Politics : an Introduction to the Study of Comparative Constitutional

GIFT MICHAEL POLITICS AN INTRODUCTION TO THE STUDY OF COMPARATIVE CONSTITUTIONAL LAW BY WILLIAM W. CRANE BERNARD MOSES, Pn.D PKOFE6SOR OF HISTORY AND POLITICAL ECONOMY Ilf TH UNIVERSITY OF CALIFOENIA NEW YORK & LONDON G. P. PUTNAM'S SONS (jt ^nicktrbodur |)ress 1898 COPYRIGHT G. P. PUTNAM'S SONS Electrotyped, Printed, and Bound by Ubc fmici;erbocfeer press, Hew G. P. PUTNAM'S SONS CONTENTS. CHAPTER I. PAGE INTRODUCTORY i CHAPTER II. THE NATION 6 CHAPTER III. THE SOVEREIGN 33 CHAPTER IV. THE ORGANS OF THE SOVEREIGN. 47 CHAPTER V. THE FORCE OF THE NATION 55 CHAPTER VI. ' LOCAL POWERS 63 CHAPTER VII. INSTINCT AS A FACTOR OF POLITICAL ORGANIZATION 68 CHAPTER VIII. THE POLITICAL HERITAGE OF THE BRITISH COLONIES IN AMERICA 82 137249 IV CONTENTS. CHAPTER IX. PAGE EARLY IMPULSES TO NATIONAL UNITY IN THE BRITISH COLONIES 126 CHAPTER X. CENTRIFUGAL AND CENTRIPETAL FORCES 135 CHAPTER XL THE MAKERS OF CONSTITUTIONAL LAW 142 CHAPTER XII. THE MAKERS OF ADMINISTRATIVE LAW 155 CHAPTER XIII. THE BICAMERAL SYSTEM OF THE MODERN LEGISLATURE. 164 CHAPTER XIV. THE INITIATIVE IN LEGISLATION 179 CHAPTER XV. DISTRIBUTION OF POWERS 193 CHAPTER XVI. THE CONDITIONS AND TENDENCY OF NORMAL POLITICAL GROWTH 203 CHAPTER XVII. THE TENDENCY OF POWER IN FEDERAL GOVERNMENT.... 223 CHAPTER XVIII. THE TENDENCY OF POWER IN THE UNITED STATES 231 CONTENTS. V CHAPTER XIX. PAGE THE TENDENCY OF POWER IN SOME EUROPEAN FEDERA- TIONS 253 CHAPTER XX. POLITICAL PARTIES 265 CHAPTER XXL CONCLUSION 287 POLITICS, CHAPTER I. INTRODUCTORY. THE structure and development of the state, as an organism for the concentration and distribution of the political power of the nation, form the subject-matter of or of as a analytical politics, politics science ; while the determination of what the state should do falls within the sphere of practical politics, or of politics as an art. Analytical politics, or politics as a science, concerns itself with the construction of governments, with their instrumentalities for carrying out the will and using the force of communities or nations with reference ; and to a particular government at a particular period, it may point out in what person or department the preponderance of power lies, or how power is distributed. In short, it treats of the mechanismj^government, illustrated by its development. It may be properly termed the science of government. Political motives and aims, on the other hand, represent merely the various states of mind and views of conduct actuating those, whether few or many, who aid in determining the will of the nation, and per- tain properly to the art of government,* To determine the structure of all political organisms, * " See Bluntschli, Lehre vom modernen Stat," Stuttgart, 1 876, III., pp. 1-3. 2 POLITICS. or of any given one, is one thing, but it is quite another thing to determine how this being or organism should express itself or act in any given case. The inquiry as to what should be the end or object of a government can find no place in the examination of what the government is. It is sometimes said that the state is an ethical being. It is, per se, morally neither good nor bad. Bad men may use it for bad purposes, or, on the contrary, virtuous men may make it a beneficent instrument. In either case, it is merely an instrument which, in consequence of its structure, lodges power in some particular part of the community. The Czar of Russia may use his autocratic power so as to promote the greatest good of the greatest number, and the people of the United States may so exercise their constitutional power as to produce general disaster and ruin. The one may be an immoral or irreligious use of the powers of the state, and the other the reverse, but neither cuts any figure in determining the structure of the two states. It must be borne in mind that the quantum of power in the two nations is the the fact of it is or the of same ; how used, character the ends towards which this power is directed, do not properly come within the province of the science of politics. It is not to be disputed, however, that the structure of a government may be, not only the result of particular social tendencies, but may be also promotive of certain of these tendencies, because government is not an ab- straction, but is a specific agency of the sovereign part of the nation for doing certain acts, and maintaining certain relations between the members of that nation, and between the nation itself and other nations. In this view, it is not foreign to the scope of a science of politics to in- quire what will be the probable political evolution of any INTRODUCTORY. 3 given nation, and to reason deductively from known qualities of human nature to the probable outcome of any given political arrangements, as is sometimes done by the political economist with reference to, economical affairs. But we must be careful to draw the line between what the state w, or, under given circumstances, must be, and what the state should be, and should do. A very common fault in much of the current writing on politics, is the mixing up of the treatment of such subjects as the sphere and ends of the state, or personal rights, or national rights or law, or political ethics, or the limitations of the action of the state, with the consideration of the impulses which control men in the formation of political communities or with the consideration of the structure of the state, and the organs and instrumentalities through which the work of the state is accomplished. By clearly separating the two orders of topics, we are better able to comprehend each in its proper place. The direction of the will of the community or nation, and the use of the force of the community or the nation, will finally, among intelli- gent people, be guided by what experience teaches is the best code of private, as well as public, law. And the determination of what is the true sphere of the state, or what should be the maxims touching personal or national rights, or law, or ethics, would be the same without reference to the- form of government, or even to its historical development. The consideration of these topics touches rather the daily movement of thought and action within the completed state, and while of the most vital interest to the members of a political community, yet furnishes, merely rules of conduct, and should be eliminated from inquiries into the laws of the state's being. Even the theories as to the duties of the state which are so radically opposed to each other as those 4 POLITICS. of the so-called Manchester, or free-trade, school of poli- ticians, and the Socialists, may be applied, according to their advocates, under any form of government, from the most absolute monarchy, to the most democratic repub- lic. The former would restrict the state to the narrowest limits, making a sort of policeman of it, whose only duty is to prevent men depredating upon one another. The extremists of this school would introduce absolute free- trade, and non-interference of the government in any business or pursuit. In their view, the state should not concern itself about the schools, or poor-laws, or religion, or morals assert that it fulfills its when it ; they duty leaves every one entirely free to follow out his own ideas of happiness in his own way, provided, however, he does not, in so doing, encroach on the rights of his neighbor. The greatest degree of personal freedom is the cardinal with this school. On the side stand the I point opposite Socialists, who claim that government should control all the instruments of labor, the soil, the mines, the machinery within the state, which should be used for the benefit of the that should be workingmen ; wages abolished, and the state should see that the workingman is duly paid for his hours of labor, without reference to skill. Intermediate between these two extremes, are many who believe that the state should control the liberty of the citizen, at various points, for the good of the whole. Some would have all the land owned by the state, and leased for the common benefit others think that the ; ways of communication, the railroads and telegraph lines, should be so controlled. Some are in favor of compul- education some believe in the of the sory ; prohibition sale of intoxicating liquors, and so on, through numer- ous applications of state power to the community. But all start from the same all or parties point ; they tacitly INTRODUCTORY. 5 that argumentatively assume in the sovereign political community there are no actual limitations of power, ex- cept those self imposed by the community. And furthei, their several views may be carried out without any essen- tial alteration in the form of any government. So far as it concerns the political structure of the British government, the Socialistic scheme could be carried out without change. And the same scheme could be effected without change in Russia. So again, what are denominated personal political rights, as, for instance, those enumer- ated in our Federal Constitution, may exist and be pro- tected under any form of government. An absolute king may consider it wise policy to concede them, and still be an absolute king, so long as he has power to abolish them. That they are fixed by a written constitution, as in the United States, simply indicates that the power to abolish them is deposited at another point in this organism than in the absolute state.

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