Political Institutions, being Part V of the Principles of Sociology

[1876]

By Herbert Spencer

[Political Institutions, being Part V of the Principles of Sociology (The Concluding Portion of Vol. II) (London: Williams and Norgate, 1882).]

CHAPTER VIII.

Consultative bodies.

§ 490. Two parts of the primitive tri-une political structure have, in the last two chapters, been dealt with separately; or, to speak strictly, the first has been considered as independent of the second, and again, the second as independent of the first: incidentally noting its relations to the third. Here we have to treat of the two in combination. Instead of observing how from the chief, little above the rest, there is, under certain conditions, evolved the absolute ruler, entirely subordinating the select few and the many; and instead of observing how, under other conditions, the select few become an oligarchy tolerating no supreme man, and keeping the multitude in subjection; we have now to observe the cases in which there is established a cooperation between the first and the second.

After chieftainship has become settled, the chief continues to have sundry reasons for acting in concert with his head men. It is needful to conciliate them; it is needful to get their advice and willing assistance; and, in serious matters, it is desirable to divide responsibility with them. Hence the prevalence of consultative assemblies. In Samoa, “the chief of the village and the heads of families formed, and still form, the legislative body of the place.” Among the Fulahs, “before undertaking anything important or declaring war, the king [of Rabbah] is obliged to summon a council of Mallams and the principal people.” Of the Mandingo states we read that “in all affairs of importance, the king calls an assembly of the principal men, or elders, by whose counsels he is directed.” And such cases might be multiplied indefinitely.

That we may understand the essential nature of this institution, and that we may see why, as it evolves, it assumes the characters it does, we must once more go back to the beginning.

§ 491. Evidence coming from many peoples in all times, shows that the consultative body is, at the outset, nothing more than a council of war. It is in the open-air meeting of armed men, that the cluster of leaders is first seen performing that deliberative function in respect of military measures, which is subsequently extended to other measures. Long after its deliberations have become more general in their scope, there survive traces of this origin.

In Rome, where the king was above all things the general, and where the senators, as the heads of clans, were, at the outset, war-chiefs, the burgesses were habitually, when called together, addressed as “spear-men:” there survived the title which was naturally given to them when they were present as listeners at war-councils. So during later days in Italy, when the small republics grew up. Describing the assembling of “citizens at the sound of a great bell, to concert together the means of their common defence,” Sismondi says —“this meeting of all the men of the State capable of bearing arms, was called a Parliament.” Concerning the gatherings of the Poles in early times we read:—“Such assemblies, before the establishment of a senate, and while the kings were limited in power, were of frequent occurrence, and…were attended by all who bore arms;” and at a later stage “the comitia paludata, which assembled during an interregnum, consisted of the whole body of nobles, who attended in the open plain, armed and equipped as if for battle.” In Hungary, too, up to the beginning of the sixteenth century, “les seigneurs, à cheval et armés do pied en cap comme pour aller en guerre, se réunissaient dans le champ de courses de Rakos, près de Pesth, et là discutaient en plain air les affaires publiques.” Again, “the supreme political council is the nation in arms,” says Stubbs of the primitive Germans; and though, during the Merovingian period, the popular power declined, yet “under Chlodovech and his immediate successors, the People assembled in arms had a real participation in the resolutions of the king.” Even now the custom of going weapon in hand, is maintained where the primitive political form remains. “To the present day,” writes M. de Laveleye, “the inhabitants of the outer Rhodes of Appenzell come to the general assembly, one year at Hundwyl and the other at Trogen, each carrying in his hand an old sword or ancient rapier of the middle ages.” Mr. Freeman, too, was witness to a like annual gathering in Uri, where those who joined to elect their chief magistrate, and to deliberate, came armed.

It may, indeed, be alleged that in early unsettled times, the carrying of weapons by each freeman was needful for personal safety; especially when a place of meeting far from his home had to be reached. But there is evidence that though this continued to be a cause for going prepared for fight, it was not by itself a sufficient cause. While we read of the ancient Scandinavians that “all freemen capable of bearing arms were admitted” to the national assembly, and that after his election from “among the descendants of the sacred stock,” “the new sovereign was elevated amidst the clash of arms and the shouts of the multitude;” we also read that “nobody, not even the king or his champions, were allowed to come armed to the assizes.”

Even apart from such evidence, there is ample reason to infer that the council of war originated the consultative body, and gave outlines to its structure. Defence against enemies was everywhere the need which first prompted joint deliberation. For other purposes individual action, or action in small parties, might suffice; but for insuring the general safety, combined action of the whole horde or tribe was necessary; and to secure this combined action must have been the primary motive for a political gathering. Moreover, certain constitutional traits of early assemblies among the civilized, point to councils of war as having initiated them. If we ask what must happen when the predominant men of a tribe debate military measures in presence of the rest, the reply is that in the absence of a developed political organization, the assent of the rest to any decision must be obtained before it can be acted upon; and the like must at first happen when many tribes are united. As Gibbon says of the diet of the Tartars, formed of chiefs of tribes and their martial trains, “the monarch who reviews the strength, must consult the inclination, of an armed people.” Even if, under such conditions, the ruling few could impose their will on the many, armed like themselves, it would be impolitic to do so; since success in war would be endangered by dissension. Hence would arise the usage of putting to the surrounding warriors, the question whether they agreed to the course which the council of chiefs had decided upon. There would grow up a form such as that which had become established for governmental purposes at large among the early Romans, whose king or general, asked the assembled burgesses or “spear-men,” whether they approved of the proposal made; or like that ascribed by Tacitus to the primitive Germans, who, now with murmurs and now with brandishing of spears, rejected or accepted the suggestions of their leaders. Moreover, there would naturally come just that restricted expression of popular opinion which we are told of. The Roman burgesses were allowed to answer only “yes” or “no” to any question put to them; and this is exactly the simple answer which the chief and head warriors would require from the rest of the warriors when war or peace were the alternatives. A kindred restriction existed among the Spartans. In addition to the senate and co-ordinate kings, there was “an Ekklesia or public assembly of citizens, convened for the purpose of approving or rejecting propositions submitted to them, with little or no liberty of discussion”—a usage quite explicable if we assume that in the Homeric agora, from which the Spartan constitution descended, the assembled chiefs had to gain the assent of their followers before important actions could be undertaken.

Concluding, then, that war originates political deliberation, and that the select body which especially carries on this deliberation first takes shape on occasions when the public safety has to be provided for, we shall be prepared the better to understand the traits which characterize the consultative body in later stages of its development.

§ 492. Already we have seen that at the outset the militant class was of necessity the land-owning class. In the savage tribe there are no owners of the tract occupied, save the warriors who use it in common for hunting. During pastoral life good regions for cattle-feeding are jointly held against intruders by force of arms. And where the agricultural stage has been reached, communal possession, family possession, and individual possession, have from time to time to be defended by the sword. Hence, as was shown, the fact that in early stages the bearing of arms and the holding of land habitually go together.

While, as among hunting peoples, land continues to be held in common, the contrasts which arise between the few and the many, are such only as result from actual or supposed personal superiority of one kind or other. It is true that, as pointed out, differences of wealth, in the shape of chattels, boats, slaves, &c., cause some class-differentiations; and that thus, even before private land-owning begins, quantity of possessions aids in distinguishing the governing from the governed. When the pastoral state is arrived at and the patriarchal type established, such ownership as there is vests in the eldest son of the eldest; or if, as Sir Henry Maine says, he is to be considered as trustee for the group, still his trusteeship joins with his military headship in giving him supremacy. At a later stage, when lands come to be occupied by settled families and communities, and land-ownership gains definiteness, this union of traits in each head of a group becomes more marked; and, as was shown when treating of the differentiation of nobles from freemen, several influences conspire to give the eldest son of the eldest, superiority in extent of landed possessions, as well as in degree of power. Nor is this fundamental relation changed when a nobility of service replaces a nobility of birth, and when, as presently happens, the adherents of a conquering invader are rewarded by portions of the subjugated territory. Throughout, the tendency continues to be for the class of military superiors to be identical with the class of large landowners.

It follows, then, that beginning with the assemblage of armed freemen, all of them holding land individually or in groups, whose council of leaders, deliberating in presence of the rest, are distinguished only as being the most capable warriors, there will, through frequent wars and progressing consolidations, be produced a state in which this council of leaders becomes further distinguished by the greater estates, and consequent greater powers, of its members. Becoming more and more contrasted with the armed freemen at large, the consultative body will tend gradually to subordinate it, and, eventually separating itself, will acquire independence.

The growth of this temporary council of war in which the king, acting as general, summons to give their advice the leaders of his forces, into the permanent consultative body in which the king, in his capacity of ruler, presides over the deliberations of the same men on public affairs at large, is exemplified in various parts of the world. The consultative body is everywhere composed of minor chiefs, or heads of clans, or feudal lords, in whom the military and civil rule of local groups is habitually joined with wide possessions; and the examples frequently exhibit this composition on both a small and a large scale—both locally and generally. A rude and early form of the arrangement is shown in Africa. We read of the Kaffirs that “every chief chooses from among his most wealthy subjects five or six, who act as counsellors to him…the great council of the king is composed of the chiefs of particular kraals.” A Bechuana tribe “generally includes a number of towns or villages, each having its distinct head, under whom there are a number of subordinate chiefs,” who “all acknowledge the supremacy of the principal one. His power, though very great and in some instances despotic, is nevertheless controlled by the minor chiefs, who in their pichos or pitshos, their parliament, or public meetings, use the greatest plainness of speech in exposing what they consider culpable or lax in his government.” Of the Wanyamwezi, Burton says that the Sultan is “surrounded by a council varying from two to a score of chiefs and elders… His authority is circumscribed by a rude balance of power; the chiefs around him can probably bring as many warriors into the field as he can.” Similarly in Ashantee. “The caboceers and captains…claim to be heard on all questions relating to war and foreign politics. Such matters are considered in a general assembly; and the king sometimes finds it prudent to yield to the views and urgent representations of the majority.” From the ancient American states, too, instances may be cited. In Mexico “general assemblies were presided over by the king every eighty days. They came to these meetings from all parts of the country;” and then we read, further, that the highest rank of nobility, the Teuctli, “took precedence of all others in the senate, both in the order of sitting and voting:” showing what was the composition of the senate. It was so, too, with the Central Americans of Vera Paz. “Though the supreme rule was exercised by a king, there were inferior lords as his coadjutors, who mostly were titled lords and vassals; they formed the royal council…and joined the king in his palace as often as they were called upon.” Turning to Europe, mention may first be made of ancient Poland. Originally formed of independent tribes, “each governed by its own kinaz, or judge, whom age or reputed wisdom had raised to that dignity,” and each led in war by a temporary voivod or captain, these tribes had, in the course of that compounding and re-compounding which wars produced, differentiated into classes of nobles and serfs, over whom was an elected king. Of the organization which existed before the king lost his power, we are told that—

“Though each of these palatines, bishops, and barons, could thus advise his sovereign, the formation of a regular senate was slow, and completed only when experience had proved its utility. At first, the only subjects on which the monarch deliberated with his barons related to war: what he originally granted through courtesy, or through diffidence in himself, or with a view to lessen his responsibility in case of failure, they eventually claimed as a right.”

So, too, during internal wars and wars against Rome, the primitive Germanic tribes, once semi-nomadic and but slightly organized, passing through the stage in which armed chiefs and freemen periodically assembled for deliberations on war and other matters, evolved a kindred structure. In Carolingian days the great political gathering of the year was simultaneous with the great military levy; and the military element entered into the foreground. Armed service being the essential thing, and questions of peace and war being habitually dominant, it resulted that all freemen, while under obligation to attend, had also a right to be present at the assembly and to listen to the deliberations. And then concerning a later period, as Hallam writes—

“In all German principalities a form of limited monarchy prevaled, reflecting, on a reduced scale, the general constitution of the Empire. As the Emperors shared their legislative sovereignty with the diet, so all the princes who belonged to that assembly had their own provincial states, composed of their feudal vassals and of their mediate towns within their territory.”

In France, too, provincial estates existed for local rule; and there were consultative assemblies of general scope. Thus an “ordinance of 1228, respecting the heretics of Languedoc, is rendered with the advice of our great men and prudhommes;” and one “of 1246, concerning levies and redemptions in Anjou and Maine,” says that “having called around us, at Orleans, the barons and great men of the said counties, and having held attentive counsel with them,” &c.

To meet the probable criticism that no notice has been taken of the ecclesiastics usually included in the consultative body, it is needful to point out that due recognition of them does not involve any essential change in the account above given. Though modern usages lead us to think of the priestclass as distinct from the warrior-class, yet it was not originally distinct. With the truth that habitually in militant societies, the king is at once commander-in-chief and high priest, carrying out in both capacities the dictates of his deity, we may join the truth that the subordinate priest is usually a direct or indirect aider of the wars thus supposed to be divinely prompted. In illustration of the one truth may be cited the fact that before going to war, Radama, king of Madagascar, “acting as priest as well as general, sacrificed a cock and a heifer, and offered a prayer at the tomb of Andria-Masina, his most renowned ancestor.” And in illustration of the other truth may be cited the fact that among the Hebrews, whose priests accompanied the army to battle, we read of Samuel, a priest from childhood upwards, as conveying to Saul God’s command to “smite Amalek,” and as having himself hewed Agag in pieces. More or less active participation in war by priests we everywhere find in savage and semi-civilized societies; as among the Dakotas, Mundrucus, Abipones, Khonds, whose priests decide on the time for war, or give the signal for attack; as among the Tahitians, whose priests “bore arms, and marched with the warriors to battle;” as among the Mexicans, whose priests, the habitual instigators of wars, accompanied their idols in front of the army, and “sacrificed the first taken prisoners at once;” as among the ancient Egyptians, of whom we-read that “the priest of a god was often a military or naval commander.” And the naturalness of the connexion thus common in rude and in ancient societies, is shown by its revival in later societies, notwithstanding an adverse creed. After Christianity had passed out of its early non-political stage into the stage in which it became a State-religion, its priests, during actively militant periods, re-acquired the primitive militant character. “By the middle of the eighth century [in France], regular military service on the part of the clergy was already fully developed.” In the early feudal period, bishops, abbots, and priors, became feudal lords, with all the powers and responsibilities attaching to their positions. They had bodies of troops in their pay, took towns and fortresses, sustained sieges, led or sent troops in aid of kings. And Orderic, in 1094, describes the priests as leading their parishioners to battle, and the abbots their vassals. Though in recent times Church dignitaries do not actively participate in war, yet their advisatory function respecting it—often prompting rather than restraining—has not even now ceased; as among ourselves was lately shown in the vote of the bishops, who, with one exception, approved the invasion of Afghanistan.

That the consultative body habitually includes ecclesiastics, does not, therefore, conflict with the statement that, beginning as a war-council, it grows into a permanent assembly of minor military heads.

§ 493. Under a different form, there is here partially repeated what was set forth when treating of oligarchies: the difference arising from inclusion of the king as a co-operative factor. Moreover, much that was before said respecting the influence of war in narrowing oligarchies, applies to that narrowing of the primitive consultative assembly by which there is produced from it a body of land-owning military nobles. But the consolidation of small societies into large ones effected by war, brings other influences which join in working this result.

In early assemblies of men similarly armed, it must happen that though the inferior many will recognize that authority of the superior few which is due to their leaderships as warriors, to their clan-headships, or to their supposed supernatural descent; yet the superior few, conscious that they are no match for the inferior many in a physical contest, will be obliged to treat their opinions with some deference—will not be able completely to monopolize power. But as fast as there progresses that class-differentiation before described, and as fast as the superior few acquire better weapons than the inferior many, or, as among various ancient peoples, have warchariots, or, as in mediæval Europe, wear coats of mail or plate armour and are mounted on horses, they, feeling their advantage, will pay less respect to the opinions of the many. And the habit of ignoring their opinions will be followed by the habit of regarding any expression of their opinions as an impertinence.

This usurpation will be furthered by the growth of those bodies of armed dependents with which the superior few surround themselves—mercenaries and others, who, while unconnected with the common freemen, are bound by fealty to their employers. These, too, with better weapons and defensive appliances than the mass, will be led to regard them with contempt and to aid in subordinating them.

Not only on the occasions of general assemblies, but from day to day in their respective localities, the increasing powers of the nobles thus caused, will tend to reduce the freemen more and more to the rank of dependents; and especially so where the military service of such nobles to their king is dispensed with or allowed to lapse, as happened in Denmark about the thirteenth century.

“The free peasantry, who were originally independent proprietors of the soil, and had an equal suffrage with the highest nobles in the land, were thus compelled to seek the protection of these powerful lords, and to come under vassalage to some neighbouring Herremand, or bishop, or convent. The provincial diets, or Lands-Ting, were gradually superseded by the general national parliament of the Dannehof, Adel-Ting, or Herredag; the latter being exclusively composed of the princes, prelates, and other great men of the kingdom.… As the influence of the peasantry had declined, whilst the burghers did not yet enjoy any share of political power, the constitution, although disjointed and fluctuating, was rapidly approaching the form it ultimately assumed; that of a feudal and sacerdotal oligarchy.”

Another influence conducing to loss of power by the armed freemen, and gain of power by the armed chiefs who form the consultative body, follows that widening of the occupied area which goes along with the compounding and re-compounding of societies. As Richter remarks of the Merovingian period, “under Chlodovech and his immediate successors, the people assembled in arms had a real participation in the resolutions of the king. But, with the increasing size of the kingdom, the meeting of the entire people became impossible:” only those who lived near the appointed places could attend. Two facts, one already given under another head, may be named as illustrating this effect. “The greatest national council in Madagascar is an assembly of the people of the capital, and the heads of the provinces, districts, towns, villages,” &c.; and, speaking of the English Witenagemot, Mr. Freeman says—“sometimes we find direct mention of the presence of large and popular classes of men, as the citizens of London or Winchester:” the implication in both cases being that all freemen had a right to attend, but that only those on the spot could avail themselves of the right. This cause for restriction, which is commented upon by Mr. Freeman, operates in several ways. When a kingdom has become large, the actual cost of a journey to the place fixed for the meeting, is too great to be borne by a man who owns but a few acres. Further, there is the indirect cost entailed by loss of time, which, to one who personally labours or superintends labour, is serious. Again, there is the danger, which in turbulent times is considerable, save to those who go with bodies of armed retainers. And, obviously, these determent causes must tell where, for the above reasons, the incentives to attend have become small.

Yet one more cause co-operates. An assembly of all the armed freemen included in a large society, could they be gathered, would be prevented from taking active part in the proceedings, both by its size and by its lack of organization. A multitude consisting of those who have come from scattered points over a wide country, mostly unknown to one another, unable to hold previous communication and therefore without plans, as well as without leaders, cannot cope with the relatively small but well-organized body of those having common ideas and acting in concert.

Nor should there be omitted the fact that when the causes above named have conspired to decrease the attendance of men in arms who live afar off, and when there grows up the usage of summoning the more important among them, it naturally happens that in course of time the receipt of a summons becomes the authority for attendance, and the absence of a summons becomes equivalent to the absence of a right to attend.

Here, then, are several influences, all directly or indirectly consequent upon war, which join in differentiating the consultative body from the mass of armed freemen out of which it arises.

§ 494. Given the ruler, and given the consultative body thus arising, there remains to ask—What are the causes of change in their relative powers? Always between these two authorities there must be a struggle—each trying to subordinate the other. Under what conditions, then, is the king enabled to over-ride the consultative body? and under what conditions is the consultative body enabled to over-ride the king?

A belief in the superhuman nature of the king gives him an immense advantage in the contest for supremacy. If he is god-descended, open opposition to his will by his advisers is out of the question; and members of his council, singly or in combination, dare do no more than tender humble advice. Moreover, if the line of succession is so settled that there rarely or never occur occasions on which the king has to be elected by the chief men, so that they have no opportunity of choosing one who will conform to their wishes, they are further debarred from maintaining any authority. Hence, habitually, we do not find consultative bodies having an independent status in the despotically-governed countries of the East, ancient or modern. Though we read of the Egyptian king that “he appears to have been attended in war by the council of the thirty, composed apparently of privy councillors, scribes, and high officers of state,” the implication is that the members of this council were functionaries, having such powers only as the king deputed to them. Similarly in Babylonia and Assyria, attendants and others who performed the duties of ministers and advisers to the god-descended rulers, did not form established assemblies for deliberative purposes. In ancient Persia, too, there was a like condition. The hereditary king, almost sacred and bearing extravagant titles, though subject to some check from princes and nobles of royal blood who were leaders of the army, and who tendered advice, was not under the restraint of a constituted body of them. Throughout the history of Japan down to our own time, a kindred state of things existed. The Daimios were required to reside in the capital during prescribed intervals, as a precaution against insubordination; but they were never, while there, called together to take any share in the government. So too is it in China. We are told that, “although there is nominally no deliberative or advisatory body in the Chinese government, and nothing really analogous to a congress, parliament, or tiers état, still necessity compels the emperor to consult and advise with some of his officers.” Nor does Europe fail to yield us evidence of like meaning. I do not refer only to the case of Russia, but more especially to the case of France during the time when monarchy had assumed an absolute form. In the age when divines like Bossuet taught that “the king is accountable to no one…the whole state is in him, and the will of the whole people is contained in his”— in the age when the king (Louis XIV.), “imbued with the idea of his omnipotence and divine mission,” “was regarded by his subjects with adoration,” he “had extinguished and absorbed even the minutest trace, idea, and recollection of all other authority except that which emanated from himself alone.” Along with establishment of hereditary succession and acquirement of semi-divine character, such power of the other estates as existed in early days had disappered.

Conversely, there are cases showing that where the king has never had, or does not preserve, the prestige of supposed descent from a god, and where he continues to be elective, the power of the consultative body is apt to over-ride the royal power, and eventually to suppress it. The first to be named is that of Rome. Originally “the king convoked the senate when he pleased, and laid before it his questions; no senator might declare his opinion unasked; still less might the senate meet without being summoned.” But here, where the king, though regarded as having divine approval was not held to be of divine descent, and where, though usually nominated by a predecessor he was sometimes practically elected by the senate, and always submitted to the form of popular assent, the consultative body presently became supreme. “The senate had in course of time been converted from a corporation intended merely to advise the magistrates, into a board commanding the magistrates and self-governing.” Afterwards “the right of nominating and cancelling senators originally belonging to the magistrates was withdrawn from them;” and finally, “the irremovable character and life-tenure of the members of the ruling order who obtained seat and vote, was definitely consolidated:” the oligarchic constitution became pronounced. The history of Poland yields another example. After unions of simply-governed tribes had produced small states, and generated a nobility; and after these small states had been united; there arose a kingship. At first elective, as kingships habitually are, this continued so—never became hereditary. On the occasion of each election out of the royal clan, there was an opportunity of choosing for king one whose character the turbulent nobles thought fittest for their own purposes; and hence it resulted that the power of the kingship decayed. Eventually—

“Of the three orders into which the state was divided, the king, though his authority had been anciently despotic, was the least important. His dignity was unaccompanied with power; he was merely the president of the senate, and the chief judge of the republic.”

And then there is the instance furnished by Scandinavia, already named in another relation. Danish, Norwegian, and Swedish kings were originally elective; and though, on sundry occasions, hereditary succession became for a time the usage, there were repeated lapses into the elective form, with the result that predominance was gained by the feudal chieftains and prelates forming the consultative body.

§ 495. The second element in the tri-une political structure is thus, like the first, developed by militancy. By this the ruler is eventually separated from all below him; and by this the superior few are gradually integrated into a deliberative body, separated from the inferior many.

That the council of war, formed of leading warriors who debate in presence of their followers, is the germ out of which the consultative body arises, is implied by the survival of usages which show that a political gathering is originally a gathering of armed men. In harmony with this implication are such facts as that after a comparatively settled state has been reached, the power of the assembled people is limited to accepting or rejecting the proposals made, and that the members of the consultative body, summoned by the ruler, who is also the general, give their opinions only when invited by him to do so.

Nor do we lack clues to the process by which the primitive war-council grows, consolidates, and separates itself. Within the warrior class, which is also the land-owning class, war produces increasing differences of wealth as well as increasing differences of status; so that, along with the compounding and re-compounding of groups, brought about by war, the military leaders come to be distinguished as large land-owners and local rulers. Hence members of the consultative body become contrasted with the freemen at large, not only as leading warriors are contrasted with their followers, but still more as men of wealth and authority.

This increasing contrast between the second and third elements of the tri-une political structure, ends in separation when, in course of time, war consolidates large territories. Armed freemen scattered over a wide area are deterred from attending the periodic assemblies by cost of travel, by cost of time, by danger, and also by the experience that multitudes of men unprepared and unorganized, are helpless in presence of an organized few, better armed and mounted, and with bands of retainers. So that passing through a time during which only the armed freemen living near the place of meeting attend, there comes a time when even these, not being summoned, are considered as having no right to attend; and thus the consultative body becomes completely differentiated.

Changes in the relative powers of the ruler and the consultative body are determined by obvious causes. If the king retains or acquires the repute of supernatural descent or authority, and the law of hereditary succession is so settled as to exclude election, those who might else have formed a consultative body having co-ordinate power, become simply appointed advisers. But if the king has not the prestige of supposed sacred origin or commission, the consultative body retains power; and if the king continues to be elective, it is liable to become an oligarchy.

Of course it is not alleged that all consultative bodies have been generated in the way described, or are constituted in like manner. Societies broken up by wars or dissolved by revolutions, may preserve so little of their primitive organizations that there remain no classes of the kinds out of which such consultative bodies as those described arise. Or, as we see in our own colonies, societies may have been formed in ways which have not fostered classes of land-owning militant chiefs, and therefore do not furnish the elements out of which consultative bodies, in their primitive shapes, are composed. Under conditions of these kinds the assemblies answering to them, so far as may be, in position and function, arise under the influence of tradition or example; and in default of men of the original kind are formed of others—generally, however, of those who by position, seniority, or previous official experience, are more eminent than those forming popular assemblies. It is only to what may be called normal consultative bodies which grow up during that compounding and recompounding of small societies into larger ones which war effects, that the foregoing account applies; and the senates, or superior chambers, which come into existence under later and more complex conditions, may be considered as homologous to them in function and composition so far only as the new conditions permit.

CHAPTER IX.

Representative bodies.

§ 496. Amid the varieties and complexities of political organization, it has proved not impossible to discern the ways in which simple political heads and compound political heads are evolved; and how, under certain conditions, the two become united as ruler and consultative body. But to see how a representative body arises, proves to be more difficult; for both process and product are more variable. Less specific results must content us.

As hitherto, so again, we must go back to the beginning to take up the clue. Out of that earliest stage of the savage horde in which there is no supremacy beyond that of the man whose strength, or courage, or cunning, gives him predominance, the first step is to the practice of election—deliberate choice of a leader in war. About the conducting of elections in rude tribes, travellers say little: probably the methods used are various. But we have accounts of elections as they were made by European peoples during early times. In ancient Scandinavia, the chief of a province chosen by the assembled people, was thereupon “elevated amidst the clash of arms and the shouts of the multitude;” and among the ancient Germans he was raised on a shield, as also was the popularly-approved Merovingian king. Recalling, as this ceremony does, the chairing of a newly-elected member of parliament up to recent times; and reminding us that originally an election was by show of hands; we are taught that the choice of a representative was once identical with the choice of a chief. Our House of Commons had its roots in local gatherings like those in which uncivilized tribes select head warriors.

Besides conscious selection there occurs among rude peoples selection by lot. The Samoans, for instance, by spinning a cocoa-nut, which, on coming to rest, points to one of the surrounding persons, thereby single him out. Early historic races supply illustrations; as the Hebrews in the affair of Saul and Jonathan, and as the Homeric Greeks when fixing on a champion to fight with Hector. In both these last cases there was belief in supernatural interference: the lot was supposed to be divinely determined. And probably at the outset, choice by lot for political purposes among the Athenians, and for military purposes among the Romans, as also in later times the use of the lot for choosing deputies in some of the Italian republics, and in Spain (as in Leon during the twelfth century) was influenced by a kindred belief; though doubtless the desire to give equal chances to rich and poor, or else to assign without dispute a mission which was onerous or dangerous, entered into the motive or was even predominant. Here, however, the fact to be noted is that this mode of choice which plays a part in representation, may also be traced back to the usages of primitive peoples.

So, too, we find foreshadowed the process of delegation. Groups of men who open negociations, or who make their submission, or who send tribute, habitually appoint certain of their number to act for them. The method is, indeed, necessitated; since a tribe cannot well perform such actions bodily. Whence, too, it appears that the sending of representatives is, at the first stage, originated by causes like those which re-originate it at a later stage. For as the will of the tribe, readily displayed in its assemblies to its own members, cannot be thus displayed to other tribes, but must, in respect of inter-tribal matters be communicated by deputy; so in a large nation, the people of each locality, able to govern themselves locally, but unable to join the peoples of remote localities in deliberations which concern them all, have to send one or more persons to express their will. Distance in both cases changes direct utterance of the popular voice into indirect utterance.

Before observing the conditions under which this singling out of individuals in one or other way for specified duties, comes to be used in the formation of a representative body, we must exclude classes of cases not relevant to our present inquiry. Though representation as ordinarily conceived, and as here to be dealth with, is associated with a popular form of government, yet the connexion between them is not a necessary one. In some places and times representation has co-existed with entire exclusion of the masses from power. In Poland, both before and after the so-called republican form was assumed, the central diet, in addition to senators nominated by the king, was composed of nobles elected in provincial assemblies of nobles: the people at large being powerless and mostly serfs. In Hungary, too, up to recent times, the privileged class which, even after it had been greatly enlarged reached only “one-twentieth of the adult males,” alone formed the basis of representation. “A Hungarian county before the reforms of 1848 might be called a direct aristocratical republic:” all members of the noble class having a right to attend the local assembly and vote in appointing a representative noble to the general diet; but members of the inferior classes having no shares in the government.

Other representative bodies than those of an exclusively aristocratic kind, must be named as not falling within the scope of this chapter. As Duruy remarks—“Antiquity was not as ignorant as is supposed of the representative system.… Each Roman province had its general assemblies.… Thus the Lycians possessed a true legislative body formed by the deputies of their twenty-three towns.” “This assembly had even executive functions.” And Gaul, Spain, all the eastern provinces, and Greece, had like assemblies. But, little as is known of them, the inference is tolerably safe that these were but distantly allied in genesis and position to the bodies we now distinguish as representative. Nor are we concerned with those senates and councils elected by different divisions of a town-population (such as were variously formed in the Italian republics) which served simply as agents whose doings were subject to the directly-expressed approval or disapproval of the assembled citizens. Here we must limit ourselves to that kind of representative body which arises in communities occupying areas so large that their members are obliged to exercise by deputy such powers as they possess; and, further, we have to deal exclusively with cases in which the assembled deputies do not replace pre-existing political agencies but cooperate with them.

It will be well to set out by observing, more distinctly than we have hitherto done, what part of the primitive political structure it is from which the representative body, as thus conceived, originates.

§ 497. Broadly, this question is tacitly answered by the contents of preceding chapters. For if, on occasions of public deliberation, the primitive horde spontaneously divides into the inferior many and the superior few, among whom some one is most influential; and if, in the course of that compounding and re-compounding of groups which war brings about, the recognized war-chief develops into the king, while the superior few become the consultative body formed of minor military leaders; it follows that any third co-ordinate political power must be either the mass of the inferior itself, or else some agency acting on its behalf. Truism though this may be called, it is needful here to set it down; since, before inquiring under what circumstances the growth of a representative system follows the growth of popular power, we have to recognize the relation between the two.

The undistinguished mass, retaining a latent supremacy in simple societies not yet politically organized, though it is brought under restraint as fast as war establishes obedience, and conquests produce class-differentiations, tends, when occasion permits, to re-assert itself. The sentiments and beliefs, organized and transmitted, which, during certain stages of social evolution, lead the many to submit to the few, come, under some circumstances, to be traversed by other sentiments and beliefs. Passing references have been in several places made to these. Here we must consider them seriatim and more at length.

One factor in the development of the patriarchal group during the pastoral stage, was shown to be the fostering of subordination to its head by war; since, continually, there survived the groups in which subordination was greatest. But if so, the implication is that, conversely, cessation of war tends to diminish subordination. Members of the compound family, originally living together and fighting together, become less strongly bound in proportion as they have less frequently to cooperate for joint defence under their head. Hence, the more peaceful the state the more independent become the multiplying divisions forming the gens, the phratry, and the tribe. With progress of industrial life arises greater freedom of action—especially among the distantly-related members of the group.

So must it be, too, in a feudally-governed assemblage. While standing quarrels with neighbours are ever leading to local battles—while bodies of men-at-arms are kept ready, and vassals are from time to time summoned to fight—while, as a concomitant of military service, acts of homage are insisted upon; there is maintained a regimental subjection running through the group. But as fast as aggressions and counter-aggressions become less frequent, the carrying of arms becomes less needful; there is less occasion for periodic expressions of fealty; and there is an increase of daily actions performed without direction of a superior, whence a fostering of individuality of character.

These changes are furthered by the decline of superstitious beliefs concerning the natures of head men, general and local. As before shown, the ascription of superhuman origin, or supernatural power, to the king, greatly strengthens his hands; and where the chiefs of component groups have a sacredness due to nearness in blood to the semi-divine ancestor worshipped by all, or are members of an invading, god-descended race, their authority over dependents is largely enforced. By implication then, whatever undermines ancestorworship, and the system of beliefs accompanying it, favours the growth of popular power. Doubtless the spread of Christianity over Europe, by diminishing the prestige of governors, major and minor, prepared the way for greater independence of the governed.

These causes have relatively small effects where the people are scattered. In rural districts the authority of political superiors is weakened with comparative slowness. Even after peace has become habitual, and local heads have lost their semi-sacred characters, there cling to them awe-inspiring traditions: they are not of ordinary flesh and blood. Wealth which, through long ages, distinguishes the nobleman exclusively, gives him both actual power and the power arising from display. Fixed literally or practically, as the several grades of his inferiors are during days when locomotion is difficult, he long remains for them the solitary sample of a great man. Others are only known by hearsay; he is known by experience. Inspection is easily maintained by him over dependent and sub-dependent people; and the disrespectful or rebellious, if they cannot be punished overtly, can be deprived of occupation, or otherwise so hindered in their lives that they must submit or migrate. Down to our own day, the behaviour of peasants and farmers to the squire, is suggestive of the strong restraints which kept rural populations in semi-servile states after primitive controlling influences had died away.

Converse effects may be expected under converse conditions; namely, where large numbers become closely aggregated. Even if such large numbers are formed of groups severally subordinate to heads of clans, or to feudal lords, sundry influences combine to diminish subordination. When there are present in the same place many superiors to whom respectively their dependents owe obedience, these superiors tend to dwarf one another. The power of no one is so imposing if there are daily seen others who make like displays. Further, when groups of dependents are mingled, supervision cannot be so well maintained by their heads. And this which hinders the exercise of control, facilitates combination among those to be controlled: conspiracy is made easier and detection of it more difficult. Again, jealous of one another, as these heads of clustered groups are likely in such circumstances to be, they are prompted severally to strengthen themselves; and to this end, competing for popularity, are tempted to relax the restraints over their inferiors and to give protection to inferiors ill-used by other heads. Still more are their powers undermined when the assemblage includes many aliens. As before implied, this above all causes favours the growth of popular power. In proportion as immigrants, detached from the gentile or feudal divisions they severally belong to, become numerous, they weaken the structures of the divisions among which they live. Such organization as these strangers fall into is certain to be a looser one; and their influence acts as a dissolvent to the surrounding organizations.

And here we are brought back to the truth which cannot be too much insisted upon, that growth of popular power is in all ways associated with trading activities. For only by trading activities can many people be brought to live in close contact. Physical necessities maintain the wide dispersion of a rural population; while physical necessities impel the gathering together of those who are commercially occupied. Evidence from various countries and times shows that periodic gatherings for religious rites, or other public purposes, furnish opportunities for buying and selling, which are habitually utilized; and this connexion between the assembling of many people and the exchanging of commodities, which first shows itself at intervals, becomes a permanent connexion where many people become permanently assembled—where a town grows up in the neighbourhood of a temple, or around a stronghold, or in a place favoured by local circumstances for some manufacture.

Industrial development further aids popular emancipation by generating an order of men whose power, derived from their wealth, competes with, and begins in some cases to exceed, the power of those who previously were alone wealthy—the men of rank. While this initiates a conflict which diminishes the influence previously exercised by patriarchal or feudal heads only, it also initiates a milder form of subordination. Rising, as the rich trader habitually does in early times, from the non-privileged class, the relation between him and those under him is one from which there is excluded the idea of personal subjection. In proportion as the industrial activities grow predominant, they make familiar a connexion between employer and employed which differs from the relation between master and slave, or lord and vassal, by not including allegiance. Under earlier conditions there does not exist the idea of detached individual life—life which neither receives protection from a clan-head or feudal superior, nor is carried on in obedience to him. But in town populations, made up largely of refugees, who either become small traders or are employed by great ones, the experience of a relatively-independent life becomes common, and the conception of it clear.

And the form of cooperation distinctive of the industrial state thus arising, fosters the feelings and thoughts appropriate to popular power. In daily usage there is a balancing of claims; and the idea of equity is, generation after generation, made more definite. The relations between employer and employed, and between buyer and seller, can be maintained only on condition that the obligations on either side are fulfilled. Where they are not fulfilled the relation lapses, and leaves outstanding those relations in which they are fulfilled. Commercial success and growth have thus, as their inevitable concomitants, the maintenance of the respective rights of those concerned, and a strengthening consciousness of them.

In brief, then, dissolving in various ways the old relation of status, and substituting the new relation of contract (to use Sir Henry Maine’s antithesis), progressing industrialism brings together masses of people who by their circumstances are enabled, and by their discipline prompted, to modify the political organization which militancy has bequeathed.

§ 498. It is common to speak of free forms of government as having been initiated by happy accidents. Antagonisms between different powers in the State, or different factions, have caused one or other of them to bid for popular support, with the result of increasing popular power. The king’s jealousy of the aristocracy has induced him to enlist the sympathies of the people (sometimes serfs but more frequently citizens) and therefore to favour them; or, otherwise, the people have profited by alliance with the aristocracy in resisting royal tyrannies and exactions. Doubtless, the facts admit of being thus presented. With conflict there habitually goes the desire for allies; and throughout mediæval Europe while the struggles between monarchs and barons were chronic, the support of the towns was important. Germany, France, Spain, Hungary, furnish illustrations.

But it is an error to regard occurrences of these kinds as causes of popular power. They are to be regarded rather as the conditions under which the causes take effect. These incidental weakenings of pre-existing institutions, do but furnish opportunities for the action of the pent-up force which is ready to work political changes. Three factors in this force may be distinguished:—the relative mass of those composing the industrial communities as distinguished from those embodied in the older forms of organization; the permanent sentiments and ideas produced in them by their mode of life; and the temporary emotions roused by special acts of oppression or by distress. Let us observe the cooperation of these.

Two instances, occurring first in order of time, are furnished by the Athenian democracy. The condition which preceded the Solonian legislation, was one of violent dissension among political factions; and there was also “a general mutiny of the poorer population against the rich, resulting from misery combined with oppression.” The more extensive diffusion of power effected by the revolution which Kleisthenes brought about, occurred under kindred circumstances. The relatively-detached population of immigrant traders, had so greatly increased between the time of Solon and that of Kleisthenes, that the four original tribes forming the population of Attica had to be replaced by ten. And then this augmented mass, largely composed of men not under clan-discipline, and therefore less easily restrained by the ruling classes, forced itself into predominance at a time when the ruling classes were divided. Though it is said that Kleisthenes “being vanquished in a party contest with his rival, took the people into partnership”—though the change is represented as being one thus personally initiated; yet in the absence of that voluminous popular will which had long been growing, the political re-organization could not have been made, or, if made, could not have been maintained. The remark which Grote quotes from Aristotle, “that seditions are generated by great causes but out of small incidents,” if altered slightly by writing “political changes” instead of “seditions,” fully applies. For clearly, once having been enabled to assert itself, this popular power could not be forthwith excluded. Kleisthenes could not under such circumstances have imposed on so large a mass of men arrangements at variance with their wishes. Practically, therefore, it was the growing industrial power which then produced, and thereafter preserved, the democratic organization. Turning to Italy, we first note that the establishment of the small republics, referred to in a preceding chapter as having been simultaneous with the decay of imperial power, may here be again referred to more specifically as having been simultaneous with that conflict of authorities which caused this decay. Says Sismondi, “the war of investitures gave wing to this universal spirit of liberty and patriotism in all the municipalities of Lombardy, of Piedmont, Venetia, Romagna, and Tuscany.” In other words, while the struggle between Emperor and Pope absorbed the strength of both, it became possible for the people to assert themselves. And at a later time, Florence furnished an instance similar in nature if somewhat different in form.

“At the moment when ‘Florence expelled the Medici, that republic was bandied between three different parties.’ Savonarola took advantage of this state of affairs to urge that the people should reserve their power to themselves, and exercise it by a council. His proposition was agreed to, and this ‘council was declared sovereign.’”

In the case of Spain, again, popular power increased during the troubles accompanying the minority of Fernando IV.; and of the periodic assemblies subsequently formed by deputies from certain towns (which met without authority of the Government) we read that—

“The desire of the Government to frustrate the aspiring schemes of the Infantes de la Cerda, and their numerous adherents, made the attachment of these assemblies indispensable. The disputes during the minority of Alfonso XI. more than ever favoured the pretensions of the third estate. Each of the candidates for the regency paid assiduous court to the municipal authorities, in the hope of obtaining the necessary suffrages.”

And how all this was consequent on industrial development, appears in the facts that many, if not most, of these associated towns, had arisen during a preceding age by the re-colonization of regions desolated during the prolonged contests of Moors and Christians; and that these “poblaciones,” or communities of colonists, which, scattered over these vast tracts grew into prosperous towns, had been formed of serfs and artizans to whom various privileges, including those of self-government, were given by royal charter. With which examples must be joined the example familiar to all. For in England it was during the struggle between king and barons, when the factions were nearly balanced, and when the town-populations had been by trade so far increased that their aid was important, that they came to play a noticeable part, first as allies in war and afterwards as sharers in government. It cannot be doubted that when summoning to the parliament of 1265, not only knights of the shire but also deputies from cities and boroughs, Simon of Montfort was prompted by the desire to strengthen himself against the royal party supported by the Pope. And whether he sought thus to increase his adherents, or to obtain larger pecuniary means, or both, the implication equally is that the urban populations had become a relatively-important part of the nation. This interpretation harmonizes with subsequent events. For though the representation of towns afterwards lapsed, yet it shortly revived, and in 1295 became established. As Hume remarks, such an institution could not “have attained to so vigorous a growth and have flourished in the midst of such tempests and convulsions,” unless it had been one, “for which the general state of things had already prepared the nation:” the truth here to be added being that this “general state of things” was the augmented mass, and hence augmented influence, of the free industrial communities.

Confirmation is supplied by cases showing that power gained by the people during times when the regal and aristocratic powers are diminished by dissension, is lost again if, while the old organization recovers its stability and activity, industrial growth does not make proportionate progress. Spain, or more strictly Castile, yields an example. Such share in government as was acquired by those industrial communities which grew up during the colonization of the waste lands, became, in the space of a few reigns characterized by successful wars and resulting consolidations, scarcely more than nominal.

§ 499. It is instructive to note how that primary incentive to cooperation which initiates social union at large, continues afterwards to initiate special unions within the general union. For just as external militancy sets up and carries on the organization of the whole, so does internal militancy sets up and carry on the organization of the parts; even when those parts, industrial in their activities, are intrinsically non-militant. On looking into their histories we find that the increasing clusters of people who, forming towns, lead lives essentially distinguished by continuous exchange of services under agreement, develop their governmental structures during their chronic antagonisms with the surrounding militant clusters.

We see, first, that these settlements of traders, growing important and obtaining royal charters, were by doing this placed in quasi-militant positions—became in modified ways holders of fiefs from their king, and had the associated responsibilities. Habitually they paid dues of sundry kinds equivalent in general nature to those paid by feudal tenants; and, like them, they were liable to military service. In Spanish chartered towns “this was absolutely due from every inhabitant;” and “every man of a certain property was bound to serve on horseback or pay a fixed sum.” In France “in the charters of incorporation which towns received, the number of troops required was usually expressed.” And in the chartered royal burghs of Scotland “every burgess was a direct vassal of the crown.”

Next observe that industrial towns (usually formed by coalescence of pre-existing rural divisions rendered populous because local circumstances favoured some form of trade, and presently becoming places of hiding for fugitives, and of security for escaped serfs) began to stand toward the small feudally-governed groups around them, in relations like those in which these stood to one another: competing with them for adherents, and often fortifying themselves. Sometimes, too, as in France in the 13th century, towns became suzerains, while communes had the right of war in numerous cases; and in England in early days the maritime towns carried on wars with one another.

Again there is the fact that these cities and boroughs, which by royal charter or otherwise had acquired powers of administering their own affairs, habitually formed within themselves combinations for protective purposes. In England, in Spain, in France, in Germany (sometimes with assent of the king, sometimes notwithstanding his reluctance as in England, sometimes in defiance of him, as in ancient Holland) there rose up gilds, which, having their roots in the natural unions among related persons, presently gave origin to frith-gilds and merchant-gilds; and these, defensive in their relations to one another, formed the bases of that municipal organization which carried on the general defence against aggressing nobles.

Once more, in countries where the antagonisms between these industrial communities and the surrounding militant communities were violent and chronic, the industrial communities combined to defend themselves. In Spain the “poblaciones,” which when they flourished and grew into large places were invaded and robbed by adjacent feudal lords, formed leagues for mutual protection; and at a later date there arose, under like needs, more extensive confederations of cities and towns, which, under severe penalties for non-fulfilment of the obligations, bound themselves to aid one another in resisting aggressions, whether by king or nobles. In Germany, too, we have the perpetual alliance entered into by sixty towns on the Rhine in 1255, when, during the troubles that followed the deposition of the Emperor Frederic II., the tyranny of the nobles had become insupportable. And we have the kindred unions formed under like incentives in Holland and in France. So that, both in small and in large ways, the industrial groups here and there growing up within a nation, are, in many cases, forced by local antagonisms partially to assume activities and structures like those which the nation as a whole is forced to assume in its antagonisms with nations around.

Here the implication chiefly concerning us is that if industrialism is thus checked by a return to militancy, the growth of popular power is arrested. Especially where, as happened in the Italian republics, defensive war passes into offensive war, and there grows up an ambition to conquer other territories and towns, the free form of government proper to industrial life, becomes qualified by, if it does not revert to, the coercive form accompanying militant life. Or where, as happened in Spain, the feuds between towns and nobles continue through long periods, the rise of free institutions is arrested; since, under such conditions, there can be neither that commercial prosperity which produces large urban populations, nor a cultivation of the associated mental nature. Whence it may be inferred that the growth of popular power accompanying industrial growth in England, was largely due to the comparatively small amount of this warfare between the industrial groups and the feudal groups around them. The effects of the trading life were less interfered with; and the local governing centres, urban and rural, were not prevented from uniting to restrain the general centre.

§ 500. And now let us consider more specifically how the governmental influence of the people is acquired. By the histories of organizations of whatever kind, we are shown that the purpose originally subserved by some arrangement is not always the purpose eventually subserved. It is so here. Assent to obligations rather than assertion of rights has ordinarily initiated the increase of popular power. Even the transformation effected by the revolution of Kleisthenes at Athens, took the form of a re-distribution of tribes and demes for purposes of taxation and military service. In Rome, too, that enlargement of the oligarchy which occurred under Servius Tullius, had for its ostensible motive the imposing on plebeians of obligations which up to that time had been borne exclusively by patricians. But we shall best understand this primitive relation between duty and power, in which the duty is original and the power derived, by going back once more to the beginning.

For when we remember that the primitive political assembly is essentially a war-council, formed of leaders who debate in presence of their followers; and when we remember that in early stages all free adult males, being warriors, are called on to join in defensive or offensive actions; we see that, originally, the attendance of the armed freemen is in pursuance of the military service to which they are bound, and that such power as, when thus assembled, they exercise, is incidental. Later stages yield clear proofs that this is the normal order; for it recurs where, after a political dissolution, political organization begins de novo. Instance the Italian cities, in which, as we have seen, the original “parliaments,” summoned for defence by the tocsin, included all the men capable of bearing arms: the obligation to fight coming first, and the right to vote coming second. And, naturally, this duty of attendance survives when the primitive assemblage assumes other functions than those of a militant kind; as witness the before named fact that among the Scandinavians it was “disreputable for freemen not to attend” the annual assembly; and the further facts that in France the obligation to be present at the hundred-court in the Merovingian period, rested upon all full freemen; that in the Carolingian period “non-attendance is punished by fines”; that in England the lower freemen, as well as others, were “bound to attend the shire-moot and hundred-moot” under penalty of “large fines for neglect of duty;” and that in the thirteenth century in Holland, when the burghers were assembled for public purposes, “anyone ringing the town bell, except by general consent, and anyone not appearing when it tolls, are liable to a fine.”

After recognizing this primitive relation between popular duty and popular power, we shall more clearly understand the relation as it re-appears when popular power begins to revive along with the growth of industrialism. For here, again, the fact meets us that the obligation is primary and the power secondary. It is mainly as furnishing aid to the ruler, generally for war purposes, that the deputies from towns begin to share in public affairs. There recurs under a complex form, that which at an early stage we see in a simple form. Let us pause a moment to observe the transition.

As was shown when treating of Ceremonial Institutions, the revenues of rulers are derived, at first wholly and afterwards partially, from presents. The occasions on which assemblies are called together to discuss public affairs (mainly military operations for which supplies are needed) naturally become the occasions on which the expected gifts are offered and received. When by successful wars the militant king consolidates small societies into a large one—when there comes an “increase of royal power in intension as the kingdom increases in extension” (to quote the luminous expression of Prof. Stubbs); and when, as a consequence, the quasivoluntary gifts become more and more compulsory, though still retaining such names as donum and auxilium; it generally happens that these exactions, passing a bearable limit, lead to resistance: at first passive and in extreme cases active. If by consequent disturbances the royal power is much weakened, the restoration of order, if it takes place; is likely to take place on the understanding that, with such modifications as may be needful, the primitive system of voluntary gifts shall be re-established. Thus, when in Spain the death of Sancho I. was followed by political dissensions, the deputies from thirty-two places, who assembled at Valladolid, decided that demands made by the king beyond the customary dues should be answered by death of the messenger; and the need for gaining the adhesion of the towns during the conflict with a pretender, led to an apparent toleration of this attitude. Similarly in the next century, during disputes as to the regency while Alphonso XI. was a minor, the cortes at Burgos demanded that the towns should “contribute nothing beyond what was prescribed in” their charters. Kindred causes wrought kindred results in France; as when, by an insurrectionary league, Louis Hutin was obliged to grant charters to the nobles and burgesses of Picardy and of Normandy, renouncing the right of imposing undue exactions; and as when, on sundry occasions, the States-general were assembled for the purpose of reconciling the nation to imposts levied to carry on wars. Nor must its familiarity cause us to omit the instance furnished by our own history, when, after preliminary steps towards that end at St. Alban’s and St. Edmund’s, nobles and people at Runnymede effectually restrained the king from various tyrannies, and, among others, from that of imposing taxes, without the consent of his subjects.

And now what followed from arrangements which, with modifications due to local conditions, were arrived at in several countries under similar circumstances? Evidently when the king, hindered from enforcing unauthorized demands, had to obtain supplies by asking his subjects, or the more powerful of them, his motive for summoning them, or their representatives, became primarily that of getting these supplies. The predominance of this motive for calling together national assemblies, may be inferred from its predominance previously shown in connexion with local assemblies; as instance a writ of Henry I. concerning shire-moots, in which, professing to restore ancient custom, he says—“I will cause those courts to be summoned when I will for my own sovereign necessity, at my pleasure.” To vote money is therefore the primary purpose for which chief men and representatives are assembled.

§ 501. From the ability to prescribe conditions under which money will be voted, grows the ability, and finally the right, to join in legislation. This connexion is vaguely typified in early stages of social evolution. Making gifts and getting redress go together from the beginning. As was said of Gulab Singh, when treating of presents—“even in a crowd one could catch his eye by holding up a rupee and crying out, ‘Maharajah, a petition.’ He would pounce down like a hawk on the money, and, having appropriated it, would patiently hear out the petitioner.”∗ I have in the same place given further examples of this relation between yielding support to the governing agency, and demanding protection from it; and the examples there given may be enforced by such others as that, among ourselves in early days, “the king’s court itself, though the supreme judicature of the kingdom, was open to none that brought not presents to the king,” and that, as shown by the exchequer rolls, every remedy for a grievance or security against aggression had to be paid for by a bribe: a state of things which, as Hume remarks, was paralleled on the Continent.

Such being the original connexion between support of the political head and protection by the political head, the interpretation of the actions of parliamentary bodies, when they arise, becomes clear. Just as in rude assemblies of king, military chiefs, and armed freemen, preserving in large measure the primitive form, as those in France during the Merovingian period, the presentation of gifts went along with the transaction of public business, judicial as well as military—just as in our own ancient shire-moot, local government, including the administration of justice, was accompanied by the furnishing of ships and the payment of “a composition for the feorm-fultum, or sustentation of the king;” so when, after successful resistance to excess of royal power, there came assemblies of nobles and representatives summoned by the king, there re-appeared, on a higher platform, these simultaneous demands for money on the one side and for justice on the other. We may assume it as certain that with an average humanity, the conflicting egoisms of those concerned will be the main factors; and that on each side the aim will be to give as little, and get as much, as circumstances allow. France, Spain, and England, yield examples which unite in showing this.

When Charles V. of France, in 1357, dismissing the States-general for alleged encroachments on his rights, raised money by further debasing the coinage, and caused a sedition in Paris which endangered his life, there was, three months later, a re-convocation of the States, in which the petitions of the former assembly were acceded to, while a subsidy for war purposes was voted. And of an assembled States-general in 1366, Hallam writes:—“The necessity of restoring the coinage is strongly represented as the grand condition upon which they consented to tax the people, who had been long defrauded by the base money of Philip the Fair and his successors.” Again, in Spain, the incorporated towns, made liable by their charters only for certain payments and services, had continually to resist unauthorized demands; while the king, continually promising not to take more than their legal and customary dues, were continually breaking their promises. In 1328 Alfonso XI. “bound himself not to exact from his people, or cause them to pay, any tax, either partial or general, not hitherto established by law, without the previous grant of all the deputies convened by the Cortes.” And how little such pledges were kept is shown by the fact that, in 1393, the Cortes who made a grant to Henry III., joined the condition that—

“He should swear before one of the arch bishops not to take or demand any money, service, or loan, or anything else of the cities and towns, nor of individuals belonging to them, on any pretence of necessity, until the three estates of the kingdom should first be duly summoned and assembled in Cortes according to ancient usage.”

Similarly in England during the time when parliamentary power was being established. While, with national consolidation, the royal authority had been approaching to absoluteness, there had been, by reaction, arising that resistance which, resulting in the Great Charter, subsequently initiated the prolonged struggle between the king, trying to break through its restraints, and his subjects trying to maintain and to strengthen them. The twelfth article of the Charter having promised that no scutage or aid save those which were established should be imposed without consent of the national council, there perpetually recurred, both before and after the expansion of Parliament, endeavours on the king’s part to get supplies without redressing grievances, and endeavours on the part of Parliament to make the voting of supplies contingent on fulfilment of promises to redress grievances.

On the issue of this struggle depended the establishment of popular power; as we are shown by comparing the histories of the French and Spanish Parliaments with that of the English Parliament. Quotations above given prove that the Cortes originally established, and for a time maintained, the right to comply with or to refuse the king’s requests for money, and to impose their conditions; but they eventually failed to get their conditions fulfilled.

“In the struggling condition of Spanish liberty under Charles I., the crown began to neglect answering the petitions of Cortes, or to use unsatisfactory generalities of expression. This gave rise to many remonstrances. The deputies insisted, in 1523, on having answers before they granted money. They repeated the same contention in 1525, and obtained a general law, inserted in the Recopilacion, enacting that the king should answer all their petitions before he dissolved the assembly. This, however, was disregarded as before.”

And thereafter rapidly went on the decay of parliamentary power. Different in form but the same in nature, was the change which occurred in France. Having at one time, as shown above, made the granting of money conditional on the obtainment of justice, the States-general was induced to surrender its restraining powers. Charles VII.—

“obtained from the States of the royal domains which met in 1439 that they [the tailles] should be declared permanent, and from 1444 he levied them as such, i.e. uninterruptedly and without previous vote.… The permanence of the tailles was extended to the provinces annexed to the crown, but these preserved the right of voting them by their provincial estates.… In the hands of Charles VII., and Louis XI., the royal impost tended to be freed from all control.… Its amount increased more and more.”

Whence, as related by Dareste, it resulted that “when the tailles and aides…had been made permanent, the convocation of the States-general ceased to be necessary. They were little more than show assemblies.” But in our own case, during the century succeeding the final establishment of Parliament, frequent struggles necessitated by royal evasions, trickeries, and falsehoods, brought increasing power to withhold supplies until petitions had been attended to.

Admitting that this issue was furthered by the conflicts of political factions, which diminished the coercive power of the king, the truth to be emphasized is that the increase of a free industrial population was its fundamental cause. The calling together knights of the shire, representing the class of small landowners, which preceded on several occasions the calling together deputies from towns, implied the growing importance of this class as one from which money was to be raised; and when deputies from towns were summoned to the Parliament of 1295, the form of summons shows that the motive was to get pecuniary aid from portions of the population which had become relatively considerable and rich. Already the king had on more than one occasion sent special agents to shires and boroughs to raise subsidies from them for his wars. Already he had assembled provincial councils formed of representatives from cities, boroughs, and market-towns, that he might ask them for votes of money. And when the great Parliament was called together, the reason set forth in the writs was that wars with Wales, Scotland, and France, were endangering the realm: the implication being that the necessity for obtaining supplies led to this recognition of the towns as well as the counties.

So too was it in Scotland. The first known occasion on which representatives from burghs entered into political action, was when there was urgent need for pecuniary help from all sources; namely, “at Cambuskenneth on the 15th day of July, 1326, when Bruce claimed from his people a revenue to meet the expenses of his glorious war and the necessities of the States, which was granted to the monarch by the earls, barons, burgesses, and free tenants, in full parliament assembled.”

In which cases, while we are again shown that the obligation is original and the power derived, we are also shown that it is the increasing mass of those who carry on life by voluntary cooperation instead of compulsory cooperation—partly the rural class of small freeholders and still more the urban class of traders—which initiates popular representation.

§ 502. Still there remains the question—How does the representative body become separate from the consultative body? Retaining the primitive character of councils of war, national assemblies were in the beginning mixed. The different “arms,” as the estates were called in Spain, originally formed a single body. Knights of the shire when first summoned, acting on behalf of numerous smaller tenants of the king owing military service, sat and voted with the greater tenants. Standing, as towns did at the outset, very much in the position of fiefs, those who represented them were not unallied in legal status to feudal chiefs; and, at first assembling with these, in some cases remained united with them, as appears to have been habitually the case in France and Spain. Under what circumstances, then, do the consultative and representative bodies differentiate? The question is one to which there seems no very satisfactory answer.

Quite early we may see foreshadowed a tendency to part, determined by unlikeness of functions. During the Carolingian period in France, there were two annual gatherings: a larger which all the armed freemen had a right to attend, and a smaller formed of the greater personages deliberating on more special affairs.

“If the weather was fine, all this passed in the open air; if not, in distinct buildings.… When the lay and ecclesiastical lords were…separated from the multitude, it remained in their option to sit together, or separately, according to the affairs of which they had to treat.”

And that unlikeness of functions is a cause of separation we find evidence in other places and times. Describing the armed national assemblies of the Hungarians, originally mixed, Lévy writes:—“La dernière réunion de ce genre eut lieu quelque temps avant la bataille de Mohacs; mais bientôt après, la diète se divisa en deux chambres: la table des magnats et la table des députés.” In Scotland, again, in 1367—8, the three estates having met, and wishing, for reasons of economy and convenience, to be excused from their functions as soon as possible, “elected certain persons to hold Parliament, who were divided into two bodies, one for the general affairs of the king and kingdom, and another, a smaller division, for acting as judges upon appeals.” In the case of England we find that though, in the writs calling together Simon of Montfort’s Parliament, no distinction was made between magnates and deputies, yet when, a generation after, Parliament became established, the writs made a distinction: “counsel is deliberately mentioned in the invitation to the magnates, action and consent in the invitation to representatives.” Indeed it is clear that since the earlier-formed body of magnates was habitually summoned for consultative purposes, especially military, while the representatives afterwards added were summoned only to grant money, there existed from the outset a cause for separation. Sundry influences conspired to produce it. Difference of language, still to a considerable extent persisting and impeding joint debate, furnished a reason. Then there was the effect of class-feeling, of which we have definite proof. Though they were in the same assembly, the deputies from boroughs “sat apart both from the barons and knights, who disdained to mix with such mean personages;” and probably the deputies themselves, little at ease in presence of imposing superiors, preferred sitting separately. Moreover, it was customary for the several estates to submit to taxes in different proportions; and this tended to entail consultation among the members of each by themselves. Finally, we read that “after they [the deputies] had given their consent to the taxes required of them, their business being then finished, they separated, even though the Parliament still continued to sit, and to canvass the national business.” In which last fact we are clearly shown that though aided by other causes, unlikeness of duties was the essential cause which at length produced a permanent separation between the representative body and the consultative body.

Thus at first of little account, and growing in power only because the free portion of the community occupied in production and distribution grew in mass and importance, so that its petitions, treated with increasing respect and more frequently yielded to, began to originate legislation, the representative body came to be that part of the governing agency which more and more expresses the sentiments and ideas of industrialism. While the monarch and upper house are the products of that ancients régime of compulsory cooperation the spirit of which they still manifest, though in decreasing degrees, the lower house is the product of that modern régime of voluntary cooperation which is replacing it; and in an increasing degree, this lower house carries out the wishes of people habituated to a daily life regulated by contract instead of by status.

§ 503. To prevent misconception it must be remarked, before summing up, that an account of representative bodies which have been in modern days all at once created, is not here called for. Colonial legislatures, consciously framed in conformity with traditions brought from the mother-country, illustrate the genesis of senatorial and representative bodies in but a restricted sense: showing, as they do, how the structures of parent societies reproduce themselves in derived societies, so far as materials and circumstances allow; but not showing how these structures were originated. Still less need we notice those cases in which, after revolutions, peoples who have lived under despotisms are led by imitation suddenly to establish representative bodies. Here we are concerned only with the gradual evolution of such bodies.

Originally supreme, though passive, the third element in the tri-une political structure, subjected more and more as militant activity develops an appropriate organization, begins to re-acquire power when war ceases to be chronic. Subordination relaxes as fast as it becomes less imperative. Awe of the ruler, local or general, and accompanying manifestations of fealty, decrease; and especially so where the prestige of supernatural origin dies out. Where the life is rural the old relations long survive in qualified forms; but clans or feudal groups clustered together in towns, mingled with numbers of unattached immigrants, become in various ways less controllable; while by their habits their members are educated to increasing independence. The small industrial groups thus growing up within a nation consolidated and organized by militancy, can but gradually diverge in nature from the rest. For a long time they remain partially militant in their structures and in their relations to other parts of the community. At first chartered towns stand substantially on the footing of fiefs, paying feudal dues and owing military service. They develop, within themselves, unions, more or less coercive in character, for mutual protection. They often carry on wars with adjacent nobles and with one another. They not uncommonly form leagues for joint defence. And where the semi-militancy of towns is maintained, industrial development and accompanying increase of popular power are arrested.

But where circumstances have favoured manufacturing and commercial activities, and growth of the population devoted to them, this, as it becomes a large component of the society, makes its influence felt. The primary obligation to render money and service to the head of the State, often reluctantly complied with, is resisted when the exactions are great; and resistance causes conciliatory measures. There comes asking assent rather than resort to compulsion. If absence of violent local antagonisms permits, then on occasions when the political head, rousing anger by injustice, is also weakened by defections, there comes cooperation with other classes of oppressed subjects. Men originally delegated simply that they may authorize imposed burdens, are enabled as the power behind them increases, more and more firmly to insist on conditions; and the growing practice of yielding to their petitions as a means to obtaining their aid, initiates the practice of letting them share in legislation.

Finally, in virtue of the general law of organization that difference of functions entails differentiation and division of the parts performing them, there comes a separation. At first summoned to the national assembly for purposes partially like and partially unlike those of its other members, the elected members show a segregating tendency, which, where the industrial portion of the community continues to gain power, ends in the formation of a representative body distinct from the original consultative body.

CHAPTER X.

Ministries.

§ 504. Men chosen by the ruler to help him, we meet with in early stages of social evolution—men whose positions and duties are then vague and variable. At the outset there is nothing to determine the selection of helpers save considerations of safety, or convenience, or liking. Hence we find ministers of quite different origins.

Relationship leads to the choice in some places and times; as with the Bachassins, among whom the chief’s brother conveys his orders and sees them executed; as of old in Japan, where the Emperor’s son was prime minister and the daimios had cadets of their families as counsellors; as in ancient Egypt where “the principal officers of the Court or administration appear to have been at the earliest period the relatives” of the king. Though in some cases family-jealousy excludes kinsmen from these places of authority, in other cases family-feeling and trust, and the belief that the desire for family-predominance will ensure loyalty, lead to the employment of brothers, cousins, nephews, &c.

More general appears to be the unobtrusive growth of personal attendants, or household servants, into servants of State. Those who are constantly in contact with the ruler have opportunities of aiding or hindering intercourse with him, of biassing him by their statements, and of helping or impeding the execution of his commands; and they thus gain power, and tend to become advising and executive agents. From the earliest times onwards we meet with illustrations. In ancient Egypt—

“The office of fan-bearer to the king was a highly honourable post, which none but the royal princes, or the sons of the first nobility, were permitted to hold. These constituted a principal part of his staff; and in the field they either attended on the monarch to receive his orders, or were despatched to have the command of a division.”

In Assyria the attendants who thus rose to power were not relatives, but were habitually eunuchs; and the like happened in Persia. “In the later times, the eunuchs acquired a vast political authority, and appear to have then filled all the chief offices of state. They were the king’s advisers in the palace, and his generals in the field.” Kindred illustrations are furnished by the West. Shown among the primitive Germans, the tendency for officers of the king’s household to become political officers, was conspicuous in the Merovingian period: the seneschal, the marshal, the chamberlain, grew into public functionaries. Down to the later feudal period in France, the public and household administrations of the king were still undistinguished. So was it in old English times. According to Kemble, the four great officers of the Court and Household were the Hræge Thegn (servant of the wardrobe); the Steallere and Horsthegn (first, Master of the Horse, then General of the Household Troops, then Constable or Grand Marshal); the Discthegn (or thane of the table— afterwards Seneschal); the Butler (perhaps Byrele or Scenca). The like held under the conquering Normans; and it holds in a measure down to the present time.

Besides relatives and servants, friends are naturally in some cases fixed on by the ruler to get him information, give him advice, and carry out his orders Among ancient examples the Hebrews furnish one. Remarking that in the small kingdoms around Israel in earlier times, it was customary for the ruler to have a single friend to aid him, Ewald points out that under David, with a larger State and a more complex administration, “the different departments are necessarily more subdivided, and new offices of ‘friends’ or ministers of the king assume a sort of independent importance.” Like needs produced kindred effects in the first days of the Roman empire. Duruy writes:—

“Augustus, who called himself a plain Roman citizen, could not, like a king, have ministers, but only friends who aided him with their experience. … The multitude of questions…induced him afterwards to distribute the chief affairs regularly among his friends. … This council was gradually organized.”

And then in later days and other regions, we see that out of the group known as “friends of the king” there are often some, or there is one, in whom confidence is reposed and to whom power is deputed. In Russia the relation of Lefort to Peter the Great, in Spain that of Albuquerque to Don Pedro, and among ourselves that of Gaveston to Edward II., sufficiently illustrate the genesis of ministerial power out of the power gained by personal friendship and consequent trust. And then with instances of this kind are to be joined instances showing how attachment between the sexes comes into play. Such facts as that after Albuquerque fell, all offices about the court were filled by relations of the king’s mistress; that in France under Louis XV. “the only visible government was that by women” from Mme. de Prie to Mme. du Barry; and that in Russia during the reign of Catherine II., her successive lovers acquired political power, and became some of them prime ministers and practically autocrats; will serve adequately to recall a tendency habitually displayed.

Regarded as able to help the ruler supernaturally as well as naturally, the priest is apt to become his chosen ally and agent. The Tahitians may be named as having a prime minister who is also chief priest. In Africa, among the Eggarahs (Inland Negroes), a priest “officiates as minister of war.” How political power of priests results from their supposed influence with the gods, is well shown by the case of Mizteca (part of Mexico).

“The high-priests were highly respected by the caziques, who did nothing without their advice; they commanded armies, and ruled the state, reproved vice, and when there was no amendment, threatened famine, plague, war, and the anger of the gods.”

Other places in ancient America—Guatemala, Vera Paz, &c., furnish kindred facts; as do historic peoples from the earliest times downwards. In ancient Egypt the king’s advisers mostly belonged to the priestly caste. Under the Roman emperors ecclesiastics became ministers and secret counsellors. In mediæval days Dominican and Franciscan monks held the highest political offices. And in later times the connexion was shown by the ministerial power of cardinals, or, as in Russia, of patriarchs. This acquisition of leading political functions by functionaries of the church, has in some cases special causes in addition to the general cause. A royal chaplain (uniting the character of personal attendant with that of priest) stands in a relation to the king which almost necessitates acquisition of great influence. Moreover, being fitted by culture for secretarial work, he falls naturally into certain State-duties; as he did into those of chancellor among ourselves in early days.

Recognizing the fact that at the outset, these administrative agents, whatever further characters they have, are usually also soldiers, and are included in the primitive consultative body, of which they become specialized parts, we may say of them generally, that they are relatives, friends, attendants, priests, brought into close relations with the ruler, out of whom he is obliged by stress of business to choose assistants; and that at first vague and irregular, their appointments and functions gradually acquire definiteness.

§ 505. Amid much that is too indefinite for generalization, a few tolerably constant traits of ministers, and traits of ministries, may be briefly indicated.

That a trusted agent commonly acquires power over his principal, is a fact everywhere observable. Even in a gentleman’s household a head servant of long standing not unfrequently gains such influence, that his master is in various matters guided by him—almost controlled by him. With chief officers of State it has often been the same; and especially where hereditary succession is well established. A ruler who, young, or idle, or pleasure-seeking, performs his duties by proxy, or who, through personal liking or entire trust, is led to transfer his authority, presently becomes so ill informed concerning affairs, or so unused to modes of procedure, as to be almost powerless in the hands of his agent.

Where hereditary succession pervades the society and fixes its organization, there is sometimes shown a tendency to inheritance, not of the rulership only, but also of these offices which grow into deputy-rulerships. Under the Norman dukes before the Conquest, the places of seneschal, cup-bearer, constable, and chamberlain, were “hereditary grand serjeanties.” In England in Henry II.’s time, succession to the posts of high-steward, constable, chamberlain, and butler, followed from father to son in the houses of Leicester, Miles, Vere, and Albini. So was it with the Scotch in King David’s reign: “the offices of great steward and high constable had become hereditary in the families of Stewart and De Morevil.” And then in Japan the principle of inheritance of ministerial position had so established itself as to insure ministerial supremacy. In these cases there come into play influences and methods like those which conduce to hereditary kingship. When, as during the later feudal period in France, we see efforts made to fix in certain lines of descent, the chief offices of State (efforts which, in that case, sometimes succeeded and sometimes failed), we are shown that ministers use the facilities which their places give them, to establish succession to these places in their own families, in the same way that early kings do. Just as, during the stage of elective kingship, the king is apt to use the advantages derived from his position to secure the throne for his son, by getting him chosen during his own life, and thus to initiate hereditary succession; so the minister who has been allowed to acquire great power, is prompted to employ it for the purpose of establishing a monopoly of his office among his own descendants. Generally his desire is effectually antagonized by that of the ruler; but where, as in Japan, seclusion of the ruler impedes his hold on affairs, this desire of the minister takes effect.

Since there ever tend to arise these struggles between a king and one or more of those who serve him—since his efforts to maintain his authority are sometimes so far defeated that he is obliged to accept assistants who are hereditary; there results a jealousy of those whose interests are at variance with his own, and an endeavour to protect himself by excluding them from office. There comes a motive for choosing as ministers men who, having no children, cannot found houses which, growing powerful, may compete for supremacy; and hence in certain times the preference for celibate priests. Or, from allied motives, men neither clerical nor military are selected; as in France, where in the 15th and 17th centuries, members of the bourgeois class came to be preferred. A policy like that shown in the befriending of towns as a set-off against feudal chiefs, prompted the official employment of citizens instead of nobles. Under other conditions, again, there is a jealousy of ecclesiastics and an exclusion of them from power. For generations before the time of Peter the Great, the head of the church in Russia was “considered the second person in the empire; he was consulted on all State-affairs, until at length, their [his] spiritual pride outrunning all decorum, venturing upon, and even attempting to control the sovereign power, it was resolved by Peter the Great to abolish the patriarchate altogether.” Between Louis XIV. and the Pope, there was a conflict for supremacy over the French church; and on more occasions than one, certain of the clergy encouraged “the absolutist pretensions of the Roman Pontiffs:” the result being that such prelates as held office were those who subordinated clerical to political aims, and that by Louis XIV., after 1661, “no churchman was allowed to touch the great engine of State-government.” Among ourselves may be traced, if less clearly, the working of kindred tendencies. During the 15th century, “clergymen were secretaries of government, the privy seals, cabinet councillors, treasurers of the crown, ambassadors, commissioners to open parliament, and to Scotland; presidents of the king’s council, supervisors of the royal works, chancellors, keepers of the records, the masters of the rolls, &c.;” but with antagonism to the Church came partial, and in later days complete, disappearance of the clerical element from the administration. Under Henry VIII. the King’s secretary, and afterwards the chancellor, ceased to be ecclesiastics; while of the council of sixteen executors appointed to govern during the minority of his son, three only were in holy orders. And though, during a subsequent temporary revival of papal influence, there was a re-acquirement of ministerial position by priests, they afterwards again ceased to be chosen.

Whether a ruler is able to prevent high offices of State from being held by men whose ambitions and interests he fears, depends, however, upon his acquirement of adequate predominance. A class which, being powerful, is excluded as therefore dangerous, being still more powerful, cannot be excluded; and is apt either to monopolize administrative functions or practically to dictate the choice of ministers. In ancient Egypt, where the priesthood was pre-eminent in influence, the administration was chiefly officered by its members, with the result that at one time there was usurpation of the kingship by priests; and the days during which the Catholic church was most powerful throughout Europe, were the days during which high political posts were very generally held by prelates. In other cases supremacy of the military class is shown; as in Japan, where soldiers have habitually been the ministers and practically usurpers; as in feudal England, when Henry III. was obliged by the barons to accept Hugh Le Despenser as chief justiciary, and other nominees as officers of his household; or as when, in the East, down to our own time, changes of ministry are insisted. on by the soldiery. Naturally in respect of these administrative offices, as in respect of all other places of power, there arises a conflict between the chiefs of the warrior class, who are the agents of the terrestrial ruler, and the chiefs of the clerical class, who profess to be agents of the celestial ruler; and the predominance of the one of the other class, is in many cases implied by the extent to which it fills the chief offices of State.

Such facts show us that where there has not yet been established any regular process for making the chief advisers and agents of the ruler into authorized exponents of public opinion, there nevertheless occurs an irregular process by which some congruity is maintained between the actions of these deputy rulers and the will of the community; or, at any rate, the will of that part which can express its will.

§ 506. Were elaboration desirable, and collection of the needful data less difficult, a good deal might here be added respecting the development of ministries.

Of course it could, in multitudinous cases, be shown how, beginning as simple, they become compound—the solitary assistant to the chief, helping him in all ways, developing into the numerous great officers of the king, dividing among them duties which have become extensive and involved. Along with this differentiation of a ministry might also be traced the integration of it that takes place under certain conditions: the observable change being from a state in which the departmental officers separately take from the ruler their instructions, to a state in which they form an incorporated body. There might be pursued an inquiry respecting the conditions under which this incorporated body gains power and accompanying responsibility; with the probable result of showing that development of an active executive council, and accompanying reduction of the original executive head to an automatic state, characterizes that representative form of government proper to the industrial type. But while results neither definite nor important are likely to be reached, the reaching of such as are promised would necessitate investigation at once tedious and unsatisfactory.

For such ends as are here in view, it suffices to recognize the general facts above set forth. As the political head is at first but a slightly-distinguished member of the group—now a chief whose private life and resources are like those of any other warrior, now a patriarch or a feudal lord who, becoming predominant over other patriarchs or other feudal lords, at first lives like them on revenues derived from private possessions—so the assistants of the political head take their rise from the personal connexions, friends, servants, around him: they are those who stand to him in private relations of blood, or liking, or service. With the extension of territory, the increase of affairs, and the growth of classes having special interests, there come into play influences which differentiate some of those who surround the ruler into public functionaries, distinguished from members of his family and his household. And these influences, joined with special circumstances, determine the kinds of public men who come into power. Where the absoluteness of the political head is little or not at all restrained, he makes arbitrary choice irrespective of rank, occupation, or origin. If, being predominant, there are nevertheless classes of whom he is jealous, exclusion of these becomes his policy; while if his predominance is inadequate, representatives of such classes are forced into office. And this foreshadows the system under which, along with decline of monarchical power, there grows up an incorporated body of ministers having for its recognized function to execute the public will.

CHAPTER XI.

Local governing agencies.

§ 507. This title is needed because the classes of facts to be here dealt with, cover a wider area than those comprehended under the title “Local Governments.”

We have to deal with two kinds of appliances for control, originally one but gradually becoming distinguished. Alike among peoples characterized by the reckoning of kinship through females, and among peoples characterized by descent of property and power through males, the regulative system based on blood-relationship is liable to be involved with, and subordinated by, a regulative system originating from military leadership. Authority established by triumph in war, not unfrequently comes into conflict with authority derived from the law of succession, when this has become partially settled, and initiates a differentiation of political headship from family headship. We have seen that, from primitive stages upwards, the principle of efficiency and the principle of inheritance are both at work in determining men’s social positions; and where, as happens in many cases, a war-chief is appointed when the occasion arises, notwithstanding the existence of a chief of acknowledged legitimacy, there is a tendency for transmitted power to be over-ridden by power derived from capacity. From the beginning, then, there is apt to grow up a species of government distinct from family-government; and the aptitude takes effect where many family-groups, becoming united, carry on militant activities. The growth of the family into the gens, of the gens into the phratry, of the phratry into the tribe, implies the multiplication of groups more and more remotely akin, and less and less easily subordinated by the head of some nominally-leading group; and when local aggregation brings interfusion of tribes which, though of the same stock, have lost their common genealogy, the rise of some headship other than the headships of family-groups becomes imminent. Though such political headship, passing through the elective stage, often becomes itself inheritable after the same manner as the original family-headships, yet it constitutes a new kind of headship.

Of the local governing agencies to which family-headships and political headships give origin, as groups become compounded and re-compounded, we will consider first the political, as being most directly related to the central governing agencies hitherto dealt with.

§ 508. According to the relative powers of conqueror and conquered, war establishes various degrees of subordination. Here the payment of tribute and occasional expression of homage, interfere but little with political independence; and there political independence is almost or quite lost. Generally, however, at the outset the victor either finds it necessary to respect the substantial autonomies of the vanquished societies, or finds it his best policy to do this. Hence, before integration has proceeded far, local governements are usually nothing more than those governments of the parts which existed before they were united into a whole.

We find instances of undecided subordination everywhere. In Tahiti “the actual influence of the king over the haughty and despotic district chieftains, was neither powerful nor permanent.” Of our own political organization in old English times Kemble writes:— “the whole executive government may be considered as a great aristocratic association, of which the ealdormen were the constituent earls, and the king little more than president.” Similarly during early feudal times; as, for example, in France. “Under the first Capetians, we find scarcely any general act of legislation.… Everything was local, and all the possessors of fiefs first, and afterwards all the great suzerains, possessed the legislative power within their domains.” This is the kind of relation habitually seen during the initial stages of those clustered groups in which one group has acquired power over the rest.

In cases where the successful invader, external to the cluster instead of internal, is powerful enough completely to subjugate all the groups, it still happens that the pre-existing local organizations commonly survive. Ancient American states yield examples. “When the kings of Mexico, Tezcuco, and Tacuba conquered a province, they used to maintain in their authority all the natural chiefs, the highest as well as the lower ones.” Concerning certain rulers of Chibcha communities, who became subject to Bogota, we read that the Zipa subdued them, but left them their jurisdiction and left the succession to the caziqueship in their families. And as was pointed out under another head, the victorious Yncas left outstanding the political headships and administrations of the many small societies they consolidated. Such is, in fact, the most convenient policy. As is remarked by Sir Henry Maine, “certain institutions of a primitive people, their corporations and village-communities, will always be preserved by a suzerain-state governing them, on account of the facilities which they afford to civil and fiscal administration;” and the like may be said of the larger regulative structures. Indeed the difficulty of suddenly replacing an old local organization by an entirely new one,is so great that almost of necessity the old one is in large measure retained.

The autonomies of local governments, thus sometimes scarcely at all interfered with and in other cases but partially suppressed, manifest themselves in various ways. The original independence of groups continues to be shown by the right of private war between them. They retain their local gods, their ecclesiastical organizations, their religious festivals. And in time of general war the contingents they severally furnish remain separate. Egyptian nomes, Greek cities, feudal lordships, yield illustrations.

§ 509. The gradual disappearance of local autonomies is a usual outcome of the struggle between the governments of the parts, which try to retain their powers, and the central government, which tries to diminish their powers.

In proportion as his hands are strengthened, chiefly by successful wars, the major political head increases his restraints over the minor political heads; first by stopping private wars among them, then by interfering as arbitrator, then by acquiring an appelate jurisdiction. Where the local rulers have been impoverished by their struggles with one another, or by futile attempts to recover their independence, or by drafts made on their resources for external wars—where, also, followers of the central ruler have grown into a new order of nobles, with gifts of conquered or usurped lands as rewards for services; the way is prepared for administrative agencies centrally appointed. Thus in France, when the monarch became dominant, the seigneurs were gradually deprived of legislative authority. Royal confirmation became requisite to make signorial acts valid; and the crown acquired the exclusive right of granting charters, the exclusive right of ennobling, the exclusive right of coining. Then with decline in the power of the original local rulers came deputies of the king overlooking them: provincial governors holding office at the king’s pleasure were nominated. In subsequent periods grew up the administration of intendants and their sub-delegates, acting as agents of the crown; and whatever small local powers remained were exercised under central supervision. English history at various stages yields kindred illustrations. When Mercia was formed out of petty kingdoms, the local kings became ealdormen; and a like change took place afterwards on a larger scale. “From the time of Ecgberht onwards there is a marked distinction between the King and the Ealdorman. The King is a sovereign, the Ealdorman is only a magistrate.” Just nothing that under Cnut, ealdormen became subordinated by the appointment of earls, and again that under William I. earldoms were filled up afresh, we observe that after the Wars of the Roses had weakened them, the hereditary nobles had their local powers interfered with by those of centrally-appointed lords-lieutenant. Not only provincial governing agencies of a personal kind come to be thus subordinated as the integration furthered by war progresses, but also those of a popular kind. The old English Scirgeréfa, who presided over the Sciregemot, was at first elective, but was afterwards nominated by the king. Under a later régime there occurred a kindred change: “9 Edward II. abolished the popular right to election” to the office of sheriff. And similarly, “from the beginning of Edward III.’s reign, the appointment of conservators” of the peace, who were originally elected, “was vested in the crown,” “and their title changed to that of justices.”

With sufficient distinctness such facts show us that, rapidly where a cluster of small societies is subjugated by an invader, and slowly where one among them acquires an established supremacy, the local rulers lose their directive powers and become executive agents only; discharging whatever duties they retain as the servants of newer local agents. In the course of political integration, the original governing centres of the component parts become relatively automatic in their functions.

§ 510. A further truth to be noted is that there habitually exists a kinship in structure between the general government and the local governments. Several causes conspire to produce this kinship.

Where one of a cluster of groups has acquired power over the rest, either directly by the victories of its ruler over them, or indirectly by his successful leadership of the confederation in war, this kinship becomes a matter of course. For under such conditions the general government is but a development of that which was previously one of the local governments. We have a familiar illustration furnished by old English times in the likeness between the hundred-moot (a small local governing assembly), the shire-moot (constituted in an analogous way, but having military, judicial, and fiscal duties of a wider kind, and headed by a chief originally elected), and the national witanagémot (containing originally the same class-elements, though in different proportions, headed by a king, also at first elected, and discharging like functions on a larger scale). This similarity recurs under another phase. Sir Henry Maine says:—

“It has often, indeed, been noticed that a Feudal Monarchy was an exact counterpart of a Feudal Manor, but the reason of the correspondence is only now beginning to dawn upon us, which is, that both of them were in their origin bodies of assumed kinsmen settled on land and undergoing the same transmutation of ideas through the fact of settlement.”

Of France in the early feudal period, Maury says, “the court of every great feudatory was the image, of course slightly reduced, of that of the king;” and the facts he names curiously show that locally, as generally, there was a development of servants into ministerial officers. Kindred evidence comes from other parts of the world—Japan, several African States, sundry Polynesian islands, ancient Mexico, Mediæval India, &c.; where forms of society essentially similar to those of the feudal system exist or have existed.

Where the local autonomy has been almost or quite destroyed, as by a powerful invading race bringing with it another type of organization, we still see the same thing; for its tendency is to modify the institutions locally as it modifies them generally. From early times eastern kingdoms have shown us this; as instance the provincial rulers, or satraps, of the Persians. “While…they remained in office they were despotic—they represented the Great King, and were clothed with a portion of his majesty.… They wielded the power of life and death.” And down to the present day this union of central chief-despot with local subdesposts survives; as is implied by Rawlinson’s remark that these ancient satraps had “that full and complete authority which is possessed by Turkish pashas and modern Persian khaus or beys—an authority practically uncontrolled.” Other ancient societies of quite other types displayed this tendency to assimilate the structures of the incorporated parts to that of the incorporating whole. Grecian history shows us that oligarchic Sparta sought to propagate oligarchy as a form of government in dependent territories, while democratic Athens propagated the democratic form. And, similarly, where Rome conquered and colonized, there followed the Roman municipal system.

This last instance reminds us that as the character of the general government changes, the character of the local government changes too. In the Roman empire that progress towards a more concentrated form of rule which continued militancy brought, spread from centre to periphery. “Under the Republic every town had, like Rome, a popular assembly which was sovereign for making the law and ‘creating’ magistrates;” but with the change towards oligarchic and personal rule in Rome, popular power in the provinces decreased: “the municipal organization, from being democratic, became aristocratic.” In France, as monarchical power approached absoluteness, similar changes were effected in another way. The government seized on municipal offices, “erecting them into hereditary offices, and…selling them at the highest price:…a permanent mayor and assessors were imposed upon all the municipalities of the kingdom, which ceased to be elective;” and then these magistrates began to assume royal airs—spoke of the sanctity of their magistracy, the veneration of the people, &c. Our own history interestingly shows simultaneous movements now towards freer, and now towards less free, forms, locally and generally. When, under King John, the central government was liberalized, towns acquired the power to elect their own magistrates. Conversely when, at the Restoration, monarchical power increased, there was a framing of the “municipalities on a more oligarchical model.” And then comes the familiar case of the kindred liberalizations of the central government and the local governments which have occurred in our own time.

§ 511. From those local governing agencies which have acquired a political character, we turn now to those which have retained the primitive family character. Though with the massing of groups, political organization and rule become separate from, and predominant over, family-organization and rule, locally as well as generally, yet family-organization and rule do not disappear; but in some cases retaining their orginal nature, in some cases give origin to other local organizations of a governmental kind. Let us first note how wide-spread is the presence of the family-cluster, considered as a component of the political society.

Among the uncivilized Bedouins we see it existing separately: “every large family with its relations constituting a small tribe by itself.” But, says Palgrave, “though the clan and the family form the basis and are the ultimate expression of the civilized Arab society, they do not, as is the case among the Bedouins, sum it up altogether.” That is, political union has left outstanding the family-organization, but has added something to it. And it was thus with Semitic societies of early days, as those of the Hebrews. Everywhere it has been thus with the Ayrans.

“The [Irish] Sept is a body of kinsmen whose progenitor is no longer living, but whose descent from him is a reality.… An association of this sort is well known to the law of India as the Joint Undivided Family.… The family thus formed by the continuance of several generations in union, is identical in outline with a group very familiar to the students of the older Roman law—the Agnatic Kindred.”

Not only where descent in the male line has been established, but also where the system of descent through females continues, this development of the family into gens, phratry, and tribe, is found. It was so with such ancient American peoples, as those of Yucatan, where, within each town, tribal divisions were maintained; and, according to Mr. Morgan and Major Powell, it is still so with such American tribes as the Iroquois and the Wyandottes.

After its inclusion in a political aggregate, as before its inclusion, the family-group evolves a government quasi-political in nature. According to the type of race and the system of descent, this family-government may be, as among ancient Semites and Ayrans, an unqualified patriarchal despotism; or it may be, as among the Hindoos at present, a personal rule arising by selection of a head from the leading family of the group (a selection usually falling on the eldest); or it may be, as in American tribes like those mentioned, the government of an elected council of the gens, which elects its chief. That is to say, the triune structure which tends to arise in any incorporated assembly, is traceable in the compound family-group, as in the political group: the respective components of it being variously developed according to the nature of the people and the conditions.

The government of each aggregate of kinsmen repeats, on a small scale, functions like those of the government of the political aggregate. As the entire society revenges itself on other such societies for injury to its members, so does the family-cluster revenge itself on other family-clusters included in the same society. This fact is too familiar to need illustration; but it may be pointed out that even now, in parts of Europe where the family-organization survives, the family vendettas persist. “L’Albanais vous dira froidement… Akeni-Dgiak? avez-vous du sang à venger dans votre famille;” and then, asking the name of your tribe, he puts his hand on his pistol. With this obligation to take vengeance goes, of course, reciprocal responsibility. The family in all its branches is liable as a whole, and in each part, for the injuries done by its members to members of other families; just as the entire society is held liable by other entire societies. This responsibility holds not alone for lives taken by members of the family-group, but also for damages they do to property, and for pecuniary claims.

“Dans les districts Albanais libres, les dettes sont contractées à terme. En cas de non-paiement, on a recours aux chefs de la tribu du débiteur, et si ceux-ci refusent de faire droit, on arrête le premier venu qui appartient à cette tribu, et on l’accable de mauvais traitements jusqu’à ce qu’il s’entende avec le véritable débiteur, ou qu’il paie luimême ses dettes, risque à se pouvoir ensuite devant les anciens de sa tribu ou de poursuivre par les armes celui qui lui a valu ce dommage.”

And of the old English mægth we read that “if any one was imprisoned for theft, witchcraft, &c., his kindred must pay the fine…and must become surety for his good conduct on his release.”

While, within the political aggregate, each compound family-group thus stood towards other such included groups in quasi-political relations, its government exercised internal control. In the gens as constituted among the American peoples above named, there is administration of affairs by its council. The gentile divisions among historic peoples were ruled by their patriarchs; as are still those of the Hindoos by their chosen elders. And then besides this judicial organization within the assemblage of kindred, there is the religious organization, arising from worship of a common ancestor, which entails periodic joint observances.

Thus the evidence shows us that while the massing together of groups by war, has, for its concomitant, development of a political organization which dominates over the organizations of communities of kindred, yet these communities of kindred long survive, and partially retain their autonomies and their constitutions.

§ 512. Social progress, however, transforms them in sundry ways—differentiating them into groups which gradually lose their family-characters. One cause is change from the wandering life to the settled life, with the implied establishment of definite relations to the land, and the resulting multiplication and interfusion.

To show that this process and its consequences are general, I may name the calpulli of the ancient Mexicans, which “means a district inhabited by a family…of ancient origin;” whose members hold estates which “belong not to each inhabitant, but to the calpulli;” who have chiefs chosen out of the tribe; and who “meet for dealing with the common interests, and regulating the apportionment of taxes, and also what concerns the festivals.” And then I may name as being remote in place, time, and race, the still-existing Russian mir, or village-commune; which is constituted by descendants of the same family-group of nomads who became settled; which is “a judicial corporation…proprietor of the soil, of which individual members have but the usufruct or temporary enjoyment;” which is governed by “the heads of families, assembled in council under the presidency of the starosta or mayor, whom they have elected.” Just noting these allied examples, we may deal more especially with the Teutonic mark, which was “formed by a primitive settlement of a family or kindred,” when, as said by Cæsar of the Suevi, the land was divided among “gentes et cognationes hominum.” In the words of Kemble, marks were—

“Great family-unions, comprising households of various degrees of wealth, rank, and authority; some in direct descent from the common ancestors, or from the hero of the particular tribe; others, more distantly connected…; some, admitted into communion by marriage, others by adoption, others by emancipation; but all recognizing a brotherhood, a kinsmanship or sibsceaft; all standing together as one unit in respect of other similar communities; all governed by the same judges and led by the same captains; all sharing in the same religious rites; and all known to themselves and to their neighbours by one general name.”

To which add that, in common with family-groups as already described, the cluster of kindred constituting the mark had, like both smaller and larger clusters, a joint obligation to defend and avenge its members, and a joint responsibility for their actions.

And now we are prepared for observing sundry influences which conspire to change the grouping of kindred into political grouping, locally as well as generally. In the first place, there is that admission of strangers into the family, gens, or tribe, which we have before recognized as a normal process, from savage life upwards. Livingstone, remarking of the Bakwains that “the government is patriarchal,” describes each chief man as having his hut encircled by the huts of his wives, relatives, and dependents, forming a kotla: “a poor man attaches himself to the kotla of a rich one and is considered a child of the latter.” Here we see being done informally, that which was formally done in the Roman household and the Teutonic mark. In proportion as the adopted strangers increase, and in proportion also as the cluster becomes diluted by incorporating with itself emancipated dependents, the links among its members become weakened and its character altered. In the second place, when, by concentration and multiplication, different clusters of kindred placed side by side, become interspersed, and there ceases to be a direct connexion between locality and kinship, the family or gentile bonds are further weakened. And then there eventually results, both for military and fiscal purposes, the need for a grouping based on locality instead of on relationship. An early illustration is furnished by the Kleisthenian revolution in Attica, which made a division of the territory into demes, replacing for public purposes tribal divisions by topographical divisions, the inhabitants of each of which had local administrative powers and public responsibilities.

We are here brought to the vexed question about the origin of tythings and hundreds. It was pointed out that the ancient Peruvians had civil as well as military divisions into tens and hundreds, with their respective officers. In China, where there is pushed to an extreme the principle of making groups responsible for their members, the clan-divisions are not acknowledged by the government, but only the tythings and hundreds: the implication being that these last were results of political organization as distinguished from family-organization. In parts of Japan, too, “there is a sort of subordinate system of wards, and heads of tens and hundreds, in the Otonos of towns and villages, severally and collectively responsible for each other’s good conduct.” We have seen that in Rome, the groupings into hundreds and tens, civil as well as military, became political substitutes for the gentile groupings. Under the Frankish law, “the tythingman is Decanus, the hundred-man Centenarius;“ and whatever may have been their indigenous names, divisions into tens and hundreds appear to have had (judging from the statements of Tacitus) an independent origin among the Germanic races.

And now remembering that these hundreds and tythings, formed within the marks or other large divisions, still answered in considerable degrees to groups based on kinship (since the heads of families of which they were constituted as local groups, were ordinarily closer akin to one another than to the heads of families similarly grouped in other parts of the mark), we go on to observe that there survived in them, or were re-developed in them, the family-organization, rights, and obligations. I do not mean merely that by their hundred-moots, &c., they had their internal administrations; but I mean chiefly that they became groups which had towards other groups the same joint claims and duties which family-groups had. Responsibility for its members, previously attaching exclusively to the cluster of kindred irrespective of locality, was in a large measure transferred to the local cluster formed but partially of kindred. For this transfer of responsibility an obvious cause arose as the gentes and tribes spread and became mingled. While the family-community was small and closely aggregated, an offence committed by one of its members against another such community could usually be brought home to it bodily, if not to the sinning member; and as a whole it had to take the consequences. But when the family-community, multiplying, began to occupy a wide area, and also became interfused with other family-communities, the transgressor, while often traceable to some one locality within the area, was often not identifiable as of this or that kindred; and the consequences of his act, when they could not be visited on his family, which was not known, were apt to be visited on the inhabitants of the locality, who were known. Hence the genesis of a system of suretyship which is so ancient and so widespread. Here are illustrations:—

“…in all the vills throughout the kingdom, all men are bound to be in a guarantee by tens, so that if one of the ten men offend, the other nine may hold him to right.”—Edw. Conf., xx.

Speaking generally of this system of mutual guarantee, as exhibited among the Russians, as well as among the Franks, Koutorga says—

“Tout membre de la société devait entrer dans une décanie, laquelle avait pour mission la défence et la garantie de tous en général et de chacun en particulier; c’est-à-dire que la décanie devait venger le citoyen qui lui appartenait et exiger le wehrgeld, s’il avait été tué; mais en même temps elle se portait caution pour tous les seins.”

In brief, then, this form of local governing agency, developing out of, and partially replacing, the primitive family-form, was a natural concomitant of the multiplication and mixture resulting from a settled life.

§ 513. There remains to be dealt with an allied kind of local governing agency—a kind which, appearing to have been once identical with the last, eventually diverged from it.

Kemble concludes that the word “gegyldan” means “those who mutually pay for one another…the associates of the tithing and the hundred;” and how the two were originally connected, we are shown by the statement that as late as the 10th century in London, the citizens were united into frithgylds, “or associations for the maintenance of the peace, each consisting of ten men; while ten such gylds were gathered into a hundred.” Prof. Stubbs writes:—

“The collective responsibility for producing an offender, which had lain originally on the mægth or kindred of the accused, was gradually devolved on the voluntary association of the guild; and the guild superseded by the local responsibility of the tithing.”

Here we have to ask whether there are not grounds for concluding that this transfer of responsibility originally took place through development of the family-cluster into the gild, in consequence of the gradual loss of the family-character by incorporation of unrelated members. That we do not get evidence of this in written records, is probably due to the fact that the earlier stages of the change took place before records were common. But we shall see reasons for believing in such earlier stages if we take into account facts furnished by extinct societies and societies less developed than those of Europe.

Of the skilled arts among the Peruvians, Prescott remarks:— “these occupations, like every other calling and office in Peru, always descended from father to son;” and Clavigero says of the Mexicans “that they perpetuated the arts in families to the advantage of the State:” the reason Gomara gives why “the poor taught their sons their own trades,” being that “they could do so without expense”—a reason of general application. Heeren’s researches into ancient Egyptian usages, have led him to accept the statement of early historians, that “the son was bound to carry on the trade of his father and that alone;” and he cites a papyrus referring to an institution naturally connected with this usage—“the guild or company of curriers or leather-dressers.” Then of the Greeks, Hermann tell us that various arts and professions were—

“peculiar to certain families, whose claims to an exclusive exercise of them generally ascended to a fabulous origin. We moreover find ‘pupil and son’ for many successive generations designated by the same term; and closely connected with the exclusiveness and monopoly of many professions, is the little respect in which they were, in some instances, held by the rest of the people: a circumstance which Greek authors themselves compare with the prejudice of caste prevalent among other nations.”

China, as at present existing, yields evidence:—

“The popular associations in cities and towns are chiefly based upon a community of interests, resulting either from a similarity of occupation, when the leading persons of the same calling form themselves into guilds, or from the municipal regulations requiring the householders living in the same street to unite to maintain a police, and keep the peace of their division. Each guild has an assembly-hall, where its members meet to hold the festival of their patron saint.”

And, as I learn from the Japanese minister, a kindred state of things once existed in Japan. Children habitually followed the occupations of their parents;. in course of generations there resulted clusters of relatives engaged in the same trade; and these clusters developed regulative arrangements within themselves. Whether the fact that in Japan, as in the East generally, the clustering of traders of one kind in the same street, arises from the original clustering of the similarly-occupied kindred, I find no evidence; but since, in early times, mutual protection of the members of a trading kindred, as of other kindred, was needful, this seems probable. Further evidence of like meaning may be disentangled from the involved phenomena of caste in India. In No. CXLII of the Calcutta Review, in an interesting essay by Jogendra Chandra Ghosh, caste is regarded as “a natural development of the Indian village-communities;” as “distinguished not only by the autonomy of each guild,” “but by the mutual relations between these autonomous guilds;” and as being so internally organized “that caste government does not recognize the finding or the verdict of any court other than what forms part of itself.” In answer to my inquiries, the writer of this essay has given me a mass of detailed information, from which I extract the following:—

“A Hindoo joint family signifies (1)that the members all mess together; (2)and live in the same house; (3)that the male members and unmarried girls are descended from a common ancestor; and (4)that the male members put their incomes together.… The integral character of the family is destroyed when the joint mess and common purse cease to exist. However, the branches thus disunited continue to observe certain close relations as gnatis up to some seven or fourteen generations from the common ancestor. Beyond that limit they are said to be merely of the same gotra.”

Passing over the detailed constitution of a caste as consisting of many such gotras, and of the groups produced by their intermarriages under restrictions of exogamy of the gotras and endogamy of the caste—passing over the feasts, sacrificial and other, held among members of the joint family when their groups have separated; I turn to the facts of chief significance. Though, under English rule, inheritance of occupation is no longer so rigorous, yet—

“the principle is universally recognized that every caste is bound to follow a particular occupation and no other.… The partition of the land, or the house as well, is governed by the law of equal succession; and as fresh branches set up new houses, they are found all clustered together, with the smallest space between them for roadway.… But when, as in bazaars, men take up houses for commercial purposes, the clustering is governed either by family and caste-relations, or by common avocations [which imply some caste-kinship] and facility of finding customers.”

In which facts we may see pretty clearly that were there none of the complications consequent on the intermarriage regulations, there would simply result groups united by occupation as well as by ancestry, clustering together, and having their internal governments.

Returning from consideration of these facts supplied by other societies, let us now observe how numerous are the reasons for concluding that the gild, familiar to us as a union of similarly-occupied workers, was originally a union of kindred. In the primitive compound family there was worship of the common ancestor; and the periodic sacrificial feasts were occasions on which all the descendants assembled. Describing the origin of gilds, Thierry writes:—

“Dans l’ancienne Scandinavie, ceux qui se réunissaient aux époques solennelles pour sacrifier ensemble terminaient la cérémonie par un festin religieux. Assis autour du feu et de la chaudière du sacrifice, ils buvaient à la ronde et vidaient successivement trois cornes remplies de bière, l’une pour les dieux, l’autre pour les braves du vieux temps, et la troisième pour les parents et les amis dont les tombes, marquées par des monticules de gazon, se voyaient cà et là dans la plaine; on appelait celle-ci la coupe de l’amitié. Le nom d’amitié (minne) se donnait aussi quelquefois à la réunion, de ceux qui offraient en commun le sacrifice, et, d’ordinaire, cette réunion était appelée ghilde.”

And Brentano giving a similar account, says— “‘Gild’ meant originally the sacrificial meal made up of the common contributions; then a sacrificial banquet in general; and lastly a society.” Here we find a parallelism with the observances of the Hindoo joint-family, consisting of clusters of relatives carrying on the same occupation, who meet at feasts which were primarily sacrificial to ancestors; and we find a parallelism with the religious observances of such clusters of similarly-occupied relatives as the Asklepiadæ among the Greeks; and we find a parallelism with the gildfeasts of the ancestor-worshipping Chinese, held in honour of the patron saint: all suggesting the origin of those religious services and feasts habitual in early gilds of our own society. To state briefly the further likeness of nature:—We have, in the primitive compound family, the obligation of blood-revenge for slain relatives; and in early gilds, as in ancient Sleswig, there was blood-revenge for members of the gild. We have, in the compound family, responsibility for transgressions of its members; and gilds were similarly responsible: the wergylds falling in part on them, after murders were compounded for by money. We have, in the compound family, joint claims to sustenance derived from the common property and labour; and in the gild we have the duty of maintaining incapable members. Within the family there was control of private conduct, either by a despotic head or by a council, as there is now within the local clusters of the Hindoo castes; and in like manner the ordinances of gilds extended to the regulation of personal habits. Lastly, this family or caste government, as still shown us in India, includes in its punishments excommunication; and so, too, was there outlawry from the gild.∗

It is inferable, then, that the gild was evolved from the family. Continuance of a business, art, or profession, among descendants, is, in early stages, almost inevitable. Acquisition of skill in it by early practice is easy; the cost of teaching is inappreciable; and retention of the “craft” or “mystery” within the family is desirable: there being also the reason that while family-groups are in antagonism, the teaching of one another’s members cannot usually be practicable. But in course of time there come into play influences by which the character of the gild as an assemblage of kindred is obscured. Adoption, which, as repeatedly pointed out, is practised by groups of all kinds, needs but to become common to cause this constitutional change. We have seen that among the Greeks, “pupil” and “son” had the same name. At the present time in Japan, an apprentice, standing in the position of son to his master, calls him “father;” and in our own craft-gilds “the apprentice became a member of the family of his master, who instructed him in his trade, and who, like a father, had to watch over his morals, as well as his work.” The eventual admission of the apprentice into the gild, when he was a stranger in blood to its members, qualified, in so far, its original nature; and where, through successive generations, the trade was a prosperous one, tempting masters to get more help than their own sons could furnish, this process would slowly bring about predominance of the unrelated members, and an ultimate loss of the family-character. After which it would naturally happen that the growing up of new settlements and towns, bringing together immigrants who followed the same calling but were not of the same blood, would lead to the deliberate formation of gilds after the pattern of those existing in older places: an appearance of artificial origin being the result; just as now, in our colonies, there is an apparently artificial origin of political institutions which yet, as being fashioned like those of the mother-country, where they were slowly evolved, are traceable to a natural origin.

Any one who doubts the transformation indicated, may be reminded of a much greater transoformation of allied kind. The gilds of London,—goldsmiths’, fishmongers’, and the rest,—were originally composed of men carrying on the trades implied by their names; but in each of these companies the inclusion of persons of other trades, or of no trade, has gone to the extent that few if any of the members carry on the trades which their memberships imply. If, then, the process of adoption in this later form, has so changed the gild that, while retaining its identity, it has lost its distinctive trade-character, we are warranted in concluding that still more readily might the earlier process of adoption into the simple family or the compound family practising any craft, eventually change the gild from a cluster of kindred to a cluster formed chiefly of unrelated persons.

§ 514. Involved and obscure as the process has been, the evolution of local governing agencies is thus fairly comprehensible. We divide them into two kinds, which, starting from a common root, have diverged as fast as small societies have been integrated into large ones.

Through successive stages of consolidation, the political heads of the once-separate parts pass from independence to dependence, and end in being provincial agents—first partially-conquered chiefs paying tribute; then fully-conquered chiefs governing under command; then local governors who are appointed by the central governor and hold power under approval: becoming eventually executive officers.

There is habitually a kinship in character between the controlling systems of the parts and the controlling system of the whole (assuming unity of race), consequent on the fact that both are ultimately products of the same individual nature. With a central despotism there goes local despotic rule; with a freer form of the major government there goes a freer form of the minor governments; and a change either way in the one is followed by a kindred change in the other.

While, with the compounding of small societies into large ones, the political ruling agencies which develop locally as well as generally, become separate from, and predominant over, the ruling agencies of family-origin, these last do not disappear; but, surviving in their first forms, also give origin to differentiated forms. The assemblage of kindred long continues to have a qualified semi-political autonomy, with internal government and external obligations and claims. And while family-clusters, losing their definiteness by interfusion, slowly lose their traits as separate independent societies, there descend from them clusters which, in some cases united chiefly by locality and in others chiefly by occupation, inherit their traits, and constitute governing agencies supplementing the purely political ones.

It may be added that these supplementary governing agencies, proper to the militant type of society, dissolve as the industrial type begins to predominate. Defending their members, held responsible for the transgressions of their members, and exercising coercion over their members, they are made needful by, and bear the traits of, a régime of chronic antagonisms; and as these die away their raison d’être disappears. Moreover, artificially restricting, as they do, the actions of each member, and also making him responsible for other deeds than his own, they are at variance with that increasing assertion of individuality which accompanies developing industrialism.

CHAPTER XII.

Military systems.

§ 515. Indirectly, much has already been said concerning the subject now to be dealt with. Originally identical as is the political organization with the military organization, it has been impossible to treat of the first without touching on the second. After exhibiting the facts under one aspect we have here to exhibit another aspect of them; and at the same time to bring into view classes of related facts thus far unobserved. But, first, let us dwell a moment on the alleged original identity.

In rude societies all adult males are warriors; and, consequently, the army is the mobilized community, and the community is the army at rest, as was remarked in § 259.

With this general truth we may join the general truth that the primitive military gathering is also the primitive political gathering. Alike in savage tribes and in communities like those of our rude ancestors, the assemblies which are summoned for purposes of defence and offence, are the assemblies in which public questions at large are decided.

Next stands the fact, so often named, that in the normal course of social evolution, the military head grows into the political head. This double character of leading warrior and civil ruler, early arising, ordinarily continues through long stages; and where, as not unfrequently happens, military headship becomes in a measure separated from political headship, continued warfare is apt to cause a re-identification of them.

As societies become compounded and re-compounded, coincidence of military authority with political authority is shown in detail as well as in general—in the parts as in the whole. The minor war-chiefs are also minor civil rulers in their several localities; and the commanding of their respective groups of soldiers in the field, is of like nature with the governing of their respective groups of dependents at home.

Once more, there is the general fact that the economic organizations of primitive communities, coincide with their military organizations. In savage tribes war and hunting are carried on by the same men; while their wives (and their slaves where they have any) do the drudgery of domestic life. And, similarly, in rude societies that have become settled, the military unit and the economic unit are the same. The soldier is also the landowner.

Such, then, being the primitive identity of the political organization with military organization, we have in this chapter to note the ways in which the two differentiate.

§ 516. We may most conveniently initiate the inquiry by observing the change which, during social evolution, takes place in the incidence of military obligations; and by recognizing the accompanying separation of the fighting body from the rest of the community.

Though there are some tribes in which military service (for aggressive war at any rate) is not compulsory, as the Comanches, Dakotas, Chippewas, whose war-chiefs go about enlisting volunteers for their expeditions; yet habitually where political subordination is established, every man not privately possessed as a chattel is bound to fight when called on. There have been, and are, some societies of considerably-advanced structures in which this state of things continues. In ancient Peru the common men were all either actually in the army or formed a reserve occupied in labour; and in modern Siam the people “are all soldiers, and owe six months’ service yearly to their prince.” But, usually, social progress is accompanied by a narrowed incidence of military obligation.

When the enslavement of captives is followed by the rearing of their children as slaves, as well as by the consigning of criminals and debtors to slavery—when, as in some cases, there is joined with the slave-class a serf-class composed of subjugated people not detached from their homes; the community becomes divided into two parts, on one of which only does military duty fall. Whereas, in previous stages, the division of the whole society had been into men as fighters and women as workers, the division of workers now begins to include men; and these continue to form an increasing part of the total male population. Though we are told that in Ashantee (where everyone is in fact owned by the king) the slave-population “principally constitutes the military force,” and that in Rabbah (among the Fúlahs) the army is composed of slaves liberated “on consideration of their taking up arms;” yet, generally, those in bondage are not liable to military service: the causes being partly distrust of them (as was shown among the Spartans when forced to employ the helots) partly contempt for them as defeated men or the offspring of defeated men, and partly a desire to devolve on others, labours at once necessary and repugnant. Causes aside, however, the evidence proves that the army at this early stage usually coincides with the body of freemen; who are also the body of landowners. This, as before shown in § 458, was the case in Egypt, Greece, Rome, and Germany. How natural is this incidence of military obligation, we see in the facts that in ancient Japan and mediæval India, there were systems of military tenure like that of the middle ages in Europe; and that a kindred connexion had arisen even in societies like those of Tahiti and Samoa.

Extent of estate being a measure of its owner’s ability to bear burdens, there grows up a connexion between the amount of land held and the amount of military aid to be rendered. Thus in Greece under Solon, those whose properties yielded less than a certain revenue were exempt from duty as soldiers, save in emergencies. In Rome, with a view to better adjustment of the relation between means and requirements, there was a periodic “revision of the register of landed property, which was at the same time the levy-roll.” Throughout the middle ages this principle was acted upon by proportioning the numbers of warriors demanded to the sizes of the fiefs; and again, afterwards, by requiring from parishes their respective contingents.

A dissociation of military duty from land-ownership begins when land ceases to be the only source of wealth. The growth of a class of free workers, accumulating property by trade, is followed by the imposing on them, also, of obligations to fight or to provide fighters. Though, as apparently in the cases of Greece and Rome, the possessions in virtue of which citizens of this order at first become liable, are lands in which they have invested; yet, at later stages, they become liable as possessors of other property. Such, at least, is the interpretation we may give to the practice of making industrial populations furnish their specified numbers of warriors; whether, as during the Roman conquests, it took the shape of requiring “rich and populous” towns to maintain cohorts of infantry or divisions of cavalry, or whether, as with chartered towns in mediæval days, there was a contract with the king as suzerain, to supply him with stated numbers of men duly armed.

Later on, the same cause initiates a further change. As fast as industry increases the relative quantity of transferable property, it becomes more easy to compound for service in war; either by providing a deputy or by paying to the ruler a sum which enables him to provide one. Originally the penalty for non-fulfilment of military obligation was loss of lands; then a heavy fine, which, once accepted, it became more frequently the custom to bear; then an habitual compounding for the special services demanded; then a levying of dues, such as those called scutages, in place of special compositions. Evidently, industrial growth made this change possible; both by increasing the population from which the required numbers of substitutes could be obtained, and by producing the needful floating capital.

So that whereas in savage and semi-civilized communities of warlike kinds, the incidence of military obligation is such that each free man has to serve personally, and also to provide his own arms and provisions; the progress from this state in which industry does but occupy the intervals between wars, to a state in which war does but occasionally break the habitual industry, brings an increasing dissociation of military obligation from free citizenship: military obligation at the same time tending to become a pecuniary burden levied in proportion to property of whatever kind. Though where there is a conscription, personal service is theoretically due from each on whom the lot falls, yet the ability to buy a substitute brings the obligation back to a pecuniary one. And though we have an instance in our own day of universal military obligation not thus to be compounded for, we see that it is part of a reversion to the condition of predominant militancy.

§ 517. An aspect of this change not yet noted, is the simultaneous decrease in the ratio which the fighting part of the community bears to the rest. With the transition from nomadic habits to settled habits, there begins an economic resistance to militant action, which increases as industrial life develops, and diminishes the relative size of the military body.

Though in tribes of hunters the men are as ready for war at one time as at another, yet in agricultural societies there obviously exists an impediment to unceasing warfare. In the exceptional case of the Spartans, the carrying on of rural industry was not allowed to prevent daily occupation of all freemen in warlike exercises; but, speaking generally, the sowing and reaping of crops hinder the gathering together of freemen for offensive or defensive purposes. Hence in course of time come decreased calls on them. The ancient Suevi divided themselves so as alternately to share warduties and farm-work: each season the active warriors returned to till the land, while their places were “supplied by the husbandmen of the previous year.” Alfred established in England a kindred alternation between military service and cultivation of the soil. In feudal times, again, the same tendency was shown by restrictions on the duration and amount of the armed aid which a feudal tenant and his retainers had to give—now for sixty, for forty, for twenty days, down even to four; now alone, and again with specified numbers of followers; here without limit of distance, and there within the bounds of a county. Doubtless, insubordination often caused resistances to service, and consequent limitations of this kind. But manifestly, absorption of the energies in industry, directly and indirectly antagonized militant action; with the result that separation of the fighting body from the general body of citizens was accompanied by a decrease in its relative mass.

There are two cooperating causes for this decrease of its relative mass, which are of much significance. One is the increasing costliness of the soldier, and of war appliances, which goes along with that social progress made possible by industrial growth. In the savage state each warrior provides his own weapons; and, on war-excursions, depends on himself for sustenance. At a higher stage this ceases to be the case. When chariots of war, and armour, and siege-implements come to be used, there are presupposed sundry specialized and skilled artizan-classes; implying a higher ratio of the industrial part of the community to the militant part. And when, later on, there are introduced fire-arms, artillery, ironclads, torpedoes, and the like, we see that there must co-exist a large and highly-organized body of producers and distributors; alike to furnish the required powers and bear the entailed cost. That is to say, the war-machinery, both living and dead, cannot be raised in efficiency without lowering the ratio it bears to those sustaining structures which give it efficiency.

The other cooperating cause which simultaneously comes into play, is directly due to the compounding and re-compounding of societies. The larger nations become, and the greater the distances over which their military actions range, the more expensive do those actions grow. It is with an army as with a limb, the effort put forth is costly in proportion to the remoteness of the acting parts from the base of operations. Though it is true that a body of victorious invaders may raise some, or the whole, of its supplies from the conquered society, yet before it has effected conquest it cannot do this, but is dependent for maintenance on its own society, of which it then forms an integral part: where it ceases to form an integral part and wanders far away, living on spoils, like Tatar hordes in past ages, we are no longer dealing with social organization and its laws, but with social destruction. Limiting ourselves to societies which, permanently localized, preserve their individualities, it is clear that the larger the integrations formed, the greater is the social strain consequent on the distances at which fighting has to be done; and the greater the amount of industrial population required to bear the strain. Doubtless, improved means of communication may all at once alter the ratio; but this does not conflict with the proposition when qualified by saying—other things equal.

In three ways, therefore, does settled life, and the development of civilization, so increase the economic resistance to militant action, as to cause decrease of the ratio borne by the militant part to the non-militant part.

§ 518. With those changes in the incidence of military obligation which tend to separate the body of soldiers from the body of workers, and with those other changes which tend to diminish its relative size, there go changes which tend to differentiate it in a further way. The first of these to be noted is the parting of military headship from political headship.

We have seen that the commencement of social organization is the growth of the leading warrior into the civil governor. To illustrative facts before named may be added the fact that an old English ruler, as instance Hengist, was originally called “Here-toga” —literally army-leader; and the office developed into that of king only after settlement in Britain. But with establishment of hereditary succession to political headship, there comes into play an influence which tends to make the chief of the State distinct from the chief of the army. That antagonism between the principle of inheritance and the principle of efficiency, everywhere at work, has from the beginning been conspicuous in this relation, because of the imperative need for efficient generalship. Often, as shown in § 473, there is an endeavour to unite the two qualifications; as, for example, in ancient Mexico, where the king, before being crowned, had to fill successfully the position of commander-in-chief. But from quite early stages we find that where hereditary succession has been established, and there does not happen to be inheritance of military capacity along with political supremacy, it is common for headship of the warriors to become a separate post filled by election. Says Waitz, “among the Guaranis the chieftainship generally goes from father to first-born son. The leader in war is, however, elected.” In Ancient Nicaragua “the war-chief was elected by the warriors to lead them, on account of his ability and bravery in battle; but the civil or hereditary chief often accompanies the army.” Of the New Zealanders we read that “hereditary chiefs were generally the leaders,” but not always: others being chosen on account of bravery. And among the Sakarran Dyaks there is a war chief, in addition to the ordinary chief. In the case of the Bedouins the original motive has been defeated in a curious way.

“During a campaign in actual warfare, the authority of the sheikh of the tribe is completely set aside, and the soldiers are wholly under the command of the agyd. … The office of agyd is hereditary in a certain family, from father to son; and the Arabs submit to the commands of an agyd, whom they know to be deficient both in bravery and judgment, rather than yield to the orders of their sheikh during the actual expedition; for they say that expeditions headed by the sheikh, are always unsuccessful.”

It should be added that in some cases we see coming into play further motives. Forster tells us that in Tahiti the king sometimes resigns the post of commander-in-chief of the fighting force, to one of his chiefs: conscious either of his own unfitness or desirous of avoiding danger. And then in some cases the anxiety of subjects to escape the evils following loss of the political head, leads to this separation; as when, among the Hebrews, “the men of David sware unto him, saying, Thou shalt go no more out with us to battle, that thou quench not the light of Israel;” or as when, in France in 923, the king was besought by the ecclesiastics and nobles who surrounded him, to take no part in the impending fight.

At the same time the ruler, conscious that military command gives great power to its holder, frequently appoints as army-leader his son or other near relative: thus trying to prevent the usurpation so apt to occur (as, to add another instance, it occurred among the Hebrews, whose throne was several times seized by captains of the host). The Iliad shows that it was usual for a Greek king to delegate to his heir the duty of commanding his troops. In Merovingian times kings’ sons frequently led their fathers’ armies; and of the Carolingians we read that while the king commanded the main levy, “over other armies his sons were placed, and to them the business of commanding was afterwards increasingly transferred.” It was thus in ancient Japan. When the emperor did not himself command his troops, “this charge was only committed to members of the Imperial house,” and “the power thus remained with the sovereign.” In ancient Peru there was a like alternative. “The army was put under the direction of some experienced chief of the royal blood, or, more frequently, headed by the Ynca in person.”

The widening civil functions of the political head, obviously prompt this delegation of military functions. But while the discharge of both becomes increasingly difficult as the nation enlarges; and while the attempt to discharge both is dangerous; there is also danger in doing either by deputy. At the same time that there is risk in giving supreme command of a distant army to a general, there is also risk in going with the army and leaving the government in the hands of a vicegerent; and the catastrophes from the one or the other cause, which, spite of precautions, have taken place, show us alike that there is, during social evolution, an inevitable tendency to the differentiation of the military headship from the political headship, but that this differentiation can become permanent only under certain conditions.

The general fact would appear to be that while militant activity is great, and the whole society has the organization appropriate to it, the state of equilibrium is one in which the political head continues to be also the militant head; that in proportion as there grows up, along with industrial life, a civil administration distinguishable from the military administration, the political head tends to become increasingly civil in his functions, and to delegate, now occasionally, now generally, his militant functions; that if there is a return to great militant activity, with consequent reversion to militant structure, there is liable to occur a re-establishment of the primitive type of headship, by usurpation on the part of the successful general—either practical usurpation, where the king is too sacred to be displaced, or complete usurpation where he is not too sacred; but that where, along with decreasing militancy, there goes increasing civil life and administration, headship of the army becomes permanently differentiated from political headship, and subordinated to it.

§ 519. While, in the course of social evolution, there has been going on this separation of the fighting body from the community at large, this diminution in its relative mass, and this establishment of a distinct headship to it, there has been going on an internal organization of it.

The fighting body is at first wholly without structure. Among savages a battle is a number of single combats: the chief, if there is one, being but the warrior of most mark, who fights like the rest. Through long stages this disunited action continues. The Iliad tells of little more than the personal encounters of heroes, which were doubtless multiplied in detail by their unmentioned followers; and after the decay of that higher military organization which accompanied Greek and Roman civilization, this chaotic kind of fighting recurred throughout mediæval Europe. During the early feudal period everything turned on the prowess of individuals. War, says Gautier, consisted of “bloody duels;” and even much later the idea of personal action dominated over that of combined action. But along with political progress, the subjection of individuals to their chief is increasingly shown by fulfilling his commands in battle. Action in the field becomes in a higher degree concerted, by the absorption of their wills in his will.

A like change presently shows itself on a larger scale. While the members of each component group have their actions more and more combined, the groups themselves, of which an army is composed, pass from disunited action to united action. When small societies are compounded into a larger one, their joint body of warriors at first consists of the tribal clusters and family-clusters assembled together, but retaining their respective individualities. The head of each Hottentot krall, “has the command, under the chief of his nation, of the troops furnished out by his kraal.” Similarly, the Malagasy “kept their own respective clans, and every clan had its own leader.” Among the Chibchas, “each cazique and tribe came with different signs on their tents, fitted out with the mantles by which they distinguished themselves from each other.” A kindred arrangement existed in early Roman times: the city-army was “distributed into tribes, curiæ, and families.” It was so, too, with the Germanic peoples, who, in the field, “arranged themselves, when not otherwise tied, in families and affinities;” or, as is said by Kemble of our ancestors in old English times, “each kindred was drawn up under an officer of its own lineage and appointment, and the several members of the family served together.” This organization, or lack of organization, continued throughout the feudal period. In France, in the 14th century, the army was a “horde of independent chiefs, each with his own following, each doing his own will;” and, according to Froissart, the different groups “were so ill-informed” that they did not always know of a discomfiture of the main body.

Besides that increased subordination of local heads to the general head which accompanies political integration, and which must of course precede a more centralized and combined mode of military action, two special causes may be recognized as preparing the way for it.

One of these is unlikeness of kinds in the arms used. Sometimes the cooperating tribes, having habituated themselves to different weapons, come to battle already marked off from one another. In such cases the divisions by weapons correspond with the tribal divisions; as seems to have been to some extent the case with the Hebrews, among whom the men of Benjamin, of Gad, and of Judah, were partially thus distinguished. But, usually, the unlikenesses of arms consequent on unlikenesses of rank, initiate these military divisions which tend to traverse the divisions arising from tribal organization. The army of the ancient Egyptians included bodies of charioteers, of cavalry, and of foot; and the respective accoutrements of the men forming these bodies, differing in their costliness, implied differences of social position. The like may be said of the Assyrians. Similarly, the Iliad shows us among the early Greeks a state in which the contrasts in weapons due to contrasts in wealth, had not yet resulted in differently-armed bodies, such as are formed at later stages with decreasing regard for tribal or local divisions. And it was so in Western Europe during times when each feudal superior led his own knights, and his followers of inferior grades and weapons. Though within each group there were men differing alike in their rank and in their arms, yet what we may call the vertical divisions between groups were not traversed by those horizontal divisions throughout the whole army, which unite all who are similarly armed. This wider segregation it is, however, which we observe taking place with the advance of military organization. The supremacy acquired by the Spartans was largely due to the fact that Lykurgus “established military divisions quite distinct from the civil divisions, whereas in the other states of Greece, until a period much later…the two were confounded—the hoplites or horsemen of the same tribe or ward being marshalled together on the field of battle.” With the progress of the Roman arms there occurred kindred changes. The divisions came to be related less to rank as dependent on tribal organization, and more to social position as determined by property; so that the kinds of arms to be borne and the services to be rendered, were regulated by the sizes of estates, with the result of “merging all distinctions of a gentile and local nature in the one common levy of the community.” In the field, divisions so established stood thus:—

“The four first ranks of each phalanx were formed of the full-armed hoplites of the first class, the holders of an entire hide [?]; in the fifth and sixth were placed the less completely equipped farmers of the second and third class; the two last classes were annexed as rear ranks to the phalanx.’

And though political distinctions of clan-origin were not thus directly disregarded in the cavalry, yet they were indirectly interfered with by the addition of a larger troop of non-burgess cavalry. That a system of divisions which tends to obliterate those of rank and locality, has been reproduced during the re-development of military organization in modern times, is a familiar fact.

A concomitant cause of this change has all along been that interfusion of the gentile and tribal groups entailed by aggregation of large numbers. As before pointed out, the Kleisthenian re-organization in Attica, and the Servian re-organization in Rome, were largely determined by the impracticability of maintaining the correspondence between tribal divisions and military obligations; and a redistribution of military obligations naturally proceeded on a numerical basis. By various peoples, we find this step in organization taken for civil purposes or military purposes, or both. To cases named in § 512, may be added that of the Hebrews, who were grouped into tens, fifties, hundreds and thousands. Even the barbarous Araucanians divided themselves into regiments of a thousand, sub-divided into companies of a hundred. Evidently numerical grouping conspires with classing by arms to obliterate the primitive divisions.

This transition from the state of incoherent clusters, each having its own rude organization, to the state of a coherent whole, held together by an elaborate organization running throughout it, of course implies a concomitant progress in the centralization of command. As the primitive horde becomes more efficient for war in proportion as its members grow obedient to the orders of its chief; so, the army formed of aggregated hordes becomes more efficient in proportion as the chiefs of the hordes fall under the power of one supreme chief. And the above-described transition from aggregated tribal and local groups to an army formed of regular divisions and sub-divisions, goes along with the development of grades of commanders, successively subordinated one to another. A controlling system of this kind is developed by the uncivilized, where considerable military efficiency has been reached; as at present among the Araucanians, the Zulus, the Uganda people, who have severally three grades of officers; as in the past among the ancient Peruvians and ancient Mexicans, who had respectively several grades; and as also among the ancient Hebrews.

§ 520. One further general change has to be noticed—the change from a state in which the army now assembles and now disperses, as required, to a state in which it becomes permanently established.

While, as among savages, the male adults are all warriors, the fighting body, existing in its combined form only during war, becomes during peace a dispersed body carrying on in parties or separately, hunting and other occupations; and similarly, as we have seen, during early stages of settled life the armed freemen, owning land jointly or separately, all having to serve as soldiers when called on, return to their farming when war is over: there is no standing army. But though after the compounding of small societies into larger ones by war, and the rise of a central power, a kindred system long continues, there come the beginnings of another system. Of course, irrespective of form of government, frequent wars generate permanent military forces; as they did in early times among the Spartans; as later among the Athenians; and as among the Romans, when extension of territory brought frequent needs for repressing rebellions. Recognizing these cases, we may pass to the more usual cases, in which a permanent military force originates from the body of armed attendants surrounding the ruler. Early stages show us this nucleus. In Tahiti the king or chief had warriors among his attendants; and the king of Ashantee has a bodyguard clad in skins of wild beasts—leopards, panthers, &c. As was pointed out when tracing the process of political differentiation, there tend everywhere to gather round a predominant chieftain, refugees and others who exchange armed service for support and protection; and so enable the predominant chieftain to become more predominant. Hence the comites attached to the princeps in the early German community, the húscarlas or housecarls surrounding old English kings, and the antrustions of the Merovingian rulers. These armed followers displayed in little, the characters of a standing army; not simply as being permanently united, but also as being severally bound to their prince or lord by relations of personal fealty, and as being subject to internal government under a code of martial law, apart from the government of the freemen; as was especially shown in the large assemblage of them, amounting to 6,000, which was formed by Cnut.

In this last case we see how small body-guards, growing as the conquering chief or king draws to his standard adventurers, fugitive criminals, men who have fled from injustice, &c., pass unobtrusively into troops of soldiers who fight for pay. The employment of mercenaries goes back to the earliest times—being traceable in the records of the Egyptains at all periods; and it continues to re-appear under certain conditions: a primary condition being that the ruler shall have acquired a considerable revenue. Whether of home origin or foreign origin, these large bodies of professional soldiers can be maintained only by large pecuniary means; and, ordinarily, possession of these means goes along with such power as enables the king to exact dues and fines. In early stages the members of the fighting body, when summoned for service, have severally to provide themselves not only with their appropriate arms, but also with the needful supplies of all kinds: there being, while political organization is little developed, neither the resources nor the administrative machinery required for another system. But the economic resistance to militant action, which, as we have seen, increases as agricultural life spreads, leading to occasional non-attendance, to confiscations, to heavy fines in place of confiscations, then to fixed money-payments in place of personal services, results in the growth of a revenue which serves to pay professional soldiers in place of the vassals who have compounded. And it then becomes possible, instead of hiring many such substitutes for short times, to hire a smaller number continuously—so adding to the original nucleus of a permanent armed force. Every further increase of royal power, increasing the ability to raise money, furthers this differentiation. As Ranke remarks of France, “standing armies, imposts, and loans, all originated together.”

Of course the primitive military obligation falling on all freemen, long continues to be shown in modified ways. Among ourselves, for instance, there were the various laws under which men were bound, according to their incomes, to have in readiness specified supplies of horses, weapons, and accoutrements, for themselves and others when demanded. Afterwards came the militia-laws, under which there fell on men in proportion to their means, the obligations to provide duly armed horse-soldiers or foot-soldiers, personally or by substitute, to be called out for exercise at specified intervals for specified numbers of days, and to be provided with subsistence. There may be instanced, again, such laws as those under which in France, in the 15th century, a corps of horsemen was formed by requiring all the parishes to furnish one each. And there are the various more modern forms of conscription, used, now to raise temporary forces, and now to maintain a permanent army. Everywhere, indeed, freemen remain potential soldiers when not actual soldiers.

§ 521. Setting out with that undifferentiated state of the body politic in which the army is co-extensive with the adult male population, we thus observe several ways in which there goes on the evolution which makes it a specialized part.

There is the restriction in relative mass, which, first seen in the growth of a slave-population, engaged in work instead of war, becomes more decided as a settled agricultural life occupies freemen, and increases the obstacles to military service. There is, again, the restriction caused by that growing costliness of the individual soldier accompanying the development of arms, accoutrements, and ancillary appliances of warfare. And there is the yet additional restriction caused by the intenser strain which military action puts on the resources of a nation, in proportion as it is carried on at a greater distance.

With separation of the fighting body from the body-politic at large, there very generally goes acquirement of a separate head. Active militancy ever tends to maintain union of civil rule with military rule, and often causes re-union of them where they have become separate; but with the primary differentiation of civil from military structures, is commonly associated a tendency to the rise of distinct controlling centres for them. This tendency, often defeated by usurpation where wars are frequent, takes effect under opposite conditions; and then produces a military head subordinate to the civil head.

While the whole society is being developed by differentiation of the army from the rest, there goes on a development within the army itself. As in the primitive horde the progress is from the uncombined fighting of individuals to combined fighting under direction of a chief; so, on a larger scale, when small societies are united into great ones, the progress is from the independent fighting of tribal and local groups, to fighting under direction of a general commander. And to effect a centralized control, there arises a graduated system of officers, replacing the set of primitive heads of groups, and a system of divisions which, traversing the original divisions of groups, establish regularly-organized masses having different functions.

With developed structure of the fighting body comes permanence of it. While, as in early times, men are gathered together for small wars and then again dispersed, efficient organization of them is impracticable. It becomes practicable only among men who are constantly kept together by wars or preparations for wars; and bodies of such men growing up, replace the temporarily-summoned bodies.

Lastly, we must not omit to note that while the army becomes otherwise distinguished, it becomes distinguished by retaining and elaborating the system of status; though in the rest of the community, as it advances, the system of contract is spreading and growing definite. Compulsory cooperation continues to be the principle of the military part, however widely the principle of voluntary cooperation comes into play throughout the civil part.

CHAPTER XIII.

Judicial and Executive systems.

§ 522. That we may be prepared for recognizing the primitive identity of military institutions with institutions for administering justice, let us observe how close is the kinship between the modes of dealing with external aggression and internal aggression, respectively.

We have the facts, already more than once emphasized, that at first the responsibilities of communities to one another are paralleled by the responsibilities to one another of family-groups within each community; and that the kindred claims are enforced in kindred ways. Various savage tribes show us that, originally, external war has to effect an equalization of injuries, either directly in kind or indirectly by compensations. Among the Chinooks, “has the one party a larger number of dead than the other, indemnification must be made by the latter, or the war is continued;” and among the Arabs “when peace is to be made, both parties count up their dead, and the usual blood-money is paid for excess on either side.” By which instances we are shown that in the wars between tribes, as in the family-feuds of early times, a death must be balanced by a death, or else must be compounded for; as it once was in Germany and in England, by specified numbers of sheep and cattle, or by money.

Not only are the wars which societies carry on to effect the righting of alleged wrongs, thus paralleled by family-feuds in the respect that for retaliation in kind there may be substituted a penalty adjudged by usage or authority; but they are paralleled by feuds between individuals in the like respect. From the first stage in which each man avenges himself by force on a transgressing neighbour, as the whole community does on a transgressing community, the transition is to a stage in which he has the alternative of demanding justice at the hands of the ruler. We see this beginning in such places as the Sandwich Islands, where an injured person who is too weak to retaliate, appeals to the king or principal chief; and in quite advanced stages, option between the two methods of obtaining redress survives. The feeling shown down to the 13th century by Italian nobles, who “regarded it as disgraceful to submit to laws rather than do themselves justice by force of arms,” is traceable throughout the history of Europe in the slow yielding of private rectification of wrongs to public arbitration. “A capitulary of Charles the Bald bids them [the freemen] go to court armed as for war, for they might have to fight for their jurisdiction;” and our own history furnishes an interesting example in the early form of an action for recovering land: the “grand assize” which tried the cause, originally consisted of knights armed with swords. Again we have evidence in such facts as that in the 12th century in France, legal decisions were so little regarded that trials often issued in duels. Further proof is yielded by such facts as that judicial duels (which were the authorized substitutes for private wars between families) continued in France down to the close of the 14th century; that in England, in 1768, a legislative proposal to abolish trial by battle, was so strongly opposed that the measure was dropped; and that the option of such trial was not disallowed till 1819.

We may observe, also, that this self-protection gradually gives place to protection by the State, only under stress of public needs—especially need for military efficiency. Edicts of Charlemagne and of Charles the Bald, seeking to stop the disorders consequent on private wars, by insisting on appeals to the ordained authorities, and threatening punishment of those who disobeyed, sufficiently imply the motive; and this motive was definitely shown in the feudal period in France, by an ordinance of 1296, which “prohibits private wars and judicial duels so long as the king is engaged in war.”

Once more the militant nature of legal protection is seen in the fact that, as at first, so now, it is a replacing of individual armed force by the armed force of the State—always in reserve if not exercised. “The sword of justice” is a phrase sufficiently indicating the truth that action against the public enemy and action against the private enemy are in the last resort the same.

Thus recognizing the original identity of the functions, we shall be prepared for recognizing the original identity of the structures by which they are carried on.

§ 523. For that primitive gathering of armed men which, as we have seen, is at once the council of war and the political assembly, is at the same time the judicial body.

Of existing savages the Hottentots show this. The court of justice “consists of the captain and all the men of the kraal.… ‘Tis held in the open fields, the men squatting in a circle.… All matters are determined by a majority.” … If the prisoner is “convicted, and the court adjudges him worthy of death, sentence is executed upon the spot.” The captain is chief executioner, striking the first blow; and is followed up by the others. The records of various historic peoples yield evidence of kindred meaning. Taking first the Greeks in Homeric days, we read that “sometimes the king separately, sometimes the kings or chiefs or Gerontes, in the plural number, are named as deciding disputes and awarding satisfaction to complainants; always however in public, in the midst of the assembled agora,” in which the popular sympathies were expressed: the meeting thus described, being the same with that in which questions of war and peace were debated. That in its early form the Roman gathering of “spearmen,” asked by the king to say “yes” or “no” to a proposed military expedition or to some State-measure, also expressed its opinion concerning criminal charges publicly judged, is implied by the fact that “the king could not grant a pardon, for that privilege was vested in the community alone.” Describing the gatherings of the primitive Germans, Tacitus says:— “The multitude sits armed in such order as it thinks good… It is lawful also in the Assembly to bring matters for trial and to bring charges of capital crimes… In the same assembly chiefs are chosen to administer justice throughout the districts and villages. Each chief in so doing has a hundred companions of the commons assigned to him, to strengthen at once his judgment and his dignity.” A kindred arrangement is ascribed by Lelevel to the Poles in early times, and to the Slavs at large. Among the Danes, too, “in all secular affairs, justice was administered by the popular tribunal of the Lands-Ting for each province, and by the Herreds-Ting for the smaller districts or sub-divisions.” Concerning the Irish in past times, Prof. Leslie quotes Spenser to the effect that it was their usage “to make great assemblies together upon a rath or hill, there to parley about matters and wrongs between township and township, or one private person and another.” And then there comes the illustration furnished by old English times. The local moots of various kinds had judicial functions; and the witenagemót sometimes acted as a high court of justice.

Interesting evidence that the original military assembly was at the same time the original judicial assembly, is supplied by the early practice of punishing freemen for non-attendance. Discharge of military obligation being imperative, the fining of those who did not come to the armed gathering naturally followed; and fining for absence having become the usage, survived when, as for judicial purposes, the need for the presence of all was not imperative. Thence the interpretation of the fact that non-attendance at the hundred-court was thus punishable.

In this connexion it may be added that, in some cases where the primitive form continued, there was manifested an incipient differentiation between the military assembly and the judicial assembly. In the Carolingian period, judicial assemblies began to be held under cover; and freemen were forbidden to bring their arms. As was pointed out in § 491, among the Scandinavians no one was allowed to come armed when the meeting was for judicial purposes. And since we also read that in Iceland it was disreputable (not punishable) for a freeman to be absent from the annual gathering, the implication is that the imperativeness of attendance diminished with the growing predominance of civil functions.

§ 524. The judicial body being at first identical with the politico-military body, has necessarily the same triune structure; and we have now to observe the different forms it assumes according to the respective developments of its three components. We may expect to find kinship between these forms and the concomitant political forms.

Where, with development of militant organization, the power of the king has become greatly predominant over that of the chiefs and over that of the people, his supremacy is shown by his judicial absoluteness, as well as by his absoluteness in political and military affairs. Such shares as the elders and the multitude originally had in trying causes, almost or quite disappear. But though in these cases the authority of the king as judge, is unqualified by that of his head men and his other subjects, there habitually survive traces of the primitive arrangement. For habitually his decisions are given in public and in the open air. Petitioners for justice bring their cases before him when he makes his appearance out of doors, surrounded by his attendants and by a crowd of spectators; as we have seen in § 372 that they do down to the present day in Kashmere. By the Hebrew rulers, judicial sittings were held “in the gates” —the usual meeting-places of Eastern peoples. Among the early Romans the king administered justice “in the place of public assembly, sitting on a ‘chariot-seat.’” Mr. Gomme’s Primitive Folk-Moots contains sundry illustrations showing that among the Germans in old times, the Königs-stuhl, or king’s judgment-seat, was on the green sward; that in other cases the stone steps at the town-gates constituted the seat before which causes were heard by him; and that again, in early French usage, trials often took place under trees. According to Joinville this practice long continued in France.

“Many a time did it happen that, in summer, he [Lewis IX] would go and sit in the forest of Vincennes after mass, and would rest against an oak, and make us sit round him…he asked them with his own mouth, ‘Is there any one who has a suit?’… I have seen him sometimes in summer come to hear his people’s suits in the garden of Paris.”

And something similar occurred in Scotland under David I. All which customs among various peoples, imply survival of the primitive judicial assembly, changed only by concentration in its head of power originally shared by the leading men and the undistinguished mass.

Where the second component of the triune political structure becomes supreme, this in its turn monopolizes judicial functions. Among the Spartans the oligarchic senate, and in a measure the smaller and chance-selected oligarchy constituted by the ephors, joined judicial functions with their political functions. Similarly in Athens under the aristocratic rule of the Eupatridæ, we find the Areopagus formed of its members, discharging, either itself or through its nine chosen Archons, the duties of deciding causes and executing decisions. In later days, again, we have the case of the Venetian council of ten. And then, certain incidents of the middle ages instructively show us one of the processes by which judicial power, as well as political power, passes from the hands of the freemen at large into the hands of a smaller and wealthier class. In the Carolingian period, besides the bi-annual meetings of the hundred-court, it was—

“convoked at the Graf’s will and pleasure, to try particular cases…in the one case, as in the other, non-attendance was punished…it was found that the Grafs used their right to summon these extraordinary Courts in excess, with a view, by repeated fines and amercements, to ruin the small freeholders, and thus to get their abodes into their own hands. Charlemagne introduced a radical law-reform…the great body of the freemen were released from attendance at the Gebotene Dinge, at which, from thenceforth, justice was to be administered under the presidency, ex officio, of the Centenar, by…permanent jurymen…chosen de melioribus—i.e., from the more well-to-do freemen.”

But in other cases, and especially where concentration in a town renders performance of judicial functions less burdensome, we see that along with retention or acquirement of predominant power by the third element in the triune political structure, there goes exercise of judicial functions by it. The case of Athens, after the replacing of oligarchic rule by democratic rule, is, of course, the most familiar example of this. The Kleisthenian revolution made the annually-appointed magistrates personally responsible to the people judicially assembled; and when, under Perikles, there were established the dikasteries, or courts of paid jurors chosen by lot, the administration of justice was transferred almost wholly to the body of freemen, divided for convenience into committees. Among the Frieslanders, who in early times were enabled by the nature of their habitat to maintain a free form of political organization, there continued the popular judicial assembly:— “When the commons were summoned for any particular purpose, the assembly took the name of the Bodthing. The bodthing was called for the purpose of passing judgment in cases of urgent necessity.” And M. de Laveleye, describing the Teutonic mark as still existing in Holland, “especially in Drenthe,” a tract “surrounded on all sides by a marsh and bog” (again illustrating the physical conditions favourable to maintenance of primitive free institutions), goes on to say of the inhabitants as periodically assembled:—

“They appeared in arms; and no one could absent himself, under pain of a fine. This assembly directed all the details as to the enjoyment of the common property; appointed the works to be executed; imposed pecuniary penalties for the violation of rules, and nominated the officers charged with the executive power.”

The likeness between the judicial form and the political form is further shown where the government is neither despotic nor oligarchic, nor democratic, but mixed. For in our own case we see a system of administering justice which, like the political system, unites authority that is in a considerable degree irresponsible, with popular authority. In old English times a certain power of making and enforcing local or “bye-laws” was possessed by the township; and in more important and definite ways the hundred-moot and the shire-moot discharged judicial and executive functions: their respective officers being at the same time elected. But the subsequent growth of feudal institutions, followed by the development of royal power, was accompanied by diminution of the popular share in judicial business, and an increasing assignment of it to members of the ruling classes and to agents of the crown. And at present we see that the system, as including the power of juries (which arose by selection of representative men, though not in the interest of the people); is in part popular; that in the summary jurisdiction of unpaid magistrates who, though centrally appointed, mostly belong to the wealthy classes, and especially the landowners, it is in part aristocratic; that in the regal commissioning of judges it continues monarchic; and that yet, as the selection of magistrates and judges is practically in the hands of a ministry executing, on the average, the public will, royal power and class-power in the administration of justice are exercised under popular control.

§ 525. A truth above implied and now to be definitely observed, is that along with the consolidation of small societies into large ones effected by war, there necessarily goes an increasing discharge of judicial functions by deputy.

As the primitive king is very generally himself both commander-in-chief and high priest, it is not unnatural that his delegated judicial functions should be fulfilled both by priests and soldiers. Moreover, since the consultative body, where it becomes established and separated from the multitude, habitually includes members of both these classes, such judicial powers as it exercises cannot at the outset be monopolized by members of either. And this participation is further seen to arise naturally on remembering how, as before shown, priests have in so many societies united military functions with clerical functions; and how, in other cases, becoming local rulers, having the same tenures and obligations with purely military local rulers, they acquire, in common with them, local powers of judgment and execution; as did mediæval prelates. Whether the ecclesiastical class or the class of warrior-chiefs acquires judicial predominance, probably depends mainly on the proportion between men’s fealty to the successful soldier, and their awe of the priest as a recipient of divine communications.

Among the Zulus, who, with an undeveloped mythology, have no great deities and resulting organized priesthood, the king “shares his power with two soldiers of his choice. These two form the supreme judges of the country.” Similarly with the Eggarahs (Inland Negroes), whose fetish-men do not form an influential order, the first and second judges are “also commanders of the forces in time of war.” Passing to historic peoples, we have in Attica, in Solon’s time, the nine archons, who, while possessing a certain sacredness as belonging to the Eupatridæ, united judicial with military functions—more especially the polemarch. In ancient Rome, that kindred union of the two functions in the consuls, who called themselves indiscriminately, prœtores or judices, naturally resulted from their inheritance of both functions from the king they replaced; but beyond this there is the fact that though the pontiffs had previously been judges in secular matters as well as in sacred matters, yet, after the establishment of the republic, the several orders of magistrates were selected from the non-clerical patricians,—the original soldier-class. And then throughout the middle ages in Europe, we have the local military chiefs, whether holding positions like those of old English thanes or like those of feudal barons, acting as judges in their respective localities. Perhaps the clearest illustration is that furnished by Japan, where a long-continued and highly-developed military régime, has been throughout associated with the monopoly of judicial functions by the military class: the apparent reason being that in presence of the god-descended Mikado, supreme in heaven as on earth, the indigenous Shinto religion never developed a divine ruler whose priests acquired, as his agents, an authority competing with terrestrial authority.

But mostly there is extensive delegation of judicial powers to the sacerdotal class, in early stages. We find it among existing uncivilized peoples, as the Kalmucks, whose priests, besides playing a predominant part in the greatest judicial council, exercise local jurisdiction: in the court of each subordinate chief, one of the high priests is head judge. Of extinct uncivilized or semi-civilized peoples, may be named the Indians of Yucatan, by whom priests were appointed as judges in certain cases—judges who took part in the execution of their own sentences. Originally, if not afterwards, the giving of legal decisions was a priestly function in ancient Egypt; and that the priests were supreme judges among the Hebrews is a familiar fact: the Deuteronomic law condemning to death any one who disregarded their verdicts. In that general assembly of the ancient Germans which, as we have seen, exercised judicial powers, the priests were prominent; and , according to Tacitus, in war “none but the priests are permitted to judge offenders, to inflict bonds or stripes; so that chastisement appears not as an act of military discipline, but as the instigation of the god whom they suppose present with warriors.” In ancient Britain, too, according to Cæsar, the druids alone had authority to decide in both civil and criminal cases, and executed their own sentences: the penalty for disobedience to them being excommunication. Grimm tells us that the like held among the Scandinavians. “In their judicial character the priests seem to have exercised a good deal of control over the people… In Iceland, even under Christianity, the judges retained the name and several of the functions of heathen gothar.” And then we have the illustration furnished by that rise of ecclesiastics to the positions of judges throughout mediæval Europe, which accompanied belief in their divine authority. When, as during the Merovingian period and after, “the fear of hell, the desire of winning heaven,” and other motives, prompted donations and bequests to the Church, till a large part of the landed property fell into its hands—when there came increasing numbers of clerical and semi-clerical dependents of the Church, over whom bishops exercised judgment and discipline—when ecclesiastical influence so extended itself that, while priests became exempt from the control of laymen, lay authorities became subject to priests; there was established a judicial power of this divinely-commissioned class to which even kings succumbed. So was it in England too. Before the Conquest, bishops had become the assessors of ealdormen in the scire-gemót, and gave judgments on various civil matters. With that recrudescence of military organization which followed the Conquest, came a limitation of their jurisdiction to spiritual offences and causes concerning clerics. But in subsequent periods ecclesiastical tribunals, bringing under canon law numerous ordinary transgressions, usurped more and more the duties of secular judges: their excommunications being enforced by the temporal magistrates. Moreover, since prelates as feudal nobles were judges in their respective domains; and since many major and minor judicial offices in the central government were filled by prelates; it resulted that the administration of justice was largely, if not mainly, in the hands of priests.

This sharing of delegated judicial functions between the military class and the priestly class, with predominance here of the one and there of the other, naturally continued while there was no other class having wealth and influence. But with the increase of towns and the multiplication of traders, who accumulated riches and acquired education, previously possessed only by ecclesiastics, judicial functions fell more and more into their hands. Sundry causes conspired to produce this transfer. One was lack of culture among the nobles, and their decreasing ability to administer laws, ever increasing in number and in complexity. Another was the political unfitness of ecclesiastics, who grew distasteful to rulers in proportion as they pushed further the powers and privileges which their supposed divine commission gave them. Details need not detain us. The only general fact needing to be emphasized, is that this transfer ended in a differentiation of structures. For whereas in earlier stages, judicial functions were discharged by men who were at the same time either soldiers or priests, they came now to be discharged by men exclusively devoted to them.

§ 526. Simultaneously, the evolution of judicial systems is displayed in several other ways. One of them is the addition of judicial agents who are locomotive to the pre-existing stationary judicial agents.

During the early stages in which the ruler administers justice in person, he does this now in one place and now in another; according as affairs, military or judicial, carry him to this or that place in his kingdom. Societies of various types in various times yield evidence. Historians of ancient Peru tell us that “the Ynca gave sentence according to the crime, for he alone was judge wheresoever he resided, and all persons wronged had recourse to him.” Of the German emperor in the 12th century we read that “not only did he receive appeals, but his presence in any duchy or county suspended the functions of the local judges.” France in the 15th century supplies an instance. King Charles “spent two or three years in travelling up and down the kingdom…maintaining justice to the satisfaction of his subjects.” In Scotland something similar was done by David I., who “settled marches, forest rights, and rights of pasture:” himself making the marks which recorded his decisions, or seeing them made. In England, “Edgar and Canute had themselves made judicial circuits;” and there is good evidence of such judicial travels in England up to the time of the Great Charter. Sir Henry Maine has quoted documents showing that King John, in common with earlier kings, moved about the country with great activity, and held his court wherever he might happen to be.

Of course with the progress of political integration and consequent growing power of the central ruler, there come more numerous cases in which appeal is made to him to rectify the wrongs committed by local rulers; and as State-business at large augments and complicates, his inability to do this personally leads to doing it by deputy. In France, in Charlemagne’s time, there were the “Missi Regii, who held assizes from place to place;” and then, not forgetting that during a subsequent period the chief heralds in royal state, as the king’s representatives, made circuits to judge and punish transgressing nobles, we may pass to the fact that in the later feudal period, when the business of the king’s court became too great, commissioners were sent into the provinces to judge particular cases in the king’s name: a method which does not appear to have been there developed further. But in England, in Henry II.’s time, kindred causes prompted kindred steps which initiated a permanent system. Instead of listening to the increasing number of appeals made to his court, personally or through his lieutenant the justiciar, the king commissioned his constable, chancellor, and co-justiciar to hear pleas in the different counties. Later, there came a larger number of these members of the central judicial court who made these judicial journeys: part of them being clerical and part military. And hence eventually arose the established circuits of judges who, like their prototypes, had to represent the king and exercise supreme authority.

It should be added that here again we meet with proofs that in the evolution of arrangements conducing to the maintenance of individual rights, the obligations are primary and the claims derived. For the business of these travelling judges, like the business of the king’s court by which they were commissioned, was primarily fiscal and secondarily judicial. They were members of a central body that was at once Exchequer and Curia Regis, in which financial functions at first predominated; and they were sent into the provinces largely, if not primarily, for purposes of assessment: as instance the statement that in 1168, “the four Exchequer officers who assessed the aid pur fille marier, acted not only as taxers but as judges.” In which facts we see harmony with those before given, showing that support of the ruling agency precedes obtainment of protection from it.

§ 527. With that development of a central government which accompanies consolidation of small societies into a large one, and with the consequent increase of its business, entailing delegation of functions, there goes, in the judicial organization as in the other organizations, a progressive differentiation. The evidence of this is extremely involved; both for the reason that in most cases indigenous judicial agencies have been subordinated but not destroyed by those which conquest has originated, and for the reason that kinds of power, as well as degrees of power, have become distinguished. A few leading traits only of the process can here be indicated.

The most marked differentiation, already partially implied, is that between the lay, the ecclesiastical, and the military tribunals. From those early stages in which the popular assembly, with its elders and chief, condemned military defaulters, decided on ecclesiastical questions, and gave judgments about offences, there has gone on a divergence which, accompanied by disputes and struggles concerning jurisdiction, has parted ecclesiastical courts and courts martial from the courts administering justice in ordinary civil and criminal cases. Just recognizing these cardinal specializations, we may limit our attention to the further specializations which have taken place within the last of the three structures.

Originally the ruler, with or without the assent of the assembled people, not only decides: he executes his decisions, or sees them executed. For example, in Dahomey the king stands by, and if the deputed officer does not please him, takes the sword out of his hand and shows him how to cut off a head. An account of death-punishment among the Bedouins ends with the words— “the executioner being the sheikh himself.” Our own early history affords traces of personal executive action by the king; for there came a time when he was interdicted from arresting any one himself, and had thereafter to do it in all cases by deputy. And this interprets for us the familiar truth that, through his deputies the sheriffs, who are bound to act personally if they cannot themselves find deputies, the monarch continues to be theoretically the agent who carries the law into execution: a truth further implied by the fact that execution in criminal cases, nominally authorized by him though actually by his minister, is arrested if his assent is withheld by his minister. And these facts imply that a final power of judgment remains with the monarch, not-withstanding delegation of his judicial functions. How this happens we shall see on tracing the differentiation.

Naturally, when a ruler employs assistants to hear complaints and redress grievances, he does not give them absolute authority; but reserves the power of revising their decisions. We see this even in such rude societies as that of the Sandwich Islands, where one who is dissatisfied with the decision of his chief may appeal to the governor, and from the governor to the king; or as in ancient Mexico, where “none of the judges were allowed to condemn to death without communicating with the king, who had to pass the sentence.” And the principle holds where the political headship is compound instead of simple. “When the hegemony of Athens became, in fact, more and more a dominion, the civic body of Attica claimed supreme judicial authority over all the allies. The federal towns only retained their lower courts.” Obviously by such changes are produced unlikenesses of degree and differences of kind in the capacities of judicial agencies. As political subordination spreads, the local assemblies which originally judged and executed in cases of all kinds, lose part of their functions; now by restriction in range of jurisdiction, now by subjection of their decisions to supervision, now by denial of executive power. To trace up the process from early stages, as for instance from the stage in which the old English tything-moot discharged administrative, judicial, and executive functions, or from the stage in which the courts of feudal nobles did the like, is here alike impracticable and unnecessary. Reference to such remnants of power as vestries and manorial courts possess, will sufficiently indicate the character of the change. But along with degradation of the small and local judicial agencies, goes development of the great and central ones; and about this something must be said.

Returning to the time when the king with his servants and chief men, surrounded by the people, administers justice in the open air, and passing to the time when his court, held more frequently under cover and consequently with less of the popular element, still consists of king as president and his household officers with other appointed magnates as counsellors (who in fact constitute a small and permanent part of that general consultative body occasionally summoned); we have to note two causes which cooperate to produce a division of these remaining parts of the original triune body—one cause being the needs of subjects, and the other the desire of the king. So long as the king’s court is held wherever he happens to be, there is an extreme hindrance to the hearing of suits, and much entailed loss of money and time to suitors. To remedy this evil came, in our own case, the provision included in the Great Charter that the common pleas should no longer follow the king’s court, but be held in some certain place. This place was fixed in the palace of Westminster. And then as Blackstone points out—

“This precedent was soon after copied by King Philip the Fair in France, who about the year 1302, fixed the parliament of Paris to abide constantly in that metropolis; which before used to follow the person of the king wherever he went… And thus also, in 1495, the Emperor Maximilian I. fixed the imperial chamber, which before always travelled with the court and household, to be constantly at Worms.”

As a sequence of these changes it of course happens that suits of a certain kind come habitually to be decided without the king’s presence: there results a permanent transfer of part of his judicial power. Again, press of business or love of ease prompts the king himself to hand over such legal matters as are of little interest to him. Thus in France, while we read that Charles V., when regent, sat in his council to administer justice twice a week, and Charles VI. once, we also read that in 1370 the king declared he would no longer try the smaller causes personally. Once initiated and growing into a usage, this judging by commission, becoming more frequent as affairs multiply, is presently otherwise furthered: there arises the doctrine that the king ought not, at any rate in certain cases, to join in judgment. Thus “at the trial of the duke of Brittany in 1378, the peers of France protested against the presence of the king.” Again “at the trial of the Marquis of Saluces, under Francis I., that monarch was made to see that he could not sit.” When Lewis XIII. wished to be judge in the case of the Duke de la Valette, he was resisted by the judges, who said that it was without precedent. And in our own country there came a time when “James I. was informed by the judges that he had the right to preside in the court, but not to express his opinion:” a step towards that exclusion finally reached.

While the judicial business of the political head thus lapses into the hands of appointed agencies, these agencies themselves, severally parting with certain of their functions one to another, become specialized. Among ourselves, even before there took place the above-named separation of the permanently-localized court of common pleas, from the king’s court which moved about with him, there had arisen within the king’s court an incipient differentiation. Causes concerning revenue were dealt with in sittings distinguished from the general sittings of the king’s court, by being held in another room; and establishment of this custom produced a division. Adaptation of its parts to unlike ends led to divergence of them; until, out of the original Curia Regis, had come the court of exchequer and the court of common pleas; leaving behind the court of king’s bench as a remnant of the original body. When the office of justiciar (who, representing the king in his absence, presided over these courts) was abolished, the parting of them became decided; and though, for a length of time, competition for fees led to trenching on one another’s functions, yet, eventually, their functions became definitely marked off. A further important development, different but allied, took place. We have seen that when appointing others to judge for him, the king reserves the power of deciding in cases which the law has not previously provided for, and also the power of supervising the decisions made by his deputies. Naturally this power comes to be especially used to over-ride decisions which, technically according to law, are practically unjust: the king acquires an equity jurisdiction. At first exercised personally, this jurisdiction is liable to be deputed; and in our own case was so. The chancellor, one of the king’s servants, who “as a baron of the exchequer and as a leading member of the curia” had long possessed judicial functions, and who was the officer to present to the king petitions concerning these “matters of grace and favour,” became presently himself the authority who gave decisions in equity qualifying the decisions of law; and thus in time resulted the court of chancery. Minor courts with minor functions also budded out from the original Curia Regis. This body included the chief officers of the king’s household, each of whom had a jurisdiction in matters pertaining to his special business; and hence resulted the court of the chamberlain, the court of the steward, the court of the earl marshal (now - at Herald’s College), the court of the constable (no longer extant), the court of the admiral, &c.

In brief, then, we find proofs that, little trace as its structure now shows of such an origin, our complex judicial system, alike in its supreme central parts and in its various small local parts, has evolved by successive changes out of the primitive gathering of people, head men, and chief.

§ 528. Were further detail desirable, there might here be given an account of police-systems; showing their evolution from the same primitive triune body whence originate the several organizations delineated in this and preceding chapters. As using force to subdue internal aggressors, police are like soldiers, who use force to subdue external aggressors; and the two functions, originally one, are not even now quite separated either in their natures or their agents. For besides being so armed that they are in some countries scarcely distinguishable from soldiers, and besides being subject to military discipline, the police are, in case of need, seconded by soldiers in the discharging of their duties. To indicate the primitive identity it will suffice to name two facts. During the Merovingian period in France, armed bands of serfs, attached to the king’s household and to the households of dukes, were employed both as police and for garrison purposes; and in feudal England, the posse comitatus, consisting of all freemen between fifteen and sixty, under command of the sheriff, was the agent for preserving internal peace at the same time that it was available for repelling invasions, though not for foreign service—an incipient differentiation between the internal and external defenders which became in course of time more marked. Letting this brief indication suffice, it remains only to sum up the conclusions above reached.

Evidences of sundry kinds unite in showing that judicial action and military action, ordinarily having for their common end the rectification of real or alleged wrongs, are closely allied at the outset. The sword is the ultimate resort in either case: use of it being in the one case preceded by a war of words carried on before some authority whose aid is invoked, while in the other case it is not so preceded. As is said by Sir Henry Maine, “the fact seems to be that contention in Court takes the place of contention in arms, but only gradually takes its place.”

Thus near akin as the judicial and military actions originally are, they are naturally at first discharged by the same agency—the primitive triune body formed of chief, head men, and people. This which decides on affairs of war and settles questions of public policy also gives judgments concerning alleged wrongs of individuals and enforces its decisions.

According as the social activities develop one or other element of the primitive triune body, there results one or other form of agency for the administration of law. If continued militancy makes the ruling man all-powerful, he becomes absolute judicially as in other ways: the people lose all share in giving decisions, and the judgments of the chief men who surround him are overridden by his. If conditions favour the growth of the chief men into an oligarchy, the body they form becomes the agent for judging and punishing offences as for other purposes: its acts being little or not at all qualified by the opinion of the mass. While if the surrounding circumstances and mode of life are such as to prevent supremacy of one man, or of the leading men, its primitive judicial power is preserved by the aggregate of freemen—or is regained by it where it re-acquires predominance. And where the powers of these three elements are mingled in the political organization, they are also mingled in the judicial organization.

In those cases, forming the great majority, in which habitual militancy entails subjection of the people, partial or complete, and in which, consequently, political power and judicial power come to be exercised exclusively by the several orders of chief men, the judicial organization which arises as the society enlarges and complicates, is officered by the sacerdotal class, or the military class, or partly the one and partly the other: their respective shares being apparently dependent on the ratio between the degree of conscious subordination to the human ruler and the degree of conscious subordination to the divine ruler, whose will the priests are supposed to communicate. But with the progress of industrialism and the rise of a class which, acquiring property and knowledge, gains consequent influence, the judicial system comes to be largely, and at length chiefly, officered by men derived from this class; and these men become distinguished from their predecessors not only as being of other origin, but also as being exclusively devoted to judicial functions.

While there go on changes of this kind, there go on changes by which the originally-simple and comparatively-uniform judicial system, is rendered increasingly complex. Where, as in ordinary cases, there has gone along with achievement of supremacy by the king, a monopolizing of judicial authority by him, press of business presently obliges him to appoint others to try causes and give judgments: subject of course to his approval. Already his court, originally formed of himself, his chief men, and the surrounding people, has become supreme over courts constituted in analogous ways of local magnates and their inferiors—so initiating a differentiation; and now by delegating certain of his servants or assessors, at first with temporary commissions to hear appeals locally, and then as permanent itinerant judges, a further differentiation is produced. And to this are added yet further differentiations, kindred in nature, by which other assessors of his court are changed into the heads of specialized courts, which divide its business among them. Though this particular course has been taken in but a single case, yet it serves to exemplify the general principle under which, in one way or other, there arises out of the primitive simple judicial body, a centralized and heterogeneous judicial organization.

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