ from the Marxians 
chiefly in their methods. Acception the ordin- 
soc^aUsn?. *^ socialistic doctrine, thev consider that the 
best way to bring the socialistic regime into 
practice is to secure on the part of the people the con- 
viction that the socialistic tvpe of society is the best. 
The Fabians abstaan from political work and, concentrate 
their efforts on literary propaganda work. The 
Fabian Society has as members several of ilie best 
known novelists and playwrights of the day, whose disr 
tinctly socialistic teachings have either been read or 
witnessied on the stage by hundreds of thousanids- The 
pamphlets of the Fabian Society, written larerely by the 
same men, have also been most influential in spreading 


socialistic ideas among the tkinking classes. The 
Fabians are particularly keen on municipal socialism. 

3. The Christian Socialists. — The central idea of this 
School is that the doctrine of Christianity requires col- 
lective owneriship. Christian socialism was 

soo?anim.'" started in the middle of last century (184§-53)t 
by P. D. Maurice, whose chief aim was to 
encourage co-operative production of working-men's asso- 
ciations in order to improve the conditions of working 
men. Competition was regarded as the origin of most of 
the evil afliiong that class. Charles Kihgsley, the novel- 
ist, was a well known Chrisitian Socialist. 

4. ' State-Socialism. — -Sta^B'-socialism originated in 
Gerniany, and only in Germany can a school of state- 
socialism be said to exist, ihoiigh in^ 

sociaitsni. Other countries the influence of its theories has 
been vfery great. State-socialism represents 
a c<Jmpromise theory-; it believes in preserving 
existing class-relations but in using government to 
carry out certain parts of the socialistic ideal. 
It seeks particularly to save the weak from the strong; 
in this, 'lies its characteristic note. Socialism regards 
all citizens as coming under state control; state-social- 
ism seeks to bring under the state "cohtrol only those who 
cannot take care of themselves. Old-age pensibus, work- 
men's insurance, and fd,ctory legislation in general are 
types of the legislation advocated by state-socialism. 

5. Socialists of the Chair. — This term was given in 
1872 to somb young German Professors of Political Eco- 
G "Social- 'lO'^y "^^o advocated state-interference with 
fsts of tHe property rights for the public welfare. Their 

theory was not really socialism but a 
protest against socialism. They are socialists only in 
name, not in fact; the narhe has been given to them in 
derision by socialist enemies. 


, 6. Guild Socialism. — ^Guild Socialism is a recent 
development, of which the chief exponent in England is 

Mr. G. D. H. Cole. His theory was developed 
socialism, against the current Fabian collectivistic ideas. 

Collectivism, he considers, means a vast gov- 
ernment organisation which will result in bureaucratic 
tyranny. The state, therefore, must have no control 
over industry. The state, as organised at present, is the 
" comer-stone of the edifice of capitalism." Labour . 
must be organised in unions or aggregations of unions, 
called National Guilds. The chief function of these 
Guilds is to wage war with employers and the state. 
Non-unionists are to be rigorously persecuted in order to 
force unanimity among workers. TJltimately the Nation- 
al Guilds are to control all industries. The state 
is not to be abolished, but is to contmue in some sort of 
equal partnership with the Guilds. The main function 
of the state will be to direct consumpt'.on, the Guilds will 
organise production. Guild socialisifi, as expounded by 
Mr. Cole, is a further development of Marxian revolu- 
tionary socialiam. It has close affinities with syndi- 

4 Criticism of Socialism. 

The main justification of socialism ig that it protests 
against obvious evil's in ouir present social system. Un- 
restricted oompeitition has undoubtedly led to 
ifloatipnof the rise of the capitalist' or capitalistic combi- 
sooiaiism. nations and to the weakening of the working 
man as an individual. The growth of competition tends 
more and more to coiicen;fcraite mon'ey and power in the 
hands of a few men. The small competitor is crushed 
out often in ways which are unfair. Duplipation of 
machinery and services leads as the socialists coptend, 
to economic waste. Inequalitites of wealth', and oppor- 
tunity also exist. . Personal ability is often subordinated 
to hereditary wealth ahd influence^ It is diflicult In 


short, to see Jiow any theory of the common good can be 
reconciled with the great inequalities and injustice which 
exist in the present system. 

There is, therefore, reason for the grounds which 
underlie socialism; but like most theories wjiich aris© as 
. . a protest against existing conditions or classes 

tends to of individuals it tends to exaggeration. , The 
Ixtremes. working, man has not been reduced to the state 
of complete powerlessness that many socialistic 
writers imagine. The growth of large-scale production 
has enabled the workers by means of combinations, 
particularly ti-ade unions, to become more powecrf al than 
they ever have been. Trade unions have become pos- 
sible mainly owing to the congregation of large numbers 
of men in one place. Not only has the work- 
ing man been strengthened against the capital- ' 
ist in this way; he has also by combination 
been able to exercise considerable influence on 
the legislatures of various countries. The socialistic 
attacks on capital, further, forget that labour is not the 
only instrument of production. Capital is as necessary 
as labour, though it is true that capital can be organised 
in a different way. 

One of the grievances of socialists is that land is in 
private hands. The sea, the air, and the land, they say, 
are Jfature's' gifts to mankind not to iiis or 
ownership that particular individual. Many, \srithou^t 
etc.'"^"''' calling themselveis socialists, agreis with this 
proposition. These consider that land should 
be nationalised ; that present owners be gradually ejected 
as public funda admit of fair compensationg being paid 
to thein. On other individual questions too, such ac the 
nationalisation of railways, the socialists have many- 
supporters outside their 'own school of thought. The 
principle of socialism, too, hais been accepted in the co- 
opeiration movement though the crganisatiotis of co- 
operation are not necessarily socialistic. 


Socialists point out in favour of their theory that al- 
ready it has been adopted in practice, with conspicuous 
success, in practically every country in the 
SoeiaVism. 'w^oi'ld- Competition has been eradicated in 
several directions • by government action. 
Why, then, they stsk, should this not ester. a to eveir 
thing? The postal service has eliminated competition 
among private carriers. In many countries government 
owns and manages the railways. Telegraphs, telephones ,. 
and, in oases, even mines and steamships have been 
taken over by governments. Why should not the com- 
plete control of production and labour be similarly taken 
over? The governments, central and local, in India • 
may be taken as an example. If in addition to ih.e< army 
and police, government can manage directly schools and 
colleges, the iorests, the cultivation of quinine, etc., 
why cannot everything, jute, cotton, indigo, coal-mines, 
etc., be taken over and managed? 

Several arguments against this may be brought for^ 
ward. In the first place, the abolition of private owner- 
ship and management from all production 
Private would lessen production bepause it \f-ould take- 
Ownership away one of iis chief stimuli. The capitalist 
Production, gets better results than the government because 
he is able to enjoy the fruits of his own vork. 
Not only so, but supply and demand at present decide the 
course of production. Under government management 
production would decide demand. The capitalist is con- 
stantly on the outlook either to create or discover new: 
wants and meet them. New wants under ai government 
regime would not be stimulated at all. It may be 
argued that new wants may well lie dormant ; on the 
other hand divei-sification of wants adds considerably to' 
the zest ox life and is necessary for the progress of 
society. Thus although the socialist would not, as the 
communist, abolish all private property, the argument^ 
applicable to the greater is true of the less. 


Th'e socialist, again, is . over-optimistic in the matter 
of government manag'ement. Actyal exp«rience of gov- 
sooiaiism ernment-managed industrial concerns is not 
%^ern. hopeful. It is uiiiVersally admitted that mat- 
Mans^'e- ters of general concern such as the postal 
ment. service should be under government, as well as 

certain monopolies. Though the government manage- 
ment is usually accepted as efficient it must be remem- 
1)ered that the standard of efficiency is set in the absence 
of competition. Where governments have actually start- 
«d competitive agencies, failure has been at least as 
notable as success. Government management will never 
be so efficient ais private hianagement as it cannot offer 
the same prizes. Government, for example, cannot 
offer anything equivalent to a partnership in a firm to 
a. manager wherebv the mamager can enjoy a good part 
of the income made by his own efforts. Government, 
•again, even though representative, is not answerable to 
shareholders and does not risk failure. In th'e case of 
failure in an enterprise government would simply close 
down, without having had the economic stimulus of 
fighting against failure. Besides, the very vastness of 
the 6rganisartion of government would lead to delays and 
lack of elasticity, known at present as ' red-tapeism,' 
whicli would lead to a lessening of production tliait might 
well be far greater than the saving effected by collective 
■control. \ . 

Most of the arguments against socialism belong to the 
sphere of economies, and cannot be dealt' with in detail 
here. One political argument, howevier, we must speak 
of. _ Even, if socialism were brought into. practice, it 
would_ be ai mogjt irksome and undesirable system. In 
the words of Herbert , Spencer — "Each member of th^ 
community as an individual would she a slave of the com- 
munity as a whql^." 


In so much aa all productipn and distribution is tpt be 
managed by government, a buge army of officials would 
Tht be necessary. The extension of governmental 

of ' " activities leads also to a large number of bye- 
men" al ^^^^ ^^^ regulations which in the total tend to 
Aotivities. bring about a uniform level of work. In a 
huge organisation ^ike government individuality has no 
large scope. Routine replaces individuality ; 'red-tape' 
replaces elasticity. Individual interests, both in govern- 
ment service and outside it, are allowed play only in so 
far as they do not clash with the uniformity of the gov- 
ernment system. Initiative would be repressed, Genins, 
to which progress owes so much, would be stifled, for 
genius is an exceptional thing, and could find little place 
in the rules and regulations of government. Not only 
so, but the attitude produced in the citizens would be 
that of lethargic acceptance of what government pre- 
scribed. It is here in particular that the individualist 
position is strong as contrasted with that of the socialist. 
The huge bureaucracy would sap individual spontaneity 
and responsibility. Self-help would be replaced by 
government help. 

The loss of fhe buoyancy and resiliency which charac- 
terise the present system cannot be viewed lightly. But 
the huge new civil service would have other bad effects. 
There is no tyranny so grinding as that of government 
departmental formulae. The effect on the government 
servants themselves would be bad. Improvements 
especially in petty necessary matters are notoriously diffi- 
cult to achieve in government concerns. While 
government will readily grant lakhs of rupees for some 
general scheme it will take months, if noii years, to argue 
departmentally whether, say, two extra menials are 
necessary at a given place. The effect of this is parti- 
cularly bad on goveimment officers in responsible posts. 
Impatience with the whole system often leads to, wilful 
action in casea of necessary improvements, to avoid the 



irritation caused by. departmental procedure. Depart- 
mentalisBl is nevertheless necessary, owing to the iiuge- 
ness of the organisaiti'on ; and with the extensioiji of the 
organisation to all matters of production: and distribution 
it would becoiQte infinitely worse. 

The effect, again, on the worker is bad. The relative 
security of tenure which government servants enjoy is 
J often translated by the worker to mean that 

on the he need not work so hard as he would have to 
worker. ^^ under private management. In Australiaj 
for example, the government labourer is said to have the 
* government swing ' of the pickaxe, as coiitrasted to 
the mor^ agile awing of the worker in .private employ- 
ment. The extension of iflie ' goV&mment swing' to all 
production and distribution mighl, ease muscles but it 
certainly would not result in the saving which sricialists 
say would, result from the adoption of their system. 

In the bureaucracy, again, the officials would be con- 
tinually acting for their own advancement. Depart- 
mental requirements do not always coincide with 
cr'aoy." *^® public desires, and promotion on these 
lequirements may not le;ij to the best interests 
of the people. The increasing officialisation of the 
country again would lead to democracy becoming the 
servant of officials. It may be said that in a detmocraey 
the officials of government are the officials of the people. 
This may be so in theory, indeed, but it is far from the 
case in practice. Officials in any government wield great 
power, and it is the offipials who cariry out the expressed 
mil of tie democracy. iWith increasing duties increased 
powers muatr be: given to officials, with the result, that 
officialdom would become an empire within an etapire. 
ruled on a graded system like an iirmy. 

Such are a few arguni'eints that might be brought 
against socialism. It is the thoroughgoing application 
<n the theory, which alone/ may give reasons for doiiibt. 


Many people not professed socialists are willing to ac- 
i'ept part* of tlie socialistic doetrinei. In recent years 
veiy considerable advances liave been made all over lie 
world tbTrards the realisation of parts of the socialistic 
programme. The tendency at present seems to be more 
and more in the. same direction, aJid the vast enterprises 
which the great European War has thrown directly on 
the shoulders of government, will doubtless prove a lever 
toi socialists for demanding an extension of,' direct gov- 
ernment activities. '<■ 

The aidvance of socialism in recent years has been 
marked in Great Britain in two ways — social legislation 
Raoant and municipalisation. Since the beginning of 
A^dvart<;e : this fiemtury many laws liave been passed for 
Soofaiistn the bettering of the lot of the working man. 
Britain. ^^^' -^^^ Pension Acts, Employers' T*iability 
Acts, Workmiem's Compensation Acts, Housing, 
Health, aaid Factory Acts^all ;theSe;haye recently conie 
into operation. The chief, socialistic measures however 
have been in municipalities Mfhere lightiag, both gas and 
electricity, tramways, water and libraries are directly 
owned and nianageicl by a Igirgei proportion of 

In the British Cpjoiiies and India the , advance of 
socialism is even , more marked. It must be noted that 
In the ^^® socialistic measures are not adopted because 
coRinias of any accepted theory of socialism. As a rule 
"" " '"■ some other reason operates. Thus, in Ecprland. 
moral and social considerations, in Australia, the lack 
of private capital, in India the lack of capital and initia^ 
tive on the part of the people, have been the main causes 
of government ownership and management. 
' In western oountriesthe socialists now form'parties of 
considerable political strength. This is particularly the 
In case in Germany, where the socialists are 

Germany strong not only numerically but also, because 
France. they are united. Ro-cialigm ,aa a ■ political 


force is relatively new, and in many countries 
it lla:s not been able to unite its forces because of