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Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States by the best American and European Authors, ed. John J. Lalor (New York: Maynard, Merrill, & Co., 1899). Vol 2 East India Co. - Nullification

Editor: John Joseph Lalor

Part of: Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States, 3 vols.

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LABOR

LABOR is the voluntary exertion of human beings put forth to attain some desired object. We say human beings, for the toil of beasts is but the agency of an instrument, reckoned a part of capital. We say voluntary exertion, for the involuntary work of slaves is, in the view of political economy, like the toil of oxen, the mere use of a thing owned as a part of one's capital. We say, also, for a desired object, for this distinguishes labor from play. In play we are satisfied with the mere exercise of our faculties. The exertion is at once means and end. In labor we seek a further end—a result which comes as an abiding reward for the effort. (Wayland.) Labor is either bodily or mental, involving exertion either of the muscular or nervous system. The line of demarcation between these two kinds of labor is not always perfectly distinct. There is probably no purely muscular labor, i.e., labor involving absolutely no nervous exertion; nor, on the other hand, any purely nervous labor, unmixed with muscular effort.

—1. Labor as a Factor of Production. Labor is one of the essential elements of production. Nature offers to man a vast variety of objects which by their constitution are adapted to satisfy his wants. But labor is necessary to make them available. Even in the case of those things which in their natural state are suited to the supply of human wants, such as water, fruits, wild honey, etc., etc., some exertion is necessary, even if it be nothing more than appropriation, in order to make them of any use; while in the vast majority of cases very much labor is needed in finding, transforming and transporting natural objects before they can be made serviceable. Now what is the office of labor in production? A moment's thought will convince one that labor does not produce, i.e., does not create. matter. That is beyond human power. It may change matter from one mode of manifestation into another, it may change the shape of matter, it may change the place of matter; but it can neither increase nor diminish (i.e., neither produce nor destroy) the existing quantity of matter. Bacon says that man can do nothing else than move natural objects to or from one another; while nature, working within, accomplishes the rest. "Labor," says Mill, "in the physical world is always and solely occupied with putting objects in motion: the properties of matter, the laws of nature, do the rest." The consideration of what actually occurs in any process of production will make this point clear. We say that a baker produces bread. In what does his work consist? He brings together in one vessel the various ingredients of his wished-for product, forces them into closer contact by stirring and kneading, puts the dough into an oven which he has heated by exciting the process of combustion near it. This last he has accomplished by bringing into juxtaposition certain natural elements which act upon each other so as to produce heat. If we examine any other case of what is called the action of man upon nature, we shall find in like manner that the powers of nature, or, in other words, the properties of matter, do all the work when once objects are put into the right position. The farmer stirs the soil, so that the natural agents can produce their effects more easily; he puts the seed into the ground, but nature sends down the root, sends up the stem, and brings forth the leaf and flower and fruit. What is true of the farmer is equally true of the spinner and weaver. The natural qualities of the flax or wool form the necessary basis for their work Although physical labor thus performs but one service in production, yet it manifests itself in several different ways, some of which are important enough to deserve especial mention. Labor in its most immediately productive form is engaged in appropriation, i.e., in simply taking the objects which nature has made fit for man's use without any agency of his. The labor of some savages consists very largely of this kind. They live upon the berries, roots, wild honey, etc., which nature provides in more or less profusion. It is plain that where man's effort is mostly exerted in labor of this sort he must be exceedingly dependent upon nature, and can never rise very high above barbarism. The labor of appropriation, except so far as it is concerned with mining, plays but a small part in the life of civilized man. Labor is further employed in the production of raw materials, i.e., in giving a direction to nature which results in the increase of raw materials. We may mention in this connection agriculture, forest culture, pisciculture, stock raising, etc., etc. The process which is carried on in these branches is sometimes called transmutation, i.e., a change in the manifestation of matter. Thus, the seed is transmuted into the corn which it produces, and the corn into the wool which forms the basis of the coat. A third way in which labor is occupied with objects we may call transformation, i.e., a change in the shape and appearance of matter Thus, the wool, by carding, spinning, weaving. coloring and sewing, is transformed into the coat. This process is pre-eminently an industrial one, and is seen in all kinds of manufactures. It takes up the raw material and turns out the finished product. Finally, labor is employed in transportation, i.e., the carrying of the raw material or the finished product from the place where it is not wanted to the place where it is wanted. This is the great business of commerce.

—Mental labor manifests itself in a different way from physical labor. It is occupied in investigation and discovery. It seeks to find out the laws of nature which make physical labor effective, and to discover new ways in which they may be utilized. It invents, i.e., devises instruments of production, without which physical labor could accomplish but little. It oversees and superintends, without which physical labor would be blind and inefficient. It educates, legislates and governs. It is, in a word, the precedent and condition of any extensive effective physical labor.

—If labor fails to attain the desired object for which it is put forth, it is evidently unfruitful, i.e., unproductive; while, if it be successful, it would seem natural to call it productive. The history of the politico-economic discussion on the distinction between productive and unproductive labor is interesting and significant. The mercantilists considered as productive only such labor as contributed directly to increase the quantity of the precious metals possessed by the nation, either through the agency of mining at home or by the agency of foreign trade. They ascribed to industry a greater power of attracting gold and silver than to agriculture, and to the finer sorts of industry than to the coarser. The former, therefore, were more productive than the latter. The physiocrats, on the contrary, considered that the labor employed in producing raw materials was the only productive labor. All other classes, it matters not how useful they are, they called sterile, because they draw their income only from the superabundance of landowners and the workers of the soil. Artisans merely change the form of matter, and any extra value they may give it depends on the quantity of other material consumed during their labor. Commerce simply transfers existing wealth from hand to hand, and, hence, the less there is of it the better. These views are practically obsolete. Adam Smith considered personal services in the narrower sense as unproductive. The clergyman, physician, legislator, opera singer, ballet dancer, buffoon, were all classed as unproductive. The violin maker is productive, the violin player unproductive; the hog-raiser is productive, the educator of man unproductive, etc. Those classes are productive whose labor can be incorporated and fixed in some material object of wealth. Mill follows Adam Smith in this distinction. But the tendency of the most recent political economy is strongly toward considering as productive every useful business which ministers to the whole people's requirement of external goods. The idea of productivity changes according as we regard it from the standpoint of the producer, that of the consumer, or that of the national economy as a whole. The first regards all labor as productive which brings him in the desired return for his labor. Thus a thief, who makes a good haul on some expedition, views his labor as exceedingly productive, though the non-thieving classes would hardly agree with him. The consumer deems all labor productive whose achievements he may use, and which he can obtain at a convenient price. From the economic-social point of view, all labor is productive which increases, directly or indirectly, the wealth of society. The services of the statesman and policeman are in this view as productive as those of the shoemaker or tailor.

—II. Conditions Affecting the Efficiency of Labor. Since labor is exertion put forth, not for its own sake, but in order to attain some ulterior object, it is evident that no more labor will be expended than is necessary to secure the desired result. This fact might be expressed as a law which would hold a very similar place in economics to that held by the law of gravitation in physics. It would be formulated as follows: Man strives to attain the greatest possible results with the least possible exertion. In consequence of this fact we find man in all stages of civilization trying to invent or discover labor-saving instruments. In view of his disinclination to useless labor it becomes a matter of the greatest importance to diminish that element as much as possible. He is, consequently, always more or less busily employed in seeking to increase the efficiency of his labor. This can be done in various ways, some of which we enumerate. Man can greatly increase the effectiveness of his labor (i.e., increase the total amount produced). by the use of natural agents. Of all the animal world man is most poorly provided with organs which are immediately fitted to procure him a subsistence. In his search for food he finds himself but ill-adapted for climbing the trees to obtain the nuts, or digging in the earth to get out the roots, or diving in the water to gather the shellfish. The bird escapes him in its flight, the fish out-swims him, the deer out-runs him, the buffalo is too strong for him to kill. Even the rats, mice and moles can out dig him and out-gnaw him. In the construction of his shelter he appears but poorly equipped when compared with the beaver or the bird. If man's intelligence did not enable him to take advantage of natural agents, the race would soon become extinct. But the elasticity of wood and the tenacity of cord enable him to make a bow, and the hardness of the flint and the lightness of the stick enable him to make an arrow, which, driven by the bow, transfixes the bird in its flight, stops the deer in its mad course, and pierces the heart of the mightiest buffalo. With a sharpened stick he is enabled to stir up the soil, which else he would have to turn with his hands. A hollow stone and a hard stick make it easy for him to break and crush the grains of corn into meal or flour, instead of having to crush them between the teeth. A lump of stone of a certain shape affords him an instrument with which to cut down the tree, that he might have gnawed at for months without bringing down. And thus in all directions he increases the efficiency of his labor by subduing to his use the natural agents he finds about him. By the aid of some he increases the amount of his production fivefold, tenfold, a hundred thousand fold. By the aid of others he produces things which he could never have produced at all without them. Natural agents, says an old author, may be classed as those which create momentum and those which change the direction of momentum. The former may be classed as animate and inanimate agents. Thus, horses, oxen, etc., are among the earliest animate agents which man made serviceable to himself. He found that a horse could turn one stone around and around on top of another and thus crush his corn, and so relieve him of a great deal of labor. It was not a great step to devise a means of utilizing the power of an inanimate agent, such as wind or water. And we consequently find wind and water mills among all peoples who have advanced very much beyond barbarism. The lapse of time brought with it a means of using the expansive power of steam, and the explosive power of gunpowder, and similar agencies. The use of wind and water greatly increased the efficiency of labor, as compared with a time when only animate agents were used. But the invention of the steam engine marked a still greater progress. Water power can be had only in comparatively few places. Wind power is irregular and unequal. Steam power is practically to be had everywhere at will. The use of inanimate agencies is relatively on the increase. They are cheaper, more enduring, and safer. They create more momentum, and take up less space; they are continuous, and work with mathematical exactness; they are unwearied, never wear out, and the machinery through which they act is easily repaired. All inanimate agents for changing the direction of momentum fall under the general head of tools and machines. By them we may change the direction of motion, convert power into velocity, manage forces too great for animate power, accumulate power, execute operations too delicate for animate agencies, and convert irregular, spasmodic effort into a regular or continuous movement. (Wayland.)

—Labor may be rendered more efficient, not only by taking advantage of natural agents, but also by combining the efforts of individuals—so-called combination of labor. It is a universally known fact, that two men by working together can produce in certain branches-many times as much as both working separately. Two hunters can kill more than twice as much when hunting together as either could kill alone. Two greyhounds running together will kill more hares than four greyhounds running separately. In the lifting of heavy weights, in the felling of trees, in the sawing of timber, in the gathering of much hay or corn during a short period of fine weather, in the pulling of ropes on board ship, in the rowing of large boats, in the erection of scaffolding for building; in all these simple operations, and in thousands more, it is necessary that many men should work together in the same place, at the same time and in the same way. (Mill.) Savages help each other but little. The combination of labor in low states of society is very limited, but with every advance in civilization comes a development of the associative powers of labor, until, in our modern industrial state, society becomes one vast co-operative association.

—But combination of labor in a high degree is possible only when subdivision of labor has already taken place, and this brings us to a third means of increasing the productivity of human exertion, viz., division of labor. By division of labor we mean simply, that different kinds of labor are assigned to different classes and individuals, so that each shall do that for which he is best fitted. Division of labor involves an analysis of work into its parts and a distribution of those parts to different laborers. It is possible, therefore, only in the production of such commodities as require several distinct operations for their completion. Division of labor occurs in its simplest from among individual laborers. Adam Smith's example of the advantages of such division has become classical and we can do no better than transcribe it. "The business of making a pin is divided into about eighteen distinct operations. One man draws out the wire, another straights it, a third cuts it, a fourth points it, a fifth grinds it at the top for receiving the head: to make the head requires two or three distinct operations; to put it on is a peculiar business, to whiten the pins is another; it is even a trade by itself to put them into a paper. I have seen a small manufactory where ten men only were employed, and where some of them consequently performed two or three distinct operations. But though they were very poor, and therefore but indifferently accommodated with the necessary machinery, they could, when they exerted them selves, make about twelve pounds of pins in a day. There are in a pound upward of four thousand pins of middling size. These ten persons, therefore, could make among them upward of forty-eight thousand pins in a day. Each person might be considered, therefore, as making four thousand eight hundred pins in a day. But if they had all wrought separately and independently, and without any of them having been educated to this peculiar business, they certainly could not each of them have made twenty, perhaps not one, pin in a day." The advantages of a thorough division of labor from a productive point of view, are many of them apparent. We may class them under five heads.

—1. The skill and dexterity of the individual workman are largely increased. The oftener a thing is done, the more easily it is done. The organs acquire a greater power; the muscles become stronger and more pliant. The repetition of a given process tends to make it mechanical. It becomes, therefore, more rapid and exact. Adam Smith has given an excellent example of the above advantage. "A common smith," says he, "who, though accustomed to handle the hammer, has never been used to make nails, if upon some particular occasion he is obliged to attempt it, will scarce, I am assured, be able to make above two or three hundred nails in a day, and those very bad ones. A smith who has been accustomed to make nails, but whose sole or principal business has not been that of a nailer, can seldom with utmost diligence make more than eight hundred or a thousand nails in a day. But I have seen several boys under twenty years of age, who had never exercised any other trade but that of making nails, who, when they exerted themselves, could make each of them upward of two thousand three hundred nails in a day"; or nearly three times as much as the smith who had been accustomed to make them. but who was not entirely devoted to that particular business.

—2. Time is saved. The advantage which is gained by saving the time usually lost in passing from one sort of work to another, is much greater than we should at first view be apt to imagine it. It is impossible to pass very quickly from one kind of work to another, that is carried on in a different place and with different tools. A man commonly saunters a little in turning his hand from one sort of employment to another. When he first begins the new work he is seldom very keen and hearty; his mind, as they say, does not go to it, and for some time he rather trifles than applies to good purpose. The habit of sauntering and of indolent, careless application, which is naturally or rather necessarily acquired by every country workman who is obliged to change his work and his tools every few hours, and to apply his hand in twenty different ways every day of his life, renders him almost always slothful and lazy, and incapable of vigorous application even on the most pressing occasions. (Smith) The saving of time effected in learning the business should also be classed under this head. It is evidently a much simpler and shorter matter to learn how to perform one process than seventy, and the time thus saved in the early stages of one's work life amounts in the aggregate to an enormous sum.

—3. Division of labor facilitates the invention of machines and processes of saving labor. Inventions to abridge labor in particular operations are more likely to be made in proportion as one devotes one's physical and mental attention exclusively to that one occupation. Besides, a man who is busied continually in performing one simple operation is more likely to hit upon some mechanical device to substitute for his labor, than one who is engaged in a complex process involving several operations; if for no other reason, because the former is much simpler than the latter. Mill, however, calls attention to the undoubted fact that invention depends much more on general intelligence and habitual activity of mind than on exclusiveness of occupation; and if that exclusiveness is carried to a degree unfavorable to the cultivation of intelligence, there will be more lost in this kind of advantage than is gained.

—4. Mr. Babbage has called attention to a further very important advantage connected with division of labor, which consists in the more economical distribution of labor by classing work-people according to their capacity. Different parts of the same series of operations require unequal degrees of skill and bodily strength; and those who have skill enough for the most difficult, or strength enough for the hardest parts of the labor, are made much more useful by being solely employed in them; the operations which everybody is capable of, being left to those who are fit for no other Production is most efficient when the precise quantity of skill and strength which is required for each part of the process is employed in it and no more. The operations of pin making, it seems, require in its different parts such different degrees of skill that the wages earned by the persons employed vary from four-pence half-penny per day to six shillings, and if the workman who is paid at the highest rate had to perform the whole process he would be working a part of his time with a waste per day equivalent to the difference between six shillings and four-pence half-penny. Without reference to the loss sustained in the quantity of work done, and supposing even that he could make a pound of pins in the same time in which ten workmen combining their labor can make ten pounds, Mr. Babbage computes that they would cost in making, three and three- fourths times as much as they now do by means of the division of labor. In needle-making, he adds, the difference would be still greater, for in that the scale of remuneration for different parts of the process varies from sixteen to twenty shillings per day. (Mill.)

—5. A saving is effected in capital by a division of labor "If any man," says Rae. "had all the tools which many different occupations require, at least three-fourths of them would constantly be idle and useless." As a consequence they would be so much dead capital, taking no part in production. The ordinary individual could not afford to have as good tools as a specialist, and, therefore, his work on this account also would be less effective.

—The extent to which division of labor can be carried with advantage depends upon several conditions. 1 Upon the nature of the process. Agriculture, for example, can not be distributed as fully as manufactures, because its different operations are not simultaneous. A man whose work consisted solely of plowing would be idle most of the year; if he limited himself to reaping he would find it difficult to employ himself for more than a month or two. In manufacturing, when a process has once been reduced to its simplest elements, and the various operations distributed, the limit of subdivision has been reached. For it is no division of labor to employ two men in the same occupation. To attain the greatest economy in a factory, it is necessary to so adjust the operations and the laborers that the latter will fully employ one another. And this having been once accomplished, the establishment can not be economically enlarged unless it employs multiples of this number of workmen. 2. Upon the accumulation of wealth. It is evident that in a detailed system of divided labor there must be means on hand to support all the various classes of laborers engaged in the production of a commodity until it can be disposed of in the market, i.e., there must be a large amount of capital on hand. In new countries, therefore, the division of labor is very limited even among civilized nations. The American pioneer was his own carpenter, farrier, physician, etc., etc., being confined to the immediate exertions of his own family for all the commodities or services he enjoyed. In the progress of society the evolution of new callings is but slow, and the division of labor within those callings still slower. 3. Upon the extent of the market. The efficient cause of the division of labor in an industrial society is the demand for the products of labor. If there were no demand for the surplus products of a man's exertion in any field, he would only put forth labor enough to provide himself with what he alone could use. A man, for instance, might find himself in need of pins, we will say. He makes enough to supply himself and then takes up some other product, which he needs. But his neighbor needs pins also, and the skill he has acquired in making his own enables him to produce some for his neighbor more cheaply than the latter could do it for himself. He manufactures enough for both and exchanges his surplus for what he needs. Other neighbors hear of it and wish to buy pins in exchange for what they produce. Our pin maker finds it profitable to spend all his time in making pins and exchanging his surplus for other things he needs. Pretty soon, as his fame goes abroad, and more and more resort to him, he finds it profitable to hire a man to help him, and after awhile he can add another and another. It occurs to him to distribute the labor of making a pin among eighteen different laborers, and he can then make a hundred thousand pins a day, where formerly he only made a hundred. Now he can do this profitably, only so far as the market expands enough to take his ever-increasing product of pins. It would not pay him to hire eighteen men to make five pins, if that were all he could sell, merely to secure a division of labor. We thus see how an accession of demand for a commodity tends to increase the efficiency of labor engaged in its production—it makes possible a greater division of labor. The extent of the market may be limited by several causes: 1st. The number of consumers. Other things being equal, one hundred men will need ten times as many shoes and coats as ten men. 2d. Cost of the article. A diminution of 20 per cent. in the cost of an article will often double the market for it, and vice versa a similar increase in the cost will decrease the market. 3d. The wealth of the inhabitants. England is a far better market for certain goods than Russia, in spite of the fact that its population is scarcely one-fourth as large, for its wealth is far greater. 4th. Facilities for transportation. Even if the cost of an article at the place of its manufacture be low enough to satisfy a large market, the conditions of transportation may be such as to make it impossible to get it to consumers at a popular price. 4. Upon the executive ability of men. The more detailed the division of labor becomes, the higher the order of executive ability necessary to manage the industry. The instant an industrial undertaking outgrows the ability of its overseers, that instant it becomes wasteful and extravagant, and all advantage of division of labor is lost.

—The effects of the division of labor upon the laborer himself ought not to be passed over in a discussion of the subject of labor. Where it is carried to the development which it has attained in modern industrial life it is fraught with serious danger both to the individual laborer and to the society to which he belongs. A variety of exercise is essential to the full and healthy development of the faculties and functions of the body. But the division of labor often involves long and close confinement to a single operation; an over-tasking of some one limb or set of muscles; a posture which may cramp and oppress the vital organs; exposure to deleterious gases and exhalations; the breathing for hours in crowded rooms of air bereft of oxygen, and charged with carbonic acid. The introduction of women and children into factories by which that economic distribution of the workpeople according to their capacity, which we have mentioned above, has been made possible, is certainly to be greatly regretted from a social point of view. The mind is liable to be contracted and enfeebled. What must be the aspect of the soul of a workman who for forty years has done nothing but watch the moment when silver has reached the degree of fusion which precedes vaporization! (Roscher.) There is a compensating circumstance, however, in all such work. It tends to become mechanical and thus to leave the mind free to think about something else; while the concentration of numbers makes it possible to introduce schools, debating societies, etc. Division of labor tends to increase the power of capital and diminish the independence, and, therefore, the self-respect of the laborer. The small producer is driven to factory labor, and his success which was before largely dependent on himself is now in the hands of a few managers and capitalists. It intensifies the feeling of bitterness between laborers and capitalists, when trouble arises, as the extremes of poverty and wealth meet under such conditions. (See MACHINERY.)

—Division of labor may occur among classes of laborers and different nations as well as among individuals. There is a distribution of labor, for instance, among the producers of raw material, the transporters, and the manufacturers. Commercial freedom enables a perfect system of division of labor among the different countries to develop itself. International division of labor is as profitable and oftentimes more profitable than domestic division of labor. The world is slow to learn this lesson, and even yet many parties can be found who maintain that international division of labor is ruinous and should be hindered at any cost. The division of labor has an important bearing on all questions of distribution.

—There are other agencies that affect the efficiency of labor, which we can do no more than mention. The greater energy of labor, the skill and knowledge of the community, the general diffusion of intelligence, the moral qualities of the laborers, the security of person and property, all have great influence on the productivity of labor. Production on a large scale often greatly increases the effectiveness of labor. As a general rule, the expenses of a business do not increase by any means proportionally to the quantity of business. It costs no more, for instance, to take ten letters from New York to San Francisco than it does to take one, and but little more to take ten thousand than ten hundred, and far less in proportion to take one hundred thousand than ten thousand. It takes a brakeman, an engineer, a fireman and an engine to draw two cars, but the same force can manage twenty just as well. A set of books which it is necessary to keep for one hundred customers will do about as well for five hundred The storeroom, light, heat and clerks for a small business need but to be slightly increased for a business twice as large, etc., etc. Whether or not the advantages obtained by operating on a large scale preponderate in any particular case over the more watchful attention and greater regard to minor gains and losses usually found in small establishments, can be ascertained in a state of free competition by the relative ability of such establishments to compete with each other.

—III. The Ethical Significance of Labor; Hope of Diminishing its Burden. If we examine the effect of the increased productivity of labor, caused by progressive division and combination, by growing accumulation of capital and ever-widening freedom, it will be seen that it consists almost entirely in an extension of positive satisfactions, but it has not diminished essentially the amount of labor demanded of man. And even for the future, however wide the prospect for continued advance in this direction, we can hardly hope to lessen the burden of labor, since the demands and wants of man seem to increase in the same proportion as his productivity. Now, as labor is indisputably felt to be a burden, the questions involuntarily force themselves upon our attention as to the inner justification of this burden laid upon humanity, as to the prospects of our being ultimately freed from it or of freeing ourselves from it, and as to the means which we must apply in order to do it. The justification of labor is to be found in the imperfection of human nature. Without some external compulsion to exert himself, man, owing to his disinclination to exertion his unsteadiness, and his love of passive enjoyment, would not become conscious of his true destiny, viz., self-development toward God likeness, and even if he did, he would grow weary in its pursuit. The ethical significance of labor consists in its quality as a means of education. And in fact who can fail to see how powerfully this burden resting upon it has advanced humanity, and how far, without it, it would have fallen short of its present attainments? The incomplete development of those very nations which in consequence of the wealth of surrounding nature feel this burden but lightly, and the countless examples in individual cases of moral relaxation in the relations of life which do not require labor, suffice to prove our position. Is there a tendency in the progress of civilization toward lessening the burden of human labor? The laws of nature are unchangeable, the resistance of the outer world to man's dominion will never become less, though his power to overcome it is constantly increasing. Exertion is labor or is not labor, according to the end for which it is made. If it is its own end, it ceases to be labor. The exertion a man puts forth from public spirit, because he enjoys the very making of it, is not labor. The artist who creates for the love of creating, is not laboring. In every pursuit which is followed for the love of it, labor passes away. It is along this line that labor is to be diminished. We can but present the thought. Labor can be diminished by the moral education and elevation of the laborer, i.e., laborious exertion can be converted into pleasurable exertion. (Cp. von Mangoldt.)

—Labor in its relation to the state, as to its law of increase, as to how it is affected by machinery, etc., will be found discussed elsewhere in this work under various heads, such as FACTORY LAWS, STRIKES, MACHINERY, POPULATION, etc.

—Literature. The literature of the subject is vast and increasing. All standard works on political economy discuss the points we have mentioned above. The many works on Wages, Laboring Classes, Machines, Distribution, etc., contain discussions pertinent to the subject. Socialistic works, in particular, devote special attention to the laboring classes and the means of their improvement. The works most worthy of notice will be mentioned in the articles above referred to

E. J. JAMES.

LABOR, The Right to

LABOR, The Right to (IN FRENCH POLITICO-ECONOMIC HISTORY). The right to labor, that fundamental principle of the French socialistic gospel, is not the power, which belongs to all men in a free state, of making use of their own industry. The right to labor has nothing in common with the freedom of labor. The apostles of this doctrine mean by it not the unobstructed use of strength and resources, but a claim given to the individual against society. They pretend that all members of society, who have neither the knowledge nor will to create means of subsistence, have good grounds for saying to the rulers who represent and govern them, "See that I have work, for you are obliged to maintain me." It is what M. de Lamartine, believing that the principle would be accepted if he softened the name, called "the right to existence." Before passing into the crucible of science this formidable question was planted in the soil of revolution. It does not date from 1848, and has nothing new but its form.

—It is the extreme result of every strict system of public charity. It is the danger which few of the Protestant states escaped after the destruction of the monasteries. The act of the 43d year of the reign of Elizabeth planted the germ of it in English legislation. It says, "And they [overseers] shall take order from time to time * * for setting to work the children of all such whose parents shall not, by the said church wardens and overseers or the greater part of them, be thought able to keep and maintain their children; and also for setting to work all such persons, married or unmarried, having no means to maintain them, and use no ordinary daily trade of life to get their living by; and also competent sums of money for and toward the necessary relief of the lame, impotent, old, blind, and such other among them, being poor and not able to work; and also for the putting out of such children to be apprentices." The same law gives them the power to raise taxes for this purpose, which must be borne by the people of the parish, or, if this does not yield enough, by the people of the district, or, if necessary, by those of the whole county. A law of Henry VIII. had already imposed a penalty on parishes in which the weak were not aided. From this the poor clearly received the right to demand help, and to bring suit against the authorities who should refuse them assistance. English legislation, therefore, created the right to assistance, modified by the obligation of labor.

—Examples abound in French revolutionary legislation. The constitution of 1791 declared in the first clause, which enumerated the guarantees given to all citizens, that there should be created a general bureau of public aid for the purpose of bringing up foundlings, of caring for the infirm poor, and of providing work for such of the able-bodied poor as were unable to obtain it for themselves. This was borrowing from England the system of a poor tax, with the enforced building of workhouses and charity schools, but that doctrine of the constitution was not put in practice; it was, indeed, considered a dead letter. The constitution of 1793 went a step farther. Art. 21 declared that public aid was a sacred debt; and that society owed a living to unfortunate citizens, either by procuring work for them or by assuring means of life to those unable to labor. The constitution of 1793 did not limit itself, like that of 1791, to proclaiming that society owed labor, under the form of help. It demanded that the labor thus given should assure subsistence. The right to live was implied in this formula, in this duty imposed upon society. Need we add, that the radical charter of 1793, having been suspended from the date of its promulgation, to give place to the revolutionary government, it is impossible to judge by its works the new theory of public aid?

—None of the constitutions following that of 1793 reproduced this formula, but all socialistic schools, born during the transition from the old régime to the new, drew inspiration from it. Babœuf deduced from it the community of goods. In this abortive theme, in these tables of the law, broken as they came from the furnace, like an impure or defective casting, the conspirators did not cease to search for the ideal of the future republic. Even perverted science wished to fasten itself to it. It was by following the road made by Robespierre and St. Just that Fourier constructed his formula of the right to labor. He wrote in 1819 in his Théorie de l'unité Universelle, "Scripture tells us that God condemned the first man and his posterity to work in the sweat of their brow, but he did not condemn us to be deprived of that labor on which our existence depends. We can from this derive a right of man to ask philosophy and civilization not to keep from us that resource which God left us, as a last resort or punishment, and to guarantee to us at least the right to that class of labor with which we are familiar. We have passed ages thus quibbling over the rights of man without recognizing the most essential—labor, without which all others are nothing What a shame to a people who consider themselves skilled in social science! Should we not dwell upon so ignominious an error, in order to study the mind of man and the social mechanism which is to give to man all his natural rights, whose civilization can neither guarantee nor even allow the principal one, that of labor?" While exhuming and proclaiming this new right of man, Fourier still recognized that it was incompatible with social order as moulded and developed by civilization according to the mandates of Providence. We shall see later whether the reformer and his disciples succeeded better with this in the mechanism of society, and on what arguments that pretended right, which is but the negation of all others, rested. Let us prove first that the impossibility recognized by Fourier was so generally admitted that outside his school and with the exception of a single paper by M. Considérant in the "Phalange," no one before 1848 had raised the standard of the right to labor.

—The two principal theorists of the social republic had very different projects. They absorbed and engulfed that theory in more vast and ambitious conceptions. M. Cabet, renewing the utopian schemes of the fifteenth and sixteenth centuries, placed beyond the seas the attraction of absolute community of interest. M. Louis Blanc, under the pretext of organizing labor, wished to remodel society. Fourier's thought was considered by them as wanting in greatness and as impossible of practical application. One man only, de Lamartine, in an article previous to 1844, admitted, with certain reservations, and in extreme cases, the right to labor. He had at first said, with eloquent logic, "There is no other organization of labor but its freedom, there is no other distribution of wages but that made by labor itself, remunerating itself according to its work and judging itself with an impartiality impossible to your arbitrary systems. The free will of labor in the producer, in the consumer and in the workman is as sacred as the free will of the conscience in man: touching one, you kill action; touching the other, you kill morality. The best governments are those which let it alone. Every time that it has been tampered with, an industrial catastrophe has stricken at the same time government, capitalists and working men. The law which governs them is invisible; it vanishes under the hand the moment we try to write it down." This law, on the contrary, is plainly visible; with a little attention any one can read it written in facts in brilliant characters It is the relation of supply to demand. The rate of wages regulates itself invincibly by the scarcity or abundance of labor. There is no power on earth that can raise the price of labor when unoccupied workmen throng the doors of the shops, or can lower or depress it when work presses, or the workmen are few. But after recognizing this law, although declaring it invisible, de Lamartine adds, "To sum up, we wish society to recognize the right to labor in extreme cases and under definite conditions." And the poet-economist does not see that the right to labor, which he admits, would lead surely to the organization of labor, which he had just opposed.

—Revolutions oblige men to be logical: they neither haggle over the application of theories, nor recoil from their consequences. In spite of a government which brought together weak conservatives and tribunes frightened at their own boldness, the revolution of February, 1848, proclaimed the right to labor. Feb. 26, the following decree was posted upon the walls of the capital: "The provisional government of the French republic guarantees the subsistence of the workman by labor. It agrees to guarantee labor to all citizens. It recognizes the fact that working men should associate themselves together, in order to enjoy the legitimate profit of their labor." That decree, M. Louis Blanc himself admits, was forced upon the provisional government. "Entering rudely," says he, "into the council chamber, and making his gunstock ring upon the floor, a workman came with sparkling eye and pale brow to demand in the name of the people recognition of the right to labor." This working man, in whose person M. Louis Blanc sees the incarnation of the people, was, not to wrong him, but the instrument of some member of the government who wished to force his colleagues to do what he desired. This was soon apparent from the docility with which the impulse from without was received and obeyed to the end. "Indeed, thousands of laborers," it is still M. Louis Blanc who speaks. "still black with the grime of the barricades, having filled the Place de Gréte with standards on which you could have read, Organization du travail, the organization of labor was decreed." The right to labor has produced thus historically its natural consequences. "Considering," says the decree of Feb. 28, "that revolution made by the people should be made for them; that it is time to put an end to the long and miquitous sufferings of working men; that the question of labor is of the highest importance; that there is none higher or more worthy the attention of a republican government; that it belongs particularly to France to study intently and to solve a problem had to-day before all the industrial nations of Europe; and that we must try, without any delay, to guarantee to the people the legitimate fruits of their labor—the provisional government of the republic resolves: That a permanent committee, which shall be called the committee of the government for the working man, shall be appointed with the express and peculiar mission of caring for their lot, * *."

—Here, then, is the system of the right to labor bound by law, to support all the fruit it could produce. The provisional government placed it under the shelter of the state, charged one of its members with its organization, and devoted to this end, or left at its disposition, the forces of the mob as well as that of the government. M. Louis Blanc was absolute master: what use did he make of this dictatorship? In order to give labor a new organization he commenced by making breaches in the organization which had existed from the earliest development of industry. A hateful rivalry, sown between masters and workers, by the inflammatory influence which came from Luxemburg. soon rendered discipline in shops, and, by a natural sequence, labor, impossible. The progress of industry had substituted, in a great many factories, as a measure of wages, a days task or work. The dictators of February could not pardon this method whose equity was in keeping with all interests concerned. They abolished the task or job. Master and workmen were forbidden free discussion of the conditions of wages. Soon the intervention of the state was pushed still farther. After having dictated to master and workman the manner in which labor must be carried on and paid, they wished to regulate its duration. A decree decided that the day's work should be but ten hours in every branch of industry and throughout the whole of France. Finally, after having misled the workmen, throttled the contractors, and frightened the capitalists, they talked of the state's appropriating manufactures. "To managers," said M. Louis Blanc, "who, finding themselves to-day in a failing condition, come and say to us, 'Let the state take our establishments and put itself in our places,' we reply, the state consents to do so. You shall be abundantly indemnified. But as this indemnity, which is your due, can not be taken from present resources, which would not be sufficient, it will be required of future resources. The state will give you notes, bearing interest, secured by the value of the ceded establishments, and redeemable by annuities or liquidation." The plans of M. Louis Blanc, we know but too well. were not an ephemeral inspiration. The provisional government followed up the execution of them, until they themselves made shipwreck and placed social order itself in peril. It desired to bring under the dominion of the state the large establishments of credit and labor, the banks, the insurance companies, and the railroads. Some were sequestered; others, stricken with a bottomless depreciation, awaited as a favor, derisive indemnity. The state commenced by becoming common carrier and insurer, and later became itself a producer. But as credit and money were both wanting, to pay, even at the lowest price, for all that they desired to take, it became necessary to allow those shops to close which had been disorganized. Manufacturers stopping, the workmen, whose hands were no longer busy, and to whom subsistence by work had been guaranteed, asked, amid loud cries, that this blockade of labor should be relieved. The government, which had disorganized ordinary works, saw itself under the necessity of organizing extraordinary ones.

—The Luxemburg conferences brought about, as a direct and immediate, consequence, the opening of the government workshops. M. Louis Blane need not have protested and traced back to another member of the government the thought of this outrageous creation. What difference did it make whether he had or had not signed the decree, if he had made it inevitable? I know that M. Louis Blanc imagined that he could have carried on, by the workmen of each trade, the industries from which he banished capital, and the management which was their soul. But without orders, capital holding back, and tried skill banished from them, how could factories run? To take away the director and the motive power from a factory, is to close it. Society would not know how, in any case, to improvise resources and management for all industries. Work stopping in the shops, and the dictator at Luxemburg unable to start it again where it had stopped, it became necessary in order to fulfill the guarantee given by the government, to open shops, whether useful or not, which were like a general refuge for all unemployed hands, and, to use the language of de Lamartine, a relief dépôt for the people of Paris. Indeed, all the theories of official communism were practiced there, commencing with equality of wages. All professions were placed on the same level. Labor, claimed as a right, was nowhere considered as a duty. The liberal alms given to this army of factious beggars, absorbed and exhausted rapidly the substance of society. The yards employing mechanics of the various kinds, which had gathered together hardly 6,000 men in March, 1848, had collected 87,942 just previous to the events of June. Recognition of the right to labor had brought about the conferences of Luxemburg. The conferences of Luxemburg had brought forth this great strike which found shelter and expression in the national shops. National workshops were destined to produce, and did produce, social war.

—This, then, is the result of the right to labor practically tested. Can we believe that a great assembly found it necessary to discuss it after an experience so full and decisive? Ought not the history of this heresy, in subjects connected with social economy, to have been closed after the bloody days of June? And what manifestation could have enlightened those who were unable to read the truth by the lightning flashes of such a storm? The first draft of the constitution read by Marrast from the tribune June 2, 1848, only a few days before the mob howled in the streets of the capital, asserted, in the most explicit manner, the decrees of the provisional government and the doctrines of Luxemburg. Article 7 read: "The right to labor is the right of every man to live by working. Society ought, by all productive and benevolent means at her disposal, and by those which will be subsequently organized, to furnish labor to able-bodied men who can not procure it in any other way"; and farther on, at article 9: "The right to assistance is that which belongs to foundlings, to the weak and to the aged, of receiving from the state the means of subsistence." After these articles which fixed the principles, article 132 indicated the means of application. "The main guarantees of the right to labor are liberty of labor itself, freedom to form labor associations, equality of relations between master and workman, free instruction, professional education, savings and other banks, and the establishment, by the state, of great works of public utility, to provide labor, in case of a stoppage of work, for unoccupied hands." The constitutional commission proclaimed at the same time the right to education, the right to labor and the right to assistance by the state. Society was thus about to substitute its own action and responsibility for those of the individual and the family. It took charge of man from the cradle to the grave, caring on the way for all his necessities from education to wages, opening, in a word, to all human beings, according to age, the cradle, the asylum, the school, the workshop and the hospital. These different formulæ, submitted to the examination of the bureaus, after the events of June, did not meet with that general reprobation which the indignation of the country led one to expect. Eight out of fifteen bureaus admitted the right to labor. The constitutional committee, warned by public opinion, and defeated in the preliminary debates in which the delegates of the bureaus engaged before them, thought best to modify their first draft. But at the same time they explained this forced retreat as a purely formal concession. "This formula (the right to labor)," said M. Armand Marrast, "seemed equivocal and perilous; it was feared that it would put a premium on idleness and dissipation; it was feared that legions of working men, giving to this right an extent it did not have, would consider it a right to insurrection. To these important objections is added another, more important still. If the state agrees to furnish labor to all those who have none, from one cause or another, it must give to each the kind of work to which he is adapted. So the state will become manufacturer, merchant, wholesale and retail producer. Charged with the satisfaction of all wants, it must have the monopoly of all industries. Such are the great evils which have been seen in our formula of the right to labor, and since it might lend itself to a construction so contrary to our own thought, we have wished to make the thought more clear and precise by replacing the right of the individual by the duty imposed upon society. The form is changed, but the substance remains the same."

—M. Marrast was right; the changes made did not touch the substance of things. The second draft, like the first, gave to the individual a claim against society. Here is Art. VIII. of the preamble in the edition of Aug. 29: "Society ought to protect the citizen in his person, his family, his religion, his property, his labor, and bring the education indispensable to all within the reach of all. It owes subsistence to needy citizens. either by procuring work for them to the extent of its resources, or by giving the means of subsistence to those whose families fail to provide such means for them, and who are not in a condition to work." The earnest and brilliant debate which arose before the constituent assembly did not bear upon even the text of the commission. M. Mathieu (department of Drôme) took care to furnish a field more vast by proposing the following: "The republic recognizes the right of all citizens to education, labor and assistance." When we read this discussion we remark, as its characteristic trait, a certain timidity of reasoning which did not allow the orators to come to definite conclusions. For instance, M. Mathieu (of Drôme) defends his having wished to restore the first draft of the bill, and he makes an effort to weaken the force of his amendment, by explaining that he recognized the right, but did not guarantee its operation. As if the recognition of this pretended right did not confer upon the individual the right to hold society legally responsible for its violation. M. Lédru-Rollin, who came next, gave it to be understood that there was question only of a verbal concession, a purely ideal theory. "When you do grant the right to labor, you will not be obliged to enforce it at once." Finally, de Lamartine reduced the right to labor to a question of charity, and wished that the moral zone, to use his own expression, might penetrate the legal zone. The adversaries of the right to labor, on the other hand, confined themselves to opposing the amendment of M. Mathieu (from Drôme). They reject a too explicit form, without going farther with their opposition. M. Duvergier de Hauranne accepted the draft of the commission. M. Thiers wished the state in certain cases to undertake public works, with the object of furnishing labor to the unemployed. M. Dufaure, refusing to recognize in the individual the right to demand work, imposed upon society the duty of furnishing him work or the means of subsistence. So much logic and eloquence displayed to end only in a change of words! Discussion, thus carried on on both sides, necessarily degenerated into a useless passage of arms.

—Taking advantage of the situation, at the last moment M. Glais-Bizoin weakened by a new draft the amendment of M. Mathieu (from Drôme). The right to subsistence replaced the right to labor. The subamendment was expressed in this way: "The republic recognizes the right of every citizen to existence by labor, and the right to assistance." It is proper to notice, in the interest of history, that the constituent assembly, appointed under the influence and so to speak under the threat of February, gave only 187 votes out of 783 voters to the draft of M. Glais-Bizoin. But immediately afterward, and as if it feared to have done too much, it adopted the motion of M. Dufaure himself, which had for its object "to bring into greater prominence the idea that society ought to insure subsistence to needy citizens" Here is the text of that draft which became the second paragraph of Art. VIII. of the preamble in the constitution which governed, during three years, the destinies of France: "It [the republic] ought by fraternal assistance to insure the subsistence of its needy citizens, either by procuring work for them within the limits of its resources, or in giving assistance, their families failing to give it, to those who are unable to work." We have just indicated the place occupied by the right to labor in the French parliamentary debates. After this historical statement of the facts, it remains for us to examine the theory.

—The theorists who uphold the right to labor, take, voluntarily or unwittingly. for their starting point, the sophism of Rousseau: "Everything is good when it leaves the hands of the Creator; everything degenerates in the hands of man." They suppose a state of nature existing antecedent to that of society, and a contract, by which men established social order, and reserved certain rights inherent in and essential to existence. This contract is a pure fiction. There is nothing prior to, nothing higher than, society, because outside of society the existence of man is impossible. The social scale has an infinite number of degrees, from the savage state to that of the most advanced civilization. But the exploration of the globe has shown that in no country have man and the family struggled in a state of isolation to satisfy their wants or to develop their powers; that the tribes the least polished and the most wretched had a language, traditions, principles and a government. Man and society have the same date as well as the same origin. Man can not develop himself except in the bosom of society. He brings to it nothing but the germs of his faculties, and receives everything from it. His rights flow from the same principle as his duties. The individual finds in the rights of others the limit of his own and their guarantee in the duties which are imposed on each one of his fellows. Rights, like duties, are but the expression of the relations which the social state. which destiny here below, produces among men. The individual then could not reserve, at the moment when society took him up, a pretended right to existence. He comes into it weak and naked, supported by the family and protected by the state, until he has learned to take care of himself. Arrived at the age of manhood, he sees the limits of his rights extended, and his own powers grow greater in proportion as the power of society itself increases. Enlightenment, liberty, wealth, are so many steps in the progress of the social state, in which every member of society shares. As to existence, it is all the better guaranteed to individuals in proportion as the community is wealthier, more enlightened and stronger. Take for example a hunting or even a pastoral people, who, to live, need immense tracts of land. Famine, against which they struggle painfully all their days, often carries off whole tribes. In a less imperfect state of civilization, that of the middle ages in Europe, notwithstanding the bounty of the monasteries, the difficulty of communication as well as the absence of commerce and industry, rendered a deficit, however small, in the harvests, fatal to the population of serfs. In the eighteenth century the memory of these frightful calamities still weighed so heavily on the public spirit that Turgot had to perform prodigies in order that freedom might again be given to trade in grain through the interior of France. In our days, on the contrary, human foresight has inexhaustible treasures to repair such disasters. Trade carries the cereals from the country which has reaped a superabundant harvest to those which the inclemency of the weather has stricken with temporary sterility. Industry in turn redoubles its activity to pay for the produce of the soil with the products of the factory. In a word, famine is henceforth, for the civilized people of Europe, but an accident, which serves to test the strength and excellence of European institutions. In 1847, although the deficit of the harvest was at least a fifth, and although a hectolitre of wheat was worth fifty-three francs, that is, three to four times its normal price, not an individual died of hunger in France.

—It seems, then, idle enough to try to find what the rights of an individual to existence in society may be, when we see that the advance of society has the effect of overcoming the difficulties and of multiplying and making general the means of living. What is the use of examining whether there be such a thing as the right to labor, when the freedom of labor is fully guaranteed, and when each enjoys the fruit of his own labor without question or reservation? Finally, of what interest is it to discuss the right to assistance, another form of that claim which the socialists wish to give to man against society, in a time when the foresight of public authority, more watchful and more humane than it has ever been, is studious to repair the accidents of fortune, without weakening prudence and without checking individual activity? Notwithstanding the world as it is is ignored that men may have a pretext to take refuge in an ideal world, society is divided into two classes, those who have and those who have not. A weapon is placed in the hands of both these classes, as if thus equilibrium between them could be produced. The right of labor is arrayed against the right of property. The most subtle and most complete expression of this theory is found in the writings of M. Considérant, whom we have already noticed, and whose conclusions were advocated from the tribune by M. Lédru Rollin. The following are its principal features: "The human species is placed upon the earth to live and develop there; the species is therefore the usufructuary of the surface of the globe. But by the property system of all civilized nations, land, to which the whole species has a usufructuary right, has been confiscated by the few, to the exclusion of the many. Were there, in fact, but one man excluded from his right as usufruct of the land by the nature of the property system, this exclusion alone would constitute a violation of right, and the property system which upheld it would certainly be unjust and illegitimate. The savage, in the midst of the forests and plains, enjoys the four natural rights of the chase, of fishing, of the picking of fruit, etc., and of pasture. This is the first form of right. In all civilized societies the proletarian inherits nothing and possesses nothing, is purely and simply stripped of his rights. We can not say, then, that here the primitive state has changed in form, since it no longer exists. The form has disappeared with the substance. Now, under what shape could the right be reconciled to the conditions of industrial society? The answer is easy. In the savage state, to avail himself of his right, man is obliged to act. The labors incident to hunting, fishing, the picking of fruit, etc., or pasture, are the conditions of the exercise of his right. Primitive right is, therefore. only the right to these labors. Now, let an industrial society, which has taken possession of the land, and which has taken from man the power of exercising anywhere and in freedom, upon the face of the earth, his four natural rights; let this society recognize in the individual, as compensation for the rights of which it has stripped him, the right to labor; this done, the individual has no right to complain. In fact, his primitive right was the right to labor exercised in a poor workshop, surrounded by brute nature. His present right would be the same right exercised in a shop better provided and richer, where individual activity ought to be more productive. The sine qua non of the legitimacy of property is, therefore, that society should recognize in the proletarian the right to labor, and that it should assure him at least such means of subsistence for a given amount of action, as such an amount could have procured for him in the primitive state. But has the workman, to-day, who has no work, the right to go and say to the mayor of his commune, the prefect of his department, or any other representative of society, 'There is no longer work for me at the shop where I was engaged,' or 'Wages have become so low that I can't live on them. I come, therefore, to demand work of you. at such a rate of wages that my lot may be preferable to that of the savage in the forests'? Not only is this right not recognized, not only is it not guaranteed by social institutions, but society says to the proletarian, despoiled by it of the first of his most sacred rights, of his right of usufruct in the land; it says to him: 'Find work if you can, and if you can not find it, die of hunger, but respect the property of others.' Society pushes its derision to the point of declaring guilty the man who can find no work, who can not find the means of living. Every day we throw into prison unfortunates, guilty of begging or of vagrancy, that is, guilty of having neither means nor refuge, nor the way of procuring either. The régime of property in all civilized nations is then unjust in the highest degree; it is founded on conquest, upon the taking possession, which is but permanent usurpation as long as an equivalent for their natural rights is not given to those who in fact are excluded from the use of the soil. This régime is, besides, extremely dangerous, because in nations where industry, wealth and luxury are very much developed, the proletarian can not fail sooner or later to take advantage of this spoliation to disturb society." M. Thiers ridiculed this beautiful theory, when he asked if the insurgents of June, whom they were transporting to Madagascar or to Guiana, that is, to countries in which the four pretended primitive rights—fishing, hunting, the gathering of the fruits of the earth, and pasture—are reputed to exist, rights which they say have perished in civilized society, would esteem themselves happy to return to the savage state, or if, on the contrary, they would not accuse of barbarity the power which thus imposed exile upon them. We can say as much of laborers who rejoice in their liberty and who expect their subsistence to come from labor. The most unfortunate among them would not change his lot with that of the Ojibbeways or Osages. This proves, at least, that if society has stripped man of some right, held from nature, she has given him in return gifts of a greater value. A primitive, natural right is something which belongs not to one man, not to a generation, not even to a people, but to all nations, to each generation and to every individual. More than this, the rights truly natural to man are those which the progress of civilization makes easy and develops the use of, such as the liberty of thought and that of industry. Generations, in their course through history, do not transmit to those which succeed them either fictions of chimeras. We find the abolition of the right of property which the school of Fourier imagines, nowhere recorded by tradition. Has the earth, indeed, ever existed in that state of primitive capital, independent of all value created by the labor of man? Is this not a purely abstract proposition. conceived by the mind outside the data of reason and the realities of history? Who can teach us how far civilization dates back in time? Is there in the inhabited portion of the globe a spot of earth which has no trace of man, or which in some age or other his sweat has not made fertile? In order that every individual, at birth, should be virtually invested with the right of usufruct to the earth, of the right, represented, according to M. Considérant, by the power to fish and hunt, to gather the fruits of the earth and to pasture herds, the earth would have had to support, in its primitive state, which the disciples of Fourier imagine, under the form of tribes of fishers and hunters, not alone a small number of individuals scattered over immense tracts like the Indians of America, but nations as thickly settled as are those of France and of England. But we all know that in a nomadic state a large area of country is necessary for the support of one man, while, in countries which have reached a high degree of culture, the same territory will support from 1,500 to 2,000 inhabitants. What then is a right which can be exercised only in the wilderness, and in virtue of which that which is hardly sufficient to maintain one man should be bequeathed to his descendants to be shared among a thousand, two thousand, or divided into as many parts as the fecundity of the human race, as it grows, can make of it? There exists no natural right to the possession of the land in its natural state. Land belongs rightly to the person who appropriates it to himself by his labor. Labor creates property; it creates it by leaving on things the impress of man. It is human activity applied to natural forces which gives birth to capital. Here then, in the order of immovable property, is the real source of wealth. Hunting, fishing, and the other processes of the savage state, are at best but imperfect and ephemeral means of appropriation. They already suppose some action of man upon nature; this is the beginning of labor in society. Nomadic tribes divide the land among themselves; each tribe has its own territory, which thus belongs to the whole community, before it is distributed to families and individuals. Later, cultivation of the soil comes, and with it inheritance. The more value man gives to the soil, the deeper does property, as it develops, strike its roots. In the hands of the cultivator of the soil land becomes capital. Man draws this capital in a sense from himself, because capital is only an accumulation of labor. He has therefore a just right to the possession of what he has produced, and of what his fathers produced before him. Immovable capital, like movable capital, is produced by human activity; to give them another origin is to introduce a fable in the place of facts. What we should say, what is true, is that we ought not to consider property as a purely individual fact. The influence and power of society clearly cooperate, in its formation, with the action and the labor of man. Society is, in the hands of the individual, like a lever, with the assistance of which he lifts and removes burdens whose weight, without that help, would exceed his strength. Public power protects him, gives him that security which is the first implement of labor, and without which labor would be impossible. He can draw from the common fund of tradition and knowledge. Finally, he has an interest in producing, only because society opens up a market for his produce.

—The right of property is then at the same time individual and social. Property is legitimately held and transmitted only on condition of paying tribute to the state, in the form of a tax. By the same title, in countries where vast tracts remain to be cleared up, the state fixes a price at which it makes concession of land, because these tracts have already a value given them by their nearness to civilization and the guardianship exercised by power. As private property is consolidated and extended, we see the public domain—that is, undivided property, the patrimony of the entire people, the wealth common to all and which every one can enjoy at any time—grow. Means of communication and transportation increase; the police, public works, schools, libraries, monuments, all unite to render existence surer, easier and more agreeable. Each one has in reality his part in this common treasure which is not exhausted, which rather grows, and of which the state is but the dispenser for general use. No longer either privileged persons, or pariahs, and, whatever any one may say, no longer any proletarians. Every one has the right of citizenship, which is far better than the right to labor. Thus, civilization gives to the individual far more of common property that it could have taken from him of private property. Let us add, that in modern society the proprietor does not possess for himself alone. Property resembles those trees whose every branch, reaching the limit of its growth, drops to the earth again, is planted, and pushes out new shoots around it. Property produces and multiplies property. It makes capital, the instrument of labor, more and more accessible from day to day. It grafts industry upon agriculture, commerce upon industry, and credit upon commerce. This spreading of wealth makes, for acquiring and possessing, the barbarous process of confiscation, spoliation and war unnecessary. Wages wait upon labor; from wages come savings, and savings find the market of property always open. In the system of M. Considérant and of Fourier landed property would alone be under obligations, and would be exclusively burdened with the right of usufruct in the soil; for this theory leaves out personal property, a new world, which equals, if it does not exceed, the value of landed property. Personal property would thus obtain a privilege impossible to explain, and would owe nothing to society from which it receives the same protection. Principles which admit of such exceptions are not principles. No; society can not hope to buy of individuals the property which is the very condition of order. The right of property can not have for corollary, counterpoise, nor for an offset, the right to labor.

—It remains for us to show that the right to labor is the negation of the right of property, and that we can not admit the former without destroying the latter, as M. Prudhon himself admitted. We know that the author of "Economic Contradictions." the man who invented or renewed that hateful paradox, "Property is robbery," said one day to the committee on finance of 1848, in an outburst of frankness, "Give me the right to labor, and I abandon to you the right of property." The right to labor differs essentially, as M. Dufaure has noticed, from the various rights the free exercise of which it is the object of the constitutions of all countries to protect and guarantee. All these rights, in fact, are inherent in man; every individual can exercise and develop them in the sphere of his personal activity; it is a power he does not borrow, but which he draws, on the contrary, from himself, and which he only asks society to cause to be respected in him. Liberty to think, liberty to write, liberty to work and to possess, are in this condition. The right to labor, that socialistic claim, must not be confounded with the right of working, that possession of every man, of which Turgot has rightly said that it is the highest, the most sacred, the most indefeasible of all. The right of working is nothing but the freedom which belongs to every individual, of employing his reason, his hands, his time, in the manner he deems most profitable; while the right to labor, as we have already shown, is a claim given to the individual against society as a whole, or against a portion of it. In the right to labor are at the same time a right and an obligation created. It implies, between the individual and society, a contract, by whose terms society owes subsistence to each of its members—a contract not reciprocal, and which would hold but one of the parties. For while the state would have to furnish individuals, on demand, means of labor and of living by labor, it would not be armed with power of compelling them to seek by labor their usual subsistence; thus would the superiority of personal right over social right be proclaimed. The individual would become the master, the tyrant, and society the servant, the slave.

—M. Dufaure has not said too much. The right to labor is a species of servitude which is imposed on the whole community, in the interest of few or many, who would be tempted to avail themselves of it. Admitting this claim of the individual against society necessarily brings two interests face to face, and exposes them to a struggle. Suppose that society resists, the result is a battle. There is on both sides a call to arms, recourse to force is had to interpret the right. The rioters of Lyons, in 1832, blazoned on their banner this device of despair, "Live working or die fighting." Article 8 of the draft of the constitution reproduced only the first portion of the popular credo, events have brought the latter part to light; neither logic nor the force of circumstances permits of their separation. When we give a right or cause of action to individuals against society, we encourage and even justify revolt. We raise again the standard of Spartacus; we raise it in the midst of a people who know neither the separation of castes nor the difference of ranks; we proclaim civil war between members of the same political family, between equals, between brothers. Let us suppose, on the contrary, that society submits, and, accepting the right to labor, is ready to accept all the practical consequences of the principle. Let us see whither this would lead. To decree the right to labor is to make the state a purveyor for all, assurer of all fortunes and entrepreneur of all, industries. The right to labor is the right to capital, the right to wages, the right to competency; it is, in a word, the most extensive right with which individuals can be armed against the public treasury. When we go to the bottom of such a system, division of property seems a thousandfold preferable, because a community of wealth places at least on the same level the man who possesses and the man who does not; it takes, for the poor, only from the rich. and limits itself to making a new division of capital and existing incomes. The right to labor goes far beyond this; it is a seizure not only of that which is now, but of that which may be; it is not only the community of acquired wealth, but of producing power, perpetual servitude imposed upon the heads of society, in the interest of the numerous proletarians which society takes into her employ.

—The right to labor, as I have said elsewhere, implies the permanent existence and the unlimited power of production, whatever the circumstances may be, or whatever the organization of society. What value then should a principle have which is outside the limit of possibility? A social state does not exist which assures permanence or regularity of production. Let a commercial crisis come on, or some check to consumption, making the supply greater than the demand, and you will see a certain number of shops close entirely or diminish in activity. Industry, like the solar year, has its seasons; and the harvest of labor, like that of the fruits of the earth, has years of sterility as well as years of abundance. The foresight of man holds in reserve for these difficult times capital accumulated by saving, but it does not give at will impulse to the power which produces; nor does it create labor with the wave of its wand. Man can always employ his intelligence and his hands; but motion is a different thing from labor. Labor is the useful employment of forces; it is recognized by its products. To effect production at will one must be able to enlarge and contract the limits of consumption, because the most necessary products receive their value from the use which is made of them. Of what use would it be, for example, to gather quantities of grain or herds of cattle into a deserted city? And of what use would the wealth of Mexico be under circumstances in which a kilogram of silver would not procure an ounce of bread? If the troubles would stop when one had said that the workmen had a right to labor, the prescription would be simple. The state would only have to furnish funds to workshops which were about to stop, and to give orders to manufacturers to produce. But manufacturing is not all. We must find buyers for the merchandise which we create, so as not to add to the glut of the market. Production should not be increased at just the moment that the market is closed or diminished. To add in such a case to the amount of products is to depreciate them. To allay the sufferings of the present, we thus add new embarrassment to the near future.

—Socialists start from another supposition, which is not less extravagant than the first. They establish a dualism between the individual and society, instead of considering society as a union of all forces, and as the aggregate of all intellects. They make it a creature of the mind, a power apart, a fanciful person, a kind of fairy which has hidden treasures and faculties without limit. All then demand different things and more than they bring with them into the community. According to the socialistic ideal, the state always gives and never receives. Socialists refuse to understand that the state is only rich by individual wealth; that it produces only by the labor of each and every one; and finally, that its power is the result of a number and concert of wills. In a word, they forget that if the social tree bears leaves and fruit it is because it strikes its roots into the soil, and draws thence nourishing sap. Let us, nevertheless, take the right to labor as the natural right of every man who possesses nothing. Let us admit. for an instant, the fiction which invests the state with a chimerical omnipotence: how will it fulfill the obligations with which it is weighed down? This system desires that every individual who does not find employment for his intelligence or his hands. or to whom the employment which he has found does not suffice to give means of living, shall be allowed to ask from the government the work which he can not find, or a lucrative employment in the place of his labor which produces little. Thus the state would have to employ all unoccupied workmen, and make up for the insufficiency of wages. It would have to make up for a lack of demand in the market, and undertake to furnish the instruments of labor. In the social organization of France. when a prolonged stoppage occurs in manufactures, or when there are too many agricultural laborers, then, and only in extreme cases, the state and the communes open charity shops. They call upon the poor to macadamize the roads. All property owners bleed themselves to pay these workmen by their accumulated contributions. But under the system of the right to labor, things could not go on in this way. The workman armed with his absolute title, would not be content with the labor society had chosen and allotted for him. He would demand the work for which he thought himself fit, and require the most abundant remuneration. He would wish to follow his profession under the most favorable conditions: and determining the kind of employment, he would also fix the return for it. He would inform himself neither of the condition of the markets nor of the treasury. The wages that would be coming to him, a sum due to him by the state, would preserve an unvarying level. Thus the right to labor would lead to the complete exhaustion of property. This servitude would have no other end but ruin.

—In his admirable discourse upon the right to labor. M. Thiers incidentally gave an opinion with which socialists can arm themselves against him, and which is astonishing, emanating, as it did, from a mind so eminently practical. He admitted that the state holds in reserve for moments of stoppage or times of crisis, independent of great public works, a certain number of orders to distribute to industry. This would not be good, and seems hardly possible. A state, like all other consumers, buys and produces only as the wants of consumption become apparent. Its disbursements are annual, like its revenue, and it apportions them according to its political necessities. In the system marked out by M. Thiers it would reserve the progress of works and the bulk of the apportionments for calamitous times, which might not coincide with the greatest needs of the service. It might order, for example, the cloth and the linen to clothe a million soldiers, when it had not a hundred thousand men in arms. It would thus heap up in the state merchandise which would represent a large amount of capital, and it would be exposed to the danger of losing this capital through many years. It would be the same with public works. In order to develop them in times of crisis, states would have to support, during periods of prosperity, a numerous staff, to double and treble the size of the list of their officers. They would have to create, in the first place, sinecures, from which they might draw the elements of active service. when times were bad. I know of no system less national or in any way more fatal to the finances. But the gravest side to this experience is, that one would call upon the state to make its greatest effort and its greatest sacrifices under circumstances in which its resources would diminish with those of individuals. Men would place it under obligation to add one or two hundred millions to public disbursements at the very moment when the returns from direct taxation would be reduced, and when, even by paying a high rate of interest, it would be impossible to borrow. In a word, to use an expression of M. Thiers, they would ask for the largesses of the rich for a treasury which would be only the treasury of the poor.

—The right to labor carries with it the organization of labor. There is not room in a free society, and one which belongs to itself, for a proletarian aristocracy. As long as capital and property count for anything, they will protest against the chains with which socialists try to bind them. The ramparts of civilization must therefore be demolished to introduce this weapon of war. Social order must be transformed. Liberty must give place to monopoly; the action of individuals to that of the state. No more property, no more inheritance. The state must own everything, must produce everything, must distribute everything. The state must supply labor, and divide the wealth produced. The right to labor has neither sense nor value if it does not mean that every individual applying to the state to obtain employment has a right to the kind of employment for which he is best fitted; that the tiller can demand that he be given a plow to drive and land to cultivate; that the tailor shall receive orders for clothing; that the mechanician be asked to build a locomotive; that the painter be ordered to decorate palaces or churches; that the historian shall find hearers for his lessons, or readers for his writings. This supposes that the state has all rights and all power. It means that the government is the master, to regulate as it sees fit, or as the crowd sees fit for it, production and consumption, the loan of capital, the hours of labor, and the rate of wages; that in society there is no landed owner, no capitalist, no industrial and commercial manager, but the state. To have the right to labor is to have the right to wages, to wages which assure the subsistence of the workman; and as the needs of subsistence ("to each one according to his needs," said Louis Blane) vary with situations and individuals, it is having the right to wages which the laborer determines himself. Under the rule of industrial freedom no person has the right to fix the rate of wages, which follow the fluctuations of the market, and obey a law superior to the will of the employer as well as that of the employed.

—To have a right to labor is to have a right to the instruments of labor to capital and credit. The army of laborers can not do without officers to lead them, any more than the army of soldiers. These officers are produced with the freedom of industry. They are the capitalists, manufacturers, inventors, contractors, head clerks, officers. They obtain these posts through merit, or through services rendered, or because of their experience. But from the moment that the individual has the absolute right to demand employment in his own sphere of aptitude, he can also demand that he shall be placed in those conditions which are most favorable to bring his intelligence and power into play. We thus see that the right to labor in individuals supposes necessarily the monopoly of labor in the hands of the state. We go back to the childhood of society. This system treats emancipated man, man arrived at the age of liberty, of strength and of enlightenment, in the same way that man in the age of ignorance consented to be treated, by the powers which placed him under guardianship. It is a question of overturning all the processes by the aid of which civilization has progressed in the world up to the present time. This necessary consequence of the system, admitted by the most frank defenders of the right to labor, has been contested by those whom I will call neophytes ashamed of socialism. They have held, that society interfered even now in questions of labor, that this interference was legitimate, and that, having already taken upon itself to guarantee to a certain extent the profits of the capitalist, the government might, with greater reason, guarantee the workman his wages "I do not speak to you," said M. Billault, in the session of Sept. 15, 1848. "of the irregular and transitory interventions, which in trying moments weigh upon the treasury, upon the government, and end in national workshops, in riots, or in aid more or less happily distributed. It is something more normal, more permanent, which I wish you to notice. The authority of society is engaged in such a manner in all combinations of national labor that there is not a single point at which it does not touch it. It is society itself, which by these customs tariffs, by their prohibitions, differential duties, subsidies, combinations of every kind, supports, retards or advances all the combinations of national labor. It not only holds the balance between French labor, which it protects, and foreign labor; but at home the diverse industries see it often and unceasingly interfere among themselves. Listen to the perpetual claims made by one against the other before its tribunal. See, for example, the industries which use iron complaining of the protection accorded to French iron against foreign iron, those which use linen or cotton thread protesting against the protection accorded to home manufacture against the introduction of foreign thread; and so on with others. Society, therefore, thus finds itself obliged to mingle in all the struggles, in all the embarrassments of labor. It interferes in them actively every day, directly or indirectly; and the first time that you have to consider a question of customs, you will see that you will be forced, willingly or unwillingly, to take the part yourselves of all interests." M. Bastiat has pointed out the identity of tendency which exists between the protective system and communism. Indeed, protection, by means of a tariff, is a guarantee that the state, in the name of society, gives to certain industries, against similar foreign industries; and the moment this principle is admitted, all branches of national labor can claim the same assistance. If the state guarantees a minimum of profit to the capitalist, it is not easy to see why it should refuse a minimum of wages to the workman. Protection should extend to all producers under pain of degenerating into injustice. Even under this hypothesis it sacrifices consumers to producers. The state builds up the fortune and insures the well-being of one class of citizens at the expense of other classes. It takes what it gives to certain ones from the pockets of all. This is the right to labor recognized by way of a guarantee. It is the organization of labor under the form of partnership. It is indirect communism, but, after all, it is communism. Advocates of protection have nothing to urge against the theory of the right to labor. All privileges grow one from another. Only those are in a position to combat the arguments of socialists who hold that the protective system is an economic heresy, and industrial privilege an evil. Let us, however, exaggerate nothing. Protection is not a new phenomenon. It has a tendency to diminish.

—Outside of the organization of labor, which is absurd and would be impossible in any case, the right to labor becomes a simple right to assistance. In this attenuated and at the same time unreasonable form. it is recognized in France by solemn vote. The constitution of 1848 is no longer of authority in the country, but the errors which it accredited and sanctioned still remain. Right is something certain, and power something uncertain. There is boldness in attempting to establish a direct relation between these two terms in the social order. Society will do nothing which Providence has not willed. God has permitted suffering and misery in this life. The best ordered state will not be able to suppress them. Progress of well-being is incontestable. It has grown, it will grow; and our efforts should tend to augment it still more. But let us not dream of an age of gold. Society should, as far as its resources allow, and within the limits authorized by wisdom, come to the assistance of unfortunate individuals; because individual foresight does not exclude the foresight of all. We must be careful, however, not to convert the duty of society into a right of the individual. If you say that all those who have reason to complain of their lot have the right to draw assistance from a common fund, you recognize that they may call society to account. You legitimize and even preach revolt. The right to assistance must invariably lead in the long run to the demoralization of individuals, and the weakening and ruin of the state. The law of Elizabeth proclaimed this right as we have already shown—the law which gave birth to the poor tax. The poor tax in England was intelligible. It represents a priori the equivalent of spoliation exercised by the rich against the poor, by the Norman against the Saxon, and that upon the largest scale. The aristocracy divided the land by right of conquest, and confiscated to its own exclusive advantage the public wealth and the wealth of the churches. Finally. it imposed the burden of taxes upon the laboring classes, and reserved the patronage as well as the lucrative positions of the government for itself. Did it not owe a compensation in return—an indemnification to the people whom it had excluded from all the goods of this world? The poor tax was this indemnity. The evil results of the system are known. In 1832, the time when the excess of the evil had caused an attempt at reform, the support of the poor cost England and Wales more than seven millions sterling a year. A little more increase to this tax, and the revenue of the landed owner, rent, would have been absorbed by it. Yet the poor did not become rich, while they ruined and consumed the wealthy; because misery and degradation were extending insensibly to the whole country. Assistance was given instead of work, or to serve as a supplement to wages. When parishes themselves employed the poor, their labor was a farce. The result was, that, on the one hand, the working men assisted by the parishes, fell into indolent ways and into debauchery, laying upon society the duty of nourishing them, and considering the alms which they received as an acquittal of a debt due to them: on the other hand, that the free laborers and those who wished to owe to labor alone their subsistence, as well as that of their families, having to meet the competition of laborers hired by public charity, saw the rate of wages lower, and found themselves led, against their will, by the insufficiency of the remuneration which they obtained for their daily labor, to solicit the assistance of the parish. Besides, as aid was proportionate to the number of persons in each family, it was to the interest of the family to contract premature and unwise marriages, because their revenue, or rather the prize offered to their inaction, grew with the number of their children. Immorality had no longer a check, because children born outside of wedlock fell to the care of the state. The reform of 1834 gave, as a corrective to the right of assistance, the duty of labor. The administration of public aid was authorized to detain and put to work all able-bodied persons who asked aid. Houses of charity and labor thus became at the same time prisons. The wife was separated from her husband, and the mother from her child. To give to the poor a taste for labor they attempted to disgust them with alms. The prosperity of the country, and the activity of industry coming to their assistance, there was obtained in a few years a considerable saving in the department of public charity. In 1837 the support of the poor, notwithstanding the growth of the population, cost barely four millions sterling. An annual saving of three millions was the result of the reform.

—It is an axiom accepted in England under a government of which property is the essential foundation, that property has duties as well as rights. How far do these duties extend, and what is their nature? Should the owner of property support, nourish, take on himself as a burden the man who has none? Is this an obligation by natural law? a species of servitude attached to wealth? Property would perish under it. We can conceive that in a despotic government the master would be responsible for the slave, and the feudal lord would have to care for the serfs who live upon the manor, because there exists here a sort of reciprocal obligation. The serf has the right to receive support from the proprietor because the proprietor has a right to the labor of the serf; but to emancipate the laborers from the soil in the first place, afterward from the claims of monopoly, and then to by hypothecate property for their subsistence, would be a contradiction. It would be confounding the conditions of liberty with those of slavery. The social bond unites men among themselves in mutual dependence, but in making this dependence too strict, in stretching the chain beyond measure, we risk its breaking. We must not immolate the individual to society, nor a fortiori society to the individual. Let us hold aloof with equal vigilance and equal energy from communism and egotism. Let not charity cease to be a moral duty. but do not make a legal obligation of it. M. Thiers demonstrated that the right to labor once recognized would destroy emulation among laborers; that is, the principle which urges one man to do better than others, and which is the cause of progress, of wealth in individuals. M. Dufaure demonstrated that the right to assistance would destroy human forethought, that is to say, the principle upon which the future of each individual as well as the future of society rests. "When the workman," the eloquent orator said, "shall once have acquired the habit of working as people work for the state for a stipulated salary which he is always certain of drawing, his taste for labor will gradually disappear. He will fall into indolence, idleness, and into all the vices which follow as a consequence. More yet. he will set this example to his children. You will have in the country an aristocracy of indolent families to whom the state will pay salaries; which will grow larger each day, and continue to grow; an aristocracy which, on the one hand, will ruin society, and, on the other, will see little by little its courage decrease, the enervation of all its strength, and the corruption of all its better instincts. The right to labor and the right to assistance are, in the thought of the socialists who use these expressions, but means to change the distribution of wealth. The state has not the capacity to do this. The laws which regulate the distribution of wealth in the social world are above the action of public powers. The state should see that the burdens of society should be equally divided among its members in proportion to their wealth. The state should endeavor to remove the obstacles which shall stop or hinder the development of enlightenment or production; but it should never forget that if it be a collective force, if it represent the association of individuals, it is not their absorption. And after all, what is the end sought for? What is wished to be done? When the right to labor and the right to assistance are proclaimed it is hoped doubtless, by means of this seizure of the accumulated results of production and of capital of every kind, to destroy poverty. An effort may indeed be made to diminish its extent and to moderate its effects, but to go beyond this, is, in way, to condemn providence. Evil exists upon the earth. It is a consequence of human liberty. A man can be deceived in his calculations, neglect his duties, relax his efforts, disregard his true interests. After all his faults, the punishment must appear, and this punishment in this world is, morally speaking, the loss of wealth, and the loss of the esteem of his fellow-citizens. The fear of losing goods so precious is the sole rein which keeps man from utter ruin. The desire to acquire them is the real force which quickens and develops his energy. Progress is born of difficulties. By taking poverty out of the world we would be taking labor out of it, and the law of labor is the very law of existence.

LÉON FAUCHER.

LAISSEZ FAIRE—LAISSEZ PASSER

LAISSEZ FAIRE—LAISSEZ PASSER. These two formulas, which are frequently met with in economic, political, social and socialistic discussions, were invented by the physiocrates. By laissez faire they mean simply let work, and by laissez passer, allow exchange; in other words, the physiocrates demand, by these phrases, the liberty of labor, and the liberty of commerce.

—These two phrases have never been used by economists in any other sense; but the partisans of interference of all forms—socialists, protectionists, administrationists and interventionists—have often pretended to believe that they were the expression of the liberty to do everything, not only in political economy, but in morals, in politics and in religion. Jabard made this same assertion, about half a century ago, in the numerous pamphlets which he published, and even went so far as to assert that by laissez faire and laissez passer economists understood "unrestrained depredation." To repeat such an interpretation is sufficient refutation for any serious, thinking man who does not close his eyes in order that he may not see, and stop up his ears that he may not hear. Economists do not apply their axiom to morals, politics or religion, which subjects they do not consider at all as economists, but only inasmuch as they relate to human activity and human industry; they do not pretend that men should be allowed to do everything, and that everything should be allowed to pass, but simply that men should be allowed to work and to exchange the fruits of their labor without hindrance and without being subjected to preventive measures, under the protection of laws repressing attempts against the property and labor of another.

—Dupont de Nemours thus relates the origin of these formulas in his preface to Turgot's "Eulogy of de Gournay": "M. de Gournay, who was the son of a merchant and had long been actively engaged in commercial pursuits himself, had recognized that manufactures and commerce could be made to flourish only by liberty and competition. They discourage rash enterprises, and induce reasonable speculation; they prevent monopolies, restrict the private gains of merchants for the benefit of commerce, quicken industry, simplify machinery, diminish the burdensome expense of transportation and storage, and lower the rate of interest. They secure the highest possible price for the products of the earth, for the benefit of the producer, and the sale of these products at the lowest possible price, for the benefit of the consumers, for their satisfaction and enjoyment. He concluded from these observations that commerce should never be submitted to any tax or interference, and drew from them this axiom: laissez faire, laissez passer."

—But it seems that this axiom was inspired by a reply made a long time before to Colbert when inquiring about measures favorable to the interests of commerce, the justice of which had impressed itself upon the friends and disciples of Quesnay. "It is well known," says Turgot, in his "Eulogy of de Gournay" already quoted, "what the reply of Legendre to Colbert was: Laissez nous faire, (Let us alone), to which Quesnay added, somewhat later: "Do not govern too much"

JOSEPH GARNIER.

LAMAISM.

LAMAISM. The religion of the Thibetans, which is also that of the Mongols, and, under a slightly different form, that of Bhotan, is called Lamaism by Europeans, from the word Lama, the title of the high dignitaries of the priesthood among these nations. It is Buddhism corrupted by a mass of heterogeneous elements. Brought to Thibet, in the middle of the seventh century, both from China and Nepaul, the doctrine of Buddha was propagated there with the alterations which it had undergone in the latter country, where it had been mingled with the impure worship of the personification of the female principle, as it appears in Sivaism. This Buddhism of the Tantras, books in which, according to Eugene Burnouf, purely Buddhistic elements scarcely appear, received new alterations in Thibet, where it could only be propagated by making concessions to the superstitious beliefs already in existence there. The previous religion of the Thibetans consisted merely in magic practices by which the priests conjured away the malignant action of the spirits of the air and the mountains. This rude Shamanism which still exists in certain remote valleys of lower Thibet. left prominent traces in Thibetan Buddhism. The holy personages of the legends of that country are connected with sorcery on some side, and the inhabitants of Thibet, Mongolia and Bhotan have never ceased to dread the malign influence of spirits. Nevertheless at an early period and at various times attempts were made to introduce reforms into the Thibetan religion. The object was to change the Buddhism of the Tantras for that of the Sutras. The principle of this movement originated, without doubt, in the Buddhist monasteries of China, in which the doctrine of Mahâyâna (the great vehicle) was professed. For a long time these attempts were fruitless; but at the end of the fourteenth century the reform was carried out decisively by Tsong-Kha-Pa, a religious personage, born toward 1330 in the country of Amdo, to the south of Koukou-Noor, and placed almost on the same level as Buddha in Mongolia as well as Thibet.

—The object of the reformer was, without the least doubt, the re-establishment of primitive Buddhism, but he lacked the necessary knowledge to discover the work of Buddha under the numerous layers of interpretations with which it had been successively covered. He stopped at the doctrine of the Mahâyâna which he mistook for primitive Buddhism, and he endeavored to abolish the magic practices derived from the Tantras and the ancient superstitions of Thibet, and restore the asceticism which is in reality one of the marked and genuine traits of pure Buddhism. On the first point he only obtained incomplete results. The practice of magic was restricted, but not abolished. In the largest monasteries of Thibet there is an official diviner who, on certain grave occasions, is formally intrusted with predicting the future, conjuring the elements, etc. On the second point the success left nothing to be desired. Ascetic practices form the chief employments in the monasteries, the members of which are subjected to celibacy, confession, frequent fasts, and numerous spiritual retreats.

—Lamaism, conformable in this point to ancient Buddhism, has no secular clergy; its priests of all ranks are monks, living in monasteries (in Thibetan, gonpa, solitude, monasterium). Their generic name is Ge-sslong (practicing virtue), a name conferred on them by Tsong-Kha-Pa, when he gave them the yellow bonnet, the distinguishing color of primitive Buddhism. In places where the reformation has not penetrated and where the ancient red Lamaism is still maintained, the monks still enjoy the right of marrying and living with their families.

—According to the precepts of Buddha, the Lamaist clergy is supposed to live on the aims of the laity: in reality they posses immense wealth. The devout Thibetans have found in their indigence the means of enriching the monasteries. The number of the religious class of both sexes in Thibet must form about one-fifth of the whole population, each family devoting at least one of its children to monastic life. But it must be added that this clergy has never abused either its power or its wealth, though the veneration which it inspires is carried to absurdity.

—In principle the monasteries were independent of each other. In the eleventh century, the superior of Sa-Khya, one of the richest monasteries, laid claim to the supremacy. He found a powerful antagonist in the Grand Lama of the monastery of Bri-Goung. He first sought the arbitration of the emperor of China, who did not fail to decide the case in his favor, and in spite of the protest of the Lamas of Bri-Goung, those of Sa-Khya, thanks to the protection of the Chinese government, dexterous in taking advantage of this occasion to interfere as a protector in the affairs of Thibet, remained sovereign pontiffs in the Lamaist church till the period of the reformation.

—Tsoug-Kha-Pa deprived them of this supreme dignity. At his death he left the government of religious affairs to two of his disciples, of whom one, the Pan-Tschen-Lama, had charge of teaching, and the other, the Dalai-Lama (or, more correctly, Talé-Lama), of watching over discipline. In a church in which everything is finally reduced to observances, the chief of discipline must soon overshadow the master of instruction, and this is what has happened. The Dalai-Lama became the sovereign pontiff, as well as sovereign of Thibet. The Pan-Tschen-Lama is merely his adjunct in a certain way. The first lives in one of the monasteries of Mount Potala, a quarter of a league from Lhassa, and the second in the monastery of Lhoun-Po, in lower Thibet. The Dalai-Lama has, as vicar in Mongolia, the Grand Lama of Khouren.

—Without being the equal of these eminent personages, the superiors of monasteries are, like them, Choubilghans (those who are reborn), that is to say, incarnations of the Bôdhisattvas, divine beings who, in order to preserve always among weak men the good doctrine of salvation, never cease to appear under a human form. It follows from this belief that, when a Lama dies, or, to speak the language of the Lamaist religion, is deprived of his earthly wrappings, it is necessary, in order to give him a successor, to find under what new earthly wrapping the Bôdhisattva of which he was the incarnation has deigned to appear.

—Affairs have been managed as follows since the end of the last century, that is to say, since the emperor of China, under the pretense of protecting and honoring the Dalai-Lama, freed him from the care of governing Thibet. Whenever it is a question of replacing any high dignitary of Lamaism, the names of male infants born since the death of the Lama to whom a successor is sought, are collected and sent to the monastery of La-Brang, at Lhassa. Among the children registered, three are designated who bear the mark of Choubilghan, which the Lamas and the chief diviner are called on to prove, under the inspiration. of course, of the Chinese delegates, who are careful to choose those whose families offer some guarantees to their government. The three names are placed in a golden urn sent for that purpose to Lhassa in 1792 by the emperor of China, and after the high dignitaries of the Lamaist clergy, united in conclave, have prepared for this ceremony by six days of retreat, of fasting and prayer, one of the tickets is drawn from the urn by the most aged; the child designated by lot is proclaimed successor of the deceased Lama, and the two others receive presents to console them. When it is a question of replacing the Dalai-Lama, the drawing of lots takes place at Pekin, in presence of high Chinese functionaries and under the presidency of the Tschan Tscha, the delegate and representative of the Lamaist church near the emperor of China. To prove that there was no mistake in the lot in declaring the newly elected as the same person whom he is called to replace, or, more correctly, to continue, the child at the age of four or five must show that he has some reminiscences of his previous existence. It never happens that he makes a mistake in this examination.

—This method of appointment to high ecclesiastical functions does not appear suited to put eminent men at the head of the church; but in reality nothing is less needed. The whole office of a Lama consists in allowing himself to be venerated with proper dignity, in knowing how to vary his blessings according to the ritual, and in practicing with the greatest accuracy the formalities of worship. It is easy to train a child to these different exercises. If a difficult case appears, there are always at hand some adroit monks trained to their profession; the threads which move the automaton are held by them, whenever it is necessary that it should issue from its repose. Besides, the real directors are, since 1792, the two Chinese delegates resident at Lhassa.

—It would be a mistake, however, to suppose that all the Dalai Lamas were empty shadows. There were among them, especially in the sixteenth and seventeenth centuries. men who knew how to conduct the affairs of their church with rare ability, and to extend their influence over neighboring peoples with an astonishing adroitness. Their wisdom perhaps was a little too often equal to that of the serpent, and the readiness with which they employed pious frauds to further their ambition casts a certain shadow on their moral character; but they had not always a choice of other means: it is probable, moreover, that in their eyes the end sanctified the means, and it must be added that habit left them no scruples in the employment of duplicity and apocryphal miracles. Not all, however, gave themselves up to the crookedness of a tortuous policy. There were noble characters among the high dignitaries of the Lamaist church; among others must be cited Pan-Tschen-Erteni, who died at Pekin in 1780, a victim, perhaps, of Chinese policy, and who is so often mentioned in the account of Turner's "Embassy in Thibet."

—Lamaism, as is sufficiently shown by the preceding, is a religion with very few spiritual elements, not raised above the simple opus operatum. It is almost entirely made up of pilgrimages, processions, continual offices in the temples, the endless repetition of formulas of prayer, principally of the prayer of six syllables. This last is composed of the following words: om mani padme hoûm, and is almost always on the lips of the Thibetans, lay and clerical. Religious merit is measured by the number of times this prayer is recited, the rosary being used in counting the repetitions of the prayer; and the general prosperity is in proportion to the care used in reproducing it in speaking, writing and engraving. It is written on flags floating in the wind from the tops of lofty poles, on public edifices, on housetops. It is written in gigantic characters on the sides of the mountains, fastened to trees, painted on the walls, and engraved on household utensils.

—In order that this prayer should be in movement incessantly, and doubtless also to obey the precept given by Buddha, to turn the wheel of the law continually, a figurative precept literally understood, the celebrated praying machine was invented. This is a cylinder made of wood, copper or leather, filled with little strips of paper, on which the six precious syllables are printed. and is put in movement by a crank. Stirring these pieces of paper is a pious work profitable to him who moves the machine. Large machines of this kind are placed in the vestibules of temples. on the public squares, and in the principal streets, to enable passers-by to fulfill their religious duties. In pious families there are small machines, and they are put in motion as often as possible. Wealthy persons have a servant especially appointed to this labor. Finally, we see in Thibet and in Mongolia praying machines moved by water power and by windmills. Among the Thibetans and the Mongols the clergy do not doubt, any more than the laity, that this celebrated prayer which they pompously call the way of deliverance. the gate of salvation. the bark which bears the soul to the haven, the light which dissipates the darkness, and which constitutes all religion for the majority of them. is simply an invocation of the universal generative power, expressed here under an obscene symbol, but very much used in Sivaism which reproduces it in all its temples by sculpture and painting. But the less the theologians of Lamaism under stand its real meaning the more they are able to give mystic explanations of it. They give assurances that it contains a sublime doctrine, the extent and profundity of which could not be measured during the longest life. In general, they see in it a symbol of the transmigration of souls through the six realms of successive births, realms represented each by one of the six precious syllables, or, further, the elevation of the soul toward perfection, by passing through the six transcendent virtues, each of which is also expressed by one of the six syllables. (The prayer of six syllables is in Sanscrit. a language entirely unknown to the Lamas.)

—It can not be said, however, that there is not a certain show of science in Lamaism. There is no monastery in which a monk is not intrusted with the instruction of novices. In the most considerable there is a superior instruction. But the studies pursued in them bring merely the memory into play: numerous prayers of the Lamaist church are committed to memory; the best scholar is the one who can recite the greatest number of these. The novices are instructed in the performance of ceremonies. The rules of contemplative life are explained and supported by the edifying examples of the saints of Buddhism. Metaphysical subtleties do not appear to be wanting in Lamaist science, subtleties which recall those of the theologians of the middle ages. and which have no other object than to give an appearance of reason to the things most unreasonable. In substance, this science has not for its object the search after truth; like scholasticism, it seeks simply to demonstrate a fixed, immutable doctrine, which is laid down, without discussion, as the truth, but which is the truth only for those who believe in it. Magic also forms a part of Lamaistic science. It is only taught at Lhassa, in the two convents of Ra-mo-tshe and Mo-rou. At these places those come to study who wish to become masters in the art of conjuring spirits, commanding the elements and practicing sympathetic and magic medicine. Lamaist science rests entirely on two collections of sacred books, namely: the Kah-gyour (a translation of Sanscrit texts) which is composed of 1,083 different writings, and the Tah-gyour (an explanation of the doctrine) which is still more voluminous than the preceding. By the side of these two enormous collections, which Alexander Csoma first brought to the knowledge of Europeans, there exist thousands of works, the greater number of which are edifying books, collections of prayers, or legendary accounts of the lives of saints of the Lamaist church.

—Thibet has as good a title as China to be called a country of books. And still in this country where for centuries the printing press has been in active operation, where the reproduction of a writing is considered to be a holy work which will have its reward in heaven, where men bow down before a few pages covered with characters with as much respect as before the living Buddha, not a single clear idea on religion has been acquired; men are in the most profound ignorance of history and the laws of nature; reflection has not been aroused to any of the great problems, the solution of which, or at least meditation on which, seems to be one of the wants of the human mind; the social condition is not raised above the level of the infancy of peoples. Would not the history of the country of snow prove the vanity of all that has been spoken and written among us on the eminently civilizing rôle of the printing press? After seeing what has taken place in Thibet, it is difficult not to admit that the press is an instrument as much suited to the enslavement of the mind as to its emancipation and development. Europe would probably be still at the point where the Thibetans stopped more than ten centuries ago, if printing had only served, in the hands of Dominicans and Franciscans, to reproduce the legends of saints and scholastic Summœ theologiœ. Printing became an auxiliary of liberty and intellectual and moral progress, only through the great movement which, in the sixteenth century, transferred science from the hands of priests to those of laymen, and to the new spirit which the study of the great writers of Greek and Roman antiquity raised up in the west. (See BUDDHISM, BRAHMANISM, THEOCRACY.)

MICHEL NICOLAS.

LAND.

LAND. Considered from an economic point of view, land appears in the first rank of natural wealth susceptible of appropriation. Land is at the same time the principal deposit of capital accumulated by the labor of the generations which have preceded us in civilized life; it is in some sort but a manufactured tool, which intelligent cultivation incessantly improves instead of using. We shall not dwell upon the great economic properties of land, which have been made the object of special articles, but we must briefly point out the well-known laws that regulate the value and price of land.

—Adam Smith long since observed the relation which exists between the value of landed property and the rate of interest. When interest is high, in time and space, the price of land is low; when, on the contrary, the rate of interest is lowered, the value of land increases. The reason of this is, that land, no matter what transformation it may undergo in the possession of its owner, is always and necessarily capital intended for reproduction. The owner may diminish and almost destroy this capital by neglecting to cultivate it or by cultivating it poorly, but he can never destroy it while society retains its influence. Thus, land is always acquired to be employed in reproduction, and it can only be exchanged for capital, which its owners intend for the purposes of reproduction. Now it is the scarcity or abundance of precisely this kind of capital which raises or lowers the rate of interest. The consequence of this is that, while the usefulness of landed property varies but very little, its value and price undergo frequent and considerable changes, according as available capital for reproduction is scarce or abundant in the market, and that the price of land always follows the fluctuations of the credit market. Another result of this fact is, that the avenues open to capital which is intended for reproduction directly tend, as far as investment is concerned, to lessen the value and price of landed property. Thus, for example, when Louis XIV. established rentes in order to obtain the funds necessary to build the palace of Versailles, he certainly diminished the market demand for landed property.

—In countries whose inhabitants make no savings, because of a defective social condition, land in a manner loses its market value. It is said that there are no buyers because each one prefers to keep his land rather than to exchange it for a sum which represents two or three times the amount of its revenue. We may add that in these countries, in which saving does not lead to the accumulation of movable wealth, the means of exchange are so limited that the revenue of the land is scarcely anything. Thus the market value, and the price of the land as well as the revenue which it produces, are in exact proportion to the saved movable property which can be offered in exchange for it. Both are dependent upon the force of the tendency of the owners of movable property to save and accumulate.

—When a country has little or no foreign commerce, the accumulation of movable capital and the price of land advance very slowly, but in parallel lines. It is otherwise when the products of a country are absorbed by foreign commerce, as is the case in the Danubian provinces and southern Russia; then the revenue from the land increases, without any increase in its price, and without it being possible to insure the revenue to a farmer, because there is no security either for a farmer or for a purchaser.

—As the price of land in civilized countries is affected by the fluctuations of the credit market, it is temporarily reduced by commercial crises: it depends upon the movement of an amount of capital always very moderate, if we compare it with the total of the land in a country; a fact which causes results that seem strange at first sight, and not proportioned to their causes. By reason of this intimate relation between the price of land and the credit market, it was once possible in France to say that the country had been made poorer by twenty thousand millions, and subsequently that it had grown richer by an equal amount; overlooking the fact that, while the fortune of a private individual is specially affected by the phenomena of exchange, the wealth of a country depends above all upon the utility of the objects which it possesses.

—It has been sometimes asked if the numerous investments represented by titles which are for individuals, thanks to exchange, movable capital, tend to raise or lower the price of landed property. Considered as an investment, it is certain that the sale of titles which carry with them the right to the enjoyment of an income is a competition with land; but the judicious employment of the money obtained by this sale may have the effect of adding to the wealth of the country, that is, to its means of saving, to such an extent as to add more to the value of the land than the investment took from it.

—Adam Smith seems to suppose that the price of land is in proportion to the rate of interest, in this sense, that land would produce the same revenue for its owner as an investment in movable property. This is not exactly correct: landed property nearly always produces a revenue less than fiduciary investments, or, in other words, land is always, on an average, dearer than the titles of these investments.

—Land is, of all species of property, that whose lot is intimately united to the lot of society, considered as a collective living being, capable of enjoyment and privation, of wealth and poverty. It is in some sort the great savings bank in which is laid up the greater part of the capital which the present generation leaves to that which is to follow after it.

COURCELLE-SENEUIL.

LAND OFFICE

LAND OFFICE. (See PUBLIC LANDS.)

LANDS

LANDS, Public. (See PUBLIC LANDS.)

LANE

LANE, Joseph, was born in Buncombe county, N. C., Dec. 14, 1801, settled in Indiana, and was thence appointed governor of Oregon territory, in 1848. He was delegate from the territory to congress 1851-7, and United States senator 1859-61. He was warmly pro-southern in his political sympathies, and in 1860 was nominated for the vice-presidency by the Breckinridge democracy. (See DEMOCRATIC PARTY, V.)

—See Savage's Living Representative Men, 357.

LA PLATA

LA PLATA. (See ARGENTINE CONFEDERATION.)

LAW

LAW, Canon. The two expressions canon law and canonical law are continually taken one for the other, and are applied indifferently, as well to the science of canons and ecclesiastical laws as to the body itself or collection of these laws. Still, Doujat, author of a history of canonical law, after having acknowledged that in common usage no distinction is made between these two terms, thinks that by canon law should rather be understood the body of ecclesiastical laws, and by canonical law the science of these laws. As for the word canon, which, in Greek, signifies rule, it is taken in its most general sense for all ecclesiastical law or constitutions, and, in its most restricted sense, for those constitutions which are inserted in the body of the law, old as well as new.

—Canonical law rests upon the following bases: 1, and chiefly, the Holy Scriptures; 2, the authority of the general councils and that of the particular councils, "whose discipline has been received by all the church"; 3, the constitutions of the popes; 4, custom, which has also great authority "when it is commendable and established by long practice, by the consent of the pastors of the church. at least by their public knowledge." (Fleury.)

—The body of canon law, properly speaking, is composed of six parts, which have each a special name. These are so many compilations of canons, decrees and decretals, which have been drawn up at different times and inserted successively in the corpus. The first part is a full collection of all kinds of ecclesiastical constitutions, made by Gratian, a monk of St. Benedict, and published about the middle of the twelfth century. It is known under the name of the Gratian decree, or simply the decree. This compilation had been preceded by many others: but, more complete and better arranged, it took their place in the schools and consigned them to oblivion. It was carefully revised under the supervision of Pope Gregory XIII., and, after this work of correction, was recommended to the faithful by a bull of June 22, 1582. The second collection is that of the decretals of the popes, which was made by Saint Raymond of Pennafort, under the auspices of Gregory IX. This collection embraces all the letters of the popes presenting any interest, which appeared from the year 1150 to the year 1230, and, besides, some decrees of the councils and decisions of the popes which had escaped the notice of Gratian. It was divided into five books; Boniface VIII. had the subsequent decisions collected in a sixth book, which, by reason of this, was called the Sextus. The next collection was called Clementinus, because it was devoted to the canons of the council of Vienna, presided over by Clement V., and to the constitutions of that pontiff; the extravagantes, a series of constitutions of John XXII, which, at first, remained outside (extra) the corpus, and was only inserted in it some time afterward; and the extravagantes communes, a last collection, which contained the constitutions emanating from different popes. Here stops the law styled new, in contradistinction to the law anterior to Gratian, or ancient law. The law called newest is composed of subsequent canons, decrees, etc., which have not been inserted in the corpus, but which none the less have an authority of their own. Canon or canonical law must not be confounded with the civil ecclesiastical law, which comprises the laws made by the temporal power to regulate certain relations of church and state in certain countries of Europe.

GASTON DE BOURGE.

LAW, Common.

LAW, Common. This term is frequently used in contradistinction to all statute law, sometimes in contradistinction to the civil or canon law, occasionally to the admiralty and maritime jurisprudence, and very often to equity. Its proper signification, however, is an unwritten law which receives its binding force from immemorial usage and universal reception, in distinction from the written or statute law. Its rules or principles are to be found only in the works of institutional writers, in the records of courts, and in the reports of judicial decisions, and it is overruled by the statute law. Its origin is indefinite and can be traced only to the ancient customs of the early people of England, more particularly known as the "ancient Saxon privileges" or the body of laws and privileges framed by Alfred the Great and reaffirmed by Edward the Confessor. The spirit of these ancient laws is assumed to have descended with the race, and to have continued to be developed and the laws to have been framed, and the common law expanded, from the original Saxon vigor, even after the Norman conquest. This ancient code is assumed by historians to have been compiled by Alfred from various sources; from the Mercian laws, existing in counties bordering upon Wales, and retaining old British customs; from the west Saxon of southern and southwestern counties of England; and from the Danish of the western coast, where a Danish settlement had been effected. Some allege that it was in part framed from the Old Testament; and the belief is entertained by others, that these ancient laws and customs were gathered from the principles of the Roman Pandects, which had been compiled in the sixth century from the decisions, writings and opinions of the old Roman jurists, by order of Justinian, and which formed a part of the body of the civil law of Rome, which has been universally accepted as the basis of all mediæval legislation and of all European law. The spirit of these laws, if not the letter, found its way into England, perhaps through the clergy who were the only learned class of that period, as the laws did, some centuries later, in a more positive and extensive form. It is a fact, however, that they had already entered into the system of other European countries, which at one time formed in part the fabric of the Roman empire. A century and a half after the death of Alfred a new code was compiled by Edward the Confessor, the basis of which was the code of Alfred. This was probably a collection of all laws then in force both by custom and statute, and was long held in the highest esteem by the English people, and for many years formed the basis of English jurisprudence. It was, in fact, the system in force at the time of the Norman conquest, and thoroughly identified with Saxon liberty and nationality. The renewal by magna charta of the "ancient Saxon privileges," was the re-enactment, doubtless, of a part of the code of Edward, the spirit of which had always existed in the common law.

—Although the common law is an unwritten law, its rules and principles have been handed down from generation to generation, and sometimes have almost approached, from exactitude, the complete and precise form of statute law. The law of primogeniture—a rule of law under which the oldest son of the family succeeds to the father's real estate in preference to, and to the absolute exclusion of, all others of the family—is a part of the common law. This rule dates back to the conquest, when, under the feudal system, the ownership of land depended upon the personal ability of the party to perform military service, and thus excluded females. While the principle is repugnant to the spirit of British institutions, it has been preserved and handed down by the common law from that period. Blackstone also classifies the law merchant—a system of laws consisting largely of the usages of trade and applied by courts to contracts and dealings of persons engaged in mercantile business—as a part of the common law. The correctness of this classification has been questioned by other authorities, inasmuch as many of the rules of this system were in direct contradiction to the common law. During the operation of the feudal law, the system was found to be inadequate to the needs of the mercantile class then springing into prominence, and the courts of that day, when commercial contracts were brought before them, adopted from the merchants, for their guidance, the rules that governed their business dealings and made them rules of law. During the reign of James I. these rules were declared to be a part of the law of the realm. In such cases the common law was extended by the courts, and new rules were adopted to meet the association of circumstances which bore an analogy to what the common law had established in causes that came within the scope of its provisions.

—The decisions of the courts of law are of the highest authority in declaring its principles, and, when not inconsistent, are accepted as establishing the law. But being merely declaratory and not mandatory. among courts of equal jurisdiction a single judgment of a court will not be accepted as final Among inferior courts, however, the decisions of a superior court are accepted as binding. Courts generally are not iron-bound in their decisions, and frequently reverse their own decisions when convinced that the law has been incorrectly stated. It is, however, held that the house of lords should be an exception to this rule, as it is the court of last resort, and therefore, as the highest court of the land, its judgments partake of the essence of statute law, and having been once declared, the rule can not be altered save by a statute. In its judicial capacity, as defined by the English appellate jurisdiction act of 1876, the house of lords forms a court of final appeal from the queen's court of appeal in England, from the court of sessions of Scotland, and the superior courts of law and equity of Ireland. It is, however, regarded as settled that the jurisdiction of the house of lords is absolute and its decrees irrevocable, as being the only manner in which a court of supreme jurisdiction can remain in the unchallenged exercise of its chief functions.

—While the common law is recognized as pertaining to the whole realm, it yet determines the principle as a part of its own system, that under a certain condition of facts connected with the status of a case, it may accept the binding force of rules of law which are not of universal application. It is not, therefore, absolutely unalterable in declaring the law, as in some courts it adopts the provisions of codes which in others it rejects. Some of the rules of civil and canon law are also accepted as part of the common law, having been transmitted from the customs of remote ages. Custom frequently establishes such precedents as are recognized by the common law as a part of its system, although at variance with its general principles, viz.: under the law of primogeniture which, as we know, forms a part of the common law of England, the eldest son succeeds to the father's real estate, to the exclusion of all others. Although the law of primogeniture is the general law of England, as well as of Scotland and Ireland, there is one county in England—that of Kent—where, by "ancient custom." called gavelkind, a different rule prevails, and the land, instead of going wholly to the eldest son, is divided equally among all the sons. Gavelkind was the old British custom or law of succession in Wales, Kent and Northumberland. In its mixture with Anglo-Saxon law, all the sons of the father inherited. Although Blackstone ascribed to it a Celtic origin, legal antiquaries claim that it prevailed over the whole kingdom in Anglo-Saxon times. In Wales it was abolished during the reign of Henry VIII., but still remains in force in Kent county, England, having been permitted to remain by the Conqueror, as one of the "ancient liberties." There is likewise an exception called borough English in some cities and boroughs of England, where the land, instead of going to the eldest son, goes wholly to the youngest. These exceptions to the general rule of law in the kingdom are accepted by the common law as a part of its system, although at variance with its general provisions and the established custom.

—The tension, however, of the common law is still greater, and it will accommodate itself to customs of still more limited operation. It is not deemed at variance with its system to adopt a rule which is pronouncedly contrary to its own, if its application be established to be clear and precise, although confined to a single locality. Still, to be vested with the sanctity of law. a custom must be firmly established as of ancient origin. Should the custom be determined to have originated at a period of English history embraced within a hundred years succeeding the conquest, it would be accepted by the system as a part of itself. If such proof does not exist, the custom must be established by living witnesses of undoubted character, or by unquestioned documentary evidence that will sustain the assumption—The feudal law system established the principle of non-alienation. This restriction was removed by the statute 18 Edward I., and the principle of conditional fees or estates tail was introduced. By the charter of Henry III., conveyances to religious houses were prohibited. By the statute De Religiosis of 7 Edward I.. usually called the statute of mortmain, this prohibition was extended to all others holding for the same purpose. The clergy, to evade these provisions, devised a system of conveyance by which the use instead of the fee was granted to the church beneficiary, while the possession or seisin remained with the feoffee, and the decisions of the courts of equity which were in the bands of the clergy, held that the feoffee was bound in conscience to account to the cestuy que use, for the profits of the estates. By the act of 15 Richard II., this was annulled by the provision declaring that uses should be subject to the statute of mortmain as well as the lands.

—In the reign of Henry VIII., the statute relating to wills was passed, which excluded devises to corporations. By a subsequent act, 43 Elizabeth, a devise to a corporation for a charitable purpose was allowed. This is now the only means whereby religions corporations can acquire real estate either by deed or will.

—A complicated part of the English law of real property was introduced by the doctrine of uses, forming a part of the common law. In order to perpetuate estates in families, large landed proprietors, to prevent alienation, resorted to the expedient of the clergy—that of conveying the use instead of the fee, and the court of chancety held such conveyances to be binding. This gave rise to the statute of uses, 27 Henry VIII, of which Lord Bacon said, in his celebrated treatise upon this statute, expounding its connection with common law principles: "A law whereupon the inheritances of this realm are tossed at this day, like a ship upon the sea, in such sort that it is hard to say which bark will sink, and which will get to the haven, * * on account of the tides and currents of received errors and unwarranted and abusive experience, as they were not able to keep a right course according to the law." This statute provided that the use should be transferred into possession, or, in other words, the estate vested in the cestuy que use. Its operation was to a very great extent evaded by the substitution of trusts for uses, and under that name conveyances were introduced and enforced in chancery, with some important modifications as to legal effect.

—To more fully understand the development of the principles of the common law through ecclesiastical connection, it may be stated that, in the year 1130, in the town of Amalfi, in Italy, there was accidentally found a copy of the Roman Pandects compiled by order of Justinian the emperor, in the sixth century. This great system of jurisprudence was immediately adopted by the ecclesiastics who zealously spread its knowledge throughout every part of Europe. Besides its intrinsic merit, it became recommended by its early association with the imperial city of Rome, the seat of their religion, which acquired greater lustre by thus diffusing throughout Europe its own matchless laws. Before ten years had elapsed from the period of the discovery, Vacarius, under the direction of the archbishop of Canterbury, began the reading of public lectures on civil and municipal law, in the university of Oxford. The order of ecclesiastics was possessed of all the knowledge of the age, and naturally the science of law fell into their hands; with large possessions to defend from the rapacity and violence of princes and barons. it became to them a matter of personal interest to enforce the observance of general and equitable rules and customs, by which alone they could receive proper protection. Thus they formed a connection between the civil and canon law. But their energetic assumption begot a jealousy in the laity of England which prevented the Roman jurisprudence from becoming the municipal law of England, as was the case in many European states. Still, a great part of it was secretly transferred into the practice of the courts of justice, and further, by the imitation of its more fortunate neighbors, England gradually elevated its own law from its original state of rudeness and imperfection. During the reign of Edward I. in the closing years of the thirteenth century, the people of England reaped a wonderful benefit from the correction, extension, amendment and establishment of the laws of England, which Edward accomplished and transmitted to posterity as an enduring monument of his wisdom and personal worth. This patriotic labor conferred upon Edward the name of the English Justinian. According to Sir Edward Coke, not only were the statutes of his reign deserving of the character of establishments on account of their standing and durability, but the common law became refined to a remarkable degree by the regular order maintained in the administration. The judges were brought to a certainty in the determination of the law, and lawyers to a greater precision in their pleadings, and according to Sir Matthew Hale, the remarkable improvement of the common law during the reign of Edward was unexampled, save in the increase of his own time. Edward settled the jurisdiction of the several courts and first established the office of justice of the peace. He refused to interfere with the operations of justice by mandates from the privy council, as had been the custom of previous reigns. He repressed robberies and lawlessness, and encouraged trade by enabling merchants to recover their debts, by improving the system of collection under the common law, and simplifying the operation of the common law courts. He divided the court of exchequer into four distinct courts, each of which managed its own branch without dependence on the others, and as the lawyers introduced a system of carrying business from one court to another, the several courts became checks upon each other, and the administration of justice became wonderfully improved in tone.

—Three hundred years before the reign of Edward, William the Conqueror had instituted an ordinance which provided that the bishop who sat in the county court with the sheriff, disposing of causes both civil and ecclesiastical, should hold a separate court for the trial of ecclesiastical cases. Under this procedure, the bishop being now independent of the secular court, appropriated to his separate jurisdiction a large number of causes, on the plea of their involving matters of a spiritual nature relating to tithes and benefices. Under this head the bishop's court. claimed jurisdiction over questions relating to marriage on the ground of a spiritual contract being involved by the act, and consequently a power to annul marriages, grant divorces, determine questions of bastardy and legitimacy, and issue letters of administration in cases of intestacy on the ground that the bishops were best qualified to determine what would most benefit the soul of the intestate. On the effort of the clergy, however, to proceed still further in the assumption of judicial power under the new constitution of the ecclesiastical courts, in the attempt to introduce the entire canon law as promulgated at Rome, the national jealousy was so aroused that the king, Henry II., although a warm friend of the clergy, was compelled to prohibit the reading of books of canon law at Oxford, and a contest was inaugurated in which the whole pontifical power was invoked in behalf of the efforts of the clergy. The constitution of Clarendon, enacted by Henry II., with the concurrence of the great council, in 1164, and afterward confirmed by a council at Northampton in 1176, finally determined the disputed points. It was ordained that questions relating to benefices should be tried by the king's secular courts; that the ecclesiastical courts should be subject to the jurisdiction of the king's secular courts; that the ecclesiastical courts should be excluded from jurisdiction of pleas of debt which they had also assumed. The authority of the canon law now rests upon a statute of Henry VIII., which declares that all causes, constitutions, etc., then existing and which are not repugnant to the law of the land or the king's prerogative, shall remain in force. The canon law now pertains solely to the laws, regulations and exigencies of the church.

—With regard to the union of the canon and common law it may be said that the law of England relating to personal property which in many respects was deficient, received important accessions from the canon law, especially its rules relating to consanguinity and descent.

—The most important part of the common law of England is that which pertains to the personal rights and liberty of the citizen. At various periods of English history a large number of statutes have been passed declaratory of common law principles in aid of constitutional rights. The first that boldly strikes national attention is that of magna charta, which was a royal confirmation of inherent rights of the people by King John at Runnymede, in the thirteenth century This charter was afterward confirmed by Henry III. with other important grants. (See MAGNA CHARTA.) Also during the reign of Edward III., there were twenty parliamentary confirmations of the great charter granted, relating to common law principles. It was also during this reign that the use of the French language in common law pleadings and public deeds, first instituted by William the Conqueror in the subjugation of England, was abolished, and the English tongue substituted. The second is the petition of rights, passed by parliament during the reign of Charles I. This act continued those principles of common law contained in the great charter, which by usurpation of the crown in a measure had lapsed. The third is the habeas corpus act, passed during the reign of Charles II., which did not alter or amend the provisions contained in magna charta, but provided for their greater efficiency in the clear and precise manner of their application by the courts of law. (See HABEAS CORPUS.) The fourth is the bill of rights, which extended the provisions of magna charta in favor of those fundamental principles of the constitution which denied to the sovereign the power of suspending or dispensing with laws of the realm, etc., etc., which was adopted by parliament early in the reign of William and Mary. (See BILL OF RIGHTS.) To the common law, which applied these principles of freedom, the English subject owes all his liberty. Statutes could have availed nothing without the principles entering through the courts into the national life. The common law claimed the existence of these free principles long before their essence was established by particular statutes. The right of trial by jury is one of the most prominent of common law rights, as it belongs almost exclusively to the English race. The oldest law writer of the time of Henry VI. declares that no other country at that time and previously contained the elements of society able to constitute a jury. That in other countries there was no "middle class" between the nobility and the impoverished peasantry, and no class of commoners sufficiently intelligent to perform the duties of jurymen. The English law of evidence is a wide branch of the common law. In all criminal cases the accused is not compelled to testify against himself; while in a preliminary examination he is always permitted to do so. if it is his desire.

—While there is much to admire in the common law system, some of its rules are very inequitable. Until superseded by the statutes of 1870 and 1882, common law vested all the property of a married woman in her husband, without responsibility on his part; and for a long time the only way through which she could enjoy any part of it was by the intervention of the court of chancery.

—Under the common law marriage can be annulled for but one offense after the union—the act of adultery. Fraud, impotence, and such pre-existing causes, may constitute grounds for divorce, but only the act of adultery after the marriage ceremony. Under the common law a child born out of wedlock is illegitimate, and no subsequent act of the father and mother can affect its legal status. This intolerant rule has, however, been indelibly stamped upon the common law by the action of parliament. During the reign of Henry III great disputes originated between the civil and ecclesiastical courts concerning bastardy. By the common law those who had been born before wedlock were bastards. By the canon law they were legitimate: and when any dispute arose relating to inheritance, it had been usual for the civil courts to issue writs to the spiritual, directing them to inquire into the legitimacy of the person. The bishop always returned answer according to the canon law, though contrary to the municipal law of the kingdom. For this reason the civil courts changed the terms of their writs, and required the spiritual courts merely to make inquiry concerning the legitimacy of the party in question, by proposing the simple interrogatory whether he were born before or after marriage. The prelates complained of this practice to the parliament assembled at Merton in the twentieth year of the king's reign, and requested that the municipal law might be made to conform with the canon law. They, however, received from that parliament the memorable answer, Nolumus leges Angliœ mutare.

—The courts of common law are divided into superior and inferior. They bore the names of the court of queen's bench, the court of common pleas or common bench, and the court of exchequer. They all sprung originally from the aula regia of the Norman kings. This court was formed of the chief officers of state and of the king's household, and of the chief nobility and other learned justices of the kingdom, all presided over by the chief justiciar. This court for a long time was omnipresent with the king; followed him from place to place in his journeyings, and formed the supreme court of the kingdom. The inconvenience to the people by this mode of dispensing justice became so great that a demand was made for a fixed court, which was granted in magna charta by King John, and the court of common pleas established. A still greater change occurred under Edward I., as before alluded to, when the court of aula regia was entirely abolished, and its judicial functions apportioned among a court of chancery and the three courts of common law above mentioned. By the acts of 1873 and 1875 all the superior courts of England were consolidated into two new courts, styled the high court of justice and the court of appeal. Three of the five divisions of the high court of justice were called after the names of the old common law courts, to wit, the queen's bench, common pleas and exchequer divisions. Their business relations were unchanged, save with this distinction, that thereafter they should administer justice without regard to its being known as common law or equity. All the judges of the consolidated courts acquired equity jurisdiction; the result of this "fusion of law and equity" being to put an end to that anomalous system under which decisions of courts of law were continually set aside by co-ordinate courts of equity. and to give wider application to the old doctrine that when law and equity are at variance, equity should prevail.

—The inferior courts, formerly numerous, are nearly all abolished. Those that remain are of very restricted jurisdiction, chief of which is the modern county court. A few borough courts exist, from which a writ of error lies to a superior court. The lord mayor's court and the city court of London transact considerable business. There is also remaining a court of hustings, a court of the cinque ports, and the stannary courts of Cornwall and Devonshire. In some counties there are baronate courts for adjudication of mining matters. The court of common pleas in Lancaster and the court of pleas in Durham, have jurisdiction in personal matters, and form part of the high court of justice.

—The common law in the United States is the same in all particulars as the common law in England. It differs only in the form of administration. It contains the principles, customs and rules pertaining to the government and the safety of persons and property, not to be found in any statute or legislative enactment. The rule of common law with regard to the relations between husband and wife has been modified in some respects, principally that relating to the control of the wife's property. This change has not been effected by altering the principle of common law, but by statute, as in England. Also with regard to the legitimacy of children, the statutes of many, if not all, of the states have ameliorated the harsh rules of the common law, and infants born out of wedlock are legitimized and succeed to all the rights of those born in wedlock, by the subsequent marriage of the parents. This is in imitation somewhat of the Scotch law of legitimation, under the operation of which a person who was born illegitimate, was rendered legitimate by the parents' subsequent marriage, provided that at the time of his birth there was existing no legal impediment to their union. The Scotch law of putative marriages also legitimized the children of the union.

—Among the earliest institutional writers on the common law was Henry de Bracton, an ecclesiastic and chief justiciary in the reign of Henry III. He wrote a comprehensive work on "The Laws and Customs of England," modeled after the "Institutes" of Justinian, treating largely upon the rules of personal property and contracts.

—He was followed by Sir John Fortescue, who was chief justice of the king's bench during the reign of Henry VI. He was exiled on attainder after the battle of St. Albans. and accompanied Queen Margaret and her young son into Scotland. While in Scotland Sir John Fortescue wrote his celebrated treatise De Laudibus Legum Angliœ. This treatise on the common law of England was written originally for the benefit of the young prince. He likewise wrote a valuable work on the English constitution.

—During the same reign Sir Thomas Lyttleton. a celebrated jurist and judge of the court of common pleas, wrote a valuable treatise on Tenures, which went through a multitude of editions. Lord Bacon characterized the writings of this jurist, together with those of Mr. Fitzpatrick, another common law writer, as the "Institutions of the laws of England."

—Another eminent authority on common law is Sir Edward Coke, one of the brightest legal luminaries of English history. He was a jurist of great power and learning, and early acquired a high rank in his profession by his argument in Shelly's case, from which case came the celebrated rule of real property law known as "the rule in Shelly's case," reported in Coke, i., 104, to wit: "When the ancestor by any gift or conveyance takes an estate of freehold and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the heirs are words of limitation and not words of purchase." (This rule, however, in most of the states has been abolished by statute) He successively became king's sergeant, recorder of London, member of parliament, speaker of the house of commons, solicitor general, attorney general. judge of the court of common pleas, chief justice of the court of king's bench, member of the privy council, and had is not have been for the enmity and opposition of Lord Bacon, would have reached the position of lord chancellor. His principal legal work is "Coke upon Lyttleton," or the First Institute, a standard work on all constitutional and municipal law in England. His other treatises on the common law are the Second, Third, and Fourth Institutes. His work on Copyholder and Fines, and his law reports, which made a commotion on their appearance, are still of great value to the profession. As a member of parliament he performed very important services for the people. His resolutions which formed the basis of the habeas corpus act, and his work in framing the famous bill of rights, entitle him to the gratitude and veneration of his countrymen.

—As remarked, Sir Francis Bacon was the contemporary of Coke. He was affirmed to be the greatest genius that England ever produced, and the glory of his age and race. His works on the common law were numerous, and composed of his treatise on The Elements of the Common Law of England, divided into Maxims of the law and The use of the law; treatise on Compositions for Alienations; Reading on the Statute of Uses; Proposal for Amending the Laws of England; essays on Despatch Judicature and Innovation; Advancement of Learning; and his work entitled the Doctrine of Universal Justice; all presenting, in the language of his biographer, "the substance of profound jurisprudential reflection."

—Coke and Bacon were succeeded by Sir Matthew Hale, a distinguished lawyer of the seventeenth century, who was appointed by Cromwell a judge of the court of common pleas, and afterward, by Richard Cromwell, chief justice of the court of king's bench. He was incorruptible and able, and his treatises on the common law were received with great favor and are still of high authority in England, where his legal MSS. are preserved at Lincoln's Inn.

—Sir William Blackstone, another writer and lecturer on common law of the last century, has transmitted his famous Commentaries, which for a lengthy period were greatly esteemed as an authority and are now regarded as of great value as materials for history.

—Space does not permit a more extended review of this part of the subject, but the foregoing have been the principal writers on the science of English common law. The causes have accumulated with the years, and other abridgments and digests have followed, reproducing the rules and principles in other forms, and the old books of the old masters are rarely cited now as authorities. The common law continues to grow on both continents, and with each generation will become more rich and powerful in determining the principles of law governing the growth, development and security of society.

J. W. CLAMPITT.

LAW, Criminal

LAW, Criminal, is that branch of jurisprudence which takes cognizance of those wrongs which are injurious to the public, and punished by the government in its own name by what are denominated criminal proceedings. The criminal law, like the civil, is both statutory and common. In all but four states of the Union, the common law extends as well to criminal matters as to civil. In Ohio the court decided that the common law could not be resorted to for the punishment of crimes and misdemeanors, and in Indiana the statute provides that all crimes and misdemeanors must be defined and punished by the statutes of the state. In Florida and Missouri there are legislative enactments restricting to a limited fine and imprisonment the right to punish for common law offenses. On the other hand, Louisiana and Texas, not originally governed by the common law, have expressly introduced it as to crimes. Common law offenses against the general government do not exist in the states in the liberal sense of the proposition, as we have no national common law; but there are in special cases common law offenses against the United States, within the territorial limits of the states. In localities where state power is unknown, common law offenses against the United States must necessarily exist, and yet the result has been definitely reached through the decisions of the court that the United States courts can not punish crimes against the general government, unless specified and defined by an act of congress. (Bishop, Crim. Law.) In the District of Columbia the laws existing previous to its acquirement are by statute still in force, and common law crimes against the United States exist the same and to the same extent as they do in the several states against the state.

—In criminal law, when applying the specific rules of statutory interpretation, there are two kinds that appear: the liberal or open, and the strict or close. The liberal interpretation expands or covers a larger space than words import; the strict contracts within a less space. Both are modified in accordance with the requirements of particular cases. The law both abhors and favors. In respect to things odious, a strict interpretation is used; in respect to things favored, a liberal. All statutes detracting from common law rights are strictly construed, and reach no further in meaning than their words express; no one is subject by implication, and all doubts are construed in favor of the prisoner. Revenue laws come within this rule, for though their primary object is but the collection of duties, yet they range themselves beside other penal statutes, by imposing fines, working forfeitures, and depriving men of their property. The leading doctrine is, that criminal statutes are to be strictly enforced. As against defendants the statute may be enlarged where the reason and intent of the law require it, and they may be extended by other provisions of statutory law, and by the common law combining with them; and this rule is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings; as for instance, the statute forbidding the larceny of any "bank note" extends to the bank notes of other states; or, against betting "upon any election of this state" extends to the betting within the state upon an election for president. A strict construction is not violated by giving the words of a statute a reasonable meaning according to the sense in which they were intended. Thus, the state or corporation may be included in the word "person"; a woman may be indicated by the masculine pronoun "his"; a ewe or lamb by the word "sheep"; a girl by the word "woman"; and horses, geldings, asses and pigs by the word "cattle." The words of a penal statute, however, can not be extended by construction beyond what they will reasonably bear. An act which makes an assault indictable, must be an actual assault and not of a constructive nature. If two men are in altercation, and one holds a weapon in his hand and the other forces a part of his body against the point of the weapon, the wound inflicted is not by the party holding the weapon. Money is not meant by the words, "security for money." Wheat threshed for straw is not a "stack of wheat." This principle is, however, established: If the court entertains a reasonable doubt as to the meaning of a criminal statute, it must decide in favor of the prisoner. It must also construe statutes so as not to multiply felonies, and no case is to be brought within the statute by construction while it does not fall within its words. Thus, where a statute regulating the sale of cord wood imposed a penalty of so much per cord "for every cord of wood bought and sold," the court held that no penalty could be incurred in the purchase or sale of less than a cord.

—On the other hand, it is held that whenever the thing done does not come within the wrong which the statute evidently intended to suppress, though it come within its words, the person so doing is not punishable. It is a principle of the common law that no one shall suffer criminally for an act in which his mind does not concur. If the act committed is not within the intention of the law makers, it is not within the law although within the letter; therefore the case must come not only within the words of a statute, but also within its reason and spirit. Thus statute 12 Anne, stat. 1, c. 7, against stealing goods "being in any dwelling house, although such dwelling house be not actually broken in by such offender, and although the owner of the goods or any other person or persons be or be not in such house," is not violated where one steals, in his own house, the goods of another; or where a wife does the same thing in her husband's house; or where the larceny is of property found upon the person, though in a dwelling house, but therefore not under its protection; or where the things stolen are such as are not usually deemed to be under the protection of a dwelling house.

—Time and place operate distinctly in the character and division of crime. The attempt to commit felony by breaking into a house at night is a common law felony, called burglary. When the same act is committed in the daytime, it is a felony called a misdemeanor. A dwelling house includes the cluster of buildings surrounding the main building in which a family lives, and a burglary committed in any one of these out-buildings is of the same character of offense as if committed in the mansion itself.

—The uttering of forged paper or counterfeited bank notes or coin, or anything of like character, is to offer the same, intending it to be received as good, and whether it is accepted or not, the act of uttering it is complete. It is, however, held to be the rule, that to constitute the uttering, there must be a complete attempt to do the particular act the law forbids. There may be also a complete conditional uttering which will be criminal, as where a master gives an innocent servant a counterfeit bill to be delivered to another party in another county; while it was no part of his intention that the servant should receive it himself, and therefore not a complete uttering, it still appears that there would be ground for construing the act of delivery of the forged bill to the servant as an indictable attempt to cheat the third party.

—The act of breaking into a man's castle either with burglarious intent, or by an officer to serve process on him, is not to be construed legally to mean an act of violence. The mere lifting of a latch and thus opening a door not otherwise fastened; raising or lowering a window sash held by a wedge, or by a weight with ropes and pulleys; raising a trap-door kept down by its own weight; or obtaining by stealth and procuring by threats of violence an entrance; or by intimidating a person within to open the door; or by the removal of a pane of glass or window shutter, or by forcing the blinds partially closed, is held legally to be a breaking. But if a door or window is open a little way, it is not breaking into the house for an officer in serving process to push it open still farther to admit the passage of his body. This part of the treatise of criminal law, to wit, statutory interpretations, could be commented upon still further with profit, but space forbids. It is possible only to glance at it.

—To constitute a criminal offense two things must be established: the intent to do the wrong, and the performance of the act in pursuance of the intent. It is a universal rule that to constitute an offense, the act and intent must concur in point of time. To constitute a larceny the act of trespass and the intent to steal must occur at one and the same time. To constitute a burglary the intent to commit the felony in the house must occur at one and the same time.

—It was a principle of Roman jurisprudence that ignorance of the law did not excuse its violation. This rule has been engrafted upon our own jurisprudence, combining with it another general principle, that every man is presumed to know the laws of the country in which he dwells. This rule may appear arbitrary, but is nevertheless essential to the proper administration of government. Sometimes the court takes into consideration a prisoner's ignorance of the law, when passing sentence after conviction. Also the degree of responsibility from mental condition. Should the guilt or innocence of the prisoner depend on the fact, to be ascertained by the jury, of his mental condition at the time of the perpetration of the act, the jury, in determining this question of mental condition, may take into consideration his ignorance or misinformation in a matter of law.

—Ignorance of fact, however, stands on different grounds from ignorance of law. "Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse." (Gould, J., Myers vs. State, 1 Conn., 502.) This doctrine is held in those cases of justifiable homicide where the act was committed either in self-defense or to prevent the person killed from committing a felony. If he has reasonable cause to believe that the facts exist which excuse a homicide, and he does believe them to exist, without any fault or carelessness on his part, he is legally innocent, although it becomes apparent after the deed that he was mistaken, and the life of an innocent person was sacrificed through his ignorance. The law of libel furnishes an illustration of this doctrine. The words charged in a criminal case to be libellous are construed as the defendant understood them, rather than as understood by others or by the court. This principle also applies to an "innocent agent" who is moved to do a forbidden thing by another person, and yet incurs no legal guilt, because either not possessing sufficient mental capacity, or not having been made acquainted with the true facts of the case. These distinctions between law and fact, where the excuse of ignorance is offered for the commission of crime, are held to be of the highest importance in criminal law jurisprudence.

—Another principle laid down in criminal law jurisprudence, where an act committed produces an unintentional result, is, that the thing done having proceeded from a wicked intent, is to be viewed in the same light, whether the crime was of one particular form or another. Thus, if one attempting to kill a particular individual, discharges a weapon at him and by accident the charge is lodged in the body of another person and kills him; or if seeking the life of a person one places poison in his way which another person consumes, and dies; or if one, while in the attempt to steal poultry or the like, discharges his gun and shoots and kills accidentally a human being, the party who commits the act, though unintended, is legally as much guilty of murder as if he had intentionally performed any one of the acts. So where a man criminally assaults a woman, and she in the attempt to protect her honor, offers money to her assailant to release her or desist from the assault, which he accepts by putting it in his pocket, although he made no demand for the money, he is nevertheless in law guilty of robbery. But in the enforcement of this principle it must be clearly shown that the thing intended to be done was malum in se, and not alone malum prohibitum. Archbold thus states the principle: "When a man in the execution of one act, by chance or misfortune and not designedly, does another act for which, if he had willfully committed it, he would be liable to be punished; in that case if the act he was, doing were lawful, or merely malum prohibitum, he shall not be punishable for the act arising from misfortune or chance; but if malum in se, it is otherwise."

—With respect to the doctrine of necessity and compulsion, Rutherford says: "No action can be criminal if it is not possible for a man to do otherwise. An unavoidable crime is a contradiction; whatever is unavoidable is no crime; and whatever is a crime is not unavoidable." (Ruth. Inst., c. 18.) An act from necessity or compulsion is not therefore a crime, but anything short of a firm apprehension of personal injury endangering life can not excuse the killing of another in self-defense. Should a man be attacked by a ruffian who attempts to inflict upon him severe bodily harm, the law presumes the man's life endangered and he may lawfully kill the ruffian. But although a man should assault another with such violence as to endanger his life in the effort to compel him to take the life of a third party, there would be no legal excuse for complying with the demand. Upon this point there has arisen some controversy. Russell on Crimes says: "It has been observed that if the commission of treason may be extenuated by the fear of present death, there seems to be no reason why homicide may not also be mitigated upon the like consideration of human infirmity. But Lord Denman, in charging the jury in the case of The Reg. vs. Tyler, 8C. 8 P., 616, emphatically stated the doctrine to be, that no man, from fear of consequences to himself, has a right to make himself a party to committing mischief on mankind. The weight of authority is with this opinion.

—With regard to coverture, marriage does not absolve a woman's legal capacity for crime which as a femme sole she possessed. Her relations toward her husband, however, compel obedience, affection and confidence. For this condition the law permits an indulgence. If through constraint of her husband's will, her duty of obedience is carried to such an extent as to commit unlawful acts, she shall not suffer for them criminally. This consideration is peculiar to the common law. The act, however, must be done or completed in his presence. A command is insufficient, unless the act is committed in his presence, and then the law presumes her to be compelled by him to perform the act. But the rule that coercion is presumed from the mere presence of the husband does not apply to certain crimes on account of their peculiar nature, such as treason, murder, robbery, and all such malignant crimes as render it probable that the mere presence of the husband would not be sufficient to compel her to commit the crimes, without the active co-operation of her own mind. The presumption that the wife, being in the presence of her husband, acts under his coercive power, is only a prima facie one, and can be rebutted by evidence. If the two acted together, she will be acquitted. But if her husband was a cripple or otherwise powerless to enforce his command, although present, or if she acted from a co-operating will, she is to be convicted Therefore the wife may be proceeded against jointly with her husband in the same indictment, and when they come to trial she can rely upon coercion when the proofs are sufficient. There are other points of interest, which space forbids, involved in this part of the subject; notably those acts which it is impossible for a wife to legally commit on account of her peculiar relations with her husband.

—With respect to legal capacity, the common law fixes the age at twenty-one for both males and females. The law enforces filial obedience and yet does not establish the close relation between parent and child as between husband and wife. In law, all children under twenty-one are viewed as infants; but infants who have arrived at a maturity of understanding are capable of committing crimes. They can not plead in justification of the crime committed that they were constrained by their parents to commit the same. At common law a child under seven years of age is held to be unaccountable; between seven and fourteen incapable prima facie; between fourteen and twenty-one, capable prima facie, and incapacity must be established by proof. A boy under fourteen or a girl under twelve can not contract a perfectly valid marriage. The legal principle denies puberty in a boy under fourteen, and also establishes the rule that he can not at that age legally commit a rape, whatever his physical capabilities.

—Under the head of want of mental capacity as an excuse for the commission of crime, criminal law ethics treats of the various grades of insanity. The classification adopted by Dr. Ray involves the subdivisions necessarily existing. From defective development of the faculties springs idiocy and imbecility. Idiocy may result from congenital defect and obstacles to the development of the faculties supervening in infancy. Imbecility may result from the same causes. From the lesion of the faculties subsequent to their development, spring mania and dementia—mania intellectual and affective, general and partial; dementia from injuries to the brain, and the senility of old age. The existence of these grades of insanity establishes the nature or character of the act as in proportion to the mental capacity of the individual. The court usually puts the question of insanity to the jury in this form: whether at the time the prisoner committed the act he was in a state to comprehend his relations to other persons, the nature of the act and its criminal character as against the law of the land, which, if sane, he is presumed to know; in fact, whether he was conscious of doing wrong.

—With respect to the defense of drunkenness as an excuse for the commission of crime, the legal doctrine is, that voluntary intoxication furnishes no excuse for crime committed under its influence. But if a party be made drunk by stratagem or the fraud of another, or the unskillfulness of his physician, he is not responsible. (Parks, J., in Pearson's Case, 2 Lewin, 144.) The legal principles which operate in the case of drunkenness are the same as those which govern an act of evil intent producing an unintended result. Under the common law, drunkenness is regarded in the nature of a crime, and its public exhibition in this country is usually punished by fine, as a misdemeanor. There is still, however, a question as to the extent of criminal responsibility he may incur. If one is too drunk to entertain an intent to steal, although he takes another's property into his hands, he is not guilty of larceny. In further illustration of this point, Bishop says in relation to its application in cases of homicide: "The common law divides all indictable homicides into murder and manslaughter; but the specific intent to kill is not necessary in either. A man may be guilty of murder without intending to take life; he may be guilty of manslaughter without so intending; or he may intend to take life, yet not commit any crime in taking it. Now the doctrine of the courts is, that the intention to drink may fully supply the place of malice aforethought; so that if one voluntarily becomes so drunk as not to know what he is about, and then with a deadly weapon kills a man, the killing will be murder, the same as if he were sober." In some of the states, however, murder is divided by statute into two degrees. The first requires the specific intent to kill; the second degree is where there is an absence of specific intent, as in the case of extreme drunkenness, when the party would be incapable of entertaining a specific intent. In like manner under the common law distinction between murder and manslaughter, evidence of intoxication under certain circumstances may reduce the homicide to manslaughter. If it should be shown that the killing arose from provocation at the time of the act, and that the prisoner was too drunk at that particular time to carry in his mind any previous malice he entertained, if such existed, this will be of weight with the jury in mitigation of the offense, as rendering the presumption correct that he yielded to provocation and not to malice. Therefore, while the law holds men criminally responsible for what they do under the influence of liquor, yet if the habit begets frenzy or insanity such as delirium tremens, the act becomes excusable, the same as for other causes operating in the same way.

—With respect to criminal acts viewed as an injury to the public, this rule is laid down: Whenever the public believes that an act of wrong to individuals is of a character requiring the public protection for the wronged individual, the public assumes the act of punishment as its own suit, and makes the act itself a crime. And the rule of law is still broader in its general significance. No one can have a private action under criminal law. Therefore unless there were a public remedy the transgression would go unpunished. This doctrine is also asserted when the injury arising to the public is by a corporation or body of men, as when the law invests a corporation with the duty of repairing a public way, a neglect of such duty or refusal upon the part of the corporation, is indictable at common law. Thus the law protects the individual, in the protection of the community. Says Bishop, in commenting on this rule of law: "In all ages and countries the path of human improvement is macadamized with bones and wet with blood. The strong tread down and trample out the feeble; and by ending them diminish the average weakness of the race, and the conflict which goes on among the survivors strengthens their bodies and minds, and the acquired vigor passes down to succeeding generations. But in the conflict which prevails among men there is a point beyond which if it proceeds it injures the community in a way requiring criminal prosecution for what is done. * * If, therefore, two or more persons undertake any of the controversies of life, and one of them assumes toward another or the rest what the law deems to be unfair ground, the community interferes and punishes the wrong by a criminal prosecution. In estimating what is fair ground we are simply to inquire what view the common law takes of the question. The old common law, originating in an age of rough minds, iron sinews and semi-barbarous manners, demanded less fairness than is required by the superior culture and finer moral sentiments of modern times. And the demand increases as we progress in civilization. The common law has, therefore, been expanded by slow and insensible gradations, and by legislation which both adds to the number of crimes and enlarges the boundaries and augments the punishments of the old ones."

—With respect to the common law divisions of crime, by the old rule it is divided into treason, felony and misdemeanors. In England, treason is of two kinds, high and petit. In the United States it is confined to the act of levying war against the United States and giving aid and comfort to its enemies. All treason is felony, and with the aggravation that makes it a greater offense it is rendered the most heinous of this classification of crimes. Felony, when a common law offense in England, will usually be the same in the United States. There are some exceptions founded on special reasons. It is provided by statute in some of the states that all offenses punishable either by death or by imprisonment in the state prison, shall be felonies. Any crime less than a felony is termed a misdemeanor. Russell on Crimes thus defines it: The word misdemeanor, in its usual acceptation, is applied to all those crimes and offenses for which the law has not provided a particular name, and they may be punished according to the degree of the offense by fine and imprisonment, or by both. A misdemeanor is, in truth, any crime less than felony; and the word is generally used in contradistinction to felony, comprehending all indictable offenses which do not amount to felony, such as perjury, libel, conspiracies, battery, and public nuisances.

—In criminal law jurisprudence, an accessory is a person who participates in a felony without coming sufficiently near to become a principal. A person may be an accessory both before and after the fact. An accessory before the fact is one who aids and assists by his will or command another's felonious act, committed while he himself is too remote from the act to be a principal; as when a husband commands his wife, or a master his servant, to perform for his benefit some crime, which thing is in his absence performed through fear or affection, constraining an inferior or subject mind. If, before the birth of a child, a mother is counseled to murder her offspring when born, and she does so, the person so advising is an accessory in the murder, before the fact. If several parties plan the uttering of a forged order, where the act would be a statutory felony, and in the absence of all the others, one of them utters it, an indictment will lie for the utterer as principal and all of the others as accessories. Murder of the second degree admits of accessories before the fact. A wife may be an accessory before the fact in a crime of her husband.

—An accessory after the fact is one who receives, harbors and assists to elude justice, one whom he knows to be guilty of felony. The true test for determining whether a party is an accessory after the fact is, to consider whether what he does is done by way of personal help to his principal with a view of enabling him to escape punishment, the nature of the aid rendered being unimportant. If a person furnishes another, whom he knows to have committed a felony, with a horse to escape arrest, or conceals him from search, or feeds and shelters him, or exercises violence in his behalf toward those who lawfully hold the prisoner, or attempts his rescue from the officers of the law, he is an accessory, and may be held to answer at the election of a prosecuting power for the crime of accessory to another's felony, or for a substantive crime. The receiver of stolen goods is not an accessory, as he renders no aid to the felon, but he can be indicted at common law for the misprision of knowing the thief, and failing to prosecute him. There are no accessories, either before or after the fact, to misdemeanors. In the latter case, they are usually too small for the law to notice; and in the former, should they approach sufficiently near to be an accessory, they will be indicted as principal.

—Compounding a crime is agreeing with a criminal not to prosecute him. It is accessorial to the principal offense, as in the case of a misdemeanor. The party compounding may be proceeded against without reference to the prosecution or conviction of the offender.

—Misprision of felony is a criminal neglect to either prevent the commission of a felony by another, or to bring the party to justice known to be guilty of felony. Misprision of treason is the same of treason, and misprision of misdemeanor is unknown to the law A statute of the United States provides: "If any persons or person, having knowledge of the actual commission of the crime of willful murder or other felony upon the high seas, or within any fort, arsenal, dockyard, magazine or other place or district of country under the sole and exclusive jurisdiction of the United States, shall conceal and not as soon as may be disclose and make known the same to some one of the judges or other persons in civil or military authority under the United States, on conviction thereof such person or persons shall be adjudged guilty of misprision of felony, and shall be imprisoned not exceeding three years and fined not exceeding five hundred dollars." Another section makes it misprision of treason, punishable by imprisonment not exceeding seven years and fine not exceeding one thousand dollars, if any person, having knowledge of the commission of any treason against the United States, "shall conceal, and not, as soon as may be, disclose and make known the same to the president of the United States or some one of the judges thereof, or to the president or governor of a particular state, or some one of the judges or justices thereof."

—With respect to the supervision of the domestic relations by the criminal law, the principle prevails that the parent possesses the legal authority to compel obedience by the exercise of merciful judgment. Sometimes parents are unmerciful, and then the law intervenes to protect the helpless child, and punish the parent for an abuse of parental trust. The general rule is, that the parent may inflict moderate correction. If he go beyond this, he is indictable for assault and battery, and if the child should die from the same, he is indictable for felonious homicide. The parent is likewise criminally guilty who refuses or neglects to provide his child with food and clothing, or exposes him to the elements, or abandons his offspring.

—The relations of guardian and ward are usually established by the statutes of the states in which they reside, and differ under diverse circumstances. The relations with respect to chastisement between the teacher and pupil are similar in many respects to those existing between parent and child. Between husband and wife the rule in this country is, that the husband has no right to chastise his wife, and an indictment for assault will lie against him if he does. He may, however, under certain circumstances, restrain her movements.

—In civil jurisprudence, there is a principle that admits of a rehearing of a cause under proper forms and circumstances. In the criminal law, however, this general right is restrained by the maxim laid down by Blackstone, "that no man is to be brought into jeopardy of his life more than once for the same offense." This principle, which is recognized in the United States by the common law, has likewise been engrafted upon our system by a provision in the constitution which declares "that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb." While this provision binds the United States only, the principle has nevertheless been extended into the states, by its adoption into state constitutions, and the courts of all the states accept it as the true common law rule.

—With respect to the protection of the public health, anything that tends toward its impairment is indictable at common law. A person sick with an infectious disease is not permitted to go among his neighbors, nor to carry an infected child where the public may contract the disease. Nor can a man bring a horse infected with glanders into a public place. For all of these offenses he is indictable. So manufactures, in themselves lawful but calculated to impair the public health, can not be permitted in populous places. Under this rule it is an indictable offense to sell or cause to be consumed provisions injurious to the public health. There are many others of a statutory nature which do not come within the scope of the common law.

—Public morals are protected by public law. Under the criminal law, swearing in public and blasphemy are indictable offenses. So also are the public utterances of obscene words; the publishing of obscene prints and writings; the keeping of bawdy houses; the indecent and public exposure of the person; the public buying and selling of a wife; polygamy, and the horrible crime of sodomy; all these are indictable under the common law, and the crime of incest by statutory enactment. Indecent public shows; gaming houses; disorderly inns, or any other disorderly house; casting of dead bodies of human beings into a river, without the rites of Christian sepulture; the stealing of a corpse; resurrecting it for purposes of dissection; are all indictable offenses. The common law, having reverence for life and wealth of population, punishes abortion; indicts for murder one who voluntarily deprives another of his life at his own request, or who persuades another to take his life, and stands by at the time of the act; recognizes the act of self destruction as criminal, and holds the survivor accessory to the murder of an individual, if two men conspire to commit suicide, and, together attempting the act, one expires and the other survives. It also takes cognizance of matters of trade, and punishes the act of forestalling the market as an offense against public trade and an injury to the rights of the fair trader. Russell on Crimes says: "Every practice or device by art, conspiracy, words or news, to enhance the price of victuals or other merchandise, has been held to be unlawful; as being prejudicial to trade and commerce and injurious to the public in general. Spreading false news; buying things in the market as a whole commodity, with intent to sell at an unreasonable price, is an offense indictable at common law." So also the criminal law punishes all wrongful violations of the convenience or safety of the public. Under this principle all obstructions of highways, public squares, harbors, navigable rivers, and injuries done to such public ways; all neglect or refusal to keep them in repair by those in authority; the carrying on of noxious trades near highways or public places; making of great noises to the great discomfort of the neighborhood; storing of large quantities of gunpowder and other inflammable and combustible articles in public places; the refusal of an innkeeper to receive a lawful guest in his house of public entertainment, after a tender of money in payment of the same; also all public disturbances, riots, routs and unlawful assemblies, where three or more have gathered together to perform an unlawful act; a public prize fight; an assault and battery; forcible entry and detainer; the riotous entry of a landlord into a house to terminate a lease; riotous tearing down of inclosures; the breaking of windows with wood or stone at night, to the terror of the inmates; the breaking into a dwelling house in a loud and noisy manner, so that a woman with child, being frightened, miscarries; the sending of a challenge to fight a duel; going about armed, to the terror of the public; hazarding the lives of the people by furious driving in populous places; stirring up neighborhood broils by publishing libels; eavesdropping; being a common scold; the disturbance of public worship and public meetings, barratry, maintenance and champerty, are all indictable offenses at common law.

—With respect to the individual the criminal law spreads its protection over all of his individual as well as his public rights. He is maintained in his personal preservation and comfort; in acquiring and retaining property; and in his reputation. The greatest offense under the law against an individual is the act depriving him of his life. This is called felonious homicide. The common law divides this crime into two grades, murder and manslaughter. This repugnant crime, in the first degree, is visited with the highest punishment known to the law, the taking of the murderer's life also. There are two offenses against the person of the individual usually combined in one charge, to wit, assault and battery. There is no more odious form of violence in either law or morals than the crime of rape. It is visited with the severest punishment known to the law, other than capital, and by statute in some of the states by capital punishment. As every form of violence or unlawful physical restraint is indictable, so the law punishes any attempt to forcibly carry off for marriage a woman, against her will. Malicious mischief, although but a trespass at common law, is made by statute penal to a high degree. A cheat or fraud at common law is the criminal deception of an individual through the means of a false symbol or token, as by counterfeiting or forgery with intent to defraud. Extortion is also punished as an infringement on the rights of the individual, as taking from him that which is not due from him.

—As the law leaves to an individual the care of his own reputation, no damage to a reputation by a single party, will be entertained as the foundation of a criminal prosecution. Indictments for libel and slander are founded upon the tendency of those acts to create a breach of the peace and not upon the injury to reputation which the individual has sustained, and the offense is therefore not mitigated by the charge being true, which in a civil suit for damages would be vital.

—Of course from the circumscribed nature of this article, it has been possible only to glance, as it were, at the salient features of criminal law jurisprudence. As a science of ethics as well as law, it sweeps with broad pinions and unerring wing over a wide field of human rights and wrongs. To be thoroughly understood in all its rules and applications, it must be completely explored in all of its extended fields and operations.

JNO. W. CLAMPITT.

LAW

LAW, International. 44 I. What is International Law? what is its basis? International law, no longer confined in its operation to the nations of Europe, has no less a destiny than to unite all individuals and all states, the whole human race, in fact, in one great community of rights, of law. International law embraces the principles governing both the legal relations of states with one another (international law proper). and the legal relations of the individuals of a state to individuals who are aliens to that state, and of individuals to foreign states (private international law). Only to the extent that we recognize in foreign nations. and even in individual aliens, a common humanity, a humanity everywhere and ever the same, do we enter into an international relation with foreign states and individuals.

—When we closely compare the basis of the public or constitutional order of things with the basis of the international order of things, an essential difference between them can not escape us.

—The public or constitutional order of things is based upon a strongly articulated public or constitutional organism. In the public or constitutional order of things there exists a public or constitutional power, which is independent of the individuals belonging to the state, and which all such individuals must obey. The government is, vis-a-vis of the governed,. a self-dependent power based on a firm organization.

—It is otherwise in the international order of things. In a certain respect, indeed, states bear the same relation to international law that individual citizens bear to the state. Thus, individual citizens are in duty bound to obey the state, and individual states owe obedience to international law; thus, too, the state is above individual citizens, and international law should be above individual states; thus, finally, individual citizens see, in the state, a higher authority which regulates their relations to one another by law, and individual states should look upon international law as the rule to regulate their international relations.

—In other respects, however, the similarity ceases entirely. There is, for instance, no constituted international authority over, and independent of, states, as the authority of the state is above, and independent of, individual citizens. When it becomes a question of enforcing international law, states can not appeal to any power above them as do individual citizens, in case of necessity, to the coercive power of the state.

—Rather is the attitude of states to international law and their relation to international authority to be thus conceived: spite of the fact that states are governed by international law and should obey it, they are themselves the sole and voluntary supporters, upholders and enforcers of that law—the sole international power, following their own unconstrained good will. There exists no great international central body holding the several states in their international orbits, as does the sun the planets which it causes to revolve about it; the ruling centre of gravity of international law does not lie in a separate self-dependent organism: rather is the realization of international law to be conceived as the consequence of the reciprocal influence of the gravitation of the several state-bodies themselves. And if we be allowed to continue this figure borrowed from astronomy, we may remind the reader of the double stars which revolve not about a third body nor about the sun but about each other, thus giving themselves a common, ideal centre. International law is an ideal centre of this kind for states. It is, indeed, a governing centre; and yet it is a centre created continually only by the reciprocal influence of the several states, one which is, at any given moment. the act of their own efficiency and force.

—This has been ignored by two opposite schools. Many, like the German philosopher, Wolff, overlooking the fact that international power rests in the individual independent states themselves, based international law on a universal state (civitas maxima). Others, on the contrary, like Hegel, pushing the idea of the sovereignty of individual states to an extreme, look upon international law only as external public law. They do not sufficiently bear in mind that international law, although lacking a self-dependent organism, stands high above individual states. According to Hegel, international law is only the outer side of the state, and has its centre in the state. And, indeed, to the positive rights of individual states belong their external rights, their "external public law," i.e., the aggregate of the international provisions and treaties, which give expression to the legal relations of those states to other states. Every individual state has its internal public law and its external public law; and this external public law is a fragment of international law. But international law draws all these external rights of states together about its own self-depend ent centre, and thus gives us the principle, from which, as the central unit, all individual external public rights of states are to be understood and controlled. Every individual external public right is only a fragment from the periphery of international law. Hegel's error consists in this, that he places the centre of this periphery in the individual states, i.e., that he does not free the principle of international law from the state.

—But the question may be asked, whether the absence of an international authority lodged in a self-dependent organism, and the consequent absence of a coercive power over states engaged in a conflict or controversy, of a power which might declare and enforce the law; it may be asked, we say, whether such an absence of such an authority does not deprive international law of all life, and whether it does not turn all the rules of international law into a series of pleasant dreams destitute of reality.

—But the life of the law is, in no way, merely a continually forced existence; and even within the limits of the individual state, the government is by no means obliged uninterruptedly to employ coercion in order to make the law obeyed. The existence of the law, even in individual states, is based essentially on the power of reason. On the whole, the law exists because it is the right, and because men's minds recognize it as such. Even when the coercive power of the state is removed, the condition of things which the law had created is not destroyed. When that power is taken away, there occur, indeed, many instances of excess, but the general ideas of right and wrong remain unshaken, like immovable pillars which do not by any means rest on the pedestal of governmental compulsion. And it is precisely in times of great social crises, in which, spite of the paralysis of governmental power, property, and the law generally, often remain undisturbed, that we find convincing proof of what little coercive means suffice to a wise government which knows how to win the minds of men and properly to use the power of reason. International law rules generally, because it is the expression of the reason of nations, to which nations voluntarily submit; and the treaty provisions and the non-treaty provisions of international law enter daily unquestioned and uncontested into thousands of human transactions, in all civilized nations. Hence from the absence of an organized coercive power, it can only follow that, in individual exceptional cases, in which the right or the law is violated, the existence of international law is suspended; but spite of this, the existence of the international law in general should not, there fore, be denied.

—But we must go farther and claim that, even in these exceptional cases in which unreason or selfishness rises up against the right, international law is not defenseless, and that, for the most part, even then, it does not depend on the greater physical power of the individual state whether it will obey or violate international law. Even in such cases there exist guarantees for the maintenance of international law which are not entirely powerless. The power which rises up against the law, has to do not merely with the perhaps weaker power of its opponent. Rather is the power of the weaker under the aægis of both moral and material coercive means. These means are the following: 1. By a breach of international law, a state exposes itself to general reprobation; and its honor suffers injury. No low estimate is to be placed on this first guarantee of the law. We know what a powerful moral coercion the law of honor has in all moral communities; the individual will stake his life to save his honor. And really, in the great community of states, honor plays no less a part. There is, indeed, no state which would not feel its arm more or less weakened, by a deed which injured its honor. 2. A state which violated international law, would deprive itself of the advantages of that law. It would exclude itself from the advantages of international communion, and would thus incur great material disadvantages, such as reprisals of all kinds, the paralysis of its commerce with foreign nations, etc. Hence there is a species of material compulsion to obey international law. The violation of that law carries with it loss, property penalties, so to speak. 3. A state, intent only on fulfilling its unlawful design, might, indeed, disregard all this. But, when such is the case, we see, as a rule, that direct coercive measures are employed against that state. Alliances of several states powerful enough to subdue the wrong, are wont to be formed against such bold contemners of the law. 4. If it be objected to these alliances—called into being because the law is left momentarily in the lurch—that they are, after all, only accidental and transitory, and afford international law no reliable and lasting protection, we may finally point to the pentarchy of Europe. For a long time the five great powers have practically constituted a species of tribunal of nations, which watches over the observance of great treaties between states and of international customs.

—Hence there are a great many guarantees and measures of coercion for the maintenance of international law, and it would be an exaggeration to put the observance of merely moral and charitable duties on the same level with the international duties of a state. The great system of states is not so badly constituted that the will of an individual state, disregardful of the law, can trample on the principles of the great whole at its pleasure.

—It can not, however, be denied that all these guarantees of international law are frequently insufficient.

—In most cases states come to disagree because on this subject or that they appeal to and apply different legal opinions. It is seldom, indeed, that one state does another an entirely evident wrong. In a case of such bold contempt for the law, a great alliance of states would be sure soon to be formed, in order to repel the wrong in the name of the system of states injured jointly with the individual state. But the cases of mere legal controversies between states are incomparably more frequent.

—What, then, becomes of the means of protection which should uphold international law when menaced?

—Since the party which is in the wrong here honestly believes itself to be in the right, it need not fear any detraction from its honor or any exclusion from the community of nations. Alliances to protect uncertain rights will not be calculated upon. Finally, the members of the pentarchy, before coming to a decision and taking action, would have to agree among themselves. But there is no means by which such an agreement can be effected. There is no binding mode of voting in force among the five powers, no constitutional rule in accordance with which the decision of the majority is looked upon as the decision of the pentarchy itself. Besides, the great powers themselves may be the opposing parties in an international controversy as to their respective rights; and it would evidently be derogating from the other states, some of which are still very powerful, to submit them to the judicial authority of the five great powers. Representatives of the smaller states, too, would have to take part in the decisions of international controversies, in order that the principle of the equality of states might be preserved. Representatives of all important nations should participate in such decisions, to the end that the judgment rendered might not be given in a narrow, national sense, but that it might proceed from the true source of international law, from universal human reason.

—Here evidently there is a rent, so to speak, in the structure of international law, through which many a destructive storm will yet break. Congresses, courts of arbitration, and even a permanent tribunal of nations with limited jurisdiction, might, indeed, prevent much evil, and settle many questions of war in a rational and peaceful way. For judicial decisions can apply only existing law, and can not decide concerning those states of things in the future which the spirit of humanity—the spirit that rules in history and is ever transforming the present—conjures up in the course of time. Thus the great questions of nationalities are questions of the growth of historic powers which can never be held in check by the arm of the administration of justice. In every great historic crisis in the life of the state, a new condition (of justice) is evolved out of the old, one which destroys the old and which from the standpoint of the old seems illegitimate. To condemn this new condition of the right by a judicial decree which is thinkable only on the basis of the existing condition of the law, for the reason that it is opposed to the spirit of the law actually in force, would be to stop the course of history and to petrify the mind of humanity.

—We can only hope therefore that the rent here referred to in the walls of the structure of international law may never close, but that it may remain forever open to admit the fresh drafts of the air of the future to peoples and states, vivifying and purifying them.

—II. History. Since from the remotest times of which history has preserved any account, peoples and states have had some kind of intercourse with one another, and since all human intercourse is accompanied by a mode of procedure more or less legal, there has been at all times a species of international law; and we may speak even of an international law of savage nations. (Fallatti, Keime des Völkerrechts bei wilden und halbwilden Stâmmen, in the Tubingen Zeitschrift für Staatswissenschaft, 1850, pp. 150, etc.)

—The international law of to-day, however, is a product of Christian Europe. It has no perceptible connection with the old international law of savage tribes, nor with the international law of the Orientals, nor even with that of the ancient Greeks and Romans. Hence a history of the international law of to-day must be confined to Christian Europe and to the countries which it has fructified in the intellectual order. The east, as well as Greece and Rome, we shall mention only to show the character of ancient international law and the contrast it offers to the international law of our times.

—True religion generates a love as broad as the world, a love which embraces all mankind, breaks down the barriers which separate peoples into hostile camps, and leads to a community of nations. In the east, religion is everything. It absorbs both the law and the state. It is rigidly national, with the utmost hostility to all international community. Thus, the Jews looked upon themselves as the chosen people, holding a commission from Jehovah to extirpate all neighboring peoples and consume all nations whom the Lord God would give them. (Deuteronomy, vii., 1, 16.) The institutions of the Jewish people calculated upon their seclusion from other peoples. The law of Moses, indeed, ordains that exaction shall not be practiced on strangers, that they shall not be vexed (Leviticus, xix., 33); it even ordains that there shall be one manner of law for the stranger and for the Jew (Leviticus, xxiv., 23): yet, in spite of this, we find a very marked disregard of, and want of consideration for, strangers in this same law (compare Leviticus, xxv., 45, 46), and that the practice of usury was forbidden the Jews as against their Jewish brethren and at the same time allowed them as against strangers. (The field of oriental international law has been cultivated by Haelschner, Diss. de jure gentium, quale fueril apud gentes Orientis, Halle, 1842; by Pütter, Beiträge zur Völkerrechtsgeschichte und Wissenschaft, Leipzig, 1843; Müller-Jochmus, Geschichte des Völkerrechts im Alterthum, 1848. These works, however, are vastly surpassed by the great work of Laurent (Geneva): Histoire du droit des gens et des relations internationales, tome i., L'Orient, 1850.)

—In the minds of the peoples of classical antiquity, the state occupied the first and highest place to such an extent that they sacrified to it the whole domain of private life, religion and foreign peoples. This is true especially of the Greeks at the period of their prime. We may be silent as to Sparta, which sacrificed all human feelings to the Moloch of the state. But even the ideal of Athenian morality, as it finds expression in Plato's "Republic," is a state which absorbs every other moral domain. The Greeks knew nothing of a humanity which exceeded the limits of the state. Their motto with regard to other nations was: Eternal war on the barbarians! (Livy, i., 29: Cum aliengenis, cum barbaris, œternum omnibus Grœcis bellum est; Heffter, Volkerrecht, § 6; Ward, "Enquiry into the Foundation and History of the Law of Nations in Europe, from the Time of the Greeks and Romans to the Age of Hugo Grotius," London, 1795, 2 vols.; Wachsmuth, Jus gentium quale obtinuit apud Grœcos, Berol., 1822; Heffter, Prolegomena de antiquo jure gentium. Laurent, in his work already cited, devotes a separate volume (the second) to the international law of the Greeks. Compare also, Henry Wheaton, Histoire des progrès du droit des gens, tome i., pp. 1-17, and G. de Wal. Inleiding lot de Wetenschap can het europesche Volkenregt, Groningen, 1835.)

—The ancient world was, indeed, acquainted with certain customs of nations agreed upon by all, especially in regard to the conduct of war, ambassadors, asylum and treaties. Ambassadors were held to be inviolable, and it was considered that treaties between states could not be rightfully broken. But was it the consciousness of right that supported this inviolability, and this respect for treaties? It was not. It was religion in which the principle of legal right was still enveloped. Hence, ambassadors made their appearance with religious symbols, and thus claimed for themselves the protection of religion. Treaties were sealed with the religious sanction of an oath, and solemn sacrifices were offered to the gods when they were closed. But beyond this, the ancients considered that they owed no obligations to strangers or barbarians.

—The Greek tribes frequently treated each other with the most revolting inhumanity. After the fall of Mitylene, the reputedly mild Athenian people decreed that all its male adult population should be put to death and that its women should be reduced to slavery; and although a second decree prevented this atrocity, about a thousand men suffered the penalty of death and the land was divided among Athenian citizens. The surrender of Platæa to the Lacedemonians took place contrary to the promise that only the guilty should be punished. With infamous sophistry the Platæans were simply asked whether they had been useful to the Lacedemonians during the war; and, as they very naturally denied that they had been, orders were given that they should be put to the sword, their wives sold, their houses torn down, and their city and lands transferred to the Thebans. In like manner, after the conquest of Melos by the Athenians, all its citizens who had attained to man's estate were, by order of Alcibiades, put to death.

—To what extent the rights of mere humanity were ignored is shown by the existence of slavery, especially that of the helots. Slavery was maintained not only by the coarser lower classes of the Grecian people, but it was approved by Greek philosophy. To such a degree were the exclusive rights of Greek nationality the limit of the highest moral consciousness of the Greeks, that even an Aristotle could say that the barbarians were intended by nature to be the slaves of the Greeks. (Arist. Polit, lib i., cap. 8.)

—The Greeks distinguished peoples into non-allies and allies. Non-allies were considered as having no rights. All peoples with whom they had no express alliance they treated as enemies, and permitted themselves, as in the case of the Platæans, all kinds of treachery and atrocity against them. (Thucydides, lib. iii., cap. 68)

—The amphictyonic league was an attempt by the Greek tribes to form closer ties The amphictyonic council was a general federal court for the whole of Greece. Each Greek city sent two representatives to it, first to Delphi and afterward to Thermopylæ. Religious solemnities accompanied their assembling. After this, international controversies were settled, and crimes against the temple at Delphi and violations of international customs were punished. A money penalty was imposed on the guilty people. If the penalty was not paid at the proper time, it was doubled. When all other means failed, the decree of the amphictyons might be carried out by the full force of arms of the league. (Titmann, Ueber den Bund der Amphiktiyonen, 1822; Heinsberg, De Concilio Amphictyonum, 1828.) The amphictyonic council was closely connected with the Delphic oracle, in the immediate vicinity of which it was originally held. This connection gave the sentences of the council a higher sanction. The Delphic god took its decrees under his protection, and made them, so to speak, laws of religion. Yet the utility of the council was not great. (Johannes von Müller says of the council, in his notes on Herder's works on philosophy and religion, vol. vi, p. 153, ed. of 1827: "It can not be boasted that it was of much use in times of great crises. In many things it was like the German reichstag.";) Hence not many rules of international law proceeded from the amphictyonic council. Endeavors were made by some provisions to mitigate the laws of war. Mutual agreements were entered into to bury those who had fallen in battle, and the right of asylum in the temples was recognized. Beyond this, the influence of the league did not go; and it lost its really international importance by the fact that it excluded all other nations.

—Among the Romans we find, from the very earliest time, the jus feciale, based upon ancient Italian customs. The college of fetiales, or Roman priests, instituted by Numa, consisted of twenty members, with a paler patralus at their head. The fetiales were invested with a diplomatic character. International transactions and declarations of war were within their province. A religious and priestly character was attributed to them, and their acts were accompanied by religious symbolic ceremonies. (Livy, i., 2; Plutarch, Numa, c. 12; Dion., ii., c. 72; Cic. de Leg., ii., 9; Weiske, Considérations sur les ambassadours Romains, comparés avecles modernes, Zwickau, 1834; Osenbrüggen, De jure belli et pacis Romanorum liber singularis, Lips., 1835; Müller-Jochmus, Geschichte des V8otilde;lkerrechts im Alterthum, Leipzig, 1848; Laurent, Rome, tome i.)

—However the international observances of Rome may have developed and extended from these first germs, certain it is that the really fundamental idea of international law never asserted itself among the Romans. They neither respected foreign nationalities nor recognized the universal dignity of human nature in the individual. They annihilated those states and nations which would not become subject to them, and extinguished the character of nations. In their devastation of Greece, they had no respect even for Greek civilization. They sold hundreds of thousands of Greeks into slavery, and finally filled Italy with such a mass of slaves that destructive wars of the slaves broke out, wars in which the suppressed rights of human beings avenged themselves on their hard-hearted despots.

—The Germanic races, when they began their incursions into the Roman world, confronted other nations with their rugged and repulsive nationality. Their weregild system is evidence of the small value they put on persons of foreign nationality. They dispossessed proprietors, in conquered territory, of their lands, and reduced the conquered, for the most part, to the condition of bondmen. Strangers they looked upon as having no rights. Yet hospitality was sacred in the minds of the Germans; and hence they had some susceptibility for the ideas of humanity and of international law.

—The Romans who dwelt mixed among the Germans, lived, even after their subjugation, in accordance with the Roman law. Even the national privileges of the Germans assumed a Roman coloring. The Germans allowed the framework of the Roman constitution of the provinces to rest on its old Roman foundation. In many parts of the former Roman empire, as, for instance, in the Burgundian and West Gothic parts of the Frankish empire, the constitution of the Roman city was maintained The downfall of the western empire left after it, accordingly, very important traces of Roman regulations and Roman laws.

—Besides, Rome and Byzantium lived on in the imagination of the young, fresh conquering nations which had destroyed the Roman empire. A German-Byzantine dualism runs through the whole old constitution of the Frankish court, a constitution which may be traced back, in part, to the retinue system of the Germans, and in part to regulations of the Byzantine court. The idea of the old Roman empire was at work even in the minds of Alaric, Ataulph and Theodoric. In Charlemagne it became clearly manifest.

—Besides the influence of Rome on the new nations, we early perceive the influence of Christianity and of the church also. The idea of humanity is the offspring of Christianity, which would unite the whole human race into a nation of brothers, and which declares human personality sacred in every human being. Both Christianity and international law rise above, and go beyond, what is simply national. Christianity and international law are called to unite the whole human race. Whereas, previous to Christianity, the people of each nation could follow only their own great leaders, in whom they recognized the personified prototype of their nationality, in Christ a common prototype and sole centre was given to all humanity; and by this fact all barriers between nations were by anticipation removed. (Galatians, iii., 28; 1 Corinthians, iii., 21-23, and xii. and xiii. Schleiermacher speaks pertinently on this point.) Thus was the spiritual soil in which international law might grow, prepared. An important contrast must, indeed, not be overlooked here. International law was called upon to establish only an external legal community. Christianity, on the other hand, was to establish an internal community, embracing the whole human race. But the eyes of humanity had first to open gradually to the purely interior greatness of the Christian idea; and thus the purely spiritual universal empire of Christianity was transformed with the priesthood of the Roman empire into an external universal empire, not unlike the old empire of the Romans. The unification of the church was completed by the concilia œcumenica and the papacy. With the constitution which it had obtained in the Roman empire the church entered among the Germanic nations, and drew them into its great hierarchic unity. Finally, the grand minister of the middle ages became one great spiritual-temporal whole, with its two high-towering spires, the papacy and the empire. Christendom was one sole, firmly articulated body. God had given it the two swords, the spiritual and the temporal. The church had a deeper conception yet of the great unity. It denied the dualism of the two swords, and deduced all power, even the temporal, from the one spiritual centre.

—The old view, that all foreign peoples were barbarians and enemies, was now, in spite of the coarseness of the period, overthrown, and a higher standpoint reached. The idea of a union of the human race to be effected by Christianity, of a union whose firm foundations were to be the papacy and the empire, had, from the time of the coronation of the emperor Charlemagne, become a living, propelling force in the nations. The empire of Charlemagne, extending from the Ebro to the Raab, and from the Tiber to the German ocean, united the nations of middle and western Europe, whose future was so rich, and gave them, in the capitularies, certain common laws. The peculiarities of the several nations were maintained in the empire, and each people was allowed its own special national laws. The system of personal rights which obtained in the Frankish empire, and by virtue of which every member of a nation was judged, even when in a foreign nation, by the laws of the nation to which he belonged by birth, was pregnant with the mutual recognition of the rights of foreign nations, a recognition of great importance for the development of international law.

—The empire of Charlemagne, indeed, crumbled to pieces soon after its founder's death. The Germans were not yet ripe enough to preserve so vast a political organization in its objective self-dependent course. To do this, they needed a powerful governing personality, and such a personality they did not find after the death of Charlemagne. Moreover, nationalities within the empire had, even now, assumed characters too dissimilar. The Romanic and Germanic elements, especially in the different parts of the extensive empire, had become so inseparably and peculiarly mixed that the modern character of the different nations with their mutual repulsion became perceptible. The accidental external reunion of the great empire under the weak-headed and cowardly Charles the Fat, in the year 884, was not able to overcome these too powerful differences any longer. The history of the several parts of the Frankish empire now begins, and the union of France and Germany comes to a close completely. None the less, the capitularies lost their formal force and application with the dissolution of the empire. But the great community of nations of the Frankish empire was as far from passing away without lasting after-effects on the subsequent life of the nations of Europe, as the overthrow of the Roman empire was from destroying Roman ideas. Nations had come into close contact with one another, and had acquired certain common views of law, of the state and of the church. Those countries into which the peculiarities of the ancient Germans had made their way, retained a certain unity in their modes of thinking and in their mode of life, which subsequently became the foundation of international law and of the European system of states.

—With the dissolution of the empire of Charlemagne, the energetic temporal centre for European nations ceased to exist. The empire of the Germans was of less importance than the Frankish empire. True, Henry II (1002-1024) continued to receive from the pope the golden symbol of imperial power, a ball surmounted by a cross, significant of the empire of the world under the protection of the Christian church: but Henry owed this less to his vigorous assertion of the position of the imperial power in the world than to his obsequiousness to the clergy; and the symbol was less calculated to call to the emperor's mind his imperial power than the protection he received from the church. The church was even now in need of reform. The emperor, Henry III., began this reform inasmuch as he checked simony, the immorality of the clergy, and party spirit in Rome, by promoting suitable German bishops to the papal chair, who endeavored with all their might to repress the old disorders. The popes, in consequence, acquired renewed authority, which they caused to be felt partly through their legates and partly in person. This renewed consideration for the popes depended on the power of the emperor to whom the popes owed their place, and without which they would perhaps have fallen back into their former condition. But this dependence on the emperor did not last long. The greater the papal power, through the emperor's own co-operation, became within the church itself, the more strenuously did the pope strive to make himself independent, even as regards the emperor. Hence the reformation of the church begun by Henry III. soon took a turn disadvantageous to the imperial power itself. His successor, Henry IV., met in Gregory VII. a pope who made the bold attempt to transform, at the cost of the imperial dignity, all Europe into one great theocracy that he might enthrone the pope on the summit of the great theocratic pyramid of the world. The papacy interfered in the province of states more and more, curtailed their sovereignty, and caused the greatest collisions to take place among them while the idea of the imperial dominium mundi faded away. The independent centre of gravity of states was displaced by the papacy. Uninterrupted papal interference checked their concentration and disturbed the process of their development.

—In a certain sense, indeed, the Roman hierarchy united Europe into one great whole; and the pope was at times a Christian international tribunal for states in conflict with one another. The church, too, prevented the shedding of much blood by the institution of the truce of God. But there was little peace, under the auspices of the papacy, among states, and the papal see was by no means guiltless of this fact. This double power, this papal state within all states, brought it to pass that states could not comprehend themselves and could not grow strong and firm internally. But self-dependent states are a condition precedent to the existence of international law, and where there are no autonomic states an international system of states can never be formed; where there are no autonomic states, the idea of international law is wanting in the organs by which that idea can be properly realized. Hence the phenomenon that the international law of private individuals, that the recognition in every man of his purely human rights binding everywhere, preceded the international law of states in the middle ages. The bishops of that period, impelled by the spirit of Christianity, took the oppressed under their protection, checked the trade in human beings, ransomed slaves and opened the asylum of the church to the rights of man; while the great Christian nations, not without the church's being in fault for it, engaged it barbarous struggles with one another.

—We can not find a paving of the way for international law in the middle ages nor in the crusades. Chivalry, indeed, attained to sword law and feudal law, but not to an international law; while the crusades aroused between Christian nations and infidel nations an opposition inimical to international law. They neither promoted the cause of humanity, nor opened new avenues to commerce, nor established a closer or more rightful relation among the nations of Europe. The so-called holy wars began with a frightful slaughter of the Jews, devastated a great part of Europe, and trampled under foot the best germs of the development of the sentiment of humanity. But one thing we must grant—the universality, the European character of the crusades. In them all Europe participated, was animated by one feeling, and united to do one thing. In this first European movement, it became manifest that there was one great common European national life.

—Good consequences flowed from the commercial spirit and from the alliances of cities, which was the cause, finally, of a commercial state that extended its sway over the Atlantic ocean and over the Black, Mediterranean, Baltic and North seas. These cities, the prince of which was Lübeck, were situated in Germany and the Netherlands, in the northern kingdoms, Poland, Prussia, Russia and Livonia; and the greatest commercial places in England, France, Spain and Italy associated themselves with them. This league was perhaps the most effectual the world has seen. It did more to make Europe one commonweal than all the crusades and all the usages of Rome; for it went beyond differences of religion and nationality and established the alliance of states on mutual utility, on emulous industry, on honesty and order.

—Under Innocent III., the greatest man of his age, who, from 1198 until 1216, conducted papal affairs with equal firmness and shrewdness, the papacy rose once more to its full height. He gave utterance to it as a principle, that Germany and Italy should not be united under one crown—a principle which, if strictly carried out, would have led to the independent importance of Italy. With a bold hand he interfered in the political quarrels of Europe. But the consciousness of the states of Europe of their own rights rose up against him. The German empire had, indeed, been on the road of decline since the interregnum (1256-73) and the Hapsburgs were unable any longer to prevent the separation of Switzerland from the empire (1308). But states assumed a manly attitude toward the papacy. France reduced the pope to complete dependence on it (Avignon exile, 1305-78). Germany was no longer willing to allow the interference, in its political affairs, of a pope reduced to bondage by France, but still presumptuous in his bondage. The memorable assembly of electors at Rense (1338) declared the election of the German king to be independent of his confirmation and coronation by the pope; and Germany boldly proclaimed to the world that it wanted to see the spiritual power confined to the sphere of the spiritual. The council of Basil also, which lasted from 1431 to 1444. and revived the principle that a general council was above the pope, deserves mention in this connection.

—How much the dominium mundi, conceded to the emperor, implied, was not clearly defined, and the whole idea had in it, at all times, much that was fantastical. Yet that the emperor had precedence of all other rulers was recognized even during the decline of the empire, and the emperor had the right to grant the title of king, as the royal Bohemian and Polish dignity had their origin in imperial privileges. Yet in other kingdoms, and not in France and England only, men felt themselves much more independent of the emperor than of the pope.

—The mariner's compass, gunpowder and the art of printing were three great elements of progress. The mariner's compass opened the broad ocean to commerce, and extended that commerce over the whole earth. Gunpowder put an end to the carnage of personal combat and made war more humane. The art of printing brought about a rapid exchange of thought in Europe, and generalized the beneficent effects of the sciences, then rapidly growing.

—Three powerful currents had, from the beginning of the middle ages, poured themselves over the whole of Europe, and spread everywhere like intellectual elements: the Roman current, with the idea of the empire, of provincial and municipal organization, and of intercourse regulated by law; the Christian current, with the idea of humanity, the idea of universal fraternity, and ideas of pure morality; lastly, the Germanic current, with the ideas of personal faithfulness and honor, but especially of individual liberty and self-government. As the great deposits of these currents in the domain of law appeared the corpus juris civilis, the corpus juris canonici, and the corpus juris Germanici: all three of European importance and of consequence to all Europe.

—The renewed diffusion of Roman law over a great part of Europe and the principles of Christianity gave a common basis to European law. The Bible and the Institutes of Justinian became the common property of all the more civilized nations of Europe, and brought about the harmony of moral and legal ideas necessary to the international agreement and understanding of states.

—The reformation, the first great intellectual European upheaval, which, begun in Germany, spread over the whole north and west, brought the middle ages, from the standpoint of international law, as from all others, to a close. The reformation rendered possible, for the first time, the existence of self-dependent states—the support and organs of the idea of international law—by doing away with the dualism of the spiritual and temporal power, and by emancipating the state from the joint lordship of the Roman see.

—The ascendency of the church could not, from this time, be feared by states. But, on the other hand, one state might obtain a dangerous preponderance over other states. And, indeed, from the sixteenth century, we find two ideas, engaged in a decided struggle with each other: the idea of a universal monarchy and the idea of the balance of power. The idea of a universal monarchy was a legacy of antiquity which knew little of international rights. It was inherited by the Frankish empire and then by the Germans; and after the decline of the empire other states sought to realize it. The more modern principle of international law, on the other hand, sought realization in the idea of the political balance of power.

—From the standpoint of the development of the European system of states, the thirty years war is to be considered as a reaction of the idea of the balance of power against the ascendency of the house of Hapsburg. How the relations of states, in what concerns international law, have been modified from the peace of Westphalia to the present time, is best studied in the history of modern congresses and treaties of peace. The further development of the theory of international law will be treated of briefly in what we shall have to say in this article on the literature of the subject.

—In spite of the wars and revolutions which have stirred Europe in recent times, humanity has gained visibly; the consciousness that all men belong together has grown stronger; the foundations of international law have become broader and firmer; and numerous traces of a barbarous international condition, which we find mentioned by writers on international law as still the law of barbarous peoples, are disappearing before the ever brighter and ever warmer beams of the still ascending sun of Christianity. An eloquent sign that the spirit of the present has invaded the sphere of international law is afforded by the Paris congress of 1856. Although that congress gave only an imperfect solution to the Eastern question, which was the occasion of its coming together, it will remain forever memorable in the history of international law, because of its reception of Turkey into the political system of Europe, because of its humanization of the laws of naval warfare, and because of the wish solemnly expressed by the powers before all Europe—though that wish was never fully realized—that in controversies between nations, these latter should, so far as circumstances permitted, have recourse to the good services or to the mediation of a friendly state before resorting to brute force. We have only to open the eye of the intellect to discern from this point the lofty mountain tops of the ideas of the modern era gilded by the sun of the future.

—III. Sources of International Law. 1. Treaties between states occupy the first rank among the sources of international law.

—2. A second important source of international law are the records of the official proceedings of whatever kind, in which states have given expression to their convictions on international law. Here belong, 1st, the protocols of congresses and international conferences of ministers. These protocols have, for the most part, served in the preparation of important treaties between states. They are, besides, a means, worthy of all consideration, to enable us to determine the true and complete sense of the treaties for which they have paved the way, and hence they must be considered a source of at least so-called special or particular international law, that is, of that international law which is binding only on the contracting states. In addition to this, they frequently contain the expression of the common conviction of the right of all civilized states, and thus furnish valuable material for the international law which is "binding on all states." Here belong, 2d, the declarations of the great powers, notes, manifestoes, correspondence, and even the protests of states. Declarations of the great powers as to their views of the right, such as the declaration made by them in 1856 in relation to maritime law, acquire very soon, when they have reason on their side, a force equal to what they would have if made by a legislative body. Manifestoes, notes, correspondence, are often the unbiased expression of legal convictions, which will never afterward be questioned by states in their international intercourse with one another. Even the protests of individual states against violations of rights by others may be considered as a source of international law when, because based on the right, they have received the assent of impartial states or of impartial posterity. Neither of these kinds of documents, however, has the binding force of treaties. Science should be as far from passing them by without notice as it should be from accepting what they contain without any more ado. Rather is science here called upon to go into the fullest examination. The material of these documents is to be found in the numerous writings on treaties of peace, those which are wont to appear under the titles Négotiations, Négotiations secrètes, Actes et Mémoires, Pièces officielles; also in the matters laid before constitutional chambers for their discussion, in the collections of "state archives," "political archives," etc., in the blue books; but especially in the voluminous English "portfolios."

—3. Laws and regulations of individual states come into consideration, in various ways, as sources of international law. Where, for instance, on matters which may become the subject of international as well as of private or civil controversy, the laws of states agree, and when no objection can be rightfully raised against applying the principles of the civil law, by way of analogy, to cases of international dispute, a controlling principle of international law may be deduced from the civil law. So, too, when the principles of purely international law are incorporated into the statute law of a country, as has been done, for example, in the law of booty, the law of blockade, in the laws on the slave trade on the high sea, either because the statute law of the countries in question anticipated the universally admitted principles of international law, as did, for instance, the English laws on the slave trade, and the French decree of March 28, 1852, which absolutely prohibited the reprinting of foreign books on. French soil; or else because the legislation of an individual state has merely sanctioned provisions of international law already universally recognized. More especially worthy of notice are the laws and regulations of states governing maritime prizes in times of war; for each state allows its own courts to decide on the validity of the maritime prizes made by its ships. The state of course lays down laws by which its courts must be governed in such cases, and these laws are not the result of the caprice of the state; rather are they intended to be, as they should be, the expression of the general principles of international law.

—The old sources which constitute the common historical basis of the law of civilized Europe are gladly resorted to, the Roman law and also the canon law, so far as both continue to express the consciousness of right of the present. The Roman law and the canon law have of course no legally binding force on nations; only as ratio scripta can they be taken into consideration.

—4. The verdicts of international courts, of so-called mixed commissions and prize courts, fill a place in international law similar to that filled in Roman law by prejudication. The same may be said of the legal opinions asked by states in matters of international dispute. Very important are the decisions of mixed commissions which are composed of arbitrators of different states on the international controversies of such states. By the very composition of such commissions, the national narrowness of the legal consciousness of the commissioners is removed, and the way opened for the universally rational. The judgments of prize courts, indeed, since prize courts are appointed or established by the one party or the other, have not the presumption of complete impartiality in their favor. Such judgments must therefore be constantly criticised and cautiously used. Legal opinions on questions of international law are sometimes asked by a state of its own jurisconsults, and sometimes also from distinguished foreign jurisconsults, that it may regulate its course according to them. Such opinions possess especial weight and the strongest presumption of impartiality when they are opposed to the interests of the jurisconsult's own consulting state; their importance is so much the less in the opposite case.

—5. In view of the deficiency of international law in positive provisions, the writings of jurists enjoy great authority in it. Statesmen gladly consider themselves bound by what they find in them. Not for the reason that the writers of such works are absolutely better versed in the matter than statesmen. But the individual case interwoven with a great many interests, which it is incumbent on the statesman to decide, makes him easily prejudiced and one-sided, and hence it is essential to justice and impartiality to listen to the voice of those who, unprejudicedly engaged in the cultivation of science, endeavor only to give expression to the truth. The weight of the decisions of jurists is increased when the writers of different, or, better yet, of all civilized nations, agree, so that it may be said we have in such opinions the harmonious testimony of nations.

—International customary or unwritten law can, in general, be drawn only from the writings of jurists, who here appear not as mere theorizers, but as witnesses to historical facts. We here distinguish international customs and international observances. International customs are recognized by certain uniformly recurring facts, in which a permanent consciousness of the legally right, one common to all nations; finds expression. The simple recurrence of the merely external facts is not decisive here. Proof is necessary that the reason of the recurrence is, in very deed, in an unchanging consciousness of nations of the right. By observances are meant the merely external formal usage, not the shaping of the forms of international intercourse, which has no essential necessity in it. They may for the most part be insisted on as real rights, as law, but they are not law absolutely, but only because of usage. A great part of international ceremonial law is based on such merely external usages; little of it depends on agreement, and hence much of it is controverted.

—When jurists speak not as witnesses to the historical international law, but as theorizers, their theories must be carefully examined, and subjective views must be distinguished from objective truths by independent investigation. Every theoretical proposition, however, which is nothing but an inference from a principle already recognized as a principle of international law, has an unqualified claim to being in force; and the art of the theoretic improvement of international law consists mainly in this, to grasp such principles and render them productive of others.

—IV. Literature. What we have to say here on the literature of international law may be considered, in a measure, as the continuation of what we have said above on its history—The theory of international law has been developed since the reformation. That theory received its first powerful impulse from the reformation which, for the first time in the world's history, made self-dependent states possible, and with the principle of intellectual freedom smoothed the path of political freedom. (Mart. Huebneri, Orat. de immortalibus Mart. Lutheri in imperia meritis, Hafn., 1761; Creuzer, Luther und Hugo Grotius, Heidelberg, 1846.)

—At first international law was treated as a part of the law of nature, because writers confounded the Roman meaning of the jus gentium with its modern meaning. Thus, Oldendorp, Juris naturalis, gentium et civilis isagoge, Coloniæ, 1537; also Hemming, De lege naturœ methodus apodictica, 1550; finally, Winckler, Principiorum juris libri quinque, Lipsiæ, 1615. Besides these predecessors of Grotius, the father of the science of international law, we must also mention Albericus Gentilis, who was born in 1551 in Ancona. He was obliged to take refuge in England because of his Protestant opinions, and died in Oxford in 1611. He wrote his De legationibus in 1585; in 1588, his De jure belli; and in 1590, De justitia bellica. From the relationship existing between his ideas and the resemblance of the subdivisions of his work, and even the titles of his chapters, to those of Grotius, it has been assumed that Grotius drew much from him. (The history of the literature of international law has been written by De Val, Inleiding tot de Wetenschap van het europesche Volkenregt, Gron., 1835; Kaltenborn, Kritik des Völkerrechts nach dem jetzigen Standpunkte der Wissenschaft, Leipzig, 1847; Robert Mohl, Geschichte und Literatur der Staats-wissenschaften, 1855. A comprehensive history of the literature of international law may be found in Henry Wheaton's Histoire du droit des gens, 4th ed., 1870. Among the precursors of Grotius, the Spaniard Suarez (1538-1617) should not be forgotten. He wrote De legibus ac de legislatore. Compare Kaltenborn, Die Vorlaufer des Grotius, Halle, 1848.)

—Grotius, however, is the first who accomplished anything of importance in international law.

—When the Spaniards demanded of the Netherlands, which had become independent, that they should no longer continue to carry on their trade with India, Grotius composed, in 1609, his Mare liberum, seu de jure quod Batavis competit ad indica commercia, Lugd. Bat. Subsequently, having fled to Paris, he there wrote his masterpiece, De jure belli ac pacis, 1625, in which we find a frequent admixture of views pertaining to natural law and to international law, although it is very evident it was Grotius' intention to give the world not natural law but international law, in the modern sense of the term. The influence of the work was very great, for it was permeated with the spirit of Christianity and humanity, while it opposed to the system of machiavellism only the simple fundamental principles of right. Gustavus Adolphus carried it always with him. All diplomates of the period immediately following Grotius referred to it as they would to a book of statutory law. It will live forever as the first work on international law. (Hartenstein, Darstellung der Rechtsphilosophie des Hugo Grotius, in the Abhandlungen der philosophisch-historischen Klasse der k. sachs. Gesellschaft der Wissenschaften, Leipzig, 1850; Van Hagendorp, Commentatio de juris gentium studio in patria nostra, Dorpat, 1858. Commentaries on, selections from, and translations of, Grotius' work have appeared in great numbers and increased its influence.)

—The Englishman, John Selden, contested Grotius' views drawn purely from natural right, in his De jure naturali et gentium, juxta disciplinam Ebraorum, 1629. He met Grotius' Marc liberum with his Mare clausum.

—A loftier position was taken by the Englishman, Richard Zouchy (Zouchœus). He was the first to write a text book on international law, which he did under the title: Juris et judicii fecialis, sive juris inter gentes, et quœstionum de eodem explicatio, Lugd., Bat., 1651.

—Pufendorf, the first teacher of natural law at Heidelberg, and later at Lund (born 1631, died 1694), starts out with the view that the doctrines of natural law and of international law are identical; that is, that certain same principles applied to individuals constitute natural law, and that applied to states and nations they constitute international law. He here follows Hobbes De Cive, cap. xiv., § 4. He denies international law on the whole the character of positive law. His Jus naturœ et gentium appeared first in 1672, and an improved edition in 1684. He found an adherent in Christian Thomasins, who, born in 1655, was professor at Halle, and died in 1728, a man who denied all positiveness to international law, for the reason that there is no legislative power over states.

—In opposition to this tendency in the direction of natural law, we find others insisting on the positive character of international law. Thus, Samuel Rachel (1628-1691) professor in Halberstadt and afterward in Kiel, and ambassador at the peace congress at Nimwegen; also Wolfgang Textor, who was born in 1637, was professor at Altdorf and Heidelberg, and died as protosyndic in Frankfurt in 1701. Rachel wrote De jure naturœ et gentium dissertationes duœ, 1676, and Textor a Synopsis juris gentium, 1680.

—Christian Wolff, who was born in Breslau in 1679, and died as chancellor of the university of Halle, in 1754, applied his notoriously stiff mathematical method even to international law. And so he composed his extensive work Jus gentium methodo scientifica pertractatum, 1749, and in 1754 issued an abridgment of it under the title Institutiones juris naturœ et gentium. He did much to systematize international law. He considered that nations and states stood in the same relation to one another as the members of the same body. He called the legal community of all nations and states a civitas maxima. By so doing, he—it matters not how much he dwelt on the independence of states—almost transformed the free community of states into the unfree unity of one universal state. (Wheaton, Histoire, 1853, tome i., p.227; Kaltenborn, Kritik, pp. 66, etc.; T. Rutherforth, "Institutes of Natural Laws, being the substance of a course of Lectures on Grotius' De jure belli ac pacis," Lond., 1754. See also. Burlamaqui, whose Principes du droit de la nature et des gens appeared originally in 1766, etc., in eight volumes; and Gérard de Rayneval, whose Institutions du droit de la nature et des gens was published in 1832, and a new edition in Paris in 1851.)

—Wolff's celebrated follower, Vattel, who was born in 1714 and died in 1767, selected the best of his master's ideas on international law and accepted Wolff's principles and definitions. Yet he could rightly claim that his work was very different from Wolff's. It has had, and still has, great weight. His Droit des gens appeared (1st edition) at Leyden in 1758; the second at the same place in the same year. The last edition, in three volumes, appeared in 1863.

—Johann Jacob Moser shows too great a contempt for philosophy in international law, but, on the other hand, furnishes us with a vast amount of philosophical matter, and thus supplies the theory of international law with a sure, positive foundation. It is to be regretted that he takes into consideration almost exclusively the historical events of comparatively recent times, instead of following the positive principles of international law in their gradual growth. Of the writings on international law produced by him during his literary career of nearly fifty years (1732-81), we must mention: Grundsatze des jetzt üblichen Europ. Völkerrecht in Friedenszeiten, 1750; Grundsätze des jetz üblichen Europ. Volkerrecht in Kriegszeiten, 1752; Erste Grundlehren des jetzigen Europ. Völkerrecht in Friedens-und Kriegszeiten, 1778; Versuch des neuesten Europ. Völkerrecht in Friedens-und Kriegszeiten, vornhmlich aus der Staatshandlungen der Europäischen Mächte, auch anderen Begebenheiten, so sich seit dem Tode Kaisers Karl VI., 1740; zugetragen haben, in ten parts, 1777-80; and, lastly, Beiträge zu dem neuesten europ Völkerrecht in Friedenszeiten, in five parts, 1778-80.

—Efforts were now made to systematize international law from the positive material collected, although the "systems" thus formed continued to have a very arbitrary, capricious character. (Compare Kaltenborn, Kritik des Völkerrechts, pp. 103, etc.)

—R. G. Gunther, a Saxon, who had published, in 1777, an anonymous work on the outlines of international law, composed a work: Europäisches Völkerrecht in Friedenszeiten, nach Vernunft, Vertràgen und Herkommen. mit Anwendung auf die deutschen Reichsstände. part i., 1787; part ii., 1792. K. H. von Römer denied the existence of a general European international law, and sought to give an exposition of German international law. He, in this work, mixed up the relations of the German princes to the emperor, and thus produced a compound of German public law and international law in his book. Das Völkerrecht der Deutschen, 1789. Friedrich von Martins is the most noted representative of this capriciously systematizing school of international law.

—Kant treated of international law at the end of his Rechtslehre, which appeared for the first time in 1797. Kant does not hold strictly to the distinction between international public law and international private law, a distinction which he evidently conceived from the separation of international law proper from cosmopolite law. He starts out with the fiction of natural law, of a state of nature, both of individuals and nations. This state is a state of war, of club-law, a state which must be done away with, and, in the domain of international law, done away with by a confederation of states created to ward off attacks from without. But a universal confederation of states, embracing all nations, is impossible. A multiplicity of confederations existing, there again arises for these, in their relations with one another, a state of nature and a possibility of war. Hence the unattainableness of perpetual peace. But an approximation to perpetual peace may be made by unions of individual states effected to maintain peace among themselves. This subject is treated more fully in Kant's Zum ewigen Frieden. By "cosmopolite law" Kant understands simply the right of every man to have intercourse with all the nations of the earth. (Sich jedem Volke des Erdballs zum Verkchre anzuubieten.)

—Among German Kantists in international law we must mention Pölitz and the elder Zachariä. Pölitz, who was born in 1772 and died in 1834, a professor in Leipzig, devotes much space to international law in his Staatswissenscheften im Lichte unserer Zeit. Karl Salomo Zachariä (born 1769, died 1843), professor in Heidelberg, treats of international law in his Viereig Bücher vom Staate, vol. iv. He works out Kant's idea of a confederation of states for the prevention of war still farther, and gives the notion of cosmopolite right or law more substance.

—An exhaustive disquisition on international law from the Kantian standpoint was furnished by Baroli, professor of philosophy in Pavia, in the fifth and sixth volumes of his Diritto naturale, i.-vi., Cremona, 1837. Of inferior importance is what Tolomei says of international law in his Corso elementare di diritto naturale, i.-iii, Padua, 1848.

—Johann Gotlieb Fichte published an outline of international and cosmopolite law, as a second appendix to his work on natural law which appeared, 1796-7, in two volumes. He follows Kant rather closely, but exposes his doctrines in strictly methodical connection, while on international law we find only detached sentences in Kant.

—The most recent period in the science of law, especially on the continent of Europe, is characterized by a tendency in the direction of the removal of the former enmity between philosophy and history, a direction which found expression in Hegel. Modern authors of works on international law, without being fully conscious and clear that they have been moving in this same direction, take into consideration both the positive and the philosophic-theoretical, which is connected with, is based upon, and frequently transcends, the positive. And when we see some writers treat mainly of the philosophical in international law, simply acknowledging the value of the historical; and others again bestowing their industry chiefly on the historical, and relegating the philosophical to a secondary place; we must seek the explanation of the fact, not so much in a difference of standpoint of the two classes of writers, as in a difference in their intellectual peculiarities and endowments.

—We here give a list of the chief treatises of international law.

—Americans: Henry Wheaton, Elements of International Law, 2 vols., 1836; 2d ed., annotated by W. B. Lawrence, 1863; 8th ed., by Dana, Boston, 1866; W. H. Halleck, International Law, or Rules Regulating the Intercourse of States in Peace or War, San Francisco, 1861; Theodore D. Woolsey, Introduction to the Study of International Law, 4th ed, New York, 1875; Kent, Commentaries on International Law, revised, with Notes and Cases brought down to the present time, by Abdy, Cambridge, 1866.

—Englishmen: Oke Manning, Commentaries on the Law of Nations, 1839; new edition by Sheldon Amos, 1875; Wildham, Institutes of International Law, 1849; Polson, Principles of the Law of Nations, 1854; Travers Twiss, The Law of Nations considered as Independent Political Communities, 2d ed., 1875; Sir Robert Phillimore, Commentaries on International Law, 3 vols. (vol. 4 is devoted to private international law), 2d. ed., 1871.

—Germans: Heffter, Das Europäische Völkerrecht der Genwart auf den bisheregen Grundlagen, 5th ed., 1867, Oppenheim, System des Völkerrechts, 2d ed., 1866; de Martens, Précis du droit des gens modernes de l' Europe augmenté des notes de Pinheiro-Ferreira par Ch. Vergé, Paris, 1864; Huhn, Völkerrecht, volksthümbliche Darstellung, 1864; Bulmerincq, Die Systematik des Volkerrechts, 1 Th., Kritik der Ausführungen und Forschungen zu Gunsten der Systematisirung des positiven Völkerrechts, Dorpat, 1858; Bulmerincq, De Natura principiorum juris inter gentes positici, 1856; Pözl, Grundriss zu Vorlesungen üher Europäisches Völkerrecht; 1852; Mohl. Encyclopadie der Staatswissenschaften, 2d ed., 1872, pp. 402, etc.

—Frenchmen: de Rayneval. Institutions du droit de la nature et des gens, 2d ed., 1832.

—Italians: Romagnosi Introduzione allo studio e diritto pubblico universale, 1838; Ludovico Casanova, Lezioni di diritto pubblico internazionale, 1860, Padova, 1868; Ferrero Gola, Corso di diritto internazionale privato e marittimo, Parma, 1866; Carnazzi Amari, Elementi di diritto internazionale; Avio, Saggis di una teorica giuridica dei rapporti internationali; Fiore, Nouveau droit international public, 1869, Mancini, Diritto internazionale, 1873.

—Spaniards and South Americans: Pando, Elementos del derecho international, 1843; Riquelme, Elementos del derecho internacional espaÑol, 1849; Bello. Principios del derecho internacional, 2d ed., Paris, 1864; C. Calvo (South American) Derecho internacional teorico y practico, 2 vols., 2d ed., 1870.

—Portuguese: Paiva, Elementos do dereito das gentas, 4th ed., 1857; Pinheiro-Ferreira, Cours de droit public interne et externe, Paris, 1830.

K. BRATER.

LAW

LAW, Natural. (See FICTIONS.)

LAW, Penal

LAW, Penal. The historian finds penal law intermingled with all the primitive customs of nations. It is the first sign of the existence of human society. It is in fact impossible to conceive any association, even that of the family, without a principle of order and a sanction. In the first age of civilization its rules are uncertain: founded upon an imperative need of defense, it follows the progress of the manners, customs, prejudices and institutions which it protects. It seems unquestionable, however, that among all uncivilized nations the right of revenge has ever been the first principle of punishment: as they had no social justice, private justice took its place; each one defended himself; the family or clan undertook to make reprisals; the shedding of blood for revenge was allowed without judgment or restriction. The barbarous custom received its first check from religion: murderers or plunderers appeased the divine wrath by expiatory sacrifices, and the priests were consulted about reprisals. Among the Germans it was not lawful to inflict punishment upon a criminal, nisi sacerdotibus permissum velut deo imperante. Other moderating influences, no less efficacious, were brought to bear upon men's manners; first, the law of retaliation, the rude expression of a sort of moral justice. We find this formula in Exodus: "An eye for an eye, a tooth for a tooth." The Greek and the Roman laws have preserved traces of its application, consisting of the infliction of precisely the same injury that had been committed. Thus, while recognizing the law of retaliation, they regulated its application, confined it within fixed bounds, and forbade it to go beyond them. Such was also the object of the compounding of crime, which, like retaliation, recognized the right of personal vengeance, and which authorized the surrender of this right for an amount of money. A Roman law, which Paulus and Aulus-Gellius trace back to the Twelve Tables, declares: Si membrum rupit, ni cum eo pascit, talio esto. Compounding of crime, therefore, did away with reprisals, and consequently with retaliation. This custom, which we find in the Hebrew, the Greek and the early Roman laws, reached its greatest development in the German law, which even regulated the amount of compensation to be paid for each species of crime. Its introduction into the final laws of the fredum addressed to the judge or chief magistrate of the state, impressed upon compensation a general character; in this we may recognize a first tendency toward the régime which was to substitute public for private penalties, and the action of society for individual action.

—The development of a central power favored this tendency among every tribe and nation. It was the duty of this authority, whatever it was, to protect and avenge the injured parties; it took up their quarrel and supported it in its own name; revenge, instead of being personal and private, became general and public. In the early ages, penalties were mild, and consisted in most cases of simple fines. Cicero affirms that Romulus did not establish any other penalties: multa ditione ovium et boûm, non vi et suppliciis coercebat. It must, however, be remarked that default of payment of the pecuniary penalty imposed authorized the infliction of corporal punishment, and that the system of compensation and of fines was never extended to the numerous and disinherited class of slaves; these latter were always subjected to the most atrocious punishments. The character of the penalties inflicted, however, was soon changed; they gradually became a means of power and revenge in the hands of the rulers of nations. The right of public prosecution entered into general legislation and was regarded as perfectly legitimate. A threatened state, broken laws, justice itself when outraged, avenged themselves by inflicting punishment. Hence the extravagant nature of these punishments, hence the tortures and torments that have overrun the penal code. The penalty had no limit, because revenge has no limits; man even pretended to avenge the divinity when the guilty acts seemed to have a sacrilegious character, and the punishment of the guilty party became an act of piety.

—The manifestations of these excesses of the penal laws were not entirely identical among ancient and among modern nations. At Athens, stoning, crucifixion, burning, whipping with the lash or with rods, were inflicted, even under the laws of Solon, not only for homicide, but for treason, desertion to the enemy, for open theft, for the profanation of the mysteries, and for sacrilege. At Rome the condemned were at times precipitated from the Tarpeian rock, at other times tied up in a bag and cast into the sea, at others burned alive, at others hung upon a cross or delivered to wild beasts; some of these punishments were, however, done away with, to be replaced by the sword and the gibbet, damnatio ad gladium et ad furcam. In the middle ages this severity was increased still more: men's manners had become rude, acts of violence were habitual, disorders frequent, wars continual; penalties to be effective must needs be severe. Atrocious punishments were invented; death did not suffice to satisfy the vengeance of the social power. The condemned were quartered, their flesh was torn off with red hot pincers, they were burned alive, cut to pieces, tied to the heels of untamed horses, pierced with pointed sticks, buried alive, plunged into boiling oil, shut up in iron cages, or had melted lead or pitch poured over them. It seemed that men could only be restrained by punishments equal in violence to the violent acts which they committed. The laws described all these punishments with a sort of complaisance. In France the death penalty was inflicted in one hundred and fifteen cases, and the crimes which escaped capital punishment entailed the mutilation of a member, burning with a red hot iron, splitting the lip or tongue, branding, and all the refinements of torture which an ingenious cruelty could devise. The object of all these penalties, which the laws decreed, was, as we have already said, public vengeance; the effect they aimed to procure, intimidation. The legislators, therefore, were restrained by no obstacle nor remorse: they proposed to themselves, as their aim, to avenge the divinity, society and individuals, and, as the result of their enactments, to restrain the rudeness of manners by fear.

—It was not until the nineteenth century that the first ideas of reform acquired any strength. Montesquieu limited himself to establishing the principle of moderation in punishments and to pointing out the close connection between penal laws and political institutions. Vattel and Rousseau, Locke and Thomas Hobbes went further: they sought for the foundation of penal law, and thus began to destroy the old edifice of legislation. But it was really overturned only by Beccaria. The little book which he published in 1766, a sort of pamphlet, entitled, "Of Crimes and Penalties," met with immense success, and brought before the bar of public opinion, which it had transported with enthusiasm, the highest questions of penal law. It is not a scientific work: it is a few pages written with rare good sense and under the impulse of a profound sentiment of justice and humanity. The author proposed to himself to introduce moderation into the penal laws, and to defend the rights of mankind in the persons of the accused. It exercised an immense influence; its doctrines, developed in a host of writings, acquired incredible power. Penal legislation was partially reformed in France even before the meeting of the constituent assembly. The codes of Dec. 25, 1791, of the third Brumaire of the fourth year of the republic, and of Jan. 1, 1811, did nothing but confirm the doctrines of the eighteenth century, although restraining and curtailing them.

—What is the principle of penal law? We have just seen that until quite recently most penal legislation, after having abolished private vengeance, considered as the fundamental principle of penal justice a right to prosecution by the state, for the general good. The publicists of the eighteenth century tried to substitute for this principle, which justified every excess, the principle of lawful defense restricted within the limits of common utility. Beccaria, Feuerbach, Carmignani, and even Bentham, professed, with differences more or less marked, this doctrine which has for its point of departure the separation of divine and human justice. According to Kant, who is the leading doctor of this school, penal law has the right to punish only what is bad, what is contrary to moral law, what is unjust. It punishes because the guilty one has deserved the punishment, and because chastisement is only a means, and a manifestation of expiation. This doctrine, which has been accepted by a great many German publicists, was propagated in France by Guizot, de Brogli and Rossi, who, however, thought it incumbent upon them to place side by side with the moral law and as a further condition of the penal law, the interest of social order, and that which is of use to society. These are the principal systems known to science; we omit a great number of mixed theories which it would take too long to analyze.

—Among all these theories, where are we to find the truth? Is it true that moral justice and human justice have a common origin? Is it true they both have the same mission to fulfill, although using different means and acting in different spheres? No; for what moral justice exacts is the expiation of the fault, that is to say, retribution made for the fault committed by the evil inflicted. Is this the mission of social justice? Has it been delegated by eternal justice to enforce its laws? Has it the power to exact the expiation of crime? It has not even the means of proving that expiation has been made, for its vision is short, and its means of ascertaining truth are limited. It can not enter the conscience of the guilty party, it can not see his motives or his remorse, it can measure neither the degree of the fault nor the degree of expiation, it apprehends the external facts alone; how then, since it can not determine absolute criminality, can it act the part of divine justice? It proceeds against material acts, with the aid of material means; the exalted but mystic view of expiation does not belong to it; this view is that of the human soul, it can not be that of society.

—The principle of action which should govern society is to be found in the law of self-preservation inherent in it. This law, which is the first of all human laws, obliges the social power to maintain order, that is, to secure respect for the rights of the state, and the rights of its members. Penal justice exists because society exists, because it is one of the attributes, one of the conditions of its life. It needs no other title; its legitimacy rests entirely on social law. Is the right which it exercises the right of self-defense? If we take this word in its ordinary acceptation, no; if it be taken in the sense in which we understand it, that is, as the right of adopting the general measures necessary for the common defense of the rights of all, for the preservation of the state, it is. Penal justice admits the moral law, not as the source from which it emanates, but as a condition and a limit of its accusations and its penalties. Its mission is not to give a sanction to this divine law, and enforce the observance of its precepts. It concerns itself, and can only concern itself, with public order and social interests; it can have no other object than to maintain this order and protect its interests. Chastisement, as has been very truly said, has no right except against crime; but to constitute crime in the eyes of human justice, it does not suffice that moral order is disturbed; it is necessary that there should be a grievous attack upon social order, a serious breach of external peace.

—There flow from this fundamental principle two corollaries: the first is, that society has the right to forbid and to punish whatever is injurious or guilty, or of such a nature as the law ought to repress. Social danger, moral criminality and penal efficacy are the three conditions of penal justice. The second is, that the law, when punishing the acts which offend against both the social and the moral order, should confine its action to this class of acts, and can not go beyond this without infringing upon the rights of individuals. It may be laid down in general that the right of social power is to require the fulfillment of the conditions essential to its preservation; its duty is to insure the moral and material development of mankind. The right of the individual is freely to employ his activity, his intelligence and his liberty; his duty is to offer no obstacle to the exercise of the collective action of the rights of society. It is in endeavoring to reconcile these rights and these obligations that penal law must establish the grounds and limits of its accusations and penalties.

—Here there arise two questions: What actions should be considered criminal? In what cases can the authors of these punishable actions be considered responsible? We shall not dwell upon the first of these questions: to examine it in all its details would carry us too far from our subject. The legislator has the right to restrain all immoral acts which threaten the security of the state and of individuals, provided the offense be grave, and be manifested by an appreciable external act. The second question constitutes what, in penal law, is called accountability. The guilt of the authors of a crime or of an offense is modified by the circumstances which accompanied the act. Their criminality is lessened if the previous life of the culprit has been pure, if he acted only under the impulse of want or passion, or if he shows repentance or remorse; it is lessened still more if he was provoked by a violent outrage, if he can plead the weakness of childhood, or the feebleness of old age, finally, it is entirely removed if he merely made use of the right of self-defense.

—In French law, extenuating circumstances, which that law has not defined and will not define, are all facts that lessen criminality: weakness of intellect, lack of education, bad example at home, the instantaneousness of the action, poverty, ignorance, suffering; the declaration of these circumstances and the appreciation given them by penal law, form one of the most precious conquests of French modern legislation. The judge has acquired the power to be just, for he can proportion the punishment to the gravity of the offense. Excuses, like extenuating circumstances, do not exclude penal accountability, they merely lessen it and efface it in part; they may reduce the penalty to its smallest limit, but they do not remove culpability entirely. Justifying facts exclude all criminal intention; they establish the innocence of the accused, they do away with all infliction of punishment: such are insanity, actual necessity of self-defense, the proving of an alibi by the accused, and constraint. Under certain circumstances the motives of excuse and the motives of justification work the same effect. Thus the child that acts without knowledge is justified, because it has no criminal intention; if, on the contrary, it act knowingly, it is merely excused on account of its tender age.

FAUSTIN HÉLIE.

LAW, Roman

LAW, Roman. This general title is used to express the collection of the principles of law that were in force among the Roman people, and, more especially, the collection of laws published by Justinian, which constitutes the last stage of Roman law. Before reaching this stage, Roman law, considered in itself, without any regard to events, passed through four periods. The first period extends from the foundation of Rome to the law of the Twelve Tables (year of Rome 1 to 300). This is the period of its birth. The second period is from the law of the Twelve Tables to Cicero (350 to 600). The contentious disposition early exhibited by the Romans gave to the law an importance which increased daily. The third period, from Cicero to Alexander Severus, includes the space between the year of Rome 650 and the year of Rome 1000. This is the epoch of its maturity and perfection. While the Roman arms extend the rule of its laws over the greater part of the known world, the science of law is carried to a high degree of perfection by the eminent minds that devote themselves to it. Their rare talent marvelously improves and fertilizes the naturally ungrateful and sterile soil of primitive law. The fourth period extends from Alexander Severus to Justinian. This is the period of its decadence. To the spirit of ingenious but rigorous deduction, and to the learning which produced great jurists, there succeeded, in practice, the rule of citations, in science, the more laborious than fruitful work of compilers and abbreviators. At last the number and contradictory teachings of the works of jurisprudence produced confusion and obscurity. To remedy this evil and render the study and application of law less difficult, Justinian caused to be compiled, abbreviated and codified all that was worthy of preservation in the old law. This task, which was accomplished by John, Tribonius, Theophiles and other jurists, produced: first, the Digest, a collection of the decisions delivered by the most esteemed jurists (533 B. C.); second, the Institutes, an abridged treatise for the use of students, presenting in a short course the principles and definitions of law; third, two lessons on the Code (527 and 534), devoted to the imperial constitutions. These three works, each of which received the force of law, together with a certain number of later imperial constitutions (the new or authentic constitutions), form what was styled the corpus juris civilis. Under this form, which certainly is not its best form, the Roman law has outlived Roman domination, preserved its sway even over nations which had escaped this domination, exerted its influence over all European legislation, and still exists and is obeyed or consulted, either as positive law or as written reason, among most of the nations of modern times.

GASTON DE BOURGE.

LAW, Spoliation by

LAW, Spoliation by. What is law? It is the collective organization of the individual right of legitimate defense. Every man certainly has received from nature, from God, the right to defend his person, his liberty and his property, since these are the three constitutive or conservative elements of life, elements which complement one another, and which can not be understood, one without the other. For what are our faculties but an extension of our personality? And what is property but an extension of our faculties? If every man has the right to defend, even by force, his person, his liberty and his property, a number of men have the right to concert together, to agree and to organize a common force in order to provide regularly for this defense. The collective right has its principle, and its reason of being, and bases its legitimacy upon the individual right, and the common force can not legitimately have any other end or any other mission than the isolated forces for which it is substituted. Thus, as an individual can not legitimately make any forcible attempt against the person, liberty or property of another individual, so, for the same reason, a community can not legitimately make use of force to destroy the person, liberty or property of individuals or of classes. For this perversion of force would be, in the latter case, as well as in the former, in contradiction to our premises. Who will dare to say that we have been gifted with strength, not to defend our rights, but to destroy the equal rights of our fellow-men? And if this is not true of the force of each individual, when acting alone, how can it be true of the collective force, which is but the organized union of individual force? The following proposition, therefore, is a most plainly evident truth: law is the organization of the natural right of legitimate defense; it is the substitution of collective force for the force of individuals, to act in the circle in which these latter have the right to act, to do what these latter have the right to do, to guarantee life, liberty and property, to maintain every one in his rights, to mete out justice to all.

—Unfortunately, the law has not confined itself to playing its part. Nor has it erred simply by the adoption of neutral views or of views open to discussion. It has done worse than this; it has acted contrary to its end; it has destroyed the very object of its existence; it has endeavored to abolish that very justice whose reign it ought to inaugurate, to blot out that limitation of different rights which it was its mission to cause to be respected; it has put the force of the community at the service of those who wish to turn to their own advantage, without risk or scruple, the person, the liberty or the property of others; it has turned spoliation into a right, in order to protect it, and has made legitimate defense a crime, in order to punish it. How has this perversion of law been accomplished? What have been the consequences of it? Two very different causes have led to this perversion of law: ignorant egoism and false philanthropy. Let us consider the first of these causes.

—So truly are self-preservation and development the common aspiration of all men, that, if all enjoyed the free exercise of their faculties and the free disposal of their products, social progress would be incessant, uninterrupted and unfailing. But there is another disposition which all men possess in common. This is the disposition to live and develop, one at the expense of another. This is not a bold imputation, prompted by a peevish and croaking spirit. History bears testimony to its truth by the incessant wars, the migrations of nations, by priestly oppression, the universality of slavery, and the industrial frauds and monopolies with which its annals are filled. This unfortunate disposition springs from the very constitution of man, from that primitive, universal and invincible sentiment which impels him to seek happiness and fly from pain. Man can live and enjoy only by assimilation, by a perpetual appropriation, that is, by a perpetual application of his faculties to things, or by labor. This is the source of the right of property. But he may, in fact, live and enjoy by assimilating and appropriating to himself the product of his neighbor's faculties. Hence spoliation. Now, as labor is itself a pain, and man is naturally inclined to avoid pain, it follows, and history serves to prove it, that spoliation prevails wherever it is less burdensome than labor; and so prevails that neither religion nor morality is able to prevent it. When, therefore, may we expect an end of spoliation? When it becomes more burdensome and more dangerous than labor.

—It is very evident that the aim of the law should be to oppose the power of collective force to this lamentable tendency, and side with property against spoliation. But the law is generally made by a man or a class of men. And, as law can not exist without a sanction, without the support of a preponderating force, this force must of necessity be ultimately placed in the hands of those who make the laws. This inevitable phenomenon, and the unfortunate disposition which we have shown to exist in the heart of man, serve to explain the almost universal perversion of law. It may readily be conceived how, instead of acting as a restraint upon injustice, it becomes its most irresistible instrument. It may readily be conceived that, according to the power of the legislator, it destroys for his profit and in different degrees the personality of other men by slavery, their liberty by oppression, and their property by spoliation. It is in the nature of man to rebel when made the victim of iniquity. When, therefore, spoliation is organized by law for the benefit of the lawmakers, all the classes despoiled endeavor, either by peaceful or by revolutionary means, to have some share in the making of the laws. These classes, according to the degree of enlightenment which they have reached, may be actuated by one of two very different motives in thus aiming to acquire their political rights: either they desire to put an end to legal spoliation, or they aspire to a share in it. Unhappy, thrice unhappy, the nations in which this latter thought prevails among the masses when they, in their turn, possess themselves of the legislative power:—Hitherto legal spoliation has been practiced by the few on the many, so that it was to be found only among nations in which the right to legislate was concentrated in the hands of a few men. But it has now become universal, and an equilibrium is sought for in universal spoliation! Instead of weeding out the injustice which society contained, men are making this injustice more general. As soon as the disinherited classes recover their political rights, the first thought which possesses them is, not to free themselves from spoliation, (this would suppose in them an enlightenment which they do not possess), but to organize against the other classes, and to their own detriment, a system of reprisals, as if such conduct must not, even before the beginning of the reign of justice, bring down a cruel retribution upon them all—on the one class because of their iniquity, and on the other because of their ignorance. It would be impossible to introduce a greater change or a greater misfortune than this conversion of the law into an instrument of spoliation. What are the consequences of such a disturbance? It would require volumes to describe them all. We shall merely indicate the most striking ones.

—First, it effaces from the conscience the idea of justice and injustice. No society can exist in which there is not some degree of respect for the laws; but the surest way to have the laws respected is to make them respectable. When the law and morality are opposed to each other, the citizen finds himself placed in the cruel alternative of sacrificing either his ideas of morality or his respect for the law: two evils, the one as great as the other, and between which it is difficult to choose. It is so much the nature of law to cause justice to reign, that law and justice are one and the same thing in the opinion of the masses. We are all strongly disposed to regard what is legal as legitimate, so much so that there are many who falsely derive all justice from law. It suffices, therefore, that the law ordains and sanctions spoliation to make it appear just and sacred to the consciences of many. Slavery, constraint and monopoly find defenders not only in those who profit by them, but also among those who suffer from them. If you undertake to propose any doubts as to the morality of these institutions, you will be called a dangerous innovator, a utopian, a theorist, a contemner of the laws; you will be told that you are disturbing the foundation upon which society rests. So that, if there exist a law which sanctions slavery or monopoly, oppression or spoliation under any form, it will not even be necessary to speak of it; for how shall we speak of it without lessening the respect which it inspires? Moreover, it will be necessary to teach morality and political economy in keeping with this law, that is, upon the supposition that whatever is law is, for that reason alone, just.

—Is there any need to prove that this odious perversion of law is a perpetual cause of hatred and discord, leading even to social disorganization? Let us look at the United States. Here, of all the countries of the world, the law most strictly adheres to its proper rôle, which is, to guarantee to every one his liberty and property. Hence it is, of all the countries of the world, that in which social order seems to rest upon the most solid basis. Still, in these United States, there are two questions, and only two, which have several times imperiled political order. And what are these two questions? Slavery and the tariff, that is to say, precisely the only two questions in which the law, contrary to the general spirit of this republic, assumed the character of a despoiler. Slavery is a violation of personal rights sanctioned by law. Protection is a violation of the right of property, perpetrated by law; and it is certainly very remarkable that, in the midst of so many other questions of debate, this double legal scourge, the sad heritage of the old world, is the only one that may possibly threaten to lead to the dissolution of the Union. In fact, we can not imagine any greater misfortune than the law made an instrument of injustice. And if this fact engendered such dreadful consequences in the United States, where it was only of exceptional occurrence, what must it not produce in Europe, where it is a principle and a system?—"We should make war upon socialism," said Montalembert, borrowing the thought of a famous proclamation of Carlier, "with law, honor and justice." But Montalembert fails to perceive that he places himself in a vicious circle. He would oppose law to socialism. But law is the very power which socialism appeals to. It does not aim at extra-legal but at legal spoliation. It pretends, like monopolists of every class, to use the law as an instrument to accomplish its ends; and once it has the law on its side, how can you turn the law against it? How can you try, convict or imprison its followers? You wish to exclude socialism from all share in the framing of the laws. You wish to keep it out of the legislative halls. I dare predict that you will never succeed in this so long as the laws enacted within these halls acknowledge the principle of legal spoliation. It is too unjust and too absurd.

—This question of legal spoliation must be solved, and there are only three solutions of it: Let the few despoil the many; let every man despoil every other man; let no one despoil any one. We must choose between partial spoliation, universal spoliation, and no spoliation; the law can achieve but one of these three results. Partial spoliation. This system prevailed as long as the right of election was partial, and men are returning to it in order to escape the invasion of socialism. Universal spoliation is the system with which France was threatened when the electoral right became universal; the masses conceived the idea of legislating upon the principle of the legislators who preceded them. No spoliation is the principle of peace, order, stability, reconciliation and good sense which I shall proclaim with all the strength of my poor lungs to my very last breath. And can we honestly ask anything more of the law? Can the law, which has force for its necessary sanction, be reasonably employed for any other purpose than to preserve every one in his rights? I defy any one to employ the law for any other purpose without perverting it, and consequently without turning force against right. And as this is the most lamentable and most illogical social disturbance that can be imagined, it will be well to recognize that the true solution of this social problem, so much sought after, is to be found in these simple words: Law is organized justice.

—Now, let us mark well that to organize justice by law, that is by force, excludes the idea of organizing by law or by force any manifestation whatever of human activity: labor, charity, agriculture, commerce, industry, education, the fine arts, or religion; for it is impossible for one of these secondary organizations not to destroy the essential organization. How, in fact, can we imagine force encroaching upon the liberty of citizens without assailing justice, without acting against its own end? I am now attacking the most popular prejudice of our time. This prejudice not only wishes the law to be just; it wishes it also to be philanthropic. It does not consider it sufficient that the law should guarantee each citizen the full and unrestricted exercise of his faculties applied to his physical, intellectual and moral development; it requires that the law directly diffuse prosperity, education and morality. This is the seductive side of socialism. The socialists say to us: since the law organizes justice, why should it not organize labor, education and religion? Why? Because it could not organize labor, education and religion without disorganizing justice. Notice, therefore, that law is force, and that consequently the domain of law can not legitimately go beyond the lawful domain of force. When law and force keep a man within the bounds of justice, they do not impose upon him anything but a negation. They merely require him to abstain from injuring others. They attack neither his person, his liberty, nor his property. They merely protect the person, liberty and property of others. They stand upon the defensive; they defend the equal right of all. They fulfill a mission, whose harmlessness is evident, whose utility is palpable, and whose lawfulness is incontestable. This is as true as if one of my friends were to observe to me that to say that the object of law is to cause justice to reign, is to use an expression which is not rigorously exact. We should say the object of law is to prevent injustice from reigning. In fact, justice has no existence of its own, it is injustice that exists. The one results from the absence of the other. But when the law—through the medium of its necessary agent, force—imposes a certain kind of labor, a method or manner of education, a form of faith or manner of worship, upon men, it does not act negatively, but positively. It substitutes the will of the legislator for their will, the initiative of the legislator for their initiative. They no longer have to reflect, compare or foresee; the law does all this for them. Their intelligence becomes a useless possession; they cease to be men; they lose their personality, their liberty and their property. Imagine, if you can, a form of labor imposed by force, which is not an attempt against liberty; a transfer of wealth imposed by force which is not an attempt against property. If you can not succeed in this, acknowledge that the law can not organize labor and industry without organizing injustice.

—When a publicist, from the seclusion of his study, allows his eyes to wander over society, he is struck by the spectacle of the inequality which presents itself to him. He groans over the sufferings which are the lot of so great a number of his brethren, sufferings, the sight of which is rendered still sadder by contrast with surrounding luxury and opulence. He should perhaps ask himself whether the cause of such a social state is not to be found in old spoliations, caused by conquest, and new spoliations caused by the laws. He should ask himself whether, with the aspiration of all men toward happiness and improvement, the reign of justice would not lead to the realization of the greatest activity of progress and the greatest amount of equality compatible with individual responsibility. But his thoughts do not rest here. They run on to combinations, arrangements and organizations, legal or factitious. He seeks the remedy for the evil in the perpetuation and exaggeration of the very thing which produced it. For, besides justice, which as we have seen is really nothing more than a negation, are there any of these legal arrangements which do not include the principle of spoliation?

—You say: "Here are men who have no wealth," and appeal to the law to correct the evil. Nothing enters into the public treasury for the benefit of a citizen or a class but what other citizens or other classes have been forced to put there. If each one is entitled only to draw from it merely the equivalent of what he has put in, your law, it is true, escapes the imputation of spoliation, but it does nothing for those men who hare no wealth, it does nothing for equality. It can not be an instrument of equalization unless it take from some to give to others, and then it becomes an instrument of spoliation. Examine, from this point of view, protective tariffs, subsidies, the right to a profit, the right to labor, the right to assistance, the right to education, progressive taxation, gratuitous credit, co-operative workshops, and you will always find, at the bottom, legal spoliation and organized injustice.

—You say: "Here are men who lack enlightenment," and you appeal to the law for them. But the law is not a torch that sheds its own light afar. It hovers over a society in which there are men who are educated and men who are not; citizens who need to be taught, and others who are able and willing to teach. The law must do one of two things: either it must leave matters of this kind to be performed with entire liberty, it must leave this kind of wants to be freely satisfied; or else it must exercise force over men's wills, and take from some wherewith to pay the professors who are engaged to teach others free of charge. But it can not prevent its conduct in this second case from being an attempt against liberty and property, or, in other words, legal spoliation—You say: "Here are men who are devoid of morality or religion," and appeal to the law. But the law is force, and can there be any need to remark how violent and foolish a proceeding it would be to invoke the aid of force in these matters?

—After all its systems and attempts, socialism seems unable to avoid perceiving the monstrosity of legal spoliation. But what does it do? It skillfully disguises it from all eyes, even from its own, under the seductive names of fraternity, solidarity, organization and association. And because we do not ask as much of the law, because we do not exact of it anything but justice, socialists suppose that we reject fraternity, solidarity, organization and association, and jeeringly style us individualists. Let us inform them, therefore, that it is not natural but forced organization that we reject; not free association, but the forms of association which socialism pretends to impose upon us; not spontaneous but legal fraternity; not providential but artificial solidarity, which is but an unjust displacement of responsibility.— Socialism, like the old political system from which it emanates, confounds government and society. And therefore it is, that whenever we do not want a thing done by the government, socialism concludes that we do not want it done at all. We reject education by the state; therefore we do not want education at all. We reject a state religion; therefore we reject all religion. We reject equalization by the state; therefore we do not desire equality, etc. It is as if our socialistic friends were to accuse us of not wishing men to eat, because we do not advocate the cultivation of wheat by the state. How has this whimsical idea been able to gain ground in the political world; this idea which would draw from the law what the law does not contain: good, in the positive sense, riches, science, and religion?

—Modern publicists, particularly those of the socialistic school, base their different theories upon one common hypothesis, truly the strangest and proudest hypothesis which could enter into a human brain. They divide mankind into two parts. All the human species, less one individual, form the first part, the publicist himself alone forms the second, and by far the most important part. In fact, they begin by supposing that men have within them neither a principle of action, nor a means of discernment; that they are devoid of initiative; that they are formed of inert matter, of passive molecules, of atoms lacking spontaneity, at most but a vegetation indifferent to its proper mode of existence, capable of receiving from the hand and will of another an infinite number of forms more or less symmetrical, artistic, and more or less perfect. Next, each of them supposes, without any ceremony whatever, that he himself under the names of organizer, revealer, legislator, teacher, or founder, is this will and this hand, this universum mobile, this creative power whose sublime mission it is to reunite in society these scattered human materials. Starting from these data, as each gardener trims his trees according to his fancy, in the shape of pyramids, umbrellas, cubes, vases, fruits, distaffs and fans; so every socialist, according to his whim, trims poor humanity in groups, series, centres, subcentres, alveoles, social workshops, harmonic societies, etc., etc. And, just as the gardener has need of hatchets, saws, pruning knives and scissors to regulate the height of his trees, so the publicist, in order to manage his society, needs forces which he can find only in laws: the customs laws, the laws regulating taxes, public charity and education. The socialists, it is true, consider humanity as material for social combinations, so that, if by chance they are not very sure of the success of these combinations, they claim at least a certain portion of mankind as material for experimentation. It is well known how popular the idea of trying all systems is among them, and one of their leaders even went so far as to ask of the French constituent assembly, in all earnestness, a commune and all its inhabitants to try his system on. It is thus every inventor makes his invention in miniature before making it of full size. It is thus the chemist sacrifices certain re-agents, or the farmer sacrifices some seed and a corner of his field in order to test an idea. But what an incommensurable distance between the gardener and his trees, between the inventor and his invention, between the chemist and his re-agents, between the farmer and his seed! The socialist believes in good faith that the same distance separates him from humanity.

—We need not wonder that the publicists of the nineteenth century consider society as an artificial creation, the work of the legislator's genius. This idea, the result of classical education, has swayed all the deep thinkers and all the great writers of France. All of them find between humanity and the legislator the same relations which exist between the clay and the potter. To show how universal this strange disposition of minds has been in France, I should have to copy all of Mably, all of Raynal, all of Rousseau, all of Fénelon, and extensive extracts from Bossuet and Montesquieu. I should, besides, have to reproduce in full the proceedings of the various sittings of the convention. This task I shall leave for my reader to undertake.

—One of the strangest phenomena of our times, and one which will, probably, very greatly astonish our grandchildren, is, that the doctrine which is based upon the triple hypothesis of the radical inertness of mankind, the impotence of the law, and the infallibility of the legislator, is the creed of the party that proclaims itself exclusively democratic. It likewise styles itself social. Inasmuch as it is democratic, it has an unlimited faith in humanity. By its socialism it drags humanity into the mire.

—If it be a question of political rights, or of driving out the legislator: oh! then, according to this socialistic doctrine, the people are possessed of infused science, and endowed with admirable tact; their will is always right, the popular will can never err. Suffrage can not be too universal. No one owes society any guarantee. The will and the capacity to choose wisely are always supposed. Can the people be deceived? Are we not in the age of enlightenment? Shall the people remain forever in tutelage? Have they not acquired their rights by their own labors and sacrifices? Have they not given sufficient proofs of their intelligence and wisdom? Have they not reached their maturity? Are they not capable of judging for themselves? Do they not know their own interests? Will any man or class of men dare claim the right of putting himself in the people's place, and of deciding and acting for them? No; the people wish to be and shall be free. They wish to direct their own affairs, and they shall direct them. But the election once over, their tone changes completely. The nation returns to a passive, inert state; to nothingness, in fact; and the legislator assumes omnipotent sway. To him belong invention, direction, power and organization. Mankind have now nothing to do but to let things take their course; the hour of despotism has arrived. And bear in mind that all this is fatal; for the people, who were but a short time ago so enlightened, so moral, so perfect, have no longer any tendencies, or, if they have any, they all drag them toward degradation. They might be allowed a little liberty; but do you not know that, according to Considérant, liberty fatally leads to monopoly? Do you not know that liberty means competition, and that competition, according to Louis Blanc, is a system of extermination for the people and a cause of ruin to the middle class? It is for this reason that the more freedom nations enjoy the more complete is their extermination and ruin: witness Switzerland, Holland, England and the United States! Do you not know that, according to Louis Blanc, competition invariably leads to monopoly, and that, by the same course of reasoning, cheapness leads to exorbitant prices; that competition tends to exhaust the sources of consumption and forces production to an unnatural activity; that competition compels the increase of production and the decrease of consumption? Whence it follows that free nations produce more than can be consumed, that they are at the same time given over to oppression and madness, and that it is absolutely necessary that Louis Blanc have a hand in their government! What liberty can men be allowed to enjoy? Will you give them liberty of conscience? You will soon see them all availing themselves of the permission to become atheists. Liberty of education? But parents will very soon be paying professors to teach their children immorality and error; moreover, if we may believe M. Thiers, if education were left to national liberty, it would cease to be national, and we would bring up our children more after the manner of the Turks or Hindoos, than according to the noble ideas of the Romans, as is now the case. Freedom of labor? Why, freedom of labor means competition, and the result of competition is to leave all products unconsumed, to work the destruction of the people, and to ruin the middle class. Liberty of exchange? But it is a well-known fact that the protectionists have demonstrated to satiety that free exchange is ruinous, and that in order to grow wealthy by means of exchange, a man must exchange without freedom. Freedom of association? But according to the socialistic doctrine, liberty and association are exclusive, one of the other, since the attempt to deprive men of their liberty is merely to force them to association.

—Hence it is evident that socialistic democrats can not, in conscience, leave men any liberty, since of their very nature, if these gentlemen do not regulate them, they tend to every species of degradation and demoralization. This being the case, we are at a loss to divine on what ground they can so persistently demand, for these same men, universal suffrage. The pretensions of our socialistic organizers give rise to another question which I have often addressed to them, and to which, as far as I know, they have never offered any reply. Since the natural tendencies of mankind are so evil as to justify their being denied their liberty, how does it come to pass that the tendencies of the organizers are good? Do not legislators and their agents form part of the human race? Are they made of a different clay from the rest of mankind? They say that society, if left to itself, runs headlong to ruin, because its instincts are perverse. They claim for themselves the credit of arresting it in this downward course and guiding it in a better direction. Have they then received from heaven intelligence and virtues which place them outside of and above humanity? If so, let them show their credentials. They wish to be the shepherds, while we constitute their flock. This arrangement presupposes in them a superior nature, of which, before admitting it, we have very good right to demand the proof. We do not by any means deny them the right of inventing social combinations, of urging and extending their adoption, and of testing them upon themselves at their own expense and risk; we merely deny their right to impose these combinations upon us by means of the law, that is to say, by means of force, and of public contributions.

—We ask the Cabetists, Fourierists, Proudhonions and the protectionists to renounce, not their special ideas, but the idea, common to all of them, of forcibly subjecting us to their groups and series, their co-operative workshops, their banks to loan money without interest, their Græco-Roman morality, and their commercial restraints. All that we ask is, that they allow us the right to judge of their plans for ourselves, and to decline to take any part in them, either directly or indirectly, if we find that they are prejudicial to our interests or repugnant to our consciences. For to pretend to call in the aid of power and taxation, besides being an act of oppression and spoliation, implies, moreover, the injurious hypothesis of the infallibility of the organizer and the incompetency of mankind. And if humanity is incompetent to judge for itself, why do they talk to us of universal suffrage? This contradiction in their ideas has unfortunately been reproduced in historical facts, and, while the French people have surpassed all others in the achievement of their rights, or rather of their political guarantees, they have nevertheless been more ruled, more managed, more governed, more imposed upon, more trammeled, and been made the subject of more experiments, than any other nation on the face of the earth. They are also more exposed to revolutions than any other nation, as they most naturally would be under such circumstances.

—Once we adopt this idea, admitted by all French publicists, and which is so forcibly expressed by Louis Blanc when he says, "society receives its impulse from power"; once men consider themselves as sentient but passive beings, incapable of raising themselves by their own knowledge and their own energy to any moral height or to any condition of prosperity, and compelled to expect everything of the law; in a word, when they admit that their relations to the state are those of a flock to its shepherd, it is evident that the responsibility of the governing power is immense. Good and evil, virtue and vice, equality and inequality, wealth and misery, all flow from it. It is intrusted with everything, it undertakes everything, it does everything; it is therefore responsible for everything. If we are happy, it, with justice, demands our acknowledgment, but if we are wretched, we have no other recourse than this same governing power. Does it not, in principle, dispose of our persons and our goods? Is not the law omnipotent? In creating the university monopoly in France it has endeavored to respond to the hopes of the fathers of families, who have been deprived of their liberty; and if these hopes are deceived, whose fault is it? In regulating industry, it has undertaken to make it prosper, otherwise it would have been absurd to deprive it of its liberty; and if industry suffers, whose fault is it? In undertaking to regulate the balance of trade by means of the tariff, it has endeavored to bring about commercial prosperity; and if commerce, far from prospering, is really languishing, whose fault is it? In extending its protection to maritime armaments, in exchange for their liberty, it has endeavored to make them a source of income to the state; and if they are in reality a burden, whose fault is it? Thus there is not a single evil in the nation for which the government has not voluntarily rendered itself responsible. Is there any reason to wonder that suffering of every kind is a cause of revolution?

—And what is the remedy which our socialistic teachers propose? To extend the domain of the law, that is to say, the responsibility of the government, indefinitely. But if the government undertake to raise and to regulate salaries, and is unable to do it; if it undertake to assist all the unfortunate, and can not do it; if it undertake to furnish shelter to all working men, and can not do it; if it undertake to furnish tools to all mechanics, and can not do it; if it undertake to offer gratuitous credit to all who are in want, and can not do it; if, according to the words which we regret to acknowledge have flowed from the pen of de Lamartine, "the state takes upon itself the mission of enlightening, developing, fortifying, spiritualizing and sanctifying the souls of the people," and fails to fulfill it, is it not evidently more than probable that each of these deceptions must lead to an inevitable revolution?

—I now resume my thesis. Directly after the consideration of economic science, and at the very opening of the subject of political science, there arise the questions. What is law? what should it be? what is its domain? what are its limits? and, consequently. what is the limit of the legislator's power? I reply, without hesitation: Law is the common force organized to oppose injustice; to be brief, Law is justice. It is not true that the legislator has absolute power over our persons and property, since they antedate his elevation to power, and his duty is to strengthen them by every possible guarantee. It is not true that the mission of the law is to direct our consciences, our ideas, our wills, our education, our sentiments, our labors, our exchanges, our gifts, and our enjoyments. Its mission is to prevent one individual from usurping the rights of another in these matters. Law, since it has force for its necessary sanction, can not have any other legitimate domain than the legitimate domain of force, that is, justice. And, as each individual has not the right to resort to force except in case of legitimate defense, collective force, which is nothing more than the union of individual forces, naturally should not be applied to any other end. Law is, therefore, merely the organization of the right pre-existing in each individual, of legitimate self-defense.

—Law is justice. So utterly false is the opinion that it can oppress persons, or despoil them of their property, even for a philanthropic purpose, that its mission is to protect them. To say that the law can be at least philanthropic, provided it abstain from all oppression and all spoliation, involves a contradiction. Law can not avoid acting upon our persons and our goods; if it does not protect them, it violates them by the very fact that it acts, from the very fact that it exists.

—Law is justice. This is perfectly clear, simple, definite and defined, intelligible to every intellect, visible to every eye; for justice is a fixed, unalterable quantity, which does not admit of more or less. But once make religious, fraternal, leveling, philanthropic, industrial, literary or artistic laws, and you forthwith cast yourself into the infinite, the uncertain, the unknown; into an enforced utopia, or, what is worse, into a multitude of utopias, vying with each other to take possession of the law and to impose themselves in its place; for fraternity and philanthropy have not, like justice, fixed limits. Where will you stop? Where will the law stop? Some, like de Saint-Cricq, will extend their philanthropy only to certain industrial classes, and will demand of the law that it dispose of the consumers in favor of the producers. Others, with Considérant, will champion the cause of the laboring classes, and demand of the law for them, an assured minimum of wages, clothing, lodging, food, and all the necessaries of life. A third will say, with Louis Blanc, and justly, that this is but a rude and incomplete brotherhood, and that the law should supply every one with the implements of labor and education. A fourth will tell you that even such an arrangement leaves room for inequality, and that the law should introduce into the most remote hamlets luxury, literature and the arts. You will thus find yourself led to communism, or rather legislation will be—as it is already—the battlefield of every idle dream and of every covetous fancy.

—Law is justice. When I say this, I refer to a simple and steady government. And I defy any one to show me what could give rise to the thought of a revolution, an insurrection, or a simple riot against a public force which confines itself to the repression of injustice. Under such a government there would be more prosperity, and prosperity would be more equally distributed; and as to the ills which are inseparable from human nature, no one would think of laying them to the charge of the government, which would have no more to do with them than with the changes in the temperature. Has any one ever seen the people inaugurate an insurrection against the court of appeal, or break into the sanctuary of a justice of the peace to demand the minimum of wages, gratuitous loans, implements of labor, tariff favors, or community of labor? They know full well that these combinations are beyond the power of the judge, and they understand likewise that they are beyond the power of the law. But establish the law upon the principle of fraternity, proclaim that good and evil flow from it, that it is responsible for all individual suffering, and all social inequality, and you open the door to an endless series of complaints, animosities, troubles and revolutions.

—Law is justice. And it would be very strange if it could with equity be anything else. Is not justice right? Are not all rights equal? How then could the law interpose to subject me to the social plans of Mimerel, Melun, Thiers, or Louis Blanc, any more than to subject these gentlemen to my plans? Do you not believe that I have received from nature sufficient imagination to invent a utopia also? Is it the duty of the law to choose between so many chimeras and to place the public force at the service of one of them?

—Law is justice. Let no one say, as is said incessantly, that the law thus conceived, atheistical, individualistic and heartless, should model humanity after its own image. This is an absurd deduction well worthy of the governmental infatuation which sees humanity in the law. What! Must we cease to act because we are free? Must we be deprived of all power because we do not receive our power from the law? Must our faculties remain inert because the law confines itself to guaranteeing us the free exercise of these faculties? Must we forthwith abandon ourselves to atheism, isolation, ignorance, misery and egoism, because the law does not impose upon us any form of religion, method of association or system of education, or does not establish any process of labor, rule of exchange, or plan of bestowing charity? Must we, on this account, no longer recognize the power and goodness of God, or refuse to associate together, to aid one another, to aid our brethren in distress, to study the secrets of nature, and to aspire to the perfecting of our being?

—Law is justice. And under the law of justice, under the rule of right, under the influence of liberty, security, stability and responsibility each man will obtain his full value, and assert the full dignity of his being, and mankind will reach in a calm and orderly manner, slowly but surely, the degree of progress which it is destined to acquire.

—It seems to me as though the theory were my own; for, whatever question I submit to my reason, whether it be religious, philosophic, political or economic; whether it refer to prosperity, morality, equality, right, justice, progress, responsibility, solidarity, property, labor, exchange, capital, wages, taxes, population, credit, or government; whatever point of the scientific horizon I take for the point of departure of my researches. I invariably end with this the solution of the social problem is to be found in liberty. And am I not borne out in my conclusion by experience? Cast your eyes over the globe. Which are the happiest, the most moral and the most peaceable nations? Those in which the law least interferes with the private activity of the citizens; those in which the government least makes itself felt; those in which individuality has the greatest sway, and public opinion the most influence; those in which the administrative machinery is least complicated; in which the taxes are lightest and most equally levied; in which popular discontents are most rare and have least occasion for their existence; those in which the responsibility of individuals and classes is most active, and where, in consequence, if morals are not perfect, they irresistibly tend to right themselves; those in which business transactions, agreements and associations are least trammeled; those in which labor, capital and the population experience fewest artificial obstacles; those in which men best follow their natural talent, and the thought of God prevails most over the inventions of men; those, in a word, which approach nearest to this solution: Within the bounds of right, everything by the free and perfectible spontaneity of man; nothing by law or force but universal justice.

FREDERIC BASTIAT.

LAW'S SYSTEM

LAW'S SYSTEM. This is the name given to the great financial experiment made in France by the government of the duke of Orleans under the direction of John Law.

—Had John Law's financial operations been only a series of expedients devised from day to day to tide over a condition of embarrassment, they would not merit a place in a scientific work. History gives us many examples of means and abuses similar to those adopted or produced in France at the beginning of the past century. But Law's operations were distinguished in more than one way from ordinary expedients: first, they were entered upon as the practical application of a preconceived theory, and in the aggregate they form a system; second, they were the signal for a revolution in the manners and habits of the French, third, they afforded a magnificent example of the combinations and effects of stock-jobbing. On these accounts they are pre-eminently deserving of the consideration of the economist, and it may be useful, while exposing them, to make some little comment upon them also.

—At his death Louis XIV. left the finances of France in a most deplorable condition. The debt in a thousand different forms, payable on demand, made a sum of 785,000,000 livres; 64,000,000 of annuities, perpetual or redeemable at a fixed date and drawn from every branch of the revenue, represented a principal sum of 460,000,000; and finally, the creation of offices, increase of salaries, etc., had involved the state to the extent of about 800,000,000. The public debt amounted thus to a principal sum of about 2,000,000,000 livres, of which about 785,000,000 were payable on demand. "When the king died," says Bailly, "not more than four or five millions could be anticipated from the last three months of the year; and the revenues of the succeeding years were more than half consumed." Complete disorder reigned, besides, in every department of the financial administration, so much so that no one could give, or even know, till much later, the balance-sheet figures of the situation.

—By different measures of a sufficiently suspicious nature the regent's government reduced the debt payable on demand, and embodied it in bonds of uniform description, giving them the name of billets d'état. These were issued to an amount of 250,000,000, and bore interest at the rate of 4 per cent. They were receivable for arrears of taxes, and were to be destroyed as they came in; but as the promises of the state then inspired no confidence, these billets were at a discount of no less than about 80 per cent. of their nominal value. However, some method was introduced into the collection of taxes and the financial administration in general, judicial investigation instituted against the farmers of the revenue, and an alteration of the coinage furnished some little funds, dishonorably obtained and dearly bought. It was at this crisis that Law submitted to the finance council a first scheme which was not adopted; and in order to cause his ideas to prevail he was obliged to adopt indirect means—Letters patent of May 2, 1716, gave to John Law the privilege of establishing a bank. It was constituted under the name of the Banque Générale, with a capital of 6,000,000 livres, in 1,200 shares, of 5,000 livres each, payable in four installments, one-fourth in specie and the remainder in billets d'état. The functions of this bank, which to all appearance was independent of the government, were to be, according to its by-laws, the same as those now fulfilled by the bank of France.

—This establishment was very well received by public opinion. Banks of issue were in all the first vigor of youth. The bank of England had only been in existence since 1694, and that of Scotland since 1695, and they were both giving good results. Commerce highly appreciated an establishment which gave a price current to discount, and which caused its rate to decline, at first to 6 and finally to 4 per cent. It appreciated still more highly the current accounts and the bank credits based on a currency whose weight and standard never varied, however great the alteration undergone by the current coin. It was the first introduction into France on a large scale, or at least with great pretensions of two excellent commercial undertakings, the bank of deposit and the bank of issue. But no one had any definite knowledge of the theory of its working, and the start of the new bank was regarded with that distrust which is so common in France and so closely akin to the blindest credulity.

—The Banque Générale prospered, but it developed but slowly in an environment in which credit had received some rude shocks and in which there was but little business done. Besides, the establishment's own capital was very small: of the 1,500,000 livres payable by the shareholders in specie, one-fourth only, that is to say, less than 400,000 livres, had been paid up. As for the billets d'état they were still at a discount of 70 per cent., and it was impossible, in the then condition of affairs, to derive any advantage from them.

—The secret connection which existed between the Banque Générale and the government was brought to light April 10, 1717. On that date, a decree of the council ordered the receivers of the public revenue, not merely to accept the bank's notes in payment of taxes of all descriptions, but even to pay the value of these notes in hard cash, when asked to do so and if they had the money at their disposal. It does not appear, however, that these privileges had the effect of extending much the circulation of the notes, which, concentrated in Paris and some other large cities, never exceeded 12,000,000. Evidently it was not with such trifling resources that a credit could be obtained sufficient to liquidate the public debt. This was only the first story of the great edifice called the Système.

—Toward the end of August, 1717, a celebrated merchant named Crozat, who had obtained a monopoly of the Louisiana trade, ceded this privilege to a company floated by Law under the name of the Compagnie de l'Occident. The letters patent authorizing the formation of this company gave it a monopoly of the commerce with Louisiana for twenty-five years, and of the trade in furs, arms, munitions and ships in Canada. The privileges given to the company were somewhat justified by the way in which its capital was obtained; it was in amount 100,000,000 livres, in shares of 500 livres, payable in billets d'état, which the government assimilated to life annuities, and the interest of which it guaranteed at the rate of 4 per cent. But it was not necessary to have great experience in business to be able to understand that a capital thus formed could not furnish the necessary resources for commencing an undertaking so vast as the colonization of Louisiana, that is to say, of a tract of country which included the valleys of the Mississippi and the Missouri, and which extended northwest as far as the Pacific ocean. At first, then, the credit of the Compagnie de l'Occident languished. Public opinion was opposed to it, and capitalists hesitated to invest in shares. Affairs were in this condition when, on May 11, 1718, an edict was published ordering the recoining of the coinage. The silver marc had already been carried from twenty-seven to forty livres; the edict of May carried it from forty to sixty livres. "From the order to recoin all money," says Eugène Daire, "arose the obligation to take all the old money to the mints; but it was permitted to join to one's silver two-fifths in billets d'état. It happened, therefore, that when, in the words of the law, a man disseized himself in favor of the fisc of eight écus of five livres each, or, altogether, forty livres, that is, a marc of silver, it was optional with him to add to them sixteen livres in billets d'état, the effect of which was the delivery of fifty-six livres to the profit of the treasury. When the latter had received this value, it returned in exchange nine and one-third of the new écus, denominated six-livre pieces, which also made fifty-six livres. But the intrinsic value of those fifty-six livres, the weight of silver which they contained, was less by one-fifteenth than the weight of silver previously paid into the treasury, and thus the person paying lost, first, that amount of his silver, and, secondly, gave up his paper, his billets d'état, for nothing. In brief, the state gained by this honest operation 6 2/8 per cent. in silver and 26 2/8 per cent. in paper; in all, 33 1/8 per cent. on all sums paid into the mints." Parliament resisted this operation in vain.

—Was the edict of recoinage Law's work? It has been believed to be so, since it had the effect of raising bank silver in the public estimation, that being money of fixed weight and standard, and of encouraging the use of paper among the people. Several writers, on the contrary, have attributed this edict to the minister d'Argenson who had succeeded the council on finance, and is supposed to have devised this simple and summary means of extinguishing the billets d'état, solely with the view of proving himself a financier of greater powers than Law.

—Be that as it may, this minister gave soon a clear proof of the ill-will be bore the Scotchman, by farming out the taxes to the brothers Paris, skillful bankers who had introduced some order into the administration of the finances, on terms usually considered advantageous. With their contract in relation to the taxes as a basis, the brothers Paris established a company of limited liability in June, 1716, with a capital of 100,000,000 livres, in 100,000 shares of 1,000 livres each, payable in rentes or bills. This operation had a much more solid basis than the Compagnie d'Occident, for it was much more probable that the brothers Paris would gain by their contract of the farming of the taxes than it was that the Compagnie d'Occident would gain by the commerce of Louisiana. The shares of the latter company met with a formidable competition in the market when they were brought in collision with the shares of the association gotten up by the Paris brothers, which was called the "Anti-System."

—New financial operations had to be resorted to to impart value to the shares of the Compagnie d'Occident. On Sept 4, 1718, it farmed out the tobacco monopoly; its shares rose a little, for public opinion rightly viewed with favor speculation in the state revenues. But the rise was slow and slight.

—On Dec. 4, 1718, a royal edict changed the Banqus Générale into the Banque Royale. The 1,200 shares of the Banque Générale, only the fourth part of which had been paid in, were bought at a price of 5,000 livres, their nominal value, and were redeemable in écus. Never had shareholders made so much in so short a time. What might not be the intrinsic value of an enterprise that the public treasury, completely involved in debt as it was, thought fit to purchase at that price. Men's imaginations were possessed, and little attention was paid to the radical changes that the by-laws of the bank underwent.

—The notes of the Banque Générale were payable in bank money, the weight and standard of which were defined; those of the Banque Royale were payable in livres of tours currency (livres tournois), that is to say, in nominal money the weight and standard of which was not exactly settled. The notes of the Banque Générale could not be made and issued except against securities in hand; an order in council was sufficient to authorize the Banque Royale to issue notes to the profit of the government. The Banque Royale had branches in which were exchanged notes for écus and écus for notes, and in the cities in which they were established the use of specie was restricted to payments of 600 livres and under. It was clear that liberty was distrusted and that there was an intention of outraging public opinion; in short, on April 22, 1719, a decree of the council forbade all transport of coin by private persons into the cities where the bank had offices; it ordered the public officers in those cities to keep their cash in notes, under penalty of bearing the loss on specie in the event of a depreciation of the currency; it authorized creditors in these cities to refuse as worthless the offers of their debtors, unless made in notes, and only to receive the precious metals in payment of small change. It was attempted to demonetize, as far as possible, the precious metals, and to give the paper of the Banque Royale the properties of money. However, those measures decreed by a government which had already made a bad use of its paper, could not inspire much confidence; it was necessary to captivate men's minds by a bold stroke which should disarm suspicion, upset all calculations and raise the value of the shares of the Compagnie d'Occident, then at a discount of about 40 per cent. Law bought 200 shares at par, at six months date, paying 40,000 livres on the price of the 100,000 livres which those shares represented, with the stipulation that he should lose the 40,000 livres if the shares did not reach at least par. The premium market was then unknown in France and the confidence felt in Law's personal ability was so great that in a short time the shares of the Compagnie d'Occident rose to par. Rumors skillfully set afloat, all tending to enhance the idea of the company's probable future prosperity, also contributed to this result.

—The most difficult step had been taken: however little observation may have been bestowed on the course of such speculations, it is well known that it is sufficient to establish an upward movement in the price of shares in order even with moderate ability to push that advance in due course to a considerable extent. Now Law's ability was very great; he was backed by all the power of public authority; and he dealt in titles whose intrinsic value was little known, and was therefore all the more easily exaggerated. What golden dreams was it not easy to have about the resources afforded by the commerce of an immense, new, unknown and uninhabited country. For the rest, Law did not leave men's imaginations idle; like a skillful gambler, he caused frequent changes of luck. In May, 1719, all the great commercial companies which still existed, were acquired by the Compagnie d'Occident. It took the name of the Compagnie des Indes and was authorized to issue 25,000 new shares of 300 livres each, payable in specie and by twentieths (vingtiémes) monthly: only fifty livres had to be paid immediately, and a decree of June 20, 1719, permitted only those to subscribe for the new certificates who already possessed an amount four times greater of the old certificates. Already fortunes had been made by the rise in the first certificates; they were in still greater demand as soon as it became necessary to possess a certain amount of them in order to obtain the new shares, which on this account were called the "filles" (daughters), and rose rapidly.

—This rise was maintained by new schemes. On June 25 the state ceded to the Compagnie des Indes all the profit it might make by the coinage of money, in consideration of a sum of 50,000,000, payable monthly in fifteen equal sums. The company issued 25,000 new shares at a nominal value of 500 livres, but at an actual price of 1,000 livres, at which the first shares were selling. It was necessary, before being permitted to subscribe for the new certificates, to qualify by holding five shares of the old to obtain one share of the last issue. These were named the "petites filles" (grand-daughters) and had the same success as the preceding ones. The company had guaranteed its shareholders a dividend of 12 per cent., dating from Jan. 1, 1720. At the beginning of September all the shares were placed and were selling at a price of 5,000 livres, those which had been subscribed for in billets d'état, as well as those the amount of which had been furnished in specie.

—On Sept. 2 the Compagnie des Indes undertook a new enterprise, which was in some sort the crowning of all. It had secured the rescision of the contract with the brothers Paris for the farming of the taxes; it took upon itself the collection of the taxes at 52,000,000, and in addition the payment of 1,500,000,000 of the king's debts. The creditors of the state were paid by orders on the cashier of the Compagnie des Indes, payable in notes or specie. In order to provide the funds needed for the repayment, the company was authorized to issue transferable shares bearing 3 per cent. interest, payable half yearly; it was itself to receive 3 per cent. on the 1,500,000,000 which it furnished to the government.

—In reality there was nothing more in this transaction than a conversion of annuities. The state, instead of paying 4 per cent. now only paid 3 per cent., thereby making an annual saving of 15,000,000. The company borrowing and lending at 3 per cent. seemed to be performing a disinterested speculation; but it is easy to comprehend that in a transfer of 1,500,000,000 of capital for the repayment of which the choice was given between a bond of definite amount and the shares of a company whose brilliant success was everywhere prophesied, many capitalists would choose the shares. The company issued 324,000 shares, nominally for 500 livres, payable in tenths monthly, but which, if sold at the market price of the day, would bring it a gain of 1,620,000,000, with which sum it could easily meet all its requirements.

—The "Systéme" was complete. Law, sharing a delusion which still finds defenders, confounded price with value; he believed that it was sufficient to raise prices to increase a nation's capital; he attributed to the augmented quantity of paper money, of the "sign," to use the language of the time, the property of creating value, which belongs only to labor. It was with this object that several decrees had been issued with the view of discouraging the use of metallic currency and that stock-jobbing was over-stimulated. A decree of Sept. 26 having settled that the company's shares could only be paid in notes, gold and silver lost in a moment 10 per cent. in exchange with paper. The shares sold in the open market were bought up eagerly, and their price rose constantly for several months. There is no need to seek far for the cause of this rise; foreseeing that the payment of the second tenth would embarrass the holders and would occasion a fall, an order of the council made the payments quarterly, and postponed till the month of December, 1719, the payment which fell due at the end of October, the following till March, and the third till June, 1720. On the other hand, the Banque Royale, which, in accordance with the decree of Dec. 4, 1718, was forbidden to issue notes for a greater amount than 100,000,000 livres, had issued them to the extent of 520,000,000 at the end of October, 1719; of 640,000,000 at the end of November, and on Dec. 29 it was decided that the amount of notes should be raised to 1,000,000,000. The sophism on which Law's system was founded became a gigantic illusion. But this illusion created facts which were very real. Specie in its two common uses was replaced by paper. The sums amassed and hoarded up for future consumption took the shape of shares; the sum for present use became bank notes.

—What was the nature of the real values represented by the shares of the Compagnie des Indes and the billets or notes of the Banque Royale and what was the disposable capital operated with? We do not know exactly what the operations of the bank were, but it is likely that discounting commercial paper was the least important. Perhaps it made advances on shares deposited with it; probably it simply met the financial wants of the government by its notes, so that its paper was based upon no actual value; it was merely a state debt bearing no interest.

—The paper issued in the shape of shares by the Compagnie des Indes amounted to a nominal principal sum of 312,000,000, issued at a price of 1,797,000,000. But, out of this enormous amount what had been the real payments into the company's treasury? The official documents do not give it exactly, and besides they are not particularly worthy of credence. The company's resources in revenue may be better estimated. They were, first, 49,000,000, due annually by the state; second, the company's profit on the tobacco monopoly, on the tax farming, on the rentes and salt tax of Alsace, and on the coinage of money; and third, the gain on the commercial profits of the company, estimated at 8,000,000. The estimate of the company's profits was singularly exaggerated; for it is at least doubtful if a commercial company constituted without real capital, or, if it be preferred, with a capital of 50,000,000, could realize immediate and considerable profits by the commerce and colonization of Louisiana and Canada, and even by that of the coast of Africa and China. Besides, all its income consisted of an annuity due by the state, the profits on the farming of the public revenue, and the very uncertain gain to be obtained from a monopoly granted by the state. Finally, admitting that the company's revenues reached the exaggerated total of 82,000,000, it could only pay a very moderate interest on a capital of 1,797,000,000, ill calculated to keep up the inflated price of the shares, whatever might be the depreciation of the currency owing to the multiplication of bank notes, since, after all, this depreciation would also reduce the real value of the revenue. It is evident, then, that Law's system could not live, not only on account of the faulty constitution of the bank, but also of that of the Compagnie des Indes itself. By exhausting all the resources of stock jobbing, an edifice of opinion and credit, whose lease of life could not be a long one, had been erected on very slender foundations. It remained to be seen who should be the victim of the illusion, who should give solid and real value in exchange for new paper.

—It is well known that the success of Law's system was beyond all expectation. The factitious fortunes made by the rise in value of the first shares had fired men's imaginations; all who had any disposable capital hurried to the market with it. Those who had not, sold lands, houses, government bonds, etc., and stock-jobbing soon raised the price of the different securities issued by Law to the enormous sum of 12,000,000,000. Certainly if the style of reasoning employed by the publicists of our day be adopted, such signs of prosperity had never before been seen, and, to use the language of the present, business was never as brisk as it was then. The documents of the day are filled with incredible stories of the magnificence of the houses, the furniture and the retinues of the nouveaux riches of that time and the court people, who, in that ephemeral prosperity, had the chief share after the lackeys. The state was not less munificent than private persons; it remitted 80,000,000 of taxes in arrear, did away with vexations burdens, studied new systems of imposts, and even brought to a successful close a short war with Spain without increasing the burdens which pressed on the people. Every one was intoxicated with his dream of wealth. What was the real cause of all this wealth? The consumption in a few months of almost the entire value of the metallic money of the country, both that which had for long been kept as a treasure or reserve and that which served for the purposes of exchange and circulation. The same phenomena were produced as would have been produced had a treasure trove of two or three thousand millions suddenly been discovered and spout productively or unproductively in a few months.

—It was not the Compagnie des Indes itself which gathered the fruit of this movement; nor was it the creditors of the state, for but a small number of them had been paid in time to convert their bonds into shares; it was the people of the court, with the regent himself at their head, who benefited equally by the unlimited issue of the bank's notes and the jobbing in shares. If stock-jobbing was not the sole object of Law's system, it can not be denied that it filled a very large place in it, and it is difficult to understand in what other interest the decrees of the council postponed the payment of the amounts about to fall due on the shares. Would this have been done if the genuine success of the unique commercial monopoly which had been created had been the only end in view? Certainly not. Besides, without having recourse to conjecture, it is sufficient to glance at the documents of the day to see that Law had imported into France or brought to light every means by which a factitious price may be given to securities of doubtful and uncertain value. Since that time the art of appropriating another's property by stock gambling has made no advance; there is but a repetition of the same tricks.

—A catastrophe was inevitable, but Law did not see it. He was fully persuaded that it was possible to sustain the currency of money which was wholly imaginary, by exchanging it for securities whose value was hypothetical; and when the crisis overtook him, he did not even have recourse to the means which might have lessened the effect of the catastrophe. It must be recognized, too, that the want of morality in the government of the time and the extravagant habits which Law himself had encouraged, would scarcely have permitted him to use the means suitable, even had he himself wished to do so.

—Toward the end of December, 1719, discerning foreigners, and those of the French who had a calculating turn of mind, saw that it was time to withdraw from the speculation. After having themselves operated a rise in which the shares reached the value for a moment of 20,000 livres, they sold out, and, with the price obtained, bought real estate, bullion, merchandise—in a word, real wealth. This was called realizing. It will be understood that the sale of a number of the shares soon ran down the price. At the same time the presentation of notes to be exchanged depleted the bank of specie, even although an edict forbade the use of silver in payments of above forty livres, and of gold in payments of over 300 livres, and although, on Jan. 28, 1740, another edict gave compulsory circulation to the notes throughout France, and the edict ordering the reminting of money was carried out vigorously. In February it became necessary to forbid private persons, under pain of confiscation, to have in their possession more than 500 livres in specie, and in March gold and silver were demonetized completely. On Feb. 22, with an end in view which it is not easy to determine, the Banque Royale was united to the Compagnie des Indes. The value of shares was at that time far above the price of issue. A declaration of March 11 fixed the exchange between notes and shares at a settled rate of 9,000 livres the share. Law imagined that by this means he could control the issue of notes; but to succeed it would have been necessary that one of the two objects exchanged should have possessed some intrinsic value. Now the value of the share was not much more real than that of the note, and, however it might be counted, it was impossible to maintain the share at a price of 9,000 livres. On May 21, then, the share was reduced to 5,000 livres. The rate of exchange established by the declaration of March 1 only served to increase still more the issue of notes, which was, according to report, carried to three thousand millions. It is well known that the destruction of notes which had come back, promised by edict, was not honestly carried out, and that M. de Trudaine, provost of the merchants' guild, was removed from office because he refused to become a party to the government's frauds—It is useless to recall the events which marked the fall of Law's system: the creation of annuities payable in billets de banque, the repeated edicts which altered continually the metallic currency, the indictments filed, the confiscations made; how the bank was besieged and reduced to the redemption of one note only of ten livres for each person; the want of specie for the purposes of exchange; the reduction of wages, the engrossing of merchandise, the riots, and the terrible distress which succeeded one of the most extraordinary revolutions of fortunes which history tells of. After having, in the space of six months, promulgated about forty financial edicts, the government was reduced to yielding to public opinion and the force of circumstances. On Nov. 1, 1720, it declared that the notes should be receivable according to private agreement, and as, in spite of the compulsory circulation, they were at a discount of about 90 per cent., they ceased to possess any sort of value. Some time previous to this. Law had been obliged to escape by flight the vengeance of those whom his system had ruined. About two years were needed to prepare the system, and about the same length of time sufficed to develop it and to see its fall. In his speculations, founded on an erroneous conception of the creation of wealth, Law had succeeded, at first, by the importation into France of new and good commercial processes; and because of circumstances entirely unconnected with his theory, from the moment that his ideas were confronted with facts, Law's system crumbled.

—It was not, as has been said and repeated often, because Law's system was carried to excess that it failed. If operations had been confined to the Banque Générale, if that had been allowed to develop within the limits of its by-laws without resorting to rash or adventurous speculations, it might have rendered great services; but this bank was only a decoy, meant to accustom the people to the use of paper; it was in no way a part of the system; Law's writings and the edicts leave no doubt of this. His theories on the subject of paper money were like a story in the Arabian Nights, and the system was only the practical application of those theories.

—In spite of the financial difficulties resulting from the downfall of Law's system, it would have been easy to reap some advantage from the impulse imparted to business and from the state of men's minds at the time, from the custom of the association of small amounts of capital into one whole to accomplish any great purpose, and from the bank of issue. Nothing of the kind was done: the winding up of the affairs of the system, which was confided to Law's bitterest enemies, was conducted with a fury of reaction too frequent in France. The object seemed to be to destroy every trace of the great financial events that had just taken place, in such a way as to leave nothing of them but their ruins. All Barême's arithmetic was put under contribution to prove that Law had been a spendthrift and a knave, who had not only ruined private persons, but involved the state in debt, and people affected to speak with horror of paper. The system became the object of the declamations of philosophers and the epigrams of wits.

—The history of Law's experiments, not yet completed from an economic point of view, would be a curious and very instructive study in examining the theories based on paper money and stock-jobbing. All that has been dreamed of or tried of this kind since 1720 had been conceived and tried by the fertile genius of Law. The study of the system would be the more curious inasmuch as the author of it had at his disposal, at least with respect to the mass of the people, absolute power, that he used this power to its utmost extent, and that he lived in a society accustomed to this power, as to all other monopolies. After this great lesson which confirms so thoroughly the teaching of science, the demonstration of the sterility of paper money and stock jobbing is complete.

COURCELLE-SENEUIL

LAWS, Agrarian

LAWS, Agrarian, (agrariœ leges). Those enactments were called agrarian laws by the Romans which related to the public lands (ager publicus). The objects of these agrarian laws were various. A law (lex) for the establishment of a colony and the assignment of tracts of land to the colonists, was an agrarian law. The laws which regulated the use and enjoyment of the public lands, and gave the ownership of portions of them to the commonalty (plebes), were also agrarian laws. Those agrarian laws indeed which assigned small allotments to the plebeians, varying in amount from two jugera to seven jugera (a jugerum is about three-fourths of an English acte), were among the most important; but the agrarian laws, or those clauses of agrarian laws which limited the amount of public land which a man could use and enjoy, are usually meant when the term agrarian laws is now used—The origin of the Roman public land, or of the greater part of it, was this: Rome had originally a small territory, but by a series of conquests carried on for many centuries she finally obtained the dominion of the whole Italian peninsula. When the Romans conquered an Italian state, they seized a part of the lands of the conquered people; for it was a Roman principle that the conquered people lost everything with the loss of their political independence; and what they enjoyed after the conquest was a gift from the generosity of the conqueror. A state which submitted got better terms than one which made an obstinate resistance. Sometimes a third of their land was taken from the conquered state, and sometimes two-thirds. It is not said how this arrangement was effected; whether each landholder lost a third, or whether an entire third was taken in the lump, and the conquered people were left to equalize the loss among themselves. But there were probably in all parts of Italy large tracts of uncultivated ground which were under pasture, and these tracts would form a part of the Roman share, for we find that pasture land was a considerable portion of the Roman public land. The ravages of war also often left many of the conquered tracts in a desolate condition, and these tracts formed part of the conqueror's share. The lands thus acquired could not always be carefully measured at the time of the conquest, and they were not always immediately sold or assigned to the citizens. The Roman state retained the ownership of such public lands as were not sold or given in allotments, but allowed them to be occupied and enjoyed by any Roman citizen, or, according to some, by the patricians only at first, and in some cases certainly by the citizens of allied and friendly states, on the payment of a certain rent, which was one-tenth of the produce of arable land, and one-fifth of the produce of land planted with the vine, the fig, the olive, and of other trees the produce of which was valuable, as the pine. It does not appear that this occupation was originally regulated by any rules: it is stated that public notice was given that the lands might be occupied on such terms as above mentioned. Nor was the occupation probably limited to one class, either the patricians or the plebeians; either of these two portions of the Roman community might occupy the lands. The enjoyment of the public land by the plebes is at least mentioned after the date of the Licinian laws. Such an arrangement would certainly be favorable to agriculture. The state would have found it difficult to get purchasers for all its acquisitions; and it would not have been politic to have made a free gift of all those conquered lands which, under proper management, would furnish a revenue to the state. Those who had capital, great or small, could get the use of land without buying it, on the condition of paying a moderate rent, which depended on the produce. The rent may not always have been paid in kind, but still the amount of the rent would be equivalent to a portion of the produce. The state, as already observed, was the owner of the land; the occupier, who was legally entitled the possessor, had only the use (usus). This is the account of Appian ("Civil Wars," i., 7, etc.). The account of Plutarch ("Tiberius Gracchus," 8,) is in some respects different. Whatever land the Romans took from their neighbors in war, they sold part and the rest they made public and gave to the poor to cultivate, on the payment of a small rent to the treasury (ararium); but as the rich began to offer a higher rent, and ejected the poor, a law was passed which forbade any person to hold more than 500 jugera of (public) land. The law to which he alludes was one of the Licinian laws. ("Camillus," 39)

—This mode of occupying the land continued for a long period. It is not stated by any authority that there was originally any limit to the amount which an individual might occupy. In course of time these possessions (possessiones), as they were called, though they could not be considered by the possessors as their own, were dealt with as if they were. They made permanent improvements on them, they erected houses and other buildings, they bought and sold possessions like other property, gave them as portions with their daughters, and transmitted them to their children. There is no doubt that a possessor had a good title to his possession against all claimants, and there must have been legal remedies in cases of trespass, intrusion, and other disturbances of possession. In course of time very large tracts had come into the possession of wealthy individuals, and the small occupiers had sold their possessions, and in some cases, it is said, had been ejected, though it is not said how, by a powerful neighbor. This, it is further said, arose in a great degree from the constant demands of the state for the services of her citizens in war. The possessors were often called from their fields to serve in the armies, and if they were too poor to employ laborers in their absence, or if they had no slaves, their farms must have been neglected. The rich stocked their estates with slaves, and refused to employ free laborers, because free men were liable to military service and slaves were not. The free population of many parts of Italy thus gradually decreased, the possessions of the rich were extended, and most of the laborers were slaves. The Italian allies of Rome, who served in her armies and won her victories, were ground down by poverty, taxes and military service. They had not even the resources of living by their labor, for the rich would only employ slaves; and though slave labor under ordinary circumstances is not so profitable as free labor, it would be more profitable in a state of society in which the free laborers were liable at all times to be called out to military service. Besides this, the Roman agricultural slave was hard worked, and an unfeeling master might contrive to make a good profit out of him by a few years of bondage; and if he died, his place would readily be supplied by a new purchase. Such a system of cultivation might be profitable to a few wealthy capitalists, and would insure a large amount of surplus produce for the market; but the political consequences would be injurious—The first proposition of an agrarian law, according to Livy, was that of the consul Spurius Cassius, B. C. 484, a measure, as Livy observes, which was never proposed up to his time (the period of Augustus) without exciting the greatest commotion. The object of this law was to give to the Latins half of the lands which had been taken from the Hernici, and the other half to the plebes. He also proposed to divide among the plebes a portion of the public land, which was possessed by the patricians. The measure of Cassius does not appear to have been carried, and after the expiration of his office, he was tried, condemned, and put to death, on some charge of treasonable designs, and of aspiring to the kingly power. The circumstances of his trial and death were variously reported by various authorities. (Livy. ii., 41) Dionysius ("Antiq. Rom.," viii., 76) says that the senate stopped the agitation of Cassius by a measure of their own. A consultum was passed to the effect that ten men of consular rank should be appointed to ascertain the boundaries of the public land, and to determine how much should be let and how much distributed among the plebes; it was further provided that if the Ispolite and allied states should henceforth aid the Romans in making any further acquisitions of land, they should have a portion of it. The senatus consultum being proposed to the popular assembly, whatever that body may here mean, stopped the agitation of Cassius. This statement is precise enough and consistent with all that we know of the history of the agrarian laws; nor does its historical value seem to be much impaired by the remarks of Niebuhr upon it. ("Licinian Rogations," vol. iii., note 12.)

—At length in the year B. C. 375, the tribunes C. Licinius Stolo and L. Sextius brought forward, among other measures, an agrarian law, which, after much opposition, was carried in the year B. C. 365. The measures of Licinius and his colleague are generally spoken of under the name of the "Licinian Rogations." The provisions of this law are not very exactly known, but the principal part of them may be collected from Livy (vi., 35), Plutarch ("Tib. Gracchus," 8), and Appian ("Civil Wars," i., 8). No person was henceforth to occupy more than 500 jugera of public land for cultivation or planting; and every citizen was qualified to hold to that amount, at least, of public land acquired subsequently to the passing of the law. It was also enacted that every citizen might feed 100 head of large cattle and 500 head of small cattle on the public pastures. Any person who exceeded the limits prescribed by the law was liable to be fined by the plebeian ædiles, and to be ejected from the land which he occupied illegally. The rent payable to the state on arable land was a tenth of the produce, and that on lands planted with fruit or other trees was a fifth. This is not mentioned by Appian as a provision of that law which limited the possessions to 500 jugera, but as an old rule; but if the law of Licinius contained nothing against it, this provision would of course remain in force. A fixed sum was also paid, according to the old rule, for each head of small and large cattle that was kept on the public pastures.

—The rent was farmed or sold for a lustrum, that is, five years, to the highest bidder. There was another provision mentioned by Appian as part of the law which limited possession to 500 jugera, which is very singular. To render it more intelligible, the whole passage should be taken together, which is this: "It was enacted that no man should have more of this land (public land) than 500 jugera, nor feed more than 100 large and 500 small cattle, and for these purposes the law required them to have a number of free men, who were to watch what was going on and to inform."45 Niebuhr simply expresses the last enactment thus: "The possessors of the public land are obliged to employ free men as field laborers in a certain proportion to the extent of their possessions." Nothing is said as to any assignment of lands to the plebeians by the law of Stolo, though Niebuhr adds the following as one of the clauses of the law: "Whatever portions of the public land persons may at present possess above 500 jugera, either in fields or plantations, shall be assigned to all the plebeians in lots of seven jugera as absolute property." He observes in a note: "No historian, it is true, speaks of this assignment, but it must have been made"; and then follow some reasons why it must have been made, part of which are good to show that it was not made. But though Livy does not speak of assignments of land as being made to the plebes, such assignment is mentioned as one of the objects of his laws in the speech of Licinius (Livy, vi., 39) and of his opponent Appius Claudius (vi., 41).

—About two hundred and thirty years after the passing of the Licinian law, the tribune Tiberius Sempronius Gracchus, who was of a plebeian but noble family, brought forward his agrarian law, B. C. 133. The same complaints were still made as in the time of Licinius: there was general poverty, diminished population, and a great number of servile laborers. Accordingly, he proposed that the Licinian law as to the 300 jugera should be renewed or confirmed, which implies, not perhaps that the law had been repealed, but at least that it had fallen into disuse, but he proposed to allow a man to hold 250 jugera, in addition to the 500, for each son that he had; though this must have been limited to two sons, as Niebuhr observes, inas much as 1,000 jugera was the limit which a man was allowed to hold. The land that remained after this settlement was to be distributed by commissioners among the poor. His proposed law also contained a clause that the poor should not alienate their allotments. This agrarian law only applied to the Roman public lands in A pulia. Samnium, and other parts of Italy, which were in large masses: it did not affect the public lands which had already been assigned to individuals in ownerships, or sold. Nor did it comprise the land of Capua, which had been made public in the war against Hannibal, nor the Stellatis Ager: these fertile tracts were reserved as a valuable public property, and were not touched by any agrarian law before that of C. Julius Cæsar.

—The complaints of the possessors were loud against this proposed law; and to the effect which has already been stated. They alleged that it was unjust to disturb them in the possessions which they had so long enjoyed, and on which they had made great improvements. The policy of Gracchus was to encourage population by giving to the poor small allotments, which was indeed the object of such grants as far back as the time of the capture of Veii (Livy, v., 30): he wished to establish a body of small independent landholders. He urged on the possessors the equity of his proposed measure, and the policy of having the country filled with free laborers instead of slaves; and he showed them that they would be indemnified for what they should lose, by receiving, as compensation for their improvements, the ownership of 500 jugera, and the half of that amount for those who had children. It seems doubtful if the law as finally carried gave any compensation to the persons who were turned out of their possessions, for such part of their possessions as they lost, or for the improvements on it. (Plutarch, "Tib. Gracchus," x.) Three persons (triumviri) were appointed to ascertain what was public land, and to divide it according to the law: Tiberius had himself, his brother Caius, and his father-in-law Appius Claudius, appointed to be commissioners, with full power to settle all suits which might arise out of this law. Tiberius Gracchus was murdered in a tumult excited by his opponents at the election when he was a second time a candidate for the tribuneship (B. C. 133). The law, however, was carried into effect after his death, for the party of the nobility prudently yielded to what they saw could not be resisted. But the difficulties of fully executing the law were great. The possessors of public land neglected to make a return of the lands which they occupied, upon which Fulvius Flaccus, Papirius Carbo, and Caius Gracchus, who were now the commissioners for carrying the law into effect, gave notice that they were ready to receive the statements of any informer; and numerous suits arose. All the private land which was near the boundary of the public land was subjected to a strict investigation as to its original sale and boundaries, though many of the owners could not produce their titles after such a lapse of time. The result of the admeasurement was often to dislodge a man from his well-stocked lands and remove him to a bare spot, from lands in cultivation to land in the rough, to a marsh or to a swamp; for the boundary of the public land after the several acquisitions by conquest had not been accurately ascertained, and the mode of permissive occupation had led to great confusion in boundaries. "The wrong done by the rich," says Appian, "though great, was difficult exactly to estimate; and this measure of Gracchus put everything into confusion, the possessors being moved and transferred from the grounds which they were occupying to others" ("Civil Wars," i., 18.) Such a general dislodgement of the possessors was a violent revolution. Tiberius Gracchus had also proposed that so much of the inheritance of Attalus III., king of Pergamus, who had bequeathed his property to the Roman state, as consisted of money, should be distributed among those who received allotments of land, in order to supply them with the necessary capital for cultivating it. (Plutarch, "Tiberius Gracchus." 14.) It is not stated by Plutarch that the measure was carried, though it probably was—Caius Gracchus, who was tribune B. C. 123, renewed the agrarian law of his brother, which it appears had at least not been fully carried into effect; and he carried measures for the establishment of several colonies, which were to be composed of those citizens who were to receive grants of land. A variety of other measures, some of undoubted value, were passed in his tribunate; but they do not immediately concern the present inquiry. Caius got himself appointed to execute the measures which he carried. But the party of the nobility beat Caius at his own weapons; they offered the plebes more than he did. They procured the tribune Marcus Livius Drusus to propose measures which went far beyond those of Caius Gracchus. Livius accordingly proposed the establishment of twelve colonies, whereas Gracchus had only proposed two (Plutarch, "Caius Gracchus," 9.) The law of Gracchus also had required the poor to whom land was assigned to pay a rent to the treasury, which payment was either in the nature of a tax or an acknowledgment that the land still belonged to the state: Drusus relieved them from this payment. Drusus also was prudent enough not to give himself or his kinsmen any appointment under the law for founding the colonies. Such appointments were places of honor at least, and probably of profit too. The downfall of Caius was thus prepared, and, like his brother, he was murdered by the party of the nobility. B. C. 121, when he was a third time a candidate for the tribunate.

—Soon after the death of Caius Gracchus, an enactment was passed which repealed that part of the law of the elder Gracchus which forbade those who received assignments of lands from selling them. (Appian, "Civil Wars," i., 27.) The historian adds, which one might have conjectured without being told, that the rich immediately bought their lands of the poor; "or forced the poor out of their lands on the pretext that they had bought them"; which is not quite intelligible.46 Another law, which Appian attributes to Spurius Borius, enacted that there should be no future grants of lands, that those who had lands should keep them, but pay a rent or tax to the ærarium, and that this money should be distributed among the poor. This measure then contained a poor-law, as we call it, or imposed a tax for their maintenance. This measure, observes Appian, was some relief to the poor by reason of the distribution of money, but it contributed nothing to the increase of population. The main object of Tiberius Gracchus, as already stated, was to encourage procreation by giving small allotments of land, a measure well calculated to effect that object. Appian adds: "When the law of Gracchus had been in effect repealed by these devices, and it was a very good and excellent law, if it could have been carried into effect, another tribune not long after carried a law which repealed that relating to the payment of the tax or rent; and thus the plebes lost everything at once. In consequence of all this, there was still greater lack than before of citizens, soldiers, income from the (public) land, and distributions."

—Various agrarian laws were passed between the time of the Gracchi and the outbreak of the Marsic war, B. C. 90, of which the law of Spurius Thorius (lex Thoria) is assigned by Rudorff to the year of the city 643, or B. C. 111; and this appears to be the third of the laws to which Appian alludes as passed shortly after the death of Caius Gracchus. Cicero also ("Brutus," 36) alludes to the law of Thorius as a bad measure, which relieved the public land of the tax (vectigal). The subject of this lex was the public land in Italy south of the rivers Rubico and Macra, or all Italy except Cisalpine Gaul; the public land in the Roman province of Africa, from which country the Romans derived a large supply of grain; the public land in the territory of Corinth; and probably other public land also, for the bronze tablet on which this law is preserved is merely a fragment, and the agrarian laws of the seventh century of the city appear to have related to all the provinces of the Roman state. One tract, however, was excepted from the Thoria lex, the ager Campanus, or fertile territory of Capua, which had been declared public land during the war with Hannibal, and which neither the Gracchi nor any other politician, not even Lucius Sulla, ventured to touch: this land was reserved for a bolder hand. The provisions of the Thoria lex are examined by Rudorff in an elaborate essay.

—In the year B. C. 91 the tribune Marcus Livius Drusus the younger, the son of the Drusus who had opposed Caius Gracchus, endeavored to gain the favor of the plebes by the proposal of laws to the same purport as those of the Gracchi, and the favor of the Socii, or Italian allies, by proposing to give them the full rights of Roman citizens. "His own words," says Florus (iii., 17), "are extant, in which he declared that he had left nothing for any one else to give, unless a man should choose to divide the mud or the skies." Drusus agitated at the instigation of the nobles, who wished to depress the equestrian body, which had become powerful; but his agrarian profusion, which was intended to gain the favor of the plebes, affected the interests of the Socii, who occupied public land in various parts of Italy, and accordingly they were to be bought over by the grant of the Roman citizenship. Drusus lost his life in the troubles that followed the passing of his agrarian law, and the Socii, whose hopes of the citizenship were balked, broke out in that dangerous insurrection called the Marsic or Social war, which threatened Rome with destruction, and the danger of which was only averted by conceding, by a lex Julia, what the allies demanded (B. C. 90). The laws of Drusus were declared void, after his death, for some informality.

—The proposed agrarian law of the tribune P. Servilius Rullus, B. C. 63, the year of Cicero's consulship, was the most sweeping agrarian law ever proposed at Rome. Rullus proposed to appoint ten persons with power to sell everything that belonged to the state, both in Italy and out of Italy, the domains of the kings of Macedonia and Pergamus, lands in Asia, Egypt, the province of Africa, in a word, everything; even the territory of Capua was included. The territory of Capua was at that time occupied and cultivated by Roman plebeians (colitur et possidetur), an industrious class of good husbandmen and good soldiers: the proposed measure of Rullus would have turned them all out. There was not here, says Cicero (ii., 30), the pretext that the public lands were lying waste and unproductive; they were in fact occupied profitably by the possessors, and profitably to the state, which derived a revenue from the rents. The ten persons (decemviri) were to have full power for five years to sell all that belonged to the state, and to decide without appeal on all cases in which the title of private land should be called in question. With the money thus raised it was proposed to buy lands in Italy on which the poor were to be settled, and the decemviri were to be empowered to found colonies where they pleased. This extravagant proposal was defeated by Cicero, to whose three orations against Rullus we owe our information about this measure.

—In the year B. C. 60 the tribune Flavius brought forward an agrarian law, at the instigation of Pompey, who had just returned from Asia, and wished to distribute lands among his soldiers. Cicero, in a letter to Atticus (i., 19), speaks at some length of this measure, to which he was not entirely opposed, but he proposed to limit it in such a way as to prevent many persons from being disturbed in their property, who, without such precaution, would have been exposed to vexatious inquiries and loss. He says, "One part of the law I made no opposition to, which was this, that land should be bought with the money to arise for the next five years from the new sources of revenue (acquired by Pompey's conquest of Asia). The senate opposed the whole of this agrarian measure from suspicion that the object was to give Pompey some additional power, for he had shown a great eagerness for the passing of the law. I proposed to confirm all private persons in their possessions; and this I did without offending those who were to be benefited by the law; and I satisfied the people and Pompey, for I wished to do that too, by supporting the measure for buying lands. This measure, if properly carried into effect, seemed to me well adapted to clear the city of the dregs of the populace, and to people the wastes of Italy." A disturbance in Gallia Cisalpina stopped this measure; but it was reproduced, as amended by Cicero, by C. Julius Cæsar, who was consul in the following year, B. C. 59. The measure was opposed by the senate, on which Cæsar went further than he at first intended, and included the Stellatis ager and Campanian land in his law. This fertile tract was distributed among 20,000 citizens who had the qualification which the law required, of three children or more. Cicero observes ("Ad Attic.," ii, 16), "That after the distribution of the Campanian lands and the abolition of the customs duties (portoria), there was no revenue left that the state could raise in Italy, except the twentieth which came from the sale and manumission of slaves." After the death of Julius Cæsar, his great nephew Octavianus, at his own cost and without any authority, raised an army from these settlers at Capua and the neighboring colonies of Casilinum and Calatia, which enabled him to exact from the senate a confirmation of this illegal proceeding, and a commission to prosecute the war against Marcus Antonius. Those who had received lands by the law of the uncle supported the nephew in his ambitious designs, and thus the settlement of the Campanian territory prepared the way for the final abolition of the republic. (Compare Dion, Cassius, xxxviii., 1-7, and xiv., 12.)

—The character of the Roman agrarian laws may be collected from this sketch. They had two objects: one was to limit the amount of public land which an individual could enjoy; the other was to distribute public land from time to time among the plebes and veteran soldiers. A recent writer, the author of a useful work (Dureau de la Malle, Economie Politique des Romains), affirms that the Licinian laws limited private property to 500 jugera, and he affirms that the law of Tiberius Gracchus was a restoration of the Licinian law in this respect (ii., 280, 282). On this mistake he builds a theory, that the law of Licinius and of Tiberius Gracchus had for their "object to maintain equality of fortunes and to create the legal right of all to attain to office, which is the fundamental basis of democratic government." His examination of this part of the subject is too superficial to require a formal confutation, which would be out of place here. But another writer already quoted (Rudorff, Zcitschrift fur Geschichtliche Rechtsuissenschaft, x, 28) seems to think also that the Licinian maximum of 500 jugera applied to private land, and that this maximum of 500 jugera was applied by Tiberius Gracchus to the public land. Livy (vi., 35), in speaking of the law of Licinius Stolo, says merely, "Nequis plus quingenta jugera agri possideret," but, as Niebuhr observes, the word "possideret" shows the nature of the land without the addition of the word public. And if any one doubts the meaning of Livy, he may satisfy himself what it is by a comparison of the following passages (ii., 41; vi., 4, 5, 14, 16, 36, 37, 39, 41). The evidence derived from other sources confirms this interpretation of Livy's meaning. That the law of Gracchus merely limited the amount of public land which a man might occupy, is, so far as we know, now admitted by everybody except Dureau de la Malle; but a passage in Cicero ("Against Rullus," ii., 5), which he has referred to himself in giving an account of the proposed law of Rullus, is decisive of Cicero's opinion on the matter; not that Cicero's opinion is necessary to show that the laws of Gracchus only affected public land, but his authority has great weight with some people.

—It is however true, as Dureau de la Malle asserts, that the Licinian laws about land were classed among the sumptuary laws by the Romans. The law of Licinius, though not directly, did, in effect, limit the amount of capital which an individual could apply to agriculture and the feeding of cattle, and jealousy of the rich was one motive for this enactment. It also imposed on the occupier of public land a number of free men: if they were free laborers, as Niebuhr supposes, we presume that the law fixed their wages. But their business was to act as spies and informers in case of any violation of the law. This is clear from the passage of Appian above referred to, the literal meaning of which is what has here been stated, and there is no authority for giving any other interpretation to it47 The law of Tiberius Gracchus forbade the poor who received assignments of land from selling them; a measure evidently framed in accordance with the general character of the enactments of Licinius and Gracchus. The subsequent repeal of this measure is considered by most writers as a device of the nobility to extend their property; but it was a measure as much for the benefit of the owner of an allotment. To give a man a piece of land and forbid him to sell it, would often be a worthless present. The laws of Licinius and Gracchus, then, though they did not forbid the acquisition of private property, prevented any man from employing capital on the public land beyond a certain limit; and as this land formed a large part of land available for cultivation, its direct tendency must have been to discourage agriculture and accumulation of capital. The law of Licinius is generally viewed by modern writers on Roman history as a wise measure; but it will not be so viewed by any man who has sound views of public economy; nor will such a person seek, with Niebuhr, to palliate by certain unintelligible assumptions and statements the iniquity of another of his laws, which deprived the creditor of so much of his principal money as he had already received in the shape of interest. The law by which he gave the plebeians admission to the consulate was in itself a wise measure. Livy's view of all these measures may not be true, but it is at least in accordance with all the facts, and a much better comment on them than any of Livy's modern critics have made. The rich plebeians wished to have the consulate opened to them: the poor cared nothing about the consulate, but they wished to be relieved from debt, they wished to humble the rich, and they wished to have a share of the booty which would arise from the law as to the 500 jugera. They would have consented to the law about the land and the debt, without the law about the consulate; but the tribunes told them that they were not to have all the profit of these measures; they must allow the proposers of them to have something, and that was the consulate: they must take all or none. And accordingly they took all.

—The other main object of the agrarian laws of Rome was the distribution of public land among the poor in allotments, probably seldom exceeding seven jugera, about five English acres, and often less. Sometimes allotments of twelve jugera are spoken of. ("Cicero against Rullus," ii., 31.) The object of Tiberius Gracchus in this part of his legislation is clearly expressed; it was to encourage men to marry and to procreate children, and to supply the state with soldiers. To a Roman of that age, the regular supply of the army with good soldiers would seem a sound measure of policy; and the furnishing the poorer citizens with inducement enough to procreate children was therefore the duty of a wise legislator. There is no evidence to show what was the effect on agriculture of these allotments; but the ordinary results would be, if the lands were well cultivated, that there might be enough raised for the consumption of a small family; but there would be little surplus for sale or the general supply. These allotments might, however, completely fulfill the purpose of the legislators. War, not peace, was the condition of the Roman state, and the regular demand for soldiers which the war would create, would act precisely like the regular emigration of the young men in some of the New England states; the wars would give employment to the young males, and the constant drain thus caused would be a constant stimulus to procreation. Thus a country from which there is a steady emigration of males never fails to keep up and even to increase its numbers. What would be done with the young females who would be called into existence under this system, it is not easy to conjecture; and in the absence of all evidence we must be content to remain in ignorance. It is not stated how these settlers obtained the necessary capital for stocking their farms; but we read in Livy, in a passage already quoted, that on one occasion the plebes were indifferent about the grants of lands, because they had not the means of stocking them; and in another instance we read that the treasure of the last Attalus of Pergamus was to be divided among the poor who had received grants of lands. A gift of a piece of land to a man who has nothing except his labor, would in many cases be a poor present; and to a man not accustomed to agricultural labor—to the dregs of Rome, of whom Cicero speaks, it would be utterly worthless. There is no possible way of explaining this matter about capital, except by supposing that money was borrowed on the security of the lands assigned, and this will furnish one solution of the difficulties as to the origin of the plebeian debt. It is impossible that citizens who had spent most of their time in Rome, or that broken-down soldiers should ever become good agriculturists. What would be the effect even in the United States, if the general government should parcel out large tracts of the public lands, in allotments varying from two to five acres, among the population of New York and Philadelphia, and invite at the same time all the old soldiers in Europe to participate in the gift? The readiness with which the settlers in Campania followed the standard of young Octavianus shows that they were not very strongly attached to their new settlements.

—The full examination of this subject, which ought to be examined in connection with the Roman law of debtor and creditor, and the various enactments for the distribution of grain among the people of Rome, would require an ample volume. The subject is full of interest, for it forms an important part of the history of the republic from the time of the legislation of Licinius; and it adds one to the many lessons on record of useless and mischievous legislation. It is true that we must make some distinction between the laws of Licinius and the Gracchi, and such as those proposed by Rullus and Flavius: but all these legislative measures had the vice either of interfering with things that a state should not interfere with, or the folly of trying to remedy by partial measures those evils which grew out of the organization of the state and the nature of the social system.

—The nature of the agrarian laws, particularly those of Licinius and the Gracchi, has often been misunderstood in modern times; but it is a mistake to suppose that all scholars were equally in error as to this subject. The statement of Freinsheim, in his "Supplement to Livy," of the nature of the legislation of the Gracchi, is clear and exact. But Heyne ("Opuscula," iv., 351) had the merit of putting the matter in a clear light at a time, during the violence of the French revolution, when the nature of the agrarian laws of Rome was generally misunderstood. Niebuhr, in his "Roman History," gave the subject a more complete examination, though he has not escaped error, and his economical views are sometimes absurd. Savigny (Das Recht des Besitzes, p. 172, 5th ed.) also has greatly contributed to elucidate the nature of possession of the public land, though the main object of his admirable treatise is the Roman law of possession as relates to private property.

BOHN.

LAWS

LAWS, Sumptuary, laws designed to repress or moderate the expenditures of private citizens. Such laws existed in almost all the ancient republics and in most of the modern states.

—The ancient republics were based, as we know, on equality of conditions.48 As soon as that equality was in a certain measure changed, the very existence of the state was in peril. Legislators, then, to avert the danger, had recourse to agrarian laws, sumptuary laws, laws to favor marriages, and laws ordering the employment of free men in field labor. All these laws, so diverse in the nature of the subjects to which they applied, were inspired by one single idea and tended to the same end, to prevent the extinction of the free population, from which the national armies were recruited. These laws, which to-day seem strange to us, show how the ideas of the ancients on liberty different from ours, and how different was their social condition from that which exists among us.—"The Romans," says Plutarch, "thought the liberty ought not to be left to each private citizen to marry at will, to have children, to choose his manner of life, to make feasts; in short, to follow his desires and his tastes, without being subject to the judgment and supervision of any one. Convinced that the deeds of men are manifest in these private actions, rather than in public and political conduct, they had created two magistrates charged with keeping guard over morals, and reforming and correcting them, so that no one should allow himself to be enticed from the path of virtue into that of voluptuousness, or should abandon the ancient institutions and established usages."

—But the censure instituted at Rome was only one particular form given to the exercise of a right which all antiquity recognized in the state. They thought that by prohibiting the use of articles of luxury, they would repress the avidity of the great and diminish the general consumption of society, that impoverishment would be retarded; that men of the middle class would be prevented from falling into indigence, from which they could emerge only by labor; for we must remember the fundamental principle of the military republics, that labor was dishonorable. Public opinion excused the Roman patrician for having poisoned and assassinated; it would not have pardoned him for engaging in commerce or working at a trade: hence a whole economic system that was artificial and against nature.

—At Rome, we find sumptuary tendencies in even the law of the Twelve Tables. "Do not carve the wood which is to serve for a funeral pile. Have no weeping women who tear their cheeks, no gold, no coronets." People never regarded these prohibitions. The Oppian law. passed almost immediately after the establishment of the tribunate, forbade matrons to have more than a half ounce of gold, to wear clothing of diversified colors, or to use carriages in Rome. Soon, in the year 195 before our era, the abrogation of that law was demanded, and the demand supported by a revolt of women, as described by Titus Livy. In spite of the opposition of Cato, who, in his speech, showed the intimate relation of that law to the agrarian laws, its abrogation was decreed.

—Fourteen years later, under the inspiration of the same Cato, the Orchian law, limiting table expenses, was promulgated. Twenty years later the Faunian law was passed for the same end. It fixed the expense of the table at about ten cents for each individual on ordinary days, and at less than thirty-one cents for the days of festivals and games. It was prohibited to admit to one's table more than three outside guests, except three times a month, on fair and market days; prohibited to serve at repasts any bird, were it merely a fatted chicken; prohibited to consume more than fifteen pounds of smoked meat per year, etc. Soon the luxury of the table passed these narrow bounds, and Sylla, Crassus, Cæsar and Antony, in succession, caused now decrees to be issued against gluttony.

—It is true that, by a singular coincidence, most of these men who made laws against luxury at the table, were conspicuous in history for their excesses. The infamy of the feasts of Sylla, Crassus and Antony has come down to us through all these centuries; and if Cæsar was less addicted to gluttony than these famous personages, he introduced no less luxury at his repasts. This circumstance likewise proves clearly that all these statesmen, whatever course they followed themselves and whatever were their personal tastes, considered sumptuary laws a political remedy in some sort applicable to a people in a bad condition. It was not through regard for morals, for private integrity, that they had recourse to sumptuary laws; it was to preserve, if it was still possible, the Italian race, which was rapidly disappearing under the two-fold action of pauperism and civil wars. But private expenses can not be regulated either by laws disregarded by the very persons who make them, or by physical means; the change must be effected through public opinion, religion and morals. When public opinion is so corrupt as to honor theft and despise labor; when all religion is destroyed; when it is honorable among the great to eat and drink immoderately, and to vomit in order to eat again, laws can have no efficacy. Sumptuous banqueting also, incredible as it may seem, increased under the emperors. The emperors then also made sumptuary laws at the same time that they were presenting the spectacle of the most scandalous excesses. Some of them, however, gave what was better than laws, grand examples of abstinence and sobriety, but without result, without power to arrest society on the declivity down which it was precipitating itself. It is as impossible to regulate the employment of wealth acquired by conquest and robbery as that of wealth acquired by gaming.

—The sumptuary laws in all ancient countries were of no avail. Sometimes evaded, sometimes openly despised, they did not arrest the increase of luxury, and did not retard the downfall of the military republics founded upon equality. It seems to us, however, that J. B. Say has treated them with a little too much disdain in the following passage, where he has, however, clearly brought out the difference between the sumptuary laws of antiquity and those of modern states: "Sumptuary laws have been made, to limit the expenditures of private individuals, among ancient and modern peoples, and under republican and monarchical governments. The prosperity of the state was not at all the object in view; for people did not know and could not yet know whether such laws had any influence on the general wealth. * * The pretext given was, public morality, starting with the premise that luxury corrupts morals; but that was scarcely ever the real motive. In the republics the sumptuary laws were enacted to gratify the poorer classes, who did not like to be humiliated by the luxury of the rich. Such was evidently the motive for that law of the Locrians which did not permit a woman to have more than one slave accompany her on the street. Such was also that of the Orchian law at Rome, a law demanded by a tribune of the people, and which limited the number of guests one could admit to his table. During the monarchy, on the contrary, sumptuary laws were the work of the great, who were not willing to be eclipsed by the middle classes. Such was, doubtless, the cause of that edict by Henry II., which prohibited garments and shoes of silk to any others than princes and bishops."

—There were, in ancient times, other motives for the enactment of sumptuary laws than desire to gratify the poorer classes, and in feudal monarchies the laws originated in other causes than a jealousy of the great: These monarchies were also an artificial creation, founded "on ancient institutions and received usages"; these institutions, these usages, tended to entail property in some families, and to settle rank permanently; and if antiquity had its agrarian laws, which meant equality, feudal society, we must not forget, had its own, which meant inequality and hierarchy.

—The advent of movable wealth and of luxury profoundly disturbed feudal society, where all was founded on the pre-eminence of that property considered especially noble, viz., real estate. A system of agriculture which had become fixed by tradition did not allow the nobility to increase their revenues, while the profits of commerce, navigation and the industries, and the possession of movable capital, elevated the middle class. The luxury of this class, who were eager to imitate the style of the great, disturbed the harmony of society: it deranged a hierarchy without which people saw only disorder. Hence arose sumptuary laws, which distinguished classes by their garb, as the grades in an army are distinguished by the uniforms.

—The vanity of the great, perhaps, called for the sumptuary laws of modern nations, as the jealousy of the lower classes had welcomed those of the ancient republics. But, in antiquity as in feudal monarchies, the legislator was inspired by state considerations, by a desire to prevent innovations which he considered as fatal. From the time when the plebeians came into competition with the luxury of the nobles, from the moment that they were their rivals, it was evident that, if the way was left open for such competition, wealth would finally gain the victory over birth in the opinion of the people, i.e., over the nobility themselves. Now, as feudal monarchies were founded on the right of race, everything that could diminish the authority of this right, tended to subvert the constitution of the state. Even those who did not clearly perceive the import of the luxury of the bourgeois, and who, bourgeois themselves, could not be wronged by it, nevertheless felt that this luxury disturbed the established order, and they supported the sumptuary laws.

—These laws, then, were at all times inspired by the desire of arresting an irresistible movement resulting from the very force of things, from the development, disordered perhaps, but logical, of human activity. They were, moreover, powerless, and were always evaded by a sort of tacit and general conspiracy of all the citizens, without any one daring or being able to find fault with the principle, without any one thinking of contesting the power of the legislator on this point in the very least. In fact, we must remember that in monarchies in modern times, the law-making power was scarcely less extended than in antiquity. People did not recognize the right of every man to work, and still less, the right to work when he pleased; and, what was of much more consequence, they professed that the king held a strict control over his kingdom, and would not allow one class to encroach on the rights of another, or to change the rank assigned to it by ancient custom. "The said lord the king," we read in an ordinance of 1577, "being duly informed that the great superfluity of meat at weddings, feasts and banquets, brings about the high price of fowls and game, wills and decrees that the ordinance on this subject be renewed and kept; and for the continuance of the same, that those who make such feasts as well as the stewards who prepare and conduct them, and the cooks who serve them, be punished with the penalties hereunto affixed. That every sort of fowl and game brought to the markets shall be seen and visited by the poulterer-wardens, in the presence of the officers of the police and bourgeois clerks to the aforesaid, who shall be present at the said markets, and shall cause a report to be made to the police by the said wardens, etc. The poulterers shall not be allowed to dress and lard meats, and to expose the same for sale, etc. The public shall be likewise bound to live according to the ordinance of the king, without exceeding the limit, under penalty of such pecuniary fines as are herein set forth against the innkeeper, so that neither by private understanding nor common consent shall the ordinance be violated."

—The world to-day lives in a different order of ideas, and when we read the ordinances of French kings, we find them no less strange than the ancient laws: they seem to us to apply to a social condition in which each laborer was a civil officer, as in the empire of Constantine. These ordinances are nevertheless the history of but yesterday, the history of the eve of the French revolution, and we are still dragging heavy fragments of the chain under which our fathers groaned. But ideas and sentiments have gone far in advance of facts: we have difficulty in comprehending the intervention of the government in the domestic affairs of families, and in contracts which concern only private individuals. As to luxury, it can not disturb classes, in a society where all are on a level, and it can not do much harm if the law of labor is respected, if rapine can not become a means of acquiring property.

—Since the revolution, no sumptuary law has been enacted in France, and yet the luxury of attire which formerly distinguished the nobility has disappeared. A duke dresses like anybody else, and he would be ridiculed if he sought to distinguish himself by a manner of dress different from others. Such is sumptuary law in our time. Any one who should try to make himself singular by particular garments or an exceptional mode of life, would be immediately noted, not as a dangerous citizen, but as a ridiculous fellow. Opinion has undergone an entire revolution. Private expenses are meanwhile increasing, and this increase, too, is pretty rapid. They can not, however, depart far from uniformity vain prodigalities can not be a title to glory in a society where the law of labor is recognized, and the one who will surrender himself to them, however rich he may be, is forced by public opinion to wear a certain modesty, even in his greatest excesses. Sumptuary laws can no longer be proposed. We need not think the honor of the change is due to our wisdom, to our pretended superiority to the ancients; let us simply recognize, (and it is in this that progress consists), that the essential principle of society has changed: the world moves on another basis.

—When the Roman people had, in despite of the observations of Cato, abrogated the Oppian law against the luxury of women, Cato, who had become censor, attempted to have it revived in another form. He included in the census, that is, in the valuation of the wealth of the citizens, jewels, carriages, the ornaments of women and of young slaves, for a sum ten times their cost, and imposed a duty on them of 3/1000 or 3/100 of the real price. He substituted a sumptuary tax for a sumptuary law. The moderns have done as did Cato. After the sumptuary laws had become a dead letter, they imposed taxes on the consumption of luxuries. England has taxes on carriages, on servants, on armorial bearings and on toilet powder. So far as political economy is concerned, these taxes are irreproachable; but they bring little into the treasury, and have scarcely any influence on consumption or on morals.

COURCELLE-SENEUIL.

LEGAL TENDER

LEGAL TENDER. (See COMPULSORY CIRCULATION.)

LEGISLATION

LEGISLATION is the exercise of that part of the sovereign power which promulgates new laws; modifies and repeals old laws; gives to ethical convictions their crystallized form by expressing in apt language the conception of society as to what constitutes offenses, and prescribes their punishment; formulates how contracts should be made and observed; and regulates the affairs of men in their relations with the state and with each other. In this concrete form it is the expression of the will of the law-making power of the community, behind which stands its administrative machinery to enforce that expression of will by punishment for its infraction, or by changing relative rights and duties, if the law applies to matters of contract instead of matters of penal law. The legislation need not necessarily emanate from a legislative body. A convention of the people, either directly or through representative bodies other than legislatures, formulates and establishes the highest laws in any given community by the organic distribution of powers in a nation or community in the shape of a constitution. This is fundamental legislation. All other legislation of the community is subsidiary to it. There is a considerable amount of legislation done by judges in their interpretation of statutes, or in the application of general principles to new cases, which we may for the present leave out of sight, because while judge-made law is law, it does not, in ordinary parlance, come under the head of legislation. It is referred to here for the purpose of drawing attention to the fact that the legislature is not the only source of law. In European countries a large proportion of what occupies what is ordinarily termed legislation in the United States falls under the head of administrative rescripts, which have the force of law. Each particular minister in the constitutional governments of Germany, France and Italy has the power to make administrative regulations for the departments under his control, which have the same character as, and indeed are not distinguishable from, a great part of the laws which encumber the statute books of the United States. For instance, all that class of legislation which grants charters of cities and governments for counties, and changes their nature from time to time, would all come under some ministerial department and be regulated and changed or modified, as the case might be, without any appeal to the general legislative body. By reason of this and kindred large bodies of regulations emanating from executive officers, the legislatures of those countries are but little encumbered with the questions that vex and worry us, which come under the head of local and special laws that form the bulk of the statutes annually enacted in the United States; but, on the contrary, the legislative bodies of those countries are freer to devote their attention to the general legislation of the community, because it is not properly deemed legislative work to regulate the administrative machinery of the minor administrative organizations of the community.

—The legislative bodies of the United States have been modeled upon those of England. In every state of the Union there are two legislative houses corresponding to the senate and house of representatives of the national legislative body, and to the house of lords and house of commons of the English parliament. The senate is the house of greater dignity and smaller numbers, the dignity arising from the longer term of office and the greater comparative power of each individual legislator because of the larger district which elects him.

—The theory upon which legislation proceeds from a law-making body is, that that body is placed in a situation of such altitude above the surrounding individual and personal interests of the community, that its members can see general interests as contradistinguished from personal interests, and by general regulations denominated laws hold the special and personal interests in check and compel them to work harmoniously for the public weal. In so far as that theory is carried into practice the laws that emanate from such bodies are, unless proceeding from a wrong point of view, generally wholesome and beneficial. If the organization of the legislative body, or the practice which has in time grown up in its procedure, results in the domination of individual or personal interests instead of the general public weal, the laws of that community, received from such a body, are sure to be inharmonious and mischievous.

—Laws divide themselves naturally into organic laws, into general legislation, special legislation, public legislation, and local legislation.

—The subject of legislation is the whole domain of human activity. Whether it shall extend its field into any particular branch of human activity, or leave it free to the natural law which would in the absence of such legislation regulate it, is a question of expediency, the consideration of which belongs to a different branch of the science of government from that which we are called upon to treat of herein.

—Organic laws are the laws made by the sovereign, by which governmental powers are distributed and prerogatives which belong to the sovereign are delegated to agents, either for a definite period or for all time. These organic laws may emanate, like magna charta, from the king; they may be the result of a determination of the sovereign, as represented by the imperial crown, to associate with itself in the exercise of legislative and judicial powers, a larger number of subjects than had theretofore been consulted with reference to matters of government, (in such manner have European governments gradually developed into constitutional monarchies); they may be the result of revolution and civil strife, which throws the sovereign power back into the hands of the people; or they may, be constitutional conventions as in America or constituent assemblies as in France, exercising that sovereign power, represent the sovereign for the time being, and in such representative body formulate and promulge a constitution, placing sovereign power, in their subdivisions of executive, judicial and legislative authority, in individual hands, and prescribe the limits within which such authority is to be exercised. These organic laws are generally declared to be for all time, but subject to amendment in a manner prescribed by the organic law itself—The ultimate sovereignty of the community rests in its people. Whether they are to exercise that ultimate sovereignty in the form of a constitutional convention or in some more constantly acting form, is a question with reference to which it is not needful to lay down rules, as the exercise of that power comes into life, as a general rule, as the result of some great civil strife, or some great crisis, and the necessities that have called it into being prescribe the limitations and form within which the sovereign exercises its power. To these organic laws constant reference must be made for the purpose of ascertaining the powers of the legislature that it calls into being, and it is almost needless to say that whatever contravenes the organic law is void, as being beyond the scope of the authority deputed to the legislative body, and therefore of no effect; in other words, is unconstitutional legislation.

—The laws which are not organic emanate from the legislative body, which is itself created by the organic law. The distinguishing feature between organic laws and legislative laws is, that one legislature can not bind the hands of another upon general public questions. In the United States it has been, however, held that a legislative measure may create a contract which it is not in the power of another legislature to break without the consent of the other contracting party, but this limitation upon the power of the legislature arises solely from the fact that the constitution of the United States puts a limitation in that particular upon the state legislative power in declaring that no state shall pass any law impairing the obligation of a contract, which also includes inviolability as to its own contracts.

—Public Legislation. It is the duty of the law-making power to see to it that the laws of a community shall be readily understood, shall be harmonious, and shall press as little as possible upon proper legitimate individual enterprise; that all remedial legislation shall be adapted to its ends, and shall be clear in expression; that all criminal legislation shall define crimes in conformity with existing facts; shall keep pace with the perverse ingenuity of mankind in the discovery of new methods of appropriating other people's property under the form of legitimate business; and shall prescribe punishments of a definite character. All legislation which irritates and does not punish is useless and mischievous legislation. All legislation is as to form subject to rules which can not safely be neglected by the legislator, and the disregard of which has resulted in infinite mischief to society. The elements of every legislative expression consist, 1, in the description of a legislative subject; 2, in the enunciation of the legal action; 3, in the description of the case to which the legal action is limited; and 4, the precedent conditions on the performance or doing of which the legal action operates.

—Legal Subject. The definition of the person, artificial or natural, who may or may not do a particular thing, who shall or shall not refrain from doing a particular thing; and this subject should be clearly defined. The legal action is a definition of the right, the privilege or the power, or the obligation or liability granted to or imposed upon the legal subject. The description of the case to which the legal action is limited, is a setting forth of the state of facts which shall create the conditions applicable to the legislative subject, and which shall call into being the right, privilege, obligation or duty. The conditions on which the legal action becomes operative are invariably conditions precedent, because a law, although universal as to its subjects and unrestricted as to cases, can nevertheless become operative only upon the performance or nonperformance of certain conditions. Example: Subject, all persons born in this state above the age of twenty-one; action, shall have the right to vote; description, at all elections to be held for judges of court of appeals; condition precedent, if they shall have registered twenty days before the date of such election. A law may embrace any number of subjects, actions, descriptions or conditions precedent, may fill a volume, and yet the law will be combinations, in one form or another, of these simple elements. The first duty, therefore, of the law-maker in relation to a law, after having determined upon its usefulness, is to see whether these various elements of the law into which it may be resolved are correctly described and follow each other in their natural order—Legislative Methods. The constitutions of the states of this Union enjoin upon the legislative body many conditions, upon the proper performance of which their legislation will depend as to its constitutionality. Tax laws are required to be passed by a certain majority; bills are required to be read a certain number of times, either by their titles or read through; journals are to be kept; ayes and noes are to be entered therein; a certain number of ayes are requisite for certain kinds of legislation; and in many other particulars the form of legislation is prescribed. The legislative body is required to organize committees; to sit a certain number of days; and to follow certain forms as to methods of enactment. A vast body of rules has been adopted by the legislative assemblies of this country by which their deliberations are governed. Forms are prescribed as to the manner in which bills are to be introduced; what committees are to be appointed; how the speaker is to be elected; what powers he is to exercise; how debate is to be regulated; how communications between the two branches of the legislative body, and between them, or either of them, and other bodies or the executive, are regulated and carried on; how witnesses are to be examined; petitions introduced and acted upon; and divisions determined. Committees are required to report in a particular manner, and the various stages through which a bill passes are carefully prescribed by such rules and are generally followed. The power of amendment is subject to rules; and even the debates, both as to the time which each individual speaker is to occupy and the license he is to have in debate, are subjected to regulation. It would be a mere repetition of any one of the numerous manuals of rules to set forth with greater particularity what these rules are. It may be conceded that they are necessary for the purpose of governing the presiding officer's action, so that his rulings shall not be arbitrary, and to give method and system to the conduct of the deliberative body. These rules are so numerous and so complex, that a leading member of congress stated that it takes at least one session of congress for an intelligent and diligent member to learn the rules so that he may take part in the debate with efficiency. A great part of the time of every deliberative body is taken up with questions arising under the rules, and perhaps necessarily so. This is all subtracted from the necessary work of the session. Freedom of debate has ever been regarded as one of the essential requisites of a deliberative body. In the United States this freedom of debate has, however, been for a considerable number of years subjected to the limitations of the rule known as the previous question, a motion which, if supported by a sufficient number of the majority, is made for the purpose of cutting short debate and to compel the presiding officer to put the main question at once with the view promptly to ascertain the will of the house. The French have in their deliberative bodies recognized the same rule by a motion for a clôture, or close of the debate. In the English parliament this rule has not until recently prevailed. It was only in consequence of the power exercised by the Irish members on questions affecting the Irish people to prevent legislation by obstructive motions and speeches, that compelled the adoption of a rule somewhat analogous to the previous question in the United States and the clôture of France, in a motion of urgency of public business, which the government may make and which upon the support of two-thirds of the house closes the debate.

—The rules adopted in the United States as to methods of enactment are quite inadequate to meet the necessities of modern legislation; and there is not a state in the Union in which the complaint is not well grounded that the laws passed by the legislative bodies are slipshod in expression, are inharmonious in their nature, are not subjected to proper revision before their passage, are hurriedly passed, and impose upon the governors of the states a duty not intended originally to be exercised by them, that of using the veto power in lieu of a board of revision for the legislative body; and so badly is the gubernatorial office organized for any such purpose that the best intentioned governor is compelled to permit annually a vast body of legislation to be put upon the statute book, which is either unnecessary, in conflict with laws not intended to be interfered with, or passed for some sinister and personal ends.

—In the United States there is no such thing as real responsibility for the legislation of the session lodged anywhere. Neither in congress nor in the various states is the duty imposed upon any individual or body of men to formulate and to propose public legislative measures. The party in power is supposed to be responsible in some degree for the legislation of a session, but in no state in the Union nor in congress does the political party in the ascendency consider itself charged with the public legislation of a session except in so far as it may have made specific pledges in party platforms as to the redress of some grievance. Under our system of government it frequently happens that one party has a majority in one legislative body while the other party has a majority in the other legislative body, or that the party having control of both chambers of the legislature has no control of the executive, and as both houses and the governor must combine to create a law, all responsibility for legislation is, in such cases, lost by being thus divided. In constitutional monarchies, such as England, the ministry are charged with the duty of initiating public legislation. The absence of any ministry in the states of the Union having relation to the legislature, imposes the task of proposing and formulating laws, either upon private individuals imbued with public spirit, upon others seeking to use the law for their personal ends, or upon the individual members of the legislature seeking to obtain some benefit for their constituencies, possibly for the state, or for some private interests that move them. As there is no consultation between the members of the legislature before they meet in session, by which they might as a body become animated by an esprit de corps for the promotion of certain legislative measures during the course of the legislative year, the consequence is, that from the opening of the legislature until its close each individual member proposes whatever law he pleases; it is put into the legislative hopper to be sent to its respective committee, and each important committee has, during the course of a legislative session, many times the measures, thrust upon it for examination and report, that it can with anything like care or deliberation consider, even if it were, as is not generally the case, thoroughly competent to perform legislative work. This absence of responsibility as to public legislation, and the promotion of such legislation exclusively by individual action, have created a degree of mischief quite beyond computation. And when the resources of the country shall have been more thoroughly exploited, and by the growth of wealth and the intricacy of social organization changes in the law become more mischievous and far reaching than now, we shall be forced to adopt in all our methods of legislation a change so great that it will be well high revolutionary in character, by creating in every state in the Union either a council of revision or a ministerial body charged with the duty of formulating and proposing the public laws of the session, and made responsible also for their proper enactment.

—The influence of the lobby in pressing private and local bills for personal ends has proved so formidable an evil in the United States that many of the states of the Union, within a decade, have, by acts of constitutional conventions or regular amendments to their organic laws directly acted upon by the people, prohibited their legislative bodies from enacting special laws in a variety of cases. The restriction in the state of New York is as follows: "The legislature shall not pass a private or local bill in any of the following cases changing the names of persons; laying out, opening, altering, working or discontinuing roads, highways or alleys, or for draining swamps or other low lands; locating or changing county seats; providing for changes of venue in civil or criminal cases; incorporating villages; providing for the election of members of boards of supervisors; selecting, drawing, summoning or impaneling grand or petit jurors; regulating the rate of interest on money; the opening and conducting of elections or designating places of voting; creating, increasing or decreasing fees, percentage or allowances of public officers, during the term for which said officers are elected or appointed; granting to any corporation, association or individual the right to lay down railroad tracks; granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever; providing for building, and chartering companies for such purposes, except on the Hudson river below Waterford, and on the East river, or over the waters forming a part of the boundaries of the state. The legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment may be provided for by general laws. But no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained; or, in case the consent of such property owners can not be obtained, the general term of the supreme court, in the district in which it is proposed to be constructed, may, upon application, appoint three commissioners, who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners."

—This limitation of the power of the legislature to enact private and special laws creates in its turn an evil far greater than that which it was intended to remedy. Private and local legislation is in itself not a bad thing. One of the advantages of the common law is its adaptation to individual cases. It has infinite power of combining and applying itself to changes of circumstances and of cases. Any unbending, unyielding general rule becomes in time oppressive and mischievous. Equity jurisprudence has arisen simply for the purpose of making even judge-made common law subservient to the necessities of society and to the requirements of justice, which is the object of all law.

—It is no demerit of modern legislation that it applies itself minutely to special cases. It would in fact be the greatest merit of any system of laws that they varied exactly as every case varied in its elements. It is general and indiscriminating rules that constitute the harshness of any system of law—rules which, subjecting special classes of persons to unintended and unforeseen oppression, require for their mitigation the arbitrary modifications of the judicial construction of courts of equity. The more a legislature is civilized, the mote it measures and considers differences in each class of cases and adjusts the law to their varieties. In this process of modifying and adjusting the law to special cases, Conde, in his essay on legislative expression, says that "The constant action of the legislature and of the judiciary of England has undeniably made a greater and better progress than the institutions of any other country; and to desire a codification or simplification which should destroy these nice adjustments or diminish in any way the specialization of the law; or to propose arrangements to cripple or obstruct its future further extension of specific legislation, would be to sacrifice aptness and certainty in the law to verbal generality, and to supplant the beneficent officiousness of the legislature by the despotic formalities of the methodizer" This criticism upon resorting to the exercise of the power of general legislation instead of meeting the exception by special legislation, is fraught with special meaning to the people of the United States because their general legislation is not watched over by a body of hereditary legislators, as is that of England by the house of lords, or that powerful committee of the house of commons known as the ministry, charged with the duty of promoting the general legislation of a session. The general legislation of this country is in the hands of individual legislators, and by forbidding special legislation in a great number of cases by the recent constitutional changes, the whole body of general law is thrown into the arena of special interests, to be changed, modified or destroyed as special interests may dictate; so that the object which was heretofore sought in the state of New York and in other states by a special law is and will hereafter be sought to be attained in large measure by a change in the general law to meet special cases, thereby creating special legislation in its worst form, to wit, general laws repealed, altered or modified to meet a special case or a special interest. Far better would it have been to have followed in that particular the example of England in methodizing legislation. English legislation was not free from corruption and the lobby until methods were discovered and applied by which both the one and the other could be extirpated. As late as 1844 Mr. Herapath, M. P., felt himself at liberty positively to assert that members had not been merely canvassed to support a bill, but that large sums had been spent upon them to secure their support. The "Athenæum" said, about that time, "It is the fashion to assume that our legislators are not now open to pecuniary bribes; it may be so, but we must leave that question to be decided by our children's children. If public rumor be not more than usually scandalous and false, there are some curious revelations yet in store for these youngsters, relating to railway bills." One company was able to boast that it had command of one hundred suffrages in the house of commons; and Francis, in his "History of the Railway," says, "that members were personally canvassed, solicitations were made to peers, influences of the most delicate nature were used, promises were given to vote for special lines before the arguments were heard, advantages in all forms and phases were proposed, to suit the circumstances of some and the temper of others. Letters of allotment were tempting; human nature was frail; and the premium on five hundred shares irresistible." This pressure of private legislation upon parliament began, in time, seriously to interfere with the performance of its public duties, with the passage of general laws, and with the administration of the empire; and in 1847 a code of standing orders was adopted, which, together with certain statutes as to costs and the establishment of the "Gazettes" and the notices for publication therein, now regulate practice in relation to private bills with the same completeness and detail, with the same careful regard as to the rights of parties, as the practice in courts of law is regulated by the supreme court judicature act, or by our own codes of procedure. Fully to realize this very complete system, it is well to follow the course of a private bill through the palace of St. Stephen's. Every bill conferring any power on a special borough, city or town, or upon any corporation or individual or set of individuals, or amending any powers already conferred, is regarded as a private bill; and even bills conferring powers on the metropolitan board of works are regarded as private bills; the bills in relation to the corporation of London are classified as private bills, and indeed all bills which in the United States come under the designation of special and local bills, are denominated private bills, and must pass through the course prescribed by the standing rules.

—These bills are divided into two classes. The first class embraces all subjects of enlarging or altering the powers of corporations; or which may relate to a church or a chapel building, burial ground, to cities or towns, to paving and lighting, to county rates, to ferries, to fisheries, to gas works, to lands, to letters patent, to local courts, to markets, to police, to poor rates. The second class includes the making or maintenance of any aqueduct, archway, bridge, canal, cut, dock, drainage, embankment, ferry, harbor, navigation, pier, court, railway, reservoir, sewer, street, tramway, turnpike, tunnel or waterworks; in fewer words, the second class embraces all such bills as involve the exercise of the right of eminent domain. Bills of both these classes must, before parliament meets, be preceded by a notice of intention to apply for the powers they contain, together with the time when copies of the bill will be deposited in the private bills office in the house of commons. If it is a bill of the second class, this deposit must be accompanied by the submission of an accurate engineering and topographical survey of the lands intended to be taken, together with the names of the owners, the value of the lands, and an estimate of cost. A notice long in advance of the session must be published in the London, Dublin or Edinburgh "Gazette," if it affect an English, Irish or Scottish interest, for six weeks prior to the deposit of the bill. If the bill is one of the second class it must also be published in a newspaper having the largest circulation at the nearest point where such land is to be affected or taken. A list must also be deposited of the names of the owners, lessees and occupiers of any property which is to be taken or affected by the powers intended to be granted by the bill. These notices of the intention to apply are published in the month of November. It will be remembered that parliament generally meets in the early part of February, unless specially convened. Two copies of the bill, and in the case of a bill belonging to the second class, two copies of the plan, a book of reference in relation to the plan, and a list of owners, a copy of the list of owners, and copy of the "Gazette" notice, must be deposited in the office of the clerk of the peace in every county or district wherein the improvement is to be made or the powers to be exercised; one copy of each of the same documents at the office of the board of trade; one copy in the parliament office; one copy in the private bills office of the house of commons; a copy of the plans and sections at the parish clerk's office; and in the event of its being any churchyard or burial ground bill, or if any commonable land is proposed to be interfered with, a copy must likewise be deposited in the office of the secretary of state for the home department. On or before Dec. 15 notice must be personally served on the owners, lessees and occupiers of all lands, houses and premises which are to be affected by the provisions of the bill; on or before Dec. 17 a printed copy of the bill must be deposited at the parliament office of the house of lords; and on or before Dec. 21 a printed copy of the bill, with the petition annexed, at the private bills office of the house of commons, and the private bills office of the board of trade. And, in addition to all this, in the case of any canal, railway or tramway bill, or one relating to any public work, requiring the exercise of the right of eminent domain, there must be deposited, on or before Dec. 31, an estimate of expenses signed in duplicate, one for the lords and the other for the commons, at the private bills office, and at the parliament office. An entire list of owners and occupiers must be deposited in the house of lords in the same form as that in the house of commons on or before Jan. 14, a deposit of a sum of money equal to 5 per cent. of the estimates must be made in the high court of justice, and a deposit must be made at the time of the filing of the papers to pay the expenses of the bills in the two houses of parliament.

—If the bill is unopposed, it is taken up by officers called examiners, who begin their work on or about Jan. 18, according to such directions as shall have been made by the speaker. Seven days' notice of the proposed examination of the petition and bill is sent out; if the petitioners do not then appear before the examiners the bill is stricken out. If the petitioners appear, which appearance is generally made by the parliamentary agent or solicitor, a judicial inquiry is then made whether the provisions of the standing orders as to notice, publication, deposits of plans and moneys have all been duly complied with, and whether the necessary disbursements for the consideration of the bill have been deposited, which vary in the first instance from £20 to £80. If upon such examination it appears that the rules of procedure have not been complied with, the bill is thrown out, with the indorsement "standing orders not complied with," and nothing further can be done with the bill during that session. A qualified or conditional opposition may be made by the adversaries to it, upon the question of non-compliance with the standing orders, so as to avoid the necessity of a trial of the bill on its merits. If it can be shown before the examiners that either through negligence or fraud the promoters of the bill have failed to comply with the parliamentary requirements, the bill is thrown out in the same manner as though the examiners had discovered the defects by their unaided inquiry. Assuming that the examiners find that the promoters have fully complied with all these preliminary requirements, the private bill is then referred to the chairman of the committee of ways and means of the house, who, at a conference on private and local bills with the chairman of committees of the house of lords, determines in which house of parliament the bills shall respectively be first considered, and in what order they shall be considered; upon this determination neither parties nor counsel are heard. Thereupon the chairman of the committee of ways and means, with the assistance of the counsel to the speaker, examines all the private bills independently of the question whether opposed or unopposed, and calls the attention of the house and also that of the chairman of committees to all points which may appear to him to require it; and at any time after a private bill has been referred to a committee, the chairman of the committee of ways and means is at liberty to report to the house any special suggestions relative thereto which occur to him to require it, and to inform the house that in his opinion any unopposed private bill should be treated as though it had been opposed, and evidence should be taken to prove the petition and clauses affirmatively.

—Before the committee acts upon a private bill, whether opposed or unopposed, it is again submitted to the chairman of the lords committees and his counsel, who amends it, alters it, or recasts it as he may see fit; or if he finds that it is inexpedient, on the whole, that the bill should pass, he indorses it that "the lords will not concur in the passage of this bill," and all further progress thereon is arrested, because the commons, since the existence of the standing orders, have rarely seen fit to urge upon the lords the passage of any private bill when so high an authority as Lord Redesdale, who has been for many years the chairman of its committees, signifies the disinclination of his chamber to consider a special private bill. Hence the suggestions that come down from Lord Redesdale's committee to the promoters or to the house of commons are generally incorporated in the bill in the way of amendments almost without question, as the result of the scrutiny of an upright, careful and conscientious jurist. The bill is then referred to committee; the committee carefully consider its provisions, call in the aid of the parliamentary agent or counsel, who has indorsed the bill, to explain it, assist in its modification if modifications are suggested, and the bill is then reported to the house, favorably or adversely, as the committee may determine. If disapproved of by the committee, as a general rule there is an end to the bill. While the power really exists on the part of the house to disagree with the report of the committee, they recognize the fact that a disagreement is inexpedient as against a committee who have examined with judicial care and impartiality the provisions of the bill.

—The chairman of the ways and means committee, and three other members, are appointed by the speaker as referees, who constitute tribunals for the trial of opposed bills. They have power to suggest the increase of their number and to constitute subcommittees. Upon special bills committees those men are generally selected who are specially fitted as experts. They enter into an examination of the question whether the bill is to become a law, and if so, under what modifications, restrictions and safeguards. This committee, therefore, enters upon a real trial of the petitions for and the counter petitions against private bills, to aid the house in determining its course.

—The chairmen of these various committees of selection meet together and form a calendar of opposed bills. In the case of bills for which there are regular standing committees of the house, such as railway and canal bills, such committees try them, and do so acting under the suggestions, whether opposed or unopposed, of the board of trade. The standing committees who have in the first instance the power to try the bill, if they see fit so to do, can either do so or place it upon the general calendar of these courts thus constituted for the trial of opposed cases. The trial is, as already observed, upon issues joined upon the petition for the bill and its several clauses, by a counter petition against it, in which the counter petitioners deny the facts set forth in the petition and ask that they may be heard in opposition to the bill. The opposed bill is treated precisely as an unopposed bill as to all the preliminary stages; it passes through the hands of examiners as to compliance with standing orders, the scrutiny of the chairman of committees of the house of lords and the house of commons, etc. When once on the calendar of the general or special committee to which the same is referred, it takes its turn for hearing precisely as a cause which is put upon the calendar of the court awaits its time for trial.

—If, as sometimes happens, the private bill is of considerable public importance, when the chairman of the ways and means committee of the house of commons seeks a conference with the chairman of the committee of the house of lords for the purpose of determining which bills should be considered first in the house of lords and which in the house of commons, then such a bill, if deemed of sufficient public importance, is by the chairman simultaneously introduced in the house of commons and lords and referred to a special joint committee of the houses, who thereupon proceed to try the petition for the bill as a joint court. Evidence is then taken precisely as in a court of justice, although somewhat greater latitude is allowed both to the counsel and to the court. The rule as to hearsay testimony is also somewhat relaxed, but documents are produced, maps examined, experts heard, elaborate arguments of counsel delivered, and every adverse interest allowed a hearing; suggestions are made with reference to amendment, and all proceedings are precisely in the same form as though these committee men were judges.

—No man can become a member of the committee to sit upon a special bill without making a declaration in writing that neither the borough that he represents nor he himself individually has an interest in the bill to be considered, and that he will hear all the evidence before voting upon the acceptance or rejection of the bill; thus again recognizing the judicial character of the determination of the committee, and applying to each special case that general rule which applies to the judiciary that they are not permitted to sit in cases in which they have a personal interest.

—To secure the full attendance of members of committees it is a standing rule that it can transact no business if two or more of its members are absent. And if a member absents himself more than twice from a committee, his name is taken off that committee, and that of some other member is substituted; and when any incorporated company presents itself before parliament to have any of its powers extended, altered or amended, any body of shareholders, although in the minority, may be heard in opposition to such bill.

—At any stage of the proceedings if the promoters of the bill abandon it, the bill is disregarded and thrown out, and the expense incurred down to the point of abandonment is lost to the parties who have promoted the bill. By the 28th and 29th Victoria a complete system of costs was established in relation to contests before committees, so as to make the proceedings still more analogous to those of a court of justice. This gives the power to the committee on a private bill to compel the petitioners to pay the costs where the committee find that the preamble of the petition is not proved, or if on the motion of the opposition any provision for the protection of such opposing petitioner is inserted, or whenever the committee strike out or alter any provision for the protection of the opposing petitioner, and report that the opposing petitioner has been unreasonably or vexatiously subjected to the necessity of defending his rights, by reason of the promoters of the bill not carefully guarding the same in the bill as filed. On the other hand, when the committee report that the opposition has been vexatious and that the promoters of the bill should not have been opposed, so much of the costs and expenses as relate to the trial of the bill may be thrown upon the opposing petitioners. This act, however, very wisely provides that no land owner, who at his own risk and charge in good faith opposes a bill which proposes to take any of his property, shall be mulcted in costs because of the non-success of his opposition.

—The expenses in the way of disbursements for filing, for examiner's fees, etc., attending the passage of an unopposed bill, are scarcely ever less than £200. The money is deposited and paid at the various stages of the bill as preliminary to its being further considered and carried through the house; and these disbursements pay the whole expense of parliament—its stationery for public purposes, its speaker's special counsel, its parliamentary draughtsman, etc., as well as the expenses incidental to the consideration of the bill by the committee.

—All bills are subjected to being redrafted by officers under the supervision of the speaker's counsel—the parliamentary draughtsman. This speaker's counsel is generally a lawyer of great dignity and attainments. Sir Henry Thring has for many years held this position, and if the bill in question is one to which public attention has been drawn, the probabilities are that it is submitted to his scrutiny and revision, in addition to the revision and scrutiny of Lord Redesdale, the chairman of committee of house of commons and the committee that tries the bill. England's course of procedure, by bringing method into its legislation, has completely done away with the lobby in the sense that it is known in the United States. There is a difference of the same character between such a system and the course of legislative action in the vast majority of the states of the Union that there is between the procedure before the supreme court of the United States and before some court in southern Russia or Turkey.

—When committees of parliament became courts, a heavy draft was made upon the Westminster bar to supply this new demand for special training for inquiry and debate, and numerous lawyers soon devoted themselves exclusively to the trial and argument of causes before the parliamentary bar. A new class of solicitors, known as parliamentary agents, came into existence, drawn from the same classes of the community as those which supply the practitioners at the chancery or common law bars. These agents prepare briefs for counsel, draw the bills and attend to all the practice part of private bills legislation. Honors and distinction are won as much at the parliamentary as at the law and equity bars, and the silk gown is at St. Stephen's, as at Westminster, the reward of merit. Parliamentary lawyers are not so readily transferred to the bench or the woolsack as are those who practice in the courts of justice; their emoluments are larger, however; hence the parliamentary practitioner acquires pecuniary fortune more readily than his brethren who practice in the courts of justice, and thereby feels himself somewhat compensated for not being able to look forward to the comfort, ease and social distinction which accompany English judicial positions.

—England, therefore, has relieved itself from the pressure which the modern corporations and the growth of wealth have brought upon its legislative functions, by submitting their demands to so careful a scrutiny and trial, and surrounding property with such safeguards that it can dispense with written constitutional guarantees, too frequently inoperative in the United States, to prevent encroachment of accumulated and corporate wealth upon the rights of property not thus consolidated.

—A word upon the subject of Codification.

—There are two classes of codifications: one, codification of legislative enactments; the other, codification of common law. The codification of legislative enactments, when legislation has become so constantly active, varied and so complex, arising from so many different motives, and is so irresponsible as in the United States, is essential from time to time for the purpose of producing harmonious legislation. The question is not open to us as to whether there shall be codes, but simply who shall become codifiers of legislation of this description, and therefore every state must from time to time pass new laws which are in the nature of codifications of the pre-existing ones, simply for the purpose of enabling their courts of justice to determine what the law is. An illustration how mischievous such a state of things may become, is the fact that the court of appeals in the state of New York was compelled in 1875 to declare that it was impossible for it to determine what the condition of the law in relation to taxation and assessment, applicable to the cities of New York and Brooklyn, then was, in consequence of the number and the chaotic condition of the laws in that regard. Codification of the common law is a matter of more delicacy, requiring a higher order of intellect, and should be undertaken only if the codifier is intellectually the superior of the judge; otherwise greater mischief is done by codification of that character than by the general development of the law at the hands of judges.

—Legislation is a practical art, and not a science. The ordinary objection that is made to codes, that they are cast-iron systems, is only true if the minds which formulate the codes are of the cast-iron class. If, on the one hand, they have intelligence carefully to state the common law or equitable principle in well-chosen legal phraseology, to limit it and apply it to cases already decided, and to leave the courts free to apply the principle to whatever further cases may arise, codification is an unmixed good. If, on the other hand, narrow-minded or ignorant men undertake the codification of the people's laws, such codification will be mischievous. It is with formulating the laws of the people as it is with the administration of justice—as much depends upon the persons who are to administer or to codify as upon the subject matter of the administration or codification.

—An attempt has in recent years been made to deal with the mischief of constant and unwise changes in the law by the adoption of constitutional amendments, by virtue of which, legislative bodies meet biennially instead of annually. This is the merest refuge of imbecility against the evil of bad legislation. The only parallel for this treatment of political distempers is to be found in the treatment of physical ailments which prevailed in the good old days of Doctor Sangrado, who argued, "When man is sick, his blood is bad; tap him of half his blood, and he is about half as sick as he was." Bad legislation comes from the legislature. Have the legislature meet but half the number of days, and you have but half the amount of bad legislation! If the legislature were convened simply for the purpose of doing mischief instead of doing good, this argument would be true, but then it would be wiser not to have them meet at all. The legislative function is one of the most important and useful that can be administered by man. It is the inadequacy of the members of our legislative bodies for the work they have in hand, and the bad methods they have adopted for the performance of that work, which creates the mischief. Let us secure better qualified men and improve the methods, and we shall regard the meeting of our legislative bodies with expectations of benefit instead of with fear and dread. Had some one proposed at the time of the corruption of the judiciary in the city of New York (1870-72), that, for the purpose of remedying the evil of improper and corrupt judicial judgments, Judge Barnard should hold but four terms in the year instead of eight, such a reformer would have had his proposition laughed down. The proposition of biennial legislatures instead of annual legislatures, although it finds more favor with the community than the remedial measure of our imagined New York reformer, is not a whit more intelligent as a cure for our radically defective methods of legislation. The only route to reform as to this subject lies in improving the political methods of the United States so as to secure a better class of legislators; methodizing the work of the sessions by safeguards to interests affected by the proper trials of bills; and finally, fixing responsibility for legislation by the creation, for the nation and in each state, of proper supervisory bodies to which proposed laws shall be submitted and acted upon by men capable of being charged with so important a task as the preservation, amending and modifying the public laws of a commonwealth.

SIMON STERNE.

LEGISLATURE

LEGISLATURE. (See ASSEMBLY, CONGRESS, HOUSE OF COMMONS, HOUSE OF LORDS, HOUSE OF REPRESENTATIVES, LEGISLATION.)

LETTERS PATENT

LETTERS PATENT. (See PATENTS)

LIBERALISM

LIBERALISM. The word liberalism is of modern, almost of contemporary, introduction; but the thing thus designated is ancient, and springs from human nature itself, and from the very best roots of this nature, reason and benevolence. The word is complex, and admits of different acceptations, all of which, however, imply a certain loftiness of views and generosity of sentiment, and are based upon the idea that humanity, of itself and of its own dignity, by reason of its self-reliance and the capability and right which it claims of liberty and self-government, without, however, imagining itself infallible, can be enlightened by discussion, and improved by the very experience of its errors.

—Liberalism is the consciousness which a free man has of his rights, and of his duties as well; it is respect for and practice of liberty; it is toleration and freedom. "Live and let live" might be taken as its motto, but on condition that there be attached thereto no idea of skepticism or indifference, for liberalism professes one faith, faith in progress, the conviction that liberty is good, and tends to good, that truth is reached by discussion, and that indefinite improvement is the natural movement of humanity.

—In individuals we can distinguish a liberal temperament, a liberal spirit, and a liberal character. A liberal temperament is a spontaneous disposition to benevolence, generosity and equity; it may be either natural or acquired. A liberal mind necessarily implies a certain amount of education and instruction; such a mind is frank, well-balanced, is master of itself, and concedes to the reason of other men the rights it claims for its own. A liberal character results from the combination of a liberal temperament and a liberal mind; it puts liberalism into practice; it converts into acts the suggestions of sentiment and the orders of reason. Its rule of conduct is, "Do not to others what you would not they should do to you." The true and consistent liberal is the man who demands liberty even for his opponents, with the clear understanding, of course, that he reserves all rights of legitimate defense.

—There have always existed, among nations more or less refined, different shades and grades of liberal minds, characters, and professors of liberal sentiments. Still they have usually formed but exceptions to the general rule, and have been found only among very great minds.

—Society is liberal when it forbids preventive precautions in everything affecting individual free will, and makes use of repression no more than is absolutely necessary. Therefore is it that the mollification of the penal laws always goes hand in hand with the progress of liberalism. A religion is liberal when it does not excommunicate all other religions, and more liberal still when it urges, heals and strengthens consciences, instead of enslaving or weakening them. Christianity (see the article under this caption), though liberal in its principles, has in history shown itself in turn liberal and oppressive. A state is liberal when it respects the individual and collective acts of citizens as far as they do not encroach upon its own lawful rights, for the state also claims liberty for itself. But in the liberalism of states as well as in that of individuals there are degrees. Before the full bloom come the germs and the first development. There may be a certain liberalism even in what appears to be thoroughly illiberal. A religion intolerant in its principles may be to a certain extent tolerant, that is, liberal, in its practice. An absolute government may be relatively more or less liberal; it manifests a little of this liberality if it does not carry the exercise of its power to excess, and, by benevolence or calculation, allows a certain scope to the liberty of its subjects and to their manifestations of opinion; it is still more liberal if it encourages and extends education, or if it makes use of its power to introduce into its institutions motu proprio, liberty or the conditions of liberty. Thus, in our own time, the emancipation of the serfs of Russia was a liberal act of very great importance performed by an absolute government.

—On the other hand, a republic may not be liberal, although the republican form of government is in theory the ideal of self-government; it is not liberal if it does not guarantee its citizens their liberty, or if it allows the minority to be deprived of their liberty, or even restricted in its enjoyment by the majority, or if, finally, the greater part of those who are called to share in the government are incapable of such participation by their lack of education and of independence. In this last case, moreover, a republican state can scarcely live; the élite of the nation are swallowed up in the multitude, and the multitude, incapable of governing itself, voluntarily abandons its personality to a master. Democracy, if lacking in liberal capacity, is always on the very brink of Cæsarism: the history of Rome and of some other countries is proof of this.

—Thus we perceive that we must distinguish between a liberal and a democratic spirit. The two are often confounded, and are in fact often found participating together in great political movements, just as they were, for example, in the French revolution. But they can always be distinguished. Democracy attaches itself to a form of government; liberalism, to liberty and the guarantees of liberty. The two may agree; they are not contradictory, but neither are they identical, nor necessarily connected. In the moral order, liberalism is the liberty to think, recognized and practiced. This is primordial liberalism, as the liberty to think is itself the first and noblest of liberties. Man would not be free in any degree or in any sphere of action, if he were not a thinking being endowed with consciousness. The freedom of worship, the freedom of education and the freedom of the press are derived the most directly from the freedom to think. In the economic order, liberalism is the recognition of the freedom of labor and of all the liberties which pertain thereto, including the right of property, which is the legitimate extension of human personality. In the political order, liberalism consists, first of all, in the pursuit of the guarantees of liberty. It does not admit that men are bound, when they associate themselves together and create a political society, to sacrifice some portion of their individual liberty. Its idea of the social contract is quite different; liberalism regards it as an association of all in order to assure to each his individual liberty. Only it does not confound this liberty with arbitrary power, nor with the right to encroach upon the liberty of others. The liberty which it intends to guarantee is that which is suited to reasonable beings, capable of restraining and governing themselves, and it is precisely with a view to guaranteeing this liberty that it demands laws against license, arbitrary power and encroachments of all kinds, including those made by the state. Its chief desire is to surround the personal liberty of citizens with the strongest safeguards, so as to preserve it against every assault. This is the essential point, and it is not without reason that the English consider habeas corpus the very corner stone of their constitution. The right of assembly and association may be considered as an appendix of individual liberty, and should be inviolable, provided it does not aim at the subversion of the state.

—The chief guarantee of liberty of every kind is to be found in the constitutional limitation of the power of the state, and in the reciprocal balance of the constituted powers. Liberalism does not, however, any longer put absolute faith in Montesquieu's celebrated formula on the separation of the powers. In constitutional monarchies the executive power and the legislative power are separated merely by an abstraction; in fact, they are united and fused in the person of the responsible counselors of the crown, who are nothing more than delegates of the national representative assembly. The separation of the judicial power from the other branches of the administration is much more important, for the independence of the bench can not be too firmly established. The division of national representation into two chambers is likewise considered an almost essential condition of a liberal government. Liberalism loves to multiply the counterpoises and elements of resistance and equilibrium. The democratic spirit, on the contrary, is a leveling one.

—Another difference between the liberal spirit and the democratic spirit is, that the right to dispose of one's self, which is individual liberty, does not necessarily imply, according to the liberal doctrine, the right to dispose of the state, that is, to govern the state. Liberalism desires control and discussion; it desires also the progressive extension of political rights and the greater and greater participation of the citizens in the government, but it does not at all admit a priori the principle of the government of all by all, which is the aim par excellence of democracy. What it considers most important is, that the citizens should be free, and guaranteed their freedom; in other words, to obtain a maximum of liberty under a minimum of government. It desires that citizens should be masters of their persons and of their affairs, but it admits them to the management of the affairs of the nation only by reason of certain or at least presumed titles. Democracy considers only the right, while liberalism takes into account capacity also. Democracy desires to realize all at once an absolute ideal; liberalism does not recognize this ideal, but it tends to it by successive steps: it is just, in principle, that all should share in the administration of public affairs, but it is not always politic to allow it in practice. Democracy demands absolute equality; liberalism does not absolutely reject a distinction of classes, provided these classes are not exclusive castes. Democracy is revolutionary; liberalism is rather reformatory: it willingly respects historical facts, and does not crush those who oppose and refuse to submit to it, except when this is necessary to defend itself. But it must be active and vigilant, and be ever on the watch for possible and opportune reforms, if it does not wish to be outstripped by the eagerness of the democratic spirit. Democracy neither procrastinates nor reflects; it proceeds by bounds; and liberalism may find itself outstripped if it be at all sluggish. In this case it does not protest against accomplished facts, for it is no more reactionary than revolutionary; but it endeavors, by means of education, to fully instruct its citizens in the rights which they have prematurely acquired, and even under the very reign of democracy it preserves its peculiar character and its raison d'être. It knows that democracy can not develop and last except by becoming liberal, and it makes it its duty to render it liberal. The last word of pure democracy is the imperative mandate which is founded upon the false hypothesis of the equal capacity of all, and upon the idea—entirely logical if considered from the point of view of the absolute sovereignty of the people—of the superiority of the governing body over those who are governed. Liberalism never allows the imperative mandate; it does not imagine that all those who have the right to vote are able to govern; it merely recognizes in them the ability to determine who appear to them capable of taking part in the government. It considers election as an homage paid to superiority, and the representative form of government as the government of the nation by the most worthy, who have been chosen for this very reason by their fellow-citizens. A democracy which carries its logic as far as the imperative mandate, and adheres to it, can not last, for it is contrary to the nature of things, which will always avenge itself if it be not respected.

—Democracy tends necessarily to a republican form of government; liberalism is not averse to it, and does not desire its downfall when it is established. But it also accommodates itself very well to a constitutional monarchy, and it does not even occupy itself with the famous question, why does the king reign and not govern? This question, which has so frequently been made the subject of controversy, is wrongly formulated and entirely idle. The prince should not, and if he understand his own interests will not, organize a secret government, a camarilla behind his cabinet; but from the moment he consults with his ministers he shares in the government, and his share in it is exactly proportioned to his faculties and to his influence. Whether he persuade his ministers to carry out his plans, or be persuaded to acquiesce in theirs, does not concern any one, since the cabinet assumes the responsibility of the government before the national representatives. The true head of the government, whether prince or premier, will always be he whose genius renders him superior to the rest. The true formula of constitutional monarchy is the undivided administration of the government by the crown and the national representatives. The division of influence among those who exercise power is a matter to be determined by talent and authority, and not by formulas. Sir Robert Peel, king of England, would have brought about commercial reform quite as easily as Sir Robert Peel, prime minister, for he would easily have found ministers to serve him and a majority to support them, if public opinion were in his favor. The only difference between a constitutional sovereign and a despot is, that the former can not govern in opposition to public opinion; he may anticipate it or follow it, but he can not oppose it; and the only restriction placed upon him is, that he must abandon his own opinion when this opinion is found not to be in accord with the general opinion, and to change his responsible counselors when his cabinet has fallen into the minority. The duty of parliamentary government is not, as is commonly believed, to rob the sovereign for the benefit of his ministers; but it is always to confer power upon the most worthy, that is to say, upon the man who best expresses the sentiment of the nation and best answers the general needs of the moment. If the sovereign is most worthy, he rules his ministers; he both reigns and governs; if he is not the most worthy, his ministers, who have been elevated to power by public opinion, supply his place and govern him; he does not govern, and reigns only nominally.

—The essential thing, from a liberal point of view, is that the state occupy itself only about the general interests, and that these interests be regulated conformably to the general opinion. Under a monarchical form of government the predominance of public opinion is assured by means of the ministerial responsibility; in a republic, by the limited duration of the executive power. Liberalism equally accepts both these forms of government, and moreover, without overlooking the logical superiority of the second, it plainly admits the relative and historical reasons which may in many circumstances prevent it from prevailing over the first. It judges that the almost infallible selection by which the leaders of parties rise to power in a constitutional monarchy afford surer guarantees than the republican election which always admits of some intrigue, and which does not always give power to the most capable, as has been frequently proven by the presidential elections of the United States. But liberalism is never exclusive; it understands monarchical England as well as the republican United States, and explains the reasons which account for the continuance of monarchy in England, and those which have produced from the same race, upon American soil, a successful republic. But it does not understand a monarchy without ministerial responsibility, any more than it would understand a republic with an executive power whose term of office would be unlimited. In a republic the ministers should not be held responsible, since he by whom they are appointed periodically submits his administration to the verdict of the nation. In a monarchy they ought always to hold office at the discretion of public opinion, for the simple reason that the head of the government is never submitted to this opinion.

—Liberalism, although it has the same end in view as the democratic spirit, differs from it both in its philosophical belief and in its methods of procedure. It is, for still stronger reasons, opposed to socialism, which is an exaggeration of democracy. Socialism desires social equality, which is a chimera, and the methods which it imagines, would be, could they be made successful, outrages upon both liberty and property. It does not agree with liberalism upon any point; it ignores or overlooks the organic laws of progress and even the conditions of human nature. Liberalism must, therefore, of necessity, combat socialism whenever it meets with it; it can not enter into its spirit; it can not give it any direct satisfaction; but it is nevertheless forced to admit that socialism, along with much ignorance, allows of a certain amount of lawful aspirations, for it responds to the instinctive feeling of justice and the desire of happiness which are equally inborn in all of us, but to which mankind should resolve to grant only partial satisfaction although more and more approximative. Life, although constantly facilitated and bettered, will always be a struggle for liberalism; but equity, and still more, prudence, bind it not to compromise with socialism, which it could never do, but to watch it and disarm it as much as possible, on the one hand by enlightening it, on the other by applying itself to the economic reforms and social improvements which are compatible with the natural laws of progress. Everything that favors education, labor, economy and the acquisition of property, is liberal. Liberalism is not merely an affair of legislation, it is also and especially a matter of individual initiative. The characteristic principle of liberalism is not to expect anything from the state, but to require a great deal of activity and foresight of the citizens themselves.

—We must also call attention to the fact that the liberalism of a society may not be in exact keeping with its legislation. It may happen that there will be more liberalism in the public manners than in the laws. Thus in our times the almost unrestricted liberty which the press enjoys in England is more an affair of manners than of legislation. There are restrictive laws, but general tolerance on the one hand, and the moderation of the writers themselves on the other, have caused them to fall into disuse. This latter point is essential. A free mind may, if it is generous, go beyond its duty, but should never exceed its rights, and frequently it is not even prudent to do all that it lawfully may. Thus it will secure its own liberty without ever restricting that of others.

—We will conclude this brief theoretic exposé with some historical data.

—As we have already said, the liberal spirit has always been present and active in the civilized world. In antiquity Solon was a legislator more liberal than democratic; Cicero was a publicist and a liberal statesman. Most of the republics of classical antiquity began with a liberal and well-balanced republic, to turn from that to pure democracy, and fall at last into demagogy, and thence to princely rule, tyranny and Cæsarism. The liberalism of antiquity, however, was marked by the same essential traits as that of modern times. It conceded, especially among the Romans, less to the individual and more to the state. Individual property is to-day more extended, more distinct also and better determined. The modern individual feels that he has rights and relations entirely independent of the state. This change is due in great part to Christianity. Besides, the institution of slavery in ancient times made liberty, even the most elementary, the privilege of the few; and labor, which we honor in itself and in its results, was considered as degrading and servile. From antiquity have come down to us these altogether aristocratic expressions: liberal education, that is, education worthy of a freeman; and the liberal arts, as opposed to the mechanical arts—an opposition founded upon the ancient prejudice against the labor of the mechanic, and which continues in our modern society without any reason for its existence and by the sole force of habit.

—Modern liberalism is allied by an incontestable affiliation to the reformation, whose action has by no means been restricted to the domain of religion, nor to countries that have become Protestant. The France of the eighteenth century is greatly indebted to Protestant England for her fund of ideas; Voltaire and Montesquieu both bear testimony to this fact. It is France, however, that deserves the credit of giving to liberal ideas a European extension. England alone, and two states on the continent too small to exercise any great influence, Holland and Switzerland, had at that time (in the eighteenth century) a free government and liberal institutions; but under the impulse of French philosophy, most of the absolute states of the continent, some of their own deliberate choice, others out of pure enthusiasm, or to be in the fashion, allowed themselves to be drawn more or less into the current of liberalism. Joseph II., Leopold of Tuscany, and many other princes, belonged, after their own fashion, to the liberal school. Frederick II. was an example of a liberal absolute monarch. But France, where the movement originated, presented also the most perfect and complete expression of this liberalism before the revolution, which would perhaps have provoked the revolution if Turgot's power had equaled his genius and his will.

—The French revolution was itself the grandest and most generous explosion of liberalism of which history makes mention. Resuming, specifying, generalizing all that the eighteenth century and the preceding ages had accomplished, attempted or partially performed, it formulated, in what are called the Principles of '89, the code of the liberal gospel of humanity. The practical result, however, but very imperfectly responded to the theory. Liberalism found itself in opposition to the formidable task which circumstances had imposed upon it, for the very reason that it is of its nature rather reformatory than revolutionary. Contrary to its original plan, the revolution was obliged to completely rebuild a crumbled political edifice and upon ideal foundations, when even if all its ideas had been correct, it would perhaps have been unable to succeed, for political constitutions can not be treated like a geometrical problem, and the concrete world will not allow abstract theory to leave it out of consideration. The constituent assembly itself failed in the construction of a constitutional monarchy, not only because of the weakness of the monarch, but especially perhaps because it adhered too closely to the letter and wished to apply too rigorously the absolute theory of Montesquieu on the division of power and the separation of the executive and the deliberative branches of the government. This was still more strikingly illustrated when the Contrat Social had gained the ascendency over l' Esprit des Lois. It was principally the influence of Rousseau, combined with false notions of the political state of the ancients, that misled the revolution. The assemblies which succeeded the constituent assembly were democratic to excess, but by no means liberal. There should, it is true, be some account taken of the pressure of circumstances.

—It is a noticeable fact that among the various party appellations, so numerous at the time of the revolution, that of liberalism is not found, although no designation could have better served to characterize the constituent assembly as a whole, or certain of its most eminent figures, above all, Mirabeau, who is the statesman of liberalism. par excellence. The adjective from which the substantive liberalism is derived then had only its ancient Latin and aristocratic meaning. It was not until about the time of Napoleon's first consulate that a party originated who called themselves or were called liberals; but this is not the only example afforded by history of a tendency or an opinion existing from all time, which did not receive its proper definition until a given time arrived. We have seen the word Cæsarism invented in our own day, which corresponds to an idea anterior even to the proper name from which it is derived, the idea of a democratic society, which is incapable of governing itself, and prefers despotism to anarchy. It may be said, moreover, in a general way, that all things existed, and may have even existed for a long time before they were named.

—The word liberal was used for the first time to designate a party, or rather only a coterie, in a wretched epigram of the poet Ecouchard Lebrun (wretched in every sense of the word); which may be freely rendered, so as to retain the point of it, as follows: What is this word "liberal" which some men of a certain calibre are constantly using, whether good or bad? It is the diminutive of liber (free). These men of a certain calibre were probably the circle of Madame de Stael and Benjamin Constant, and it is not impossible that Lebrun wished by railing at them to pay his court to the first consul. In any case, this epigram shows that it is a question rather of something new than of men of a certain calibre taken in a bad sense. Sainte-Beuve formally attributes the invention of the term liberal to Chateaubriand, but he does not produce his proofs. The word is found, it is true, in the "Genius of Christianity"; but this work did not appear until 1802, and the epigram of Lebrun appeared earlier than that. Madame de Stael also makes use of the word liberal in its new acceptation in "Coriune," which was published in 1807.

—The empire was not made for liberalism, nor liberalism for the empire. There existed between them a reciprocal antipathy. The liberals were to Napoleon the worst of ideologists, and found themselves in the midst of the most refractory surroundings. Individual liberty, independence of thought, control discussion; in a word, the dignity of man, which they cherished most jealously, were the very things which Napoleon could not endure. He did not possess the first atom of liberalism, but, on the contrary, discerned with marvelous penetration all that in democracy is distinct from liberalism. A very striking illustration of this is found in a letter, in which when counseling his brother Joseph, king of Naples, how to govern, he thus describes the results that he expects from the civil code: "Tell me the titles you would wish to give the duchies in your kingdom. They are but mere titles; the principal thing is the value attached to them. They must be pledged for two hundred thousand pounds of revenue. I have also required that all those bearing titles should have a house in Paris, because Paris is the centre of the whole system, and I wish to have at Paris a hundred fortunes, all of which will have grown up with the throne, and will be the only large fortunes, because they are trusts; and let those that will not be thus considered, be scattered by means of the civil code. Establish the civil code at Naples, and all that will not ally their fortunes to yours will go to ruin in a few years, and those you wish to preserve will grow strong. This is the great advantage of the civil code. * * You must establish the civil code in your kingdom; it will consolidate your power, for by its means all fortunes that are not mere trusts of the crown will crumble, and there will remain no great houses but such as are fiefs to your royal self. This it is that has ever led me to preach the civil code, this it is that induced me to establish it."

—The meaning of the emperor was, that the ideal and mathematical justice of the civil code incessantly crushes and destroys acquired fortunes and positions, which have always to be begun anew, and under it the liberal elements never acquire sufficient consistency to offer a check to despotism. All the families, all the citizens, are too constantly wrapped up in their own affairs to be able to devote themselves carefully, independently and disinterestedly to public affairs: their aspirations can but renew the myths of Tantalus and Sisyphus, and despotism remains master of the field. This opinion of Napoleon is not without weight, and, following an instinct which is perfectly just, a part of the contemporary liberal school, without complaining of the right of primogeniture, demand the liberty of making a will. Equal division is much more democratic, and more conformable to the rules of abstract justice, but it is contrary to liberty, it violates the principle of property and the authority of the father of the family; it is productive of evil consequences both social and political. It is beneficial to the public weal that all have not their fortune to make, and that there are persons independently situated, whose position is firm and stable, who can resist the central power. The general interests should be intrusted to those who have no need to busy themselves about their own affairs. Moreover, between equal division in the midst of the family and equal division in the more extended family of the state, there is but a difference of more and less, and no difference of principle at all.

—Either by a chance coincidence, or being brought over from France, the word "liberal" underwent the same change of meaning in Spain under the empire that it had undergone in France under the consulate, and was at once employed to designate a great political party, which contributed not a little to its acceptation in this sense throughout all western Europe. The Spaniards assign the year 1810 as the precise date of this change of meaning. "Consider for a moment," says Benavides, in his discourse delivered upon his reception into the royal Spanish academy, "two words of most frequent use in modern times, liberal and liberty. Down to ten years ago liberal meant generous, splendid, magnificent; all Spaniards agreed upon this signification, and no one had the least doubt upon the subject." The Spanish liberals were the authors and defenders of the constitution of 1812, which was abolished by Ferdinand VII. in 1814, reestablished in 1820, and violated anew in 1823. They are also called the constitutional party, and it is a noticeable fact that from 1815 to 1830 the words "liberal" and "constitutional" have been synonymous, not only in Spain, but also in France, and in different neighboring states. Germany, particularly in the smaller states, had her liberals. The programme of these liberal parties may be briefly said to consist in demanding constitutional guarantees where they did not exist, and defending them against reaction where they already existed. The democratic movement, properly so called, had then but little importance. The pure liberal opinion was in the ascendant, and was content with a throne surrounded with constitutional institutions. Such has long been the form of government in England; but the English liberals have not on this account been idle; they had other reforms to bring about, especially the emancipation of the Catholics and the reform of the electoral system.

—In France, under the restoration, one might almost say that the liberal party was the entire nation. All that were not ultra were liberal, or at least called themselves liberal, for we must add that the flag of liberalism covered all sorts of merchandise, and especially a great deal of Bonapartism. The songs of Béranger are the expression of this strange combination of legend and the empire and of the Principles of '89. There were also by the side of such liberals as Royer, Collard and Benjamin Constant, who were content with the Charte and the dynasty, on condition that the latter should not conspire against the Charte, other liberals who wanted another dynasty, or who even, like Lafayette, favored the republic. The first of these only were consistent liberals, but the ordinances of July created a case of lawful defense, which united all sections of the party in common resistance.

—The revolution of July was the grand triumph of liberalism, and its effects, as is well known, were not confined to France; its action was felt even in England, where it brought the liberals into power and hastened reforms. A short time before the year 1848, an impartial witness, de Nesselrode, proved that the position of France in Europe had never been stronger than under the monarchy of July and under the influence of liberal ideas. Unfortunately, victorious liberalism was wanting in grandeur and in self-confidence. It became narrow and timid. The electoral ground, that is to say, the legally recognized territory, remained much too circumscribed, and those who occupied it shut themselves up in it as in a citadel. Liberalism appeared immovable and sterile, the democratic movement took the ascendant, and the governing class expiated its inertness and its lack of foresight by the revolution of 1848.

—But liberalism, although overthrown and worsted, did not on this account lose its raison d'être. It had never been able to raise any objections to universal suffrage but such as were based upon considerations of its inopportunity. Now that universal suffrage has got in the advance of it, its task should be to pursue and overtake it. In other words, a liberal government, the liberal party, liberal minds, should apply themselves above all things to instruct, enlighten and elevate universal suffrage; in a word, to arm it with the capacity requisite to the proper fulfillment of its duties.

—European liberalism will never admit that universal suffrage is infallible, nor that it is the form or the supreme guarantee of liberty, nor that a republic is the only good form of government. It professes, on the contrary, and always will profess that forms may vary according to historical data, and that the interests of liberty are not always directly and necessarily best served in proportion to the number of voters. But universal suffrage once established, it will put aside as illusory and dangerous every thought of reaction or restriction, just as it does under a monarchy; it will reject the expedient of revolution, because it does not wish to try the unknown. But it will not be content with words; it will demand liberty and the guarantees of liberty of the republic, just as it demanded them of the monarchy it will demand that the state be confined to its lawful limits, and it will not consider the despotism of a convention any better than the despotism of an individual. Contrary to the absolute logic of democracy, it will prefer two chambers of deputies to one single assembly, provided always that it find elements sufficient for a double assembly. In default of such an institution, it would seek other means of establishing an equilibrium, for it knows that a power without a counterbalance necessarily becomes absolute.

A. NEFFTZER.

LIBERAL REPUBLICAN PARTY

LIBERAL REPUBLICAN PARTY (IN U. S. HISTORY), an abortive offshoot from the regular republican party in 1870-72.

—Attention is called elsewhere to the destructive influences of the rise of the republican party in 1855-6 upon the democratic party of the time. (See REPUBLICAN PARTY, I.) In every state the element represented by such men as William Cullen Bryant, S. P. Chase, Lyman Trumbull, and Montgomery Blair, democrats by choice, were forced into the new party by the progressively proslavery attitude of their natural party. (See DEMOCRATIC PARTY, V.) A re-enforcement of much the same nature was added to the republican party, after 1861, under the name of "war democrats." A peace democrat in 1864 asserted that a war democrat and a republican were only "two links of the same sausage, made out of the same dog"; there was, however, an essential difference, which became gradually more strongly apparent after the end of the rebellion. The coercive measures, which seemed to the dominant party absolutely necessary to the maintenance of the natural rights of southern negroes, (see RECONSTRUCTION, KU-KLUX KLAN), were such as were likely to wean the originally democratic element from the republican party; and from 1867 until 1871 there was an increasing exodus of this nature, but not sufficient in numbers to influence seriously the enormous popular vote. The passage of the "ku-klux act" of April 20, 1871, and its enforcement, increased this movement so much that it seemed to need only organization and boundaries to become a perceptible current.

—The opportunity was afforded by the success in Missouri of a union of "liberal republicans" and democrats in 1870-71. (See MISSOURI.) Its leading features were universal suffrage and universal amnesty, a reform of the tariff and the civil service, and the cessation of "unconstitutional laws to cure ku-klux disorders, irreligion or intemperance." The leaders of the Missouri fusion, after gaining complete control of their own state, issued a call, Jan. 24, 1872, for a national convention at Cincinnati, May 1 following. In the nature of things the proposed gathering could not be at all representative, for the new party had no organization and no units for representation. The delegates were therefore, in the main, practically self-appointed; and thus there came into the convention another element, thoroughly honest and patriotic in purpose, but entirely foreign to the natural course of the movement. There was no hope of an independent existence for the new party; it could hardly hope to convert the party which it had left by defeating it: its only logical plan was to organize such a course of transit to the democratic party as should put new blood into that party, restore it to its ancient principles, and raise it out of the slough into which it had fallen. But there was also dissatisfaction among republicans pure and simple: in the growth of that party new men had gained control of it, new methods had been introduced, and the resulting "personal government" of the party had created considerable discontent. This feeling—the desire to reform, not to defeat, the republican party—was strongly represented at Cincinnati, and its influence brought the party to an ignominious failure. Its determination not to abandon the protective system, caused the introduction of the ridiculously ambiguous tariff utterance; and its determination to follow republicans only, brought about the fatal nomination of Greeley. If the convention had been homogeneous, the tariff utterance would have been clear and consistent, some original republican of democratic tendencies would have been nominated for president and some acceptable democrat for vice-president, and the ensuing presidential election would at least have been doubtful.

—The convention met according to appointment, and selected Carl Schurz, of Missouri, as chairman. A platform in twelve paragraphs was adopted: 1, recognizing the equality of all men before the law; 2, opposing any reopening of the questions settled by the last three amendments; 3, demanding universal amnesty; 4, local self-government, impartial suffrage, and the maintenance of the writ of habeas corpus, and 5, civil service reform; 6, "recognizing that there are in our midst honest but irreconcilable differences of opinion with regard to the respective systems of protection and free trade, we remit the discussion of the subject to the people in their congressional districts, and to the decision of congress thereon, wholly free of executive interference or dictation"; 7-12, calling for the maintenance of public credit, a return to specie payments, and a cessation of land grants to corporations. On the first ballot for candidate for president, Charles Francis Adams had 203 votes; Horace Greeley, 147; Lyman Trumbull, of Illinois, 100; B. Gratz Brown, of Missouri, 95; David Davis, of Illinois, 92½; A. G. Curtin, of Pennsylvania, 62; S. P. Chase 2½, and Charles Sumner 1. Curtin and Sumner were withdrawn at once; Brown's vote fell to 2 on the following ballots; Davis' vote fell gradually to 6 on the sixth ballot; and Trumbull's rose to 156 on the third ballot, and then fell to 19 at the end. Adams' vote rose on all six ballots, as follows: 203, 233, 264, 279, 309, 324; and Greeley's as follows; 147, 239, 258, 251, 258, 332. Before the sixth ballot was declared, changes made Greeley's vote 482, and Adams' 187. The former was thus nominated. On the second ballot for a candidate for vice-president, B. Gratz Brown was selected by a vote of 495 to 261 for all others, and the convention adjourned. July 9, the democratic national convention adopted the platform and candidates prepared for it at Cincinnatti. (See DEMOCRATIC PARTY, VI.)

—The whole movement had really failed, so evidently that in June the leaders of it endeavored to obtain another convention from which the absolute republican element should be excluded. June 20, a meeting was held in New York city, on the call of Carl Schurz, Jacob D. Cox, William Cullen Bryant, Oswald Ottendorfer, David A. Wells, and Jacob Brinkerhoff, and nominated as presidential candidates William S. Groesbeck, of Ohio, and Frederick L. Olmstead, of New York. But it was too late; the new ticket was not heard of after the day of its announcement, and the Greeley campaign went on to its final overwhelming defeat. (See ELECTORAL VOTES, UNITED STATES.) The result was entirely due to the refusal of democrats to vote for a candidate who was their lifelong and natural opponent, and whom their leaders had evidently only taken as a stalking horse; the only matter for wonder is that the democratic proportion of the total vote fell off but 3½ per cent. under the circumstances (1868, 47.3 per cent., 1872, 43.8 per cent.).

—Many of those who had originated the movement returned, before or after the election, to the republican party; others remained in the opposition. The name of the party survived until 1876, owing to the presence of a few senators and representatives in congress who still held to it; but its substance departed with Greeley's defeat, if it had really survived his nomination. The only practical result was the "new departure" of the democratic party for the future; but it can hardly be supposed that this missionary work was the primary object of the Cincinnati convention.

—Authorities must be sought in the current newspapers.

ALEXANDER JOHNSTON.

LIBERIA

LIBERIA. The republic of this name is situated to the south of Sierra Léone, on that part of the west coast of Africa called the Seed Coast. Its territory consists of a series of settlements, some commercial, others agricultural, stretched along the seacoast for a distance of 960 kilometres, and extending back an unlimited distance into the interior. Its capital is Monrovia, situated on the bay of Cape Masurado and the river of the same name. It was, when first founded, 1821-2, merely a colony of free negroes, which the American colonization society (founded Dec. 31, 1816) established to procure for these victims of color prejudice a better lot than in America, and at the same time to rid the soil of America of an element of its population judged inferior to the white race even by the members of the society themselves. By additions from within and without, the free and Americanized population of Liberia amounted, in 1872, to 19,000 souls, who exercised a political influence over 700,000 negroes (natives, but not savages), scattered over the territory that extends from the sea to the chain of mountains which separates the Liberian territory from the basin of the river Niger in the interior. The primitive colony, governed at first by white men, became, Aug. 24, 1847, an independent republic, governed by a black (or rather a mulatto) head, and was admitted into the family of civilized nations. It has been recognized by England, France, Belgium, Holland, Prussia, the Hanseatic cities, Italy, Denmark, Portugal, and finally (in 1861) by the cabinet at Washington. Its relations with foreign nations have been regulated by a dozen friendly treaties.

—The constitution provides for a president, a vice-president, a house of representatives (thirteen in number), elected for two years, and a senate (of eight members), elected for four years. The president may be reelected. The first president, Roberts, after having administered the government for the colonization society during six years, was elected when the republic was proclaimed, and three times re-elected (1848-56); his successor, Stephen Allen Bensen, was re-elected four times (1856-64); the third president was D. B. Warner (1864-8); the fourth, J. S. Payne (1868-71); the fifth, who again assumed the office in 1872, was J.J. Roberts. Anthony W. Gardner is the present president.

—This dignity, like other governmental offices, can be conferred only on a negro. Various ministers form its executive agents. Suffrage is universal.

—The judicial power is vested in a superior court, and two tribunals, established, as occasion requires, by the legislature.

—In administrative matters the republic is divided into four counties (Monferrado, Grand. Bassa, Sinoë and Maryland), which are subdivided into districts. The civil affairs of the counties are managed by four superintendents chosen by the president with the advice of the senate; those of the districts by municipal magistrates elected by the citizens.

—The revenues of the republic amount to about $120,000, of which more than $70,000 are derived from customs duties, and about $50,000 from the various other taxes. The expenses are a little less than this sum. The public debt, contracted for the erection of establishments of general utility, amounts to upward of $600,000, $500,000 of which were borrowed in London in 1871. Since 1874 no interest has been paid on this debt.

—Education is furnished in the district schools and churches. English is the official language. Monrovia has a college and library. The wealthier families send their children to Europe to complete their education. Protestantism is the dominant religion.

—Labor is obligatory; each inhabitant is obliged to cultivate a piece of land.

—The Liberian colony has developed, in spite of the frequent aggressions of hostile negroes from the adjacent country; the Liberians are faithful to the laws which they have adopted, honest in their dealings, religious and moral, to at least as great a degree as other African colonies governed by whites. The Liberians have not, however, escaped all criticism; they have been reproached with reducing to slavery the natives who resist their power, and through the complicity of their citizens, selling them to the slave traders; but severe regulations imposed by the legislature in the session of 1857-58 upon this traffic and upon immigration, exonerate the republic from all participation in acts, which, if they have any real existence, are but the crimes of individuals.

—Besides, lawful commerce affords ample opportunity to the activity of the Liberians; it is carried on in Monrovia and in the factories along the coast, subject to moderate import and export duties. The exports aggregate nearly $600,000, composed principally of palm oil, logwood and ivory; but the variety of local products promises a more extended traffic in the future. Rice, coffee, sugar, pepper, indigo, peanuts, arrowroot, maize, etc., grow on its fertile soil. The cultivation of cotton is encouraged by the cotton spinners' association of Manchester. Iron is common, and gold is not rare; there are also indications of coal—By these varied sources of wealth which it is developing from day to day, and still more by the establishment of order with perfect liberty, the little republic of Liberia is a very interesting example of what negro communities may become. Fortunately exempt from the violent traditions which still weigh heavily upon Hayti, owing its foundation to the disinterested devotion of whites, composed of freedmen who were ordinarily the best of the slaves, admitted into fraternal relations of friendship with civilized nations, it will serve as a test of what the negro race can attain to when left to self-government. Its progress thus far warrants the hope that it will continue worthy to rank by the side of the Senegambian colonies which France and England possess and administer in the same region of western Africa.

—BIBLIOGRAPHY. Die Negerrepublic Liberia, in Unsere Zeit, vol. iii., Leipzig, 1858; Baldez, Six Years of a Traxeler's Life in Western Africa, London, 1861; Blyden, The Republic of Liberia, its Status and its Field, in Methodist Quarterly Review, New York, July, 1872; Hutchinson, Impressions of Western Africa, London, 1858; Ritter, Begrundung and gegenuärtige Zustände der Republic Liberia, in Zeitschrift fur allgemeine Erdkunde, vol. i., Leipzig, 1853; Oberländer, Westafrika, Leipzig, 1874; Stockwell, The Republic of Liberia, New York, 1868; Wilson, Western Africa, London, 1856.

JULES DUVAL.

LIBERTY PARTY

LIBERTY PARTY. (See ABOLITION.)

LIBRARY OF CONGRESS

LIBRARY OF CONGRESS. This institution calls for notice because of its importance in connection with the copyright system, as well as because it is the great library of the United States government. Established at Washington in 1800, this library has survived two conflagrations, and has risen, in 1882, to 450,000 volumes, besides about 200,000 pamphlets. Its primary uses being for the national legislature, it has been rendered very complete in jurisprudence, political and economic science, and history; and in what are known as Americana it has by far the largest collection in the country. Its 10,000 bound volumes of newspapers represent more than a century of journalism in Europe and America. The supreme court of the United States, the heads of departments and bureaus, and the foreign diplomatic corps resident in Washington draw upon its stores; and while not a library of general circulation, it is freely open to the public use.

—The librarian of congress is made by law the keeper of all copyright records, and the custodian of all publications deposited with the government in evidence of copyright. The process of obtaining copyright is very simple; the law requires a printed copy of the title of the work before publication, with a fee of fifty cents for record, and fifty cents for certificate of record, followed, within ten days after publication, by two copies of the work, which may be sent free by mail. Prior to 1870 the records of copyright were kept by the clerks of the United States district courts in fifty different places in the states, with the somewhat confusing result that there was no central office of record, and no ready means of answering questions as to literary property. Since the transfer of the entire registry and records to Washington, the status of every publication can be traced as to copyright title. Moreover the deposit of copies in pursuance of copyright is made vastly more complete, and authors and publishers are assured of finding nearly every publication protected by copyright in this national repository. A separate fire-proof library building is soon to be erected, the great collections of literature and science, including the copyright department, having long overflowed the limited space within the capitol.

—Copyright in the United States runs to any citizen or resident therein, for the term of twenty-eight years from date of entry; and may be renewed for fourteen years longer by the author, or by his widow or children, making forty-two years in all. The annual number of copyright entries in the office of the librarian of congress considerably exceeds 20,000.

A. R. SPOFFORD.

LICENSE AND LIBERTY

LICENSE AND LIBERTY have their common origin in the human will, but, at the same time, liberty proceeds from reason, and license from passion. As a consequence, liberty is naturally well regulated, circumspect and moderate, without requiring the intervention of any restrictive law. Liberty, legally unlimited, keeps within the bounds which the general welfare, morality and self-respect assign to it, of its own accord, and almost without effort. It emanates from a sentiment of our own dignity, and is its most powerful safeguard. License knows neither rule nor moderation; it recognizes no law; neither morality nor human respect restrains it. It is inspired by caprice, seeks only momentary gratification, and makes no sacrifice in the interests of the future.

—Can license always be distinguished from liberty? We believe it can; and the characteristic marks which we have enumerated will enable any person to distinguish the one from the other, if he will but examine the facts impartially. Unfortunately, this impartiality is not always found, and the enemies of progress do not hesitate to attribute to liberty the faults of license. Consequently we have to oppose license as well as despotism, though with different means. We employ firmness, self-respect and love of equality against despotism; against license our only resource is to extend political education and to enlighten men as to their true interests.

MAURICE BLOCK.

LICENSE TAX

LICENSE TAX. A license tax is a tax upon trade, and is paid for the privilege of pursuing an industrial or commercial occupation or a profession. The general idea of a license is that it confers a right that could not exist without the license, but this idea must, when license taxes are considered, be extended. For there are many trades and occupations which are not in themselves unlawful, and which could be followed without any interference by the state, yet which are made subject to a license tax. Thus, in the case of attorneys, notaries, peddlers and plate dealers, whose occupations do not imply any illegality, duties were for many years imposed on such as followed them. In general, license duties are mainly imposed in connection with the police power of the state, and for the purpose of regulating or prohibiting certain occupations which may be injurious to the interests of society in any form or when carried to excess. This idea was embodied in the constitution of the state of Arkansas of 1868, which provided that "the general assembly shall tax all privileges, pursuits and occupations that are of no real use to society; all others shall be exempt." (Art. 10, § 17.) And in carrying out this idea of regulation the tax may be made so pressing as to prohibit an occupation. Thus, a tax of $1,000 imposed on keepers of gaming implements, was clearly intended to be prohibitory, "and its payment would not give the owner the privilege of making use of it, which was illegal under another statute." (State vs. Doon, R. M. Charlt., 1.)

—Where regulation is the object of a license tax, revenue is a secondary consideration; and, in fact, in many instances the charge is only what is sufficient to defray the expense of regulation, and no revenue accrues to the taxing power. And where a grant is made by a state to a municipal corporation of power to issue licenses, it would appear that regulation was the object, unless there is something in the language of the grant, or in the circumstances under which it was made, indicating that revenue was contemplated; and the charge is not then known as a tax, but as a fee. "The license fee for retailing liquors is in no proper sense a tax. Its object is not to raise revenue. It has for many years been thought that this business was one dangerous to the public peace and public morals, and it has been the uniform practice of the country to subject it to regulation, require license from some public functionary before it is engaged in, and to punish as a crime the pursuit of it without a license. The license is part of the public regulations of the country, and the fee is intended rather to prevent the indiscriminate opening of such establishments than to raise the revenue by taxation." (Burch vs. Savannah, 42 Geo., 596, 598.) And a like reasoning will apply to charges like those for licenses for marriages, places of public amusement, auctions, draymen, hackmen, and for inspection. The sphere of such duties is limited, for, if generally applied, they become an obstruction to trade; but in the cases of a traffic or occupation which entails upon the government special inconvenience in its regulation, there are just grounds for imposing a special tax upon such occupation or trade; and objections such as that the charge is unequal and invidious, because the rest of the community is not subject to it, or that those taxed are not assessed on the amount of business done, will not hold. There can be little doubt that such taxes or charges, if properly imposed, do tend to diminish the evils against which they are directed; but experience has shown that when prohibition is intended, other and more direct means are to be found in legislative action which is expressly prohibitory than in the circuitous method of imposing a charge difficult or impossible to be borne: When imposed for revenue there is no limit to the taxing power.

—A license tax is usually a fixed charge for each occupation, and as such it is an unequal and unjust tax, because if a heavy charge, it weighs more heavily upon those who carry on business on a small scale, or whose services are in little demand. The tendency of such duties is thus to favor the concentration of the business taxed into the hands of the wealthier undertakers, and this tendency is increased in proportion as the duty is increased. Indeed, the first license tax imposed in England was believed to be a protective measure. A duty was imposed on all persons traveling through the country as hawkers and peddlers, and on every horse or other animal used by them. It is supposed that this measure was adopted in the interests of the shopkeepers; for as means of locomotion were very limited, in the remote districts the difficulty and inconvenience of reaching towns where shops existed were such as to cause trade to be carried on to a much greater extent then than now by peddlers, and by imposing a heavy tax on these traveling salesmen they were discouraged and trade brought back to the shops. The intention may be to create such a concentration and even a monopoly, as in the case of the very heavy license fees exacted from pawnbrokers in Dublin, which are said to owe their origin to a purpose of giving a monopoly of the business to a few favored retainers of the court. The concentration thus, directly or indirectly, brought about would assist the supervision of the licensed trade or occupation by the state; but it is an unjust interference with trade, and when the tendency to crush out the small trader is under natural conditions as strong as it is at the present day, legislation should seek rather to aid than to do injury to him.

—A license tax is an indirect tax, and is not finally paid by the person whom the state recognizes as the payer; for the latter reimburses himself from his customers. There are certain cases, as was pointed out by Mr. Cliffe Leslie, in which it may prove a direct tax. "A petty retailer, to give real examples, takes out licenses to sell spirits, beer and tobacco; he advances the customs and excise duties on tea, sugar, and the rest of his stock; he pays perhaps sixpence in the pound on his shop; and after all these duties have been advanced, his shop is burned to the ground, or he falls sick and loses his business, or he is defrauded and becomes bankrupt; or a large dealer, to whom the taxes are a 'flea-bite,' takes away his customers; or from one of twenty other causes the return to all his outgoings is ruin. * * There are thousands of poor men who every year embark their little savings or borrowed money in losing ventures of this sort on which they pay taxes; and not unfrequently one cause of their failure is the advantage which wealthier rivals find in those very taxes. Thus, excise and customs duties on commodities, trade licenses, licenses to keep horses and public carriages, etc.,—though treated not only by theorists but even by chancellors of the exchequer, as taxes on consumers alone—are often heavy direct taxes on a working class of producers, over and above the general diminution of wages which the whole system of so-called indirect taxation occasions." ("Fortnightly Review," February, 1874.)

—But regulation apart, there is little to recommend an extensive system of license duties, such as is at present in use in France under the name of patentes. They are unequal, and all attempts to make them equal have failed. In France and some other countries the charges for licenses to sell alcoholic liquors is graduated according to the population of a place, and the number of retail dealers in each place is limited. In such cases the charge may be regarded as a return for the privilege of selling under a partial monopoly. But when it is attempted to adjust license duties to the amount of business done, or the profits received, by the payer, all the difficulties that are arrayed against the income tax (see INCOME TAX) are met with, and the tax is no more equal than before. Mr. McCullough says that they are too contradictory of the plainest principles ever to become prominent sources of income; and Paul Leroy Beaulieu, the author of the best work on taxation in the French language, asserts, that the problem of making license duties equal is like that of squaring the circle.

—In the United States license duties have been mainly employed by the different states in connection with the police power, and they have been granted also to municipal corporations. The federal government in 1861-2 imposed an elaborate system of license taxes, the main object of which was revenue, and in fact regulation was hardly thought of except so far as was necessary to the collection of the taxes. Under such a system it occurred that many occupations were charged with license taxes under both national and state laws, and many interesting questions regarding the legality of the federal law were raised, and notably in regard to lotteries and liquor dealers, for the former had been declared illegal by the laws of the majority of the states, and the latter were proscribed by some. In 1866 special taxes were imposed in place of license taxes, but the change lay wholly in the name, and the character of the different taxes remained almost unaltered. In 1871 the greater part of the special taxes were abolished, and only those on distillers and dealers in liquors, and manufacturers and dealers in tobacco, were retained, and these last taxes are still in force. For the purpose of showing the number of occupations taxed during the latter years of this system of license taxes, and after many had been abolished, and to show the relative importance of each as a source of revenue, the following table is taken from the report of the commissioner of internal revenue for 1868:

WORTHINGTON C. FORD.

LIFE INSURANCE

LIFE INSURANCE. (See INSURANCE.)

LINCOLN

LINCOLN, Abraham, president of the United States 1861-5, was born in Hardin county, Kentucky, Feb. 12, 1809, and died at Washington, April 15, 1863, the victim of an assassination. He was taken by his parents to Spencer county, Indiana, in 1816, and in 1830 removed to Decatur, Macon county, Illinois. Here, in 1835-6, he studied law, and was admitted to the bar, and in 1834 was elected to the state legislature, where he remained until 1841. In 1837 he removed to Springfield. He was a whig representative in congress 1847-9, the only member of that party from his state. Declining a renomination, and defeated as the whig candidate for United States senator in 1849, he continued the practice of law until 1858. During this interval he was so frequently engaged in public political arguments with Douglas, that when the latter returned to Illinois in 1858 to "stump" the state for a legislature favorable to his re-election as United States senator, the republican state convention, June 17, 1858, nominated Lincoln against him. The two engaged in a joint debate in seven towns in different parts of the state, from August until October, which attracted attention in every state. Douglas had long been before the country; this debate brought Lincoln fairly abreast with him. On the popular vote the result was as follows, republicans 126.084, Douglas democrats 121,940. Lecompton democrats 5,091; but Douglas had a majority in the legislature and was re-elected. In 1859, when Douglas was called into Ohio to canvass that state in the gubernatorial election, the republicans at once summoned Lincoln to meet him. Early in 1860 he made many addresses in the eastern states, becoming still more widely recognized as one of the ablest leaders of his party; and in May he was nominated by the republican national convention for the presidency. In November he was elected, and in 1865 he was re-elected. (See REBELLION; HABEAS CORPUS; EMANCIPATION PROCLAMATION; DRAFTS; AMNESTY; FREEDMEN'S BUREAU; RECONSTRUCTION. I.; REPUBLICAN PARTY; ELECTORAL VOTES; UNITED STATES.)

—President Lincoln's fame will undoubtedly rest mainly upon his connection with the overthrow of slavery; and yet he was never an abolitionist. In 1837, in a written protest against certain resolutions in the legislature, he declared his belief "that the institution of slavery is founded on both injustice and bad policy; but that the promulgation of abolition doctrines tends rather to increase than to abate its evils." In December, 1860, in a private letter to Alex. H. Stephens, he said, "Do the people of the south really entertain fears that a republican administration would, directly or indirectly, interfere with the slaves, or with them about their slaves? If they do, I wish to assure you, as once a friend, and still, I hope, not an enemy, that there is no cause for such fears." (Italics as in original.) Aug. 22, 1862, just a month before the promulgation of the preliminary emancipation proclamation, he wrote thus to Horace Greeley: "My paramount object is to save the Union, and not either to save or destroy slavery. If I could save the Union without freeing any slave, I would do it: if I could save it by freeing all the slaves, I would do it: and if I could do it by freeing some and leaving others alone, I would also do that." His record in intervening years is equally consistent, and is, in truth, a representative northern record. Hating slavery per se, believing that "if slavery was not wrong, nothing was wrong," hating the dictatorial recklessness born of slavery, he aimed to combat both within the letter of the law, to yield to slavery the territory, and no more, which had been yielded to it at the formation of the constitution, and to maintain the character of the just man, who "sweareth to his own hurt, and changeth not." Lincoln did not destroy slavery: slavery destroyed itself. Its whole life, after 1793, was a journey toward destruction until it stung itself to death in the midst of the circle of fire which had surrounded it. (See SLAVERY)

—For the reason, mainly, that President Lincoln aimed to be the exponent only of the popular will, to confine his functions as guide and leader to efforts to influence the popular will, but to go no faster or farther than the people were ready to support him, his policy was severely criticised during his administration, and a series of intrigues against his renomination, whose inside history has not yet been fully written, marked the years 1863-4. But the honesty of intention, and the final full success of his policy can not be questioned; and these two elements are surely sufficient to justify it.

—The natural greatness and kindliness of his mind and heart have taken an unchallenged place in our history. His second inaugural address, shortly before his death, is one of the finest and most magnanimous of American state papers, and its closing sentence might well serve as his epitaph: "With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle, and for his widow and his orphans, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations."

—The best early life of Lincoln is that by W. A. Lamon; the best for general readers is that by J. G. Holland; the most useful for political students is that by H. J. Raymond. Besides, there is a multitude of other lives of Lincoln, memorial proceedings, sermons and eulogies, for which see Bartlett's Literature of the Rebellion, 234. See also authorities under articles referred to above; Carpenter's Six Months at the White House; Poore's Lincoln Conspiracy Trial; Lowell's My Study Windows, 150; 15 Atlantic Monthly and 12 National Quarterly Review (George Bancroft's articles); McMillan's Magazine, February, 1865 (Goldwin Smith's article).

ALEXANDER JOHNSTON.

LIST, AND HIS SYSTEM

LIST, AND HIS SYSTEM. Frederick List was born in Reutlingen, a free city of Suabia (Würtemberg), Aug. 6, 1789, and died at Kufstein, in the Tyrol, Nov. 30, 1846. His father, a leather dresser, intended him for his own business, but not seeing in him any inclination for it, he decided to make him a government clerk. In 1816, at the age of twenty-seven, he filled a place in one of the central government offices in Würtemberg, and had gained the confidence of M. Wangenheim, the head of the liberal cabinet. This minister having established in Tubingen a school of administrative science, gave List the chair of political economy. At the same time List, in a journal ("The Friend of the Suabian People") started in Heilbronn in 1818 by some of his friends, demanded real national representation, control of the administration, independence of the communes, freedom of the press, and trial by jury; but, shortly after, the reform ministry gave place to its opponents, and this paper was suppressed.

—List states in the preface to his principal work that from this time he conceived his theory with its distinction between cosmopolitan political economy and national political economy, while at the same time he was urging the abolition of provincial duties in Germany, and the development of the industries and commerce of that country by the means used by other peoples. "But," he says, "instead of pursuing my idea by study, my practical mind urged me to put it to the test of application. I was young then (1819), and I hit on the plan of forming an association of merchants and manufacturers to obtain the abolition of the interprovincial taxes and the adoption of a common commercial system; * * the influence of this society on the formation of a compact between the enlightened and high-minded sovereigns of Bavaria and Würtemberg is well known, as also its effect on the German customs association."—(List declares himself the founder and chief agent of this association. This claim has been disputed in the Conversations Lexicon and the "Augsburg Gazette" of December, 1840, and elsewhere. List defended himself against those attacks in his preface, and, later, in the Zollvereins-Blatt of Feb. 24 and March 3, 1846. Whoever is in the right, one thing remains certain, and that is, that List was the head and soul of the association.)

—At the same time List, to put an end to the petty annoyances he suffered from the government, and possessing considerable wealth, resigned his chair, and six weeks later was elected to represent the city of Reutlingen in the Würtemberg estates, but not being yet thirty his election was declared void. He was reelected at the end of 1820. List speaks of this period as follows: "Imagination must suppose the year to be 1819 to have the explanation of my conduct. Governing class and governed, baron and burgess, politician and philosopher, the whole German world, in fact, was fabricating new plans of political regeneration. Germany was like a country laid waste by war where the old proprietors, reinstated in their rights and once more masters of their own property, were on the eve of taking possession again. Some demanded the restoration of the former order of things with all its cumbrous antiquities and superannuated customs; others, rational institutions and agents completely in accordance with modern ideas. Those who gave ear to wisdom and experience were in favor of an intermediate course. Everywhere societies were being formed for the furtherance of patriotic aims. One of the articles of the federal constitution (the 19th) expressly enjoined the organization of a rational commercial system. I saw in this article the foundation on which the industrial and commercial prosperity of my German fatherland might be built."

—List declares that he had to fight on one side the partisans of freedom, whom he represents as forming a powerful party (a statement of which we have grave doubts), and on the other, "differences of opinion, internal dissensions and the absolute want of a theoretical base" in his own camp. (List states, also, that there was great lack of the necessary funds to carry on his agitation while the secret service money of the British government was at the disposal of the advocates of the opposition theory. It will be observed that this calumny is a sufficiently common asseveration with the protectionist school. At the end of the last century the opponents of free trade affirmed on one side of the channel that the defenders of the treaty of 1786 had sold the interests of Great Britain to France. Their comrades on the other side were equally persuaded in respect to the same treaty that the interests of France had been sold to perfidious Albion. At a later period Huskisson was accused of selling himself, Cobden also, his purchaser being, according to them, the Czar Nicholas.) But he affirms that this struggle served to advance his ideas and was the cause of his discovering (this word, somewhat an ambitious one to use of a thing already found out, is his own,) the distinction between the theory of values and that of living forces, that is to say, between wealth and its causes, also the abuse that the school (by this word List means the liberal school) makes of the word capital.

—From the first day of his parliamentary life he urged upon the assembly a bill advocating the breaking down of internal barriers and the commercial union of the German states, but, the diet adjourning, his proposition was not discussed. Shortly after the session List drew up a petition which was to serve as a programme for the parliamentary opposition, and which was the cause of prosecution against him. In February, 1821, he was expelled from the diet on the motion of the ministry; suit was entered against him and he was condemned to ten months' hard labor for outraging and calumniating the government, the courts and the administration of the kingdom. How different from the treatment he received from the minister Wangenheim! List took refuge in France. Received with sympathy in Strasburg, he liked the town, and there projected several literary works; among others, a translation, with notes, of J. B. Say's "Treatise," but the political animosity of his country drove him from that retreat, then from Baden, and from canton after canton of Switzerland. Going to Paris in the beginning of 1823, to seek occupation there, Gen. Lafayette offered to take him to America with him. This proposal to emigrate pleased him, but his family and his friends dissuaded him from it. The year after, tired of a life of wandering and confident of the royal clemency, he re-entered Würtemberg, but he was imprisoned in a fortress and only set at liberty (January, 1825) on condition of leaving the country. It was then he formed the resolution of going to the United States. Accompanied by his numerous family he arrived in the summer, and hastened to join Lafayette in Philadelphia. The general received him cordially and invited him to accompany him on a really triumphal tour among the American people. It was thus that be made the acquaintance of Henry Clay and the principal public men of the young republic.

—After trying several spots he resolved to settle in Pennsylvania, near Harrisburg, with the intention, at a future period, of founding a school of arts and manufactures, but a fever and other circumstances deprived him of success in making the most of a property which he had bought for a moderate sum, and he accepted an offer made him to edit a German paper in the small town of Reading. It was at this time that he published, on the question of free trade, a series of letters in English in the "National Gazette" of Philadelphia. The question was at that time being vigorously debated in the United States, and List informs us that he had then relations with a protectionist association calling itself the Pennsylvanian society for the advancement of arts and manufactures. This society entertained him, reprinted his letters, and passed a resolution inviting him formally "to compose two works, one scientific, in which the theory should be completely elucidated; the other popular, to spread it in schools." This was in 1827. But fortune turned him from this project and postponed the publication of his principal work till twelve years later.

—He discovered, almost accidentally, a coal mine of rich promise, and succeeded in due course in forming a company with a capital of $750,000. The mine was successfully opened up under his direction, and in addition a railway was built in connection with it from Tamaqua to Port Clinton, which landed the produce at the Schuylkill canal. The inauguration of this railway took place in the autumn of 1831. But already List, although he had so much to bind him to America, where he had found wealth and consideration, was longing to return to Europe and Germany. It must be said also that the revolution of July, and the changes it seemed destined to make throughout Europe, had something to do with his resolve. Be that as it may, he obtained from President Jackson a mission in connection with the relations between the United States and France, and the federal government at the same time nominated him to the United States consulate at Hamburg. Arriving in Paris toward the end of 1830, he wrote in the Revue Encyclopédique on the economic, commercial and political reforms, applicable to France; and in the Constitutionnel on the necessity of a new law on the exercise of the right of public domain. He did not go to Germany. "Of his own accord," says M. Richelot. "List almost immediately resigned the Hamburg consulate on learning that the emoluments of the position were needed by the then occupant of the post." Besides, his nomination quickly gave rise to a protest, instigated as he thought by Würtemberg, from the city of Hamburg, and it was not confirmed by the American senate. He returned to the United States toward the end of October, 1831, but the following year he again landed in Europe, the possessor of a fortune which rendered him independent, with the title, purely honorary, of consul at Leipzig, which put him out of the reach of fresh annoyance from the police of his native country. After spending a year in Hamburg he took up his residence in Leipzig in 1833.

—Scarcely had he settled in Germany before he contributed both with pen and purse to the publication of an encyclopædia of political and economic science ("Staats-Lexicon"). He continued at the same time to popularize his favorite idea of a network of German railways which he had already developed in letters sent by him to the "Augsburg Gazette" in 1829, and which he urged with success in a pamphlet "On a system of Saxon railway lines as the basis of a German system, and particularly on the establishment of a line between Leipzig and Dresden." This pamphlet, it is said, led to the formation of a company for the construction of the last named line, to which he gave great assistance as a director. He added fuel to the movement in favor of new routes of communication by the railway journal which he published in 1835. His services, nevertheless, were but poorly recompensed; the citizens of Leipzig confined themselves to offering him for all his trouble and expense a present of $1,500.

—Shortly afterward he paid a visit to his own country. His fellow-countrymen received him with open arms, but the government refused him the title of citizen, and would only regard him as a foreigner having permission to reside in the country; and this, too, after the bench of Friburg had declared his former conviction null and void. This treatment chagrined him greatly. In addition to this mortification came the proscription of his railway paper in the Austrian empire and the loss of the greater part of his fortune as the result of the financial crisis in the United States.

—To restore his health, which had suffered from overwork and from his troubles, he took a trip to Paris in the spring of 1837. He had the opportunity, during this trip, of being presented to King Leopold of Belgium and to Louis Philippe; he also met Dr. Kolb with whom he renewed his former connection and who opened to him the columns of the "Augsburg Gazette"; he received, too, information of a prize offered by the academy of moral and political science, relative to the restrictions on articles of commerce. List relates that he became aware of the competition by pure chance only a fortnight before the date fixed for giving in the essays, but that he nevertheless decided to commit to writing the main idea of his system, and his composition was ranked third out of twenty-seven given in.—(The question was put thus: "When a nation resolves upon free trade or on a revision of tariff legislation, what facts must it consider, to reconcile most equitably the interests of national producers and those of the mass of consumers?" List seems to insinuate that if he was only given the third place it was because MM. Rossi, Blanqui, and the other judges of the competition were, with the exception of M. Ch. Dupin, prejudiced against him by the principles they held. "There were,' he says, after mentioning those three names, "other judges in this assembly, but were their treatises to be rummaged there would only be found ideas suited for female politicians, Parisian dandies, and other mere dabblers, and lastly paraphrases of Adam Smith's paraphrases: of original thought not a vestige, which was to be regretted." To this M. Blanqui has made answer that at that time he was not a member of the academy. As to the section of political economy, the judge of the competition, it was composed, in addition to Messrs. Rossi and Ch. Dupin, of Alexander Delaborde, Villermé and Passy, who had recently been elected in place of Prince Talleyrand.)

—It was this essay, a reproduction of the ideas contained in the Philadelphia letters and amplified in the articles published in the "Quarterly Review" and the "Augsburg Gazette," which became the "National System of Political Economy." List worked there in the bosom of his family, who had rejoined him in Paris, when one of his sons, who had chosen to serve in Algeria, died of fever. Deeply affected by this loss, List turned his steps again in the direction of Germany (summer of 1840). On his return to Leipzig he contributed greatly to the adoption of the line taken by the railway from Halle to Cassel, and on that occasion the university of Jena conferred on him the degree of doctor of laws.

—He chose Augsburg as his residence, and produced, in May, 1841, his work which again drew public attention to his name and procured his rehabilitation, after an audience accorded him by the king of Würtemberg. The approaching tariff congress of the zollverein for 1842 brought back the discussion between free trade and protection in Germany. Recovered from a fall in which he broke his leg, List recommenced his propagandism. He proposed to the publisher Cotta to found a special organ for economic questions in general and the system of protection in particular. It was the Zollvereins-Blatt, in which till his death he developed his ideas with talent and energy.

—At the same time that he was directing and in part writing this sheet, he made numerous journeys which neither benefited his own treasury nor that of the paper, the possession of which Cotta had given up to him. This consideration had caused him to reflect on the means of giving a fresh impetus to his publication, but it was in 1846 that the league and free trade triumphed in England, and he could not resist the desire to see London on that occasion. He related the impressions he received in the two houses of parliament the night on which the abolition of the corn laws was voted by the house of lords. "Dr. Bowring was my conductor, and said to me, 'Permit me to introduce to you Mr. McGregor.' A well-bred man with an intelligent look shook my hand. 'Mr. Cobden desires to make your acquaintance,' another said to me; and a man still young, with a pleasant face, stretched out his hand to me. 'You have come here, then, to be converted.' 'Yes,' answered I, 'and to ask absolution for my sins.' I remained thus a quarter of an hour bantering with my three great opponents. What political life there is in this country! Here you can see history grow."

—List remained three months in London. During his stay he wrote a treatise on the advantages and conditions of an alliance between England and Germany. That was his last production. The insignificant effect it had on English statesmen to whom he had addressed it, discouraged him afresh. It must be said that if his reputation had increased, his fortune had far from kept pace with it; that he had failed to obtain an official position in Würtemberg; that the future of his family caused him great uneasiness; and that he had felt deeply the indifference, the disappointments, the hostility and the humiliations his efforts had exposed him to. His nature was vigorous, but restless, passionate, ardent and feverish, and the joys of success and the disappointments of failure had ended by sapping its vitality.

—On his return from England in the autumn of 1846, his family and friends found him changed; his internal complaint had increased. In November his disease got worse. One morning he set out for Munich en route to Italy, and some days afterward he was found dead in the neighborhood of Kufstein where he had stopped. Before leaving the hotel he had written to Dr. Kolb a despairing letter of farewell, which foreshadowed the approach of death, and by means of which he was identified. List seems to have committed suicide in a fit of temporary insanity, but the manner of death he died has not been clearly ascertained.

—In reading the life of List interest is aroused in a life so active and a nature so full of courage and so well intentioned. But it must be regretted that one so bright and intelligent should have gone astray under the double influence of error and vanity, so far as to believe himself the founder of a new and natural economic doctrine, when he only dressed in the language of contemporary prejudice the superannuated theory of a system of commercial protection. List appears in four distinct characters: as a politician, as a promoter of German railways, as a promoter of the zollverein, and as a theorist on protectionist tariffs on the frontiers of the German states. We have nothing to do with him as a politician, and will confine ourselves to mentioning that he strove for constitutional guarantees, for municipal freedom and decentralization at a time now deemed remote. We must admire the efforts which List made to draw the attention of Europe in general, and of his fellow-countrymen in particular, to the importance of opening up new means of communication. It would be difficult to decide in regard to this whether he really rendered such service as his partisans have claimed for him. The superiority of railroads was so marked from the first that they were built in the United States and then in England, and it is probable that the European continent would also have taken this forward step even if List's voice had never been heard; for, no one owning the ordinary roads, there could not be formed against the new means of communication any of those coalitions of interests which keep prejudice alive and are a bar to progress.

—We shall not say the same of the zollverein, to the formation of which his activity, his talent and his pen were more positively necessary. We have nevertheless two remarks to make on this subject, with the view of appraising List's efforts at their proper value. We would remark, first, to those enthusiastic protectionist admirers of this father of the zollverein, as they call him, that List confined himself to asking for Germany the application of an efficacious measure carried out forty years before in France, as the result of the intelligent teaching of physiocrats; in the second place, that he was powerfully helped in his undertaking by the influence of the political ideas of those German states which rightly or wrongly saw in a customs union a preliminary step toward their administrative and national predominance.

—Let us consider for a moment List's claims. List, speaking of his ideas, says in his preface: "This system, defective as it may still seem, does not rest in the least on a vague cosmopolitanism, but on the nature of things, on the lessons of history and on national wants." It will be observed that the founders of political economy also took as their basis the nature of things, historical lessons, and national wants. The starting point then of the innovator is nothing new, and what has now to be considered is, whether he has better observed than they the nature of things, or has better understood the lessons of history and the wants of nations. For our own part, there is no question about it.

—List has said: "The loftiest association of individual beings actually realized is that of the state, of the nation; the highest imaginable is that of the human race. We know that an individual is much happier as one of a nation than in a condition of isolation, similarly all nations would be much more prosperous if united by a sense of right, by perpetual peace, and by free trade. Nature little by little is bringing nations to this supreme unison by inducing them, through its differences of climate, of soil and of productions, to barter with each other; through over-population and over-abundance of capital and talents to emigrate or to found colonies. International commerce, in awakening activity and energy by the new wants which it gives rise to, and by the interchange between nations of ideas, discoveries and appliances, is one of the most powerful aids to a nation's civilization and prosperity. But as yet the union of nations through commerce is very imperfect, for it is broken, or at least imperiled by wars and the egotistical measures of this nation or of that. By war, a nation may be deprived of its independence, its possessions, its liberty, its constitution, its laws, its characteristics, in fine, of the measure of cultivation and well-being which it has already attained; it may even be enslaved. By egotistical acts on the part of foreign nations it may be impeded and retarded in its economic development. It is with communes and provinces as it is with individuals. It would be folly to maintain that commercial union is less advantageous than provincial duties to the United States, or the departments of France, and to the states of the Germanic confederation. The united kingdoms of Great Britain and Ireland afford a brilliant and decisive example of the immense results of free trade between associated peoples. It remains but to picture a similar union between all the peoples of the earth, and the liveliest imagination would fail to grasp the amount of well-being and comfort it would bring to mankind."

—List admits then, and it is this portion which protectionists who study his writings are compelled to pass by in silence, that the system of free trade, which he called that of the school, is based on a correct idea, an idea which science must admit and work out, that it may fulfill its vocation, which is that of clearing the way for its practical application; and an idea which practice can not ignore without going astray. List, however, finds two faults with the partisans of free trade: first, with not taking into account nationalities, their interests and the conditions peculiar to them; and secondly, with wishing to conciliate nations with the chimera of universal union and peace; and it is here that through sophism and confusion he has missed his proper logical conclusion, and poses as the discoverer of a system which rests on but frail foundations. Thus, he accuses "the school" of confounding cause and effect, of presupposing the existence of the association of international peace, and thus of concluding in favor of free trade. "Peace exists," he says, "between provinces and states already associated, and from this association comes their commercial union. If, on the contrary, associated states begin with a commercial union, free trade would give birth to the enslavement of nations." List starts manifestly with a subtlety: facility of exchange necessarily brings with it international peace; and it could not be admitted that the one is exclusively the cause, and the other exclusively the effect. On the other hand, admitting the truth of List's rule, it follows that free trade ought to be established between nations which are at peace.

—The theory of nationality which List is forced to appeal to to cover the flaws in his logic, while proclaiming free trade between the German states, is a perfect snare; for it is a question incapable of solution to decide what is a German state. In the last analysis List wished to limit German nationality by the line of custom houses; but to begin with, where shall this line stop? That, neither he nor any one else can tell. In the second place, this means of "nationalification," to coin a word, is only legitimate when it increases the wealth of the nation. Then comes the question, is free trade or protection the best for increasing a nation's wealth? a question which is the subject of several articles in this work. List in this matter finds himself in a serious dilemma, so completely is the thesis he undertakes to support at variance with that which he made use of to defend the formation of the zollverein and the suppression of internal duties, and which causes him to cite as an example of beneficial federation the union of Ireland with England and Scotland, while the fanatics of the exclusive system attribute to that union the distress of Ireland, which in reality arises from quite different causes, well understood at the present day.

—In addition to the supposed difference between liberal economy, which he calls cosmopolitan, and his system which he calls political economy, List believes himself to have made another great discovery, that of the theory of exchangeable values and productive forces. By exchangeable values he means products, wealth; by productive forces, the causes of wealth, the means of labor, industry. He is pleased to say that economists had confounded all these before his day, and on this account to reproach the economic school; he reproaches it, for instance, with having limited its researches to material wealth, and with having failed to appreciate the importance to a nation of means of improving the physical and intellectual instruments of its labor. It is very evident that if List had been a professor of political economy for more than the one year, and if he had consequently had an opportunity of learning something of it, he would have seen that his invention was no invention at all.

—He also makes pretensions to having had new ideas on the division of labor, ideas which had escaped the notice of Adam Smith, and this is the conclusion to which he comes: "International division of labor, as well as national, depends greatly on climate and nature. All countries are not suited for the production of tea as China is, of spices as Java, of cotton as Louisiana, of wheat, wool, fruits and manufactures as are the countries of the temperate zone. A nation would be devoid of reason to wish to obtain by a national division of labor, or by indigenous production, articles for the production of which it is unsuited by nature, and which international division of labor or foreign commerce can procure for it, of better quality and at a low price; but it would betray a want of culture or of activity if it did not use all the means at its disposal to satisfy its own wants, and to procure by a surplus of production what nature has refused to its own soil." Truly this is new indeed!

—The idea of nationality, the theory of productive forces, and that of division of labor, are the bases of the book. It seems then to us that we have said sufficient to expose the absurdity of Dr. List's pretensions to be the founder of a new and national system of political economy. His so-called theory is only an ill-compounded amalgam of protectionist ideas on the subjects of politics and economy; and he is not absolutely faithful to it himself, for he declares positively that free trade is the polar star which should guide nations, for it counsels the freedom from taxation of the natural products of the soil and of raw materials; while with regard to manufactured articles, it advocates the gradual extension of the zollverein, that is to say, the widening of the circle of liberty. It is then only by adopting numerous precautions and reservations that the prohibitory and protectionist school can make use of the so-called national system of political economy, and, all things considered, Dr. List is rather an adversary than a partisan of protection, as it is understood in our time.

JOSEPH GARNIER.

LITERATURE

LITERATURE. It is very easy to understand that literature must have exercised a powerful influence over the course of historical events, but, on the other hand, it is very difficult to explain in a few pages the nature and extent of this influence. Such a question, if put in a general way, carries with it its own answer. Every one will reply in the affirmative by the force of natural instinct alone, which comprehends at a glance all evident truths, and hesitates only before doubtful truths or the subtleties of the spirit of system. No argument is needed to perceive at a glance that the works of human genius must have exercised an influence over the acts of the human race. But how shall we explain and summarize the history of this influence? Such a subject would require, not an article, but an entire treatise, for the forms of this influence have varied immensely according to nations, civilizations and centuries. Besides, this word literature is a synthetic, generic word, which represents, not one single product of human intelligence, but a host of very different and opposite products. The influence exerted by one kind of literature is entirely different from that exerted by another, and to confine ourselves to the most general divisions of literary works that may be given, it is clear that the action of prose is as diametrically contrary to that of poetry, as preservation is contrary to revolution, and as the past is to the present. There are peoples among whom this action of literature appears from the very beginning of their history and continues ever increasing; there are others, however, among whom it did not appear until very late, and when the greater part of their history was already passed. Finally, as a last difficulty, the illustrious men who impersonate this action of literature are nothing more than the runners of whom Lucretius speaks, who pass the torch of life from hand to hand, consequently when, in order to simplify the question, we wish to consider a given period, we very soon perceive that each one of these illustrious men has ancestors, and that the influence of literature in such or such a century can not be explained without recourse to preceding centuries. Thus we find ourselves confronted by a series of successive relations, which leads us from one effect to another up to a first cause of unknown date and name, which is simply the first man that thought. We are therefore compelled to confine ourselves to certain important generalities.

—This influence of literature has always existed, but it was not until almost our own time that it became all-powerful. Literature did not begin to be a real agent distinct from the other great moral agents of humanity until the discovery of the art of printing; and the sixteenth century, which is so near our own time, is the heroic age of this new agent. Until then, with some striking exceptions, literature had always preserved the imprint of its origin. In the old priestly and warlike civilizations literature had been, we might say, everything; but if it was everything it was also nothing. It was the hymn which the priests taught the multitude, the song of war or triumph which celebrated the glory of battle, the prophetic canticle which revealed to man the secret of his destiny and of the destinies of his race; but the enthusiasm, the fervor and the courage which it inspired were not its own. It was not it that spoke, it was religion, party feeling, warlike ardor; in a word, all the great moral agents that have served as guides for mankind and with which it was confounded. It was the voice and the word of divine power, but this word was intimately united to this power, and was not incarnated in a distinct personality in such a manner that we may say of literature, as we say of the mystery of the Christian Word, that it was from the beginning of the world, but was not revealed to men until an appointed hour.

—In classical antiquity, that is, in Greece and Rome, the mystery was accomplished, the word became flesh and assumed a distinct personality. Literature, liberated from its divine cradle, begins a profane life outside the sanctuary; the sage is distinct from the priest, the poet is distinct from the prophet, the historian is distinct from the man of war and action. As centuries advance, this individuality becomes all the more positive and pronounced. In Greece the literature of the great epoch is limited to the heroic inspiration of the poems of Homer, and still retains in its liberty something of the sacerdotal and the sacred; but in Rome this character disappears entirely, and we find nothing of it except in the memory of lost works belonging to the semi-fabulous epochs. There the poet, the historian and the sage are as completely free from all sacerdotal influence as they are in our modern civilization. They are mere individuals dependent on themselves alone, upon their own consciences, who in virtue of this inspiration and of this conscience, assume the right to judge the actions of their contemporaries, and to insist upon their decisions to the best of their ability. Here we find the modern man of letters; literature has now put on the form which it is to wear henceforth. It was in Rome and not in Greece that literature assumed the final character, in which we recognize it to-day, and in which men will continue to recognize it to the end of time, It was in Rome alone that it donned its profane lay garb, and, of its own authority, constituted itself sovereign and judge.

—Under this two-fold title literature has rendered very great services to humanity, and even to-day we, the latest born, live in part upon its benefits. Its influence, however, was much more intellectual than political. It exercised its power over individuals rather than over the general order of things; characters and minds owed it much, but facts owed it little. On the other hand, this action, although so very limited, exerted over individuals an empire which it has never entirely regained. Literature afterward made its way among the masses, but it never succeeded in exercising the same influence over each individual. The opinion which came to a man through it impressed and imposed itself upon his entire being, while now-a-days our opinions can very easily be distinct from our persons. In ancient times, every stoic was a stoic, every epicurean an epicurean, every peripatetic a peripatetic, mind and morals, heart and soul; his creed was shown in his manner of eating and of saluting a friend, in his manner of understanding and supporting life, in his manner of enjoying its benefits and of contending against its ills.

—A new moral force, the greatest which the world had ever known, Christianity, undertook to exert over the masses the beneficent influence which ancient literature had been powerless to make them feel. Then began the period of the middle ages, during which literature recommenced its entire history, or, to speak more correctly, continued it by recommencing it, for no matter what may be said to the contrary, there was not during this entire period any break in the continuous progress of the human mind. Literature lived over again during this epoch the two existences of its past history, not successively, but simultaneously. It was sacerdotal and warlike, and at the same time lay and profane. It mingled with religion and the distinction of castes, while preserving its individuality. The peculiarity of the middle ages, and what constitutes its originality in our eyes and gives its poetic form, is precisely this juxtaposition, nearly always inconceivable and sometimes contrary to the nature of all past forms, from those of the rudest civilization to those of the most refined society. It is not the elements of which the middle ages were composed that are new, but the union of these elements. Literature possessed simultaneously during this period the two characteristics which it had possessed successively in ancient times.

—In the fifteenth century, literature recovered its true form, and was enabled to renew the glorious history it had already had in Greece and in ancient Italy. But how powerful soever the movement of the renaissance, it is doubtful whether it would have been sufficient to give to literature the decisive influence which it has acquired in modern times, if the chance of an unforeseen discovery had not come to the aid of the human mind. It is more than likely, in fact, that, without printing, the movement of the renaissance would have resulted only in a repetition of the literary history of Greece and Rome. The influence of literature would as formerly have been felt only by individuals; it would have made the same slow progress as during former centuries. Printing gave it wings. By its means the light of the renaissance was communicated from the people who were the natural heirs of Greece and Rome to the people of the rest of Europe who were still semi-barbarians, by its means the reformation was rendered possible, by its means the reign of spoken language and oral tradition was destroyed. By placing before men's eyes the documents of their religious history, it inaugurated the reign of individual religion, and made each man judge and critic of his faith. Until then, man had been taught directly by man, oral instruction had been supreme; printing rendered this direct material communication of man to man useless, and destroyed the power which was necessarily dependent upon spoken thought. Mute signs, which can be multiplied indefinitely, henceforth made the thought of each individual the common property of all men. Then the complexion of everything was changed. Education was no longer at the mercy of chance or favor; any one who desired could obtain it. It is no longer necessary to undertake long journeys to listen to the words of some renowned master; his words, stripped of their material clothing, come in search of us. Hitherto man had but one master, and was in consequence obliged to believe in him blindly; henceforth he is to have a great number, whom he may compare one with another, and be free to choose between them. At the same time that it gives to thought the rapidity of lightning, printing creates equality and emulation in the kingdom of mind. It makes the disciple equal to his master by the faculty which it gives man of choosing and judging between those who offer to teach him; it creates emulation among wise and learned men by obliging them to solicit the favor of the public in order to be heard. Parliamentary rule is thus inaugurated in the dominion of thought, ideas are accepted or rejected by a sort of universal suffrage, and the kingdom of letters which, previous to the discovery of the art of printing, was a veritable monarchy, may now justly bear the name of a republic—It is a republic in every sense, for, since the renaissance, literature has depended only on itself, and has rid itself of all the influences that weighed it down. It has at length obtained the glorious personality which we have seen it so energetically and so gloriously striving for in Greece and Rome. The man of genius is no longer obliged to shelter himself behind any other authority than that of his conscience; he need no longer style himself the envoy of God, or justify his inspiration by claiming for it a heavenly origin; he asserts as a natural law that he possesses a power over his fellow-men, which no one can prevent him from exercising. No man who has anything to say has any further need of investiture in order to speak; he need consult no counselors but his conscience and his heart. Public opinion is become a sort of throne constantly offered to the usurpation of human genius. But three centuries have elapsed since this grand movement began, and it has within this short space of time remodeled everything—manners, government, laws, the sciences, interests. It has put man in possession of himself by revealing to him the true idea of humanity; it has reduced government to merely the first of social functions; it has changed the nature of laws, and from decrees imposed by a mystic authority has made them obligations voluntarily assented to.

—The culminating period of this grand movement was, as is well known, the eighteenth century. It was then that, for the first time in all the states of Europe, simple individuals were seen setting themselves up as censors of established laws and institutions, and presenting themselves to the people as the true representatives of moral authority, justice and reason. The astonishing feature in this, and what at the same time serves to show the progress made since the renaissance, is, that these pretensions did not shock or astonish any one. It seemed perfectly natural that Voltaire, Montesquieu and Rousseau should argue against the official representatives of the church and the state. Princes listened with docility to the teachings of philosophers, and in order to satisfy their wishes, themselves undertook to overturn the ancient institutions of their states. In Spain, Portugal, Tuscany, Naples, France and Austria, statesmen and princes governed in accordance with the principles which had lately come into favor, with the opinions of philosophers, and in such a manner as gained for them the applause and congratulations of these new kings, whose mere ministers and agents they were for more than fifty years. The end of this great literary and philosophic movement is well known; the event which was its final result is known by the memorable and terrible name of the French revolution.

—To sum up, we may say that modern civilization, taken in its entirety, is the offspring of literature, for literature was the principal cause of the three great events which transformed the whole face of European society: the renaissance, the reformation, and the French revolution. Of these three events, two are the legitimate and immediate offspring of literature, the renaissance and the French revolution. The third, the reformation, had another parentage, and was only the adopted child of literature, but we may say that, without this adoption, the child could never have lived. Besides these three great facts, I see but one other, though it is quite an important one, it is true, and runs through the entire political history of the last three centuries: it is the substitution of the monarchical for the feudal form of government. This great fact, whose origin dates much farther back than the sixteenth century, is not, it is true, the offspring of literature, but literature, however, aided it with all its power, and was its most faithful ally. The most zealous partisans of monarchy, the wisest counselors of royalty, are to be found among the men most intimately connected with the renaissance. Thus, even facts, which do not result directly from the influence of literature, still owe their destiny and fortune in part to this influence, and consequently we may say that the political history of modern times is merely their literary history transformed and enlarged.

EMILE MONTÉGUT.

LOBBY

LOBBY—literally, a covered passage or waiting-room—is in politics applied to the passages, or ante-rooms, surrounding a hall of legislation. Hence, by metonymy, the word has come to mean the men who frequent such places to influence legislatures or their members in the interest of certain measures. This application of the word lobby is almost wholly American. The word itself is ancient, and defined in Bullokar's "Eng. Expositor," 1616, as "a gallery." In England, the lobby of the house of commons is the passage immediately outside the hall, into which the members retire on either side of the house to vote on a division. The ayes go on out first, being counted as they pass into the lobby but no record of individual votes is kept, as is the practice in American legislatures. In a speech by Col. Titus on the exclusion bill in parliament Jan. 7, 1681, he said, "to trust expedients will such a king on the throne would be just as wise as if there were a lion in the lobby, and we should vote to let him in and chain him, instead of fastening the door to keep him out." This is paraphrased by Bramston in the oft-quoted lines:

"But Titus said, with his uncommon sense,
When the exclusion bill was in suspense:
'I hear a lion in the lobby roar:
Say, Mr. Speaker, shall we shut the door
And keep him there, or shall we let him in,
To try if we can turn him out again?'"

—British political history is sufficiently full of examples of lobby influence. In Queen Elizabeth's time a speaker of the house of commons, Sir John Trevor, was bribed by rich merchants to exert his influence in parliament in behalf of certain favors to the municipality of London. It was Sir Robert Walpole who originated the axiom, "Every man has his price." In the memorable railway excitement in England, thirty years ago, the railway lobby, by their combinations and cunning employment of the tide of public opinion, wielded a formidable power in parliament. Railway directors openly boasted of the number of votes they could command in the house of commons. Opposition lines were gotten up mainly to be bought off. Many instances are recorded of railway bills costing from £80,000 to £450,000 to get passed. It was these and other scandals which led to the adoption of the present stringent rule of the house of commons, which provides that every private bill or petition must be in charge of some known and recognized parliamentary agent. No person is allowed to act as a parliamentary agent without subscribing an obligation to observe and obey the rules and orders of the house of commons. He must give a bond in the sum of £500, and be registered, besides having a certificate of his respectability from a member of parliament or member of the bar. Any parliamentary agent who misconducts himself in prosecuting any claim or proceeding before parliament is suspended or prohibited by the speaker from practicing. No written or printed statement is permitted to be circulated in the house of commons without the name of a parliamentary agent attached, who will hold himself responsible for its accuracy.

—While there is no reason to doubt that what is known as the lobby has existed in one or another form in the legislative history of all free governments, it is certain that the organization and the power of this indefinite influence in political life has often been grossly exaggerated. In times of partisan excitement, when the advocates and opponents of any measure before the legislative body are full of zeal, wild stories are spread abroad through the press, connecting the names of public men with allegations of bribery and corruption. These stories are in the majority of cases utterly unfounded, and yet are as industriously circulated, to meet a real or fancied public appetite for scandal, as if there were no law of libel in existence. Probably there is no public man of any notoriety in our political history who has not at some time been charged with acting or voting under the influence of the lobby.

—What is known as lobbying by no means implies in all cases the use of money to affect legislation. This corruption is frequently wholly absent in cases where the lobby is most industrious, numerous, persistent and successful. A measure which it is desired to pass into law, for the benefit of certain interests represented, may be urged upon members of the legislative body in every form of influence except the pecuniary one. By casual interviews, by informal conversation, by formal presentation of facts and arguments, by printed appeals in pamphlet form, by newspaper communications and leading articles, by personal introductions from or through men of supposed influence, by dinners, receptions and other entertainments, by the arts of social life, and the charms of feminine attraction, the public man is beset to look favorably upon the measure which interested parties seek to have enacted. It continually happens that new measures or modifications of old ones are agitated in which vast pecuniary interests are involved. The power of the law, which when faithfully administered is supreme, may make or unmake the fortunes of innumerable corporations, business firms or individuals. Changes in the tariff duties, in the internal revenue taxes, in the banking system, in the mining statutes, in the land laws, in the extension of patents, in the increase of pensions, in the regulation of mail contracts, in the currency of the country, or proposed appropriations for steamship subsidies, for railway legislation, for war damages, and for experiments in multitudes of other fields of legislation equally or more important, come before congress. It is inevitable that each class of interests liable to be affected should seek its own advantage in the result. When this is done legitimately, by presentation and proof of facts, by testimony, by arguments, by printed or personal appeals to the reason and sense of justice of members, there can be no objection to it. What the legislator most needs is light upon every subject that can come before him; and whatever contributes to his knowledge of the numerous and complicated subjects with which he has to deal, and of which he must often be profoundly ignorant, is of value. The only danger to the legislator lies in hearing only ex parte evidence, or in giving credence to the too zealous representations of interested parties, while neglecting to inform himself of the facts upon the other side.

—It may be said that there are two well-defined classes of lobbyists. The first consists of that great, selfish, unorganized, greedy and rapacious class, known as "strikers," who are ever ready to trade upon the necessities of claimants, or the fears and hopes of the ignorant, to barter a pretended control of votes for money, and to charge a high price for influence which they do not possess. These men are the harpies and vultures of politics, whose frauds and impudent pretensions have often needlessly involved, not only the legislative body, but all who have sought to be heard before it, in public opprobrium. Men capable of bribing others are always ready themselves to be bribed. The genuine political striker will take anybody's money, whether it is earned or not. If the matter which he professes to be able to carry fails, as it generally does, he hides his own malfeasance under the cry of corruption, raised against other men who have defeated him. Pretending to deal in the votes of members to whom he is not even known, he lures on the ignorant or unwary seeker after "influence," till he has gobbled his profit, sometimes doing a large and lucrative business on fictitious capital, while his real stock in trade consists only in unfaltering impudence and a colossal power of lying.

—The other class of lobbyists are of quite another order. They pride themselves upon being men of honor, superior to the petty arts, chicaneries and falsehoods employed by other men. Their endeavors to influence legislation are open and above-board. They seek to organize a public opinion favorable to their measures, by the industrious collection and publication of facts, the distribution of documents, and the taking of testimony before committees. Their eminent respectability secures for them the acquaintance and often the familiar confidence of legislators. Reputable men in every department of life frequently endeavor to influence legislation, even in matters in which they have no pecuniary interest whatever. That such men should be called "lobbyists," or that their presentation of facts and arguments to members of the legislative body should be stigmatized as lobbying, in an invidious sense, would be palpably unjust. Equally unjust would it be to charge a whole legislature with corruption, because individuals have been bribed, or because (as is more frequent) a herd of importunate suitors dog their footsteps in their daily walks, to promote selfish and private interests.

—Much has been said and written concerning the Washington lobby, and the existence of a powerful organized body has been assumed as successfully endeavoring to control our national legislation. Numerous as are the men whose casual employment may justify the application to them of the term lobbyist, the power and influence of the congressional lobby has been greatly overrated. Congress is not a body of venal reprobates ready to be corrupted, but a body fairly representing the average intelligence and morality of the people. Bad legislation, of which we have more than enough, is the fruit of ignorance, not of corruption. It is a notable fact that no lobby scheme can be successful unless supported by a strong outside public sentiment. The press has vastly more power than the lobby, and when controlled in the interest of designing men, it is far more to be feared. Yet lobbying in the interest of private schemes of gain has always existed, and will always exist, while human nature remains what it is. There is no such thing as one organized lobby, but every session of congress witnesses many separate and unorganized attempts to influence legislation, sometimes by individuals, sometimes by associated action. Thus, we have the lobbyist with private claims in charge, whether his own or those of other men. We have pension lobbyists, tariff lobbyists, steamship subsidy lobbyists, railroad lobbyists, Indian ring lobbyists, patent lobbyists, river and harbor lobbyists, mining lobbyists, bank lobbyists, mail contract lobbyists, war-damages lobbyists, back-pay and bounty lobbyists, isthmus canal lobbyists, public building lobbyists, state claims lobbyists, cotton tax lobbyists, and French spoliations lobbyists. Of the office-seeking lobbyists at Washington it may be said that their name is legion. There are even artist lobbyists, bent upon wheedling congress into buying bad paintings and worse sculptures, and too frequently with success. At times in our history there has been a British lobby, with the most genteel accompaniments, devoted to watching legislation affecting the great importing and shipping interests. We have even had a French lobby, more than once, since M. Genet undertook to influence American opinion against the neutrality policy of Washington in 1793. There was what was called a Danish lobby in 1868, having as an objective point Mr. Seward's treaty for the purchase of Denmark's West Indies: but no money was used, save for writing and printing, as all concerned had the sense to perceive that money must fail to secure the enactment of any measure distasteful to congress or unpopular with the people. A little farther back, enormous stories were told of a Russian lobby; how that only $5,000,000 out of the $7,200,000 paid for the purchase of Alaska ever reached Russia. The facts were, that not a dollar was paid to a congressman, but $27,000 was invested in skillful attorneys, and $3,000 paid to one Washington newspaper, while the $2,170,000 was expended by the Russian minister, under instructions from his government, in munitions of war and machinery. In the case of President Johnson's trial by impeachment, in 1868, there was an extensive lobby operating back and forth between Washington and New York, and early knowledge of the unexpected acquittal was traded upon by men outside of congress, but the managers found no evidence whatever that any senator received money for his vote. During the Kansas excitement, in Buchanan's administration, there were two powerful lobbies which struck hands to put two distasteful measures through congress: the Lecompton constitution bill (an administration measure), and the Chaffee India-rubber extension patent, which kept a band of lobbyists in pay at Washington for two years. Both measures failed, though more than $100,000 was spent, and the testimony before the Covode committee of investigation failed to show corruption in a single member of congress. In the case of the Pacific mail steamship subsidy lobby, in 1872, more than $800,000 was expended, of which $300,000 went to an ex-congressman, and remained entirely unaccounted for, and the remainder was divided among lobbyists, journalists and obscure employés for supposed influence in the house or senate. The subsidy, which was passed, was for the annual sum of $500,000, but the grant was repealed two years later, and the ways and means committee reported, on investigation, that no money was found to have been paid to any member of congress. In the Crédit Mobilier scandal of 1868 there was no lobby, but a member of congress sold to a few fellow-members the stock of a railway construction company paying large dividends, on the plea that he "wanted to place the stock where it would do the most good," meaning to the Union Pacific railroad, a beneficiary of congress, in which he was himself largely interested. Resolutions of censure were adopted by the house in this case.

—The earliest instance of lobbying in the history of congress was the case of Robert Randall, in 1795, who combined with Whitney and others to procure from congress a grant of western lands to the amount of twenty million acres, for a merely nominal sum. Four representatives were approached and offered shares in the ring if they would favor the scheme. One member was offered money in hand. Randall claimed to have secured thirty or forty members of the house and a majority of the senate, but subsequently admitted the utter falsity of this pretension. Before the bill was offered he was exposed, through the members whom he had approached, arrested by order of the house, reprimanded by the speaker, and discharged after two weeks imprisonment.

—The case of John Anderson, in 1818, was an offer of $500 to the chairman of the committee on claims, "for extra trouble in making a report." The offer was in writing, and was immediately laid before the house by the member, with a motion for the arrest of the culprit, who was imprisoned and publicly reprimanded at the bar of the house. The cases of O. B. Matteson and W. A. Gilbert, congressmen from New York in 1857, were instances of corrupt lobbying on a large scale. The report of a committee of the house, by Henry Winter Davis, chairman, declared Gilbert to have cast his vote on the Iowa land bill for a corrupt consideration, consisting of seven square miles of land and some stock given to him. It also charged him with agreement to procure the passage of a resolution for purchase by congress of certain books, on condition that he should receive a certain sum out of the appropriation. Matteson was proven to have incited parties interested in the Des Moines land grant to use a large sum of money and interest in railroad stock corruptly, to procure the passage of the grant through the house. After long and acrimonious debate, during which J. W. Simonton, a journalist, was imprisoned for refusing to disclose the names of corruptible members, resolutions to expel both Matteson and Gilbert were reported and would have passed, but both members forestalled the vote by resigning their seats.

—There is no lack of legal penalties to deter lobbyists from making corrupt approaches to members of congress. By section 5450 of the revised statutes, every person who promises, gives, or procures to be offered, any money or value to any member with intent to influence his vote or decision on any matter pending in congress, shall be punished by fine, and imprisonment not exceeding three years. The same penalties are provided for any member of congress who asks or receives any valuable consideration to influence his vote or decision on any matter of legislation; to which is added forfeiture of his office as a member, and permanent disqualification to hold any office of honor, trust or profit under the United States. The true remedy, however, and the only safeguard against the corruptions of the lobby, is to elect to congress none but tried and approved citizens, who have shown themselves worthy of the confidence of the public. (See LEGISLATION.)

A. R. SPOFFORD.

LOCAL TAXATION

LOCAL TAXATION. (See TAXATION, NATIONAL AND LOCAL.)

LOCO-FOCO

LOCO-FOCO (in U. S. HISTORY), the radical faction, 1835-7, of the democratic party, properly of New York, though the name was afterward made national.

—The early system of bank charters in New York, without any general law, but by special legislation for each case, gave wide room for favoritism, partisanship and open fraud. In 1798-1800 there were but three banks in the state, at Albany, Hudson and New York city, and the latter was entirely controlled by the federalists, who, it was alleged, refused to accommodate their political opponents. Burr contrived to secure from the legislature in 1799 an act "for supplying the city of New York with pure and wholesome water," one clause of which authorized the company to employ its surplus capital "in any way not inconsistent with the laws and constitution of the United States, or of the state of New York." Under this innocent provision a democratic bank was afterward established. As soon as the democrats gained control of the state, in 1800-1, they, in their turn, chartered party banks; and open corruption in the grant of charters went so far that in 1812 the governor prorogued the legislature from March 27 until May 21, in order to prevent the open purchase of the charter of the bank of America from the legislature. In 1821 the new constitution of the state required a two-thirds vote of both houses to charter a moneyed institution; but this, by increasing the amount of purchase necessary, made the grant of new charters in 1825 still more scandalous. All the difficulty was due to the vicious principle of incorporating companies by special legislation.

—In 1834-5, when it had become apparent that the bank of the United States would not be rechartered (see BANK CONTROVERSIES, III.), a mania for new banks in New York revived the former scandals; and the opposition which should have been confined to the system of incorporation was at first extended to the corporations themselves. Through the summer of 1835 an organization was effected of democrats in New York city opposed to the banks: their original demand was that no special privileges should be given by charter to any corporation, and they assumed the name of the "equal rights party." October 29, 1835, at a meeting called at Tammany hall to act on the report of their nominating committee, the regular or Tammany democrats attempted to seize control of it, entering by the back stairs as the equal rights men came up the front. Both parties tumultuously elected chairmen; but the Tammany men, finding their opponents too strong for them, turned out the gas and retired. The equal rights men instantly produced candles and "loco-foco" matches, relighted the hall temporarily, and concluded their work. From this circumstance the whig and the regular democratic newspapers invented the nickname of the loco-foco party, which clung to the new faction, and afterward to the whole democratic party, for some ten years.

—In January, 1836, the loco-foco county convention adopted a platform, or "declaration of rights"; it declared that the rightful scope of legislation was only to declare and enforce the natural rights of individuals, that no legislature had the right to exempt corporations, by charter, from trial by jury or from the operation of any law, or to grant them special privileges; that charters were subject to repeal; and that paper money in any form was a vicious circulating medium. The party was steadily beaten in city elections, but its vote increased so far that in September, 1836, it held a state convention at Utica, and nominated candidates for governor and lieutenant governor. These were also defeated, but the party's vote showed no signs of a falling off, and in September, 1837, another convention was held at Utica. This body framed and proposed for general discussion a new constitution for the state, one of whose features was an elective judiciary.

—President Van Buren's message, Sept. 4, 1837, at the opening of the "panic session," brought the loco-foco element back to its original party, for, as Hammond exactly states the case, "if it did not place the president in an attitude of war against the banks, it placed the banks in a belligerent attitude against him." The message, in its condemnation of the employment of corporations for purposes which might be obtained by private association, in its opinion in favor of gold and silver as the only government money, and in its declaration that the government revenues ought not to be deposited in state banks, enabled the loco-focos to regard Van Buren as their own leader. They were already prepared to do so by the course of some of the whigs in accepting loco-foco nominations, but acting with the whigs when elected. From this time they were a part of the democratic party, but their continuing influence was apparent, 1, in the passage of the safety fund banking law of April 13, 1838 (see NEW YORK, under BANKING), and 2, in the state constitution of 1846, with its elective judiciary, and its prohibition of bank charters, except by general laws. But from 1837 until the slavery question began to take shape, in 1846-7, the whig speakers and journals were careful to give the name loco-foco to the national party of their opponents, as if to imply their general opposition to the moneyed interests of the country, and to transfer to them the general charges of agrarianism, "Fanny Wright-ism," and revolutionary designs which had at first been leveled at the loco-focos by both the regular democrats and the whigs. (See BANK CONTROVERSIES; INDEPENDENT TREASURY; VAN BUREN, MARTIN; DEMOCRATIC PARTY, IV.)

—See 2 Hammond's Political History of New York, 489; Byrdsell's History of the Loco-Foco, or Equal Rights, Party; 2 von Holst's United States, 396; Jenkins' Governors of New York, 591; 2 Statesman's Manual (edit. 1849), 1058 (the anti-bank portion of Van Buren's message).

ALEXANDER JOHNSTON.

LOG ROLLING

LOG ROLLING. (See PARLIAMENTARY LAW.)

LOOSE CONSTRUCTION

LOOSE CONSTRUCTION. (See CONSTRUCTION.)

LOTTERY

LOTTERY is a game of chance whose origin dates back to the time of ancient Rome. Contrived first as a means of amusement for the people, it was gradually introduced into their customs, then into their laws; individuals used it as a means of speculation, governments as a fiscal resource; and lotteries figure even to-day in the budget of a great many states.

—The lotteries organized under the Roman emperors after the manner of those which date from the saturnalia, belong to the system of largesses and amusements by which Augustus and his successors controlled the people of Rome. They were the complement of the representations of the circus, and constituted one of the expenses to be paid from the public treasury. From Rome the use of lotteries extended to the cities of Italy and into distant colonies. The eagerness with which the passion for play responded to this at first innocent appeal, suggested to speculators the idea of establishing lotteries on their own account, trusting to the popular cupidity for their support. Thus lotteries outlived the Roman empire and multiplied in Italy, especially in Venice, Genoa and Pisa, where commerce had, in the middle ages, accumulated great wealth, developed luxury, and cultivated an over-great love for gain.

—Lotteries were imported from Italy into France and Germany in the sixteenth century. The instance is cited of a lottery authorized by Francis I. in 1539, to help to defray the expenses of war. Under the following reigns, parliament endeavored to resist them, by addressing remonstrances to the sovereigns, and refusing to record the letters patent which authorized private lotteries. But Mazarin carefully refrained from forbidding the amusement of gaming. The lottery was therefore in great favor in the time of Louis XIII. Finally, under Louis XIV. it was definitely adopted and sanctioned by an edict in the year 1700. "His majesty having noticed the natural inclination of his subjects to risk their money in private lotteries, * * and desiring to afford them an agreeable and easy means of procuring for themselves a sure and considerable revenue for the remainder of their lives, and even of enriching their families, by risking sums so small that they can not cause them any inconvenience, has judged it opportune to establish at the Hótel de Ville at Paris a royal lottery, with prizes to the amount of ten million francs." France was then involved in negotiations concerning the Spanish succession; it was necessary to prepare for new wars and to husband the country's resources which could not be increased in the way of regular taxes already completely drained by the lamentable expedients of the minister Pontchartrain. It was not, therefore, to gratify the natural inclination of his subjects that Louis XIV. established a lottery, it was merely an expedient of the depleted treasury; and it is amusing to observe with what arguments, as false as they are contemptible, the absolute monarch endeavors to justify the edict of 1700.

—After this kind of approval, how could private lotteries, which pretended, after the example of the royal lottery, to offer to good fathers of families an agreeable and easy means of enriching their children, be forbidden? Speculators set vigorously to work, and lotteries were multiplied under every pretext, sometimes for the erection of buildings of public utility, sometimes for the endowment of pious foundations or for the erection of churches. The church of St. Sulpice, in Paris, was built in part from the proceeds of a lottery. This manner of investing money "by intrusting it to chance" had become so popular that it was with the greatest difficulty the government resisted the temptation to establish lotteries itself. If honest Turgot refused to introduce this new item of revenue into his financial plan, his successor Clugny was less scrupulous, and, June 30, 1776, the royal lottery was created, to replace all private lotteries. The state thus assumed the privilege of allowing tax payers to play; a privilege as productive for the state as it was ruinous for the people, for it is estimated that during the last years of the reign of Louis XIV. it brought into the treasury a revenue of from ten to twelve millions.

—By a law of the 22d brumaire of the year II. of the republic (Nov. 12, 1793), the convention abolished the lottery of France "as an invention of despotism to make men silent about their misery, by enticing them on with a hope which aggravates their distress." This suppression lasted but a short time. Four months later a law of the 29th germinal of the year II. (April 18, 1794) established the lottery of the Biens Nationaux, and finally, by a decree of the 9th vendémiatre of the year VI. (Oct. 1, 1797), the directory re-established the lottery on its ancient basis. Governments are like individuals: the want of money demoralizes them. The lottery offered a revenue so sure and convenient that the republicans of the convention, who had exhausted their fiscal resources, began to repent of the laudable inspiration that had induced them to renounce it, and it was again given a place on the budget, of which it was finally deprived only by the law of April 21, 1832, which was promulgated by the government of July. In virtue of this law the royal lottery was suppressed from Jan. 1, 1836, and the same year (1836) a second law, under date of May 21, prohibited private lotteries, which were already beginning to succeed to the inheritance left vacant by the recent suppression of the royal lottery, and which would doubtless have continued much more relentlessly the work of demoralization of which the state would no longer accept either the responsibility or the profits. Lotteries of personal property, the products of which were to be applied to works of charity or to the encouragement of the arts, were excepted from the operation of this law, though subjected to various conditions enumerated later on in the ordinance of May 29, 1844.

—Lotteries were interdicted in England by a statute enacted during the reign of George II., and suppressed in Belgium in 1830, but were maintained in most of the countries of Germany, in Holland, Spain and Italy. But, in the course of the discussions which the French legislation provoked, discussions which, as we have already seen, ended in prohibition, we may say that this tax (for it was a tax, and the lottery appears in the budgets under this title) was condemned in principle, and that it will, sooner or later, disappear from all the countries where it still exists—"The legislators who sanction such a tax," says J. B. Say, "vote a certain number of thefts and suicides every year: there is no pretext of expense that can justify provocation to crime." This anathema so energetically pronounced in the name of political economy, is but the echo of moral sentiment. The lottery is nothing else than a gambling house. Now, would any one believe that the state could become the partner of gamblers, hold the dice or the cards, and incite the passions which rage around the gaming table! It is useless to discuss such a question. Every sort of governmental lottery should be absolutely proscribed.

—But if it is not lawful for the state itself to engage in lotteries, can it interfere in the carrying on of lotteries organized outside of itself for private speculation? Has it here a right to exercise, a duty to perform; or is it, rather, bound to respect the principle of liberty, by abstaining from all interference in the matter, and allowing every one the privilege to act according to his passion or interest? We do not hesitate to declare that liberty does not seem to use to have anything to do in the matter. In the first place, it is a question of moral interest. Now, the principle of liberty ought to be subordinate to the moral law, which rules and inspires all laws. If it be evident that the lottery is an incitement to one of the worst passions which sway the heart of man, that it encourages base cupidity, and is calculated to provoke public scandal, the legislature naturally interferes, and it would fail of its duty if it did not exercise the right it possesses to prevent and repress evil. From an economic point of view it is equally proper to proscribe a business based upon chance, in which wealth, when acquired, is not the fruit of any labor, is acquired only by another's ruin, and is incapable of creating anything. Finally, if considered politically, it should not leave open a school of demoralization, which attracts particularly the poorer classes, and which most frequently deceives their credulity and covetousness, encourages in them only the worst instincts, and embitters their poverty with despair. We do not know whether lotteries have ever served to amuse the people; but they certainly corrupt them.

—To sum up, lotteries under whatever form, whether governmental or private, are blamable and should be forbidden. England, France and Belgium have acted wisely in proscribing them, and it is to be hoped their example will be followed by those countries in which the lottery, retained for fiscal reasons, still resists the reprobation in which it is held. The legislature should not, under any circumstances, recognize or sanction the triumph of chance.

C. LAVOLLÉE.

LOUISIANA

LOUISIANA, a state of the American Union, formed from territory ceded by France. (See ANNEXATIONS, I.) By the act of March 26, 1804, all that part of the French cession south of Mississippi territory, and of north latitude 33°, was organized as Orleans territory. The rest of the cession was organized under the name of Louisiana territory, changed subsequently to Missouri territory. (See MISSOURI.) The inhabitants of Orleans territory were authorized to form a state government, by the enabling act of Feb. 20, 1811; and under its first constitution the state of Louisiana was admitted, April 8, 1812. It is curious that the words "slave" and "slavery" are not used directly or by implication, unless the use of the phrase "free white male" may be so considered, in any state constitution until that of 1864, which prohibited slavery. Slavery existed in the state, not by its own organic law, but by the territorial act of congress of 1804, which permitted bona fide immigrants into the territory to take their slaves with them. (See SLAVERY.)

—BOUNDARIES. The enabling act fixed the following boundaries, which were accepted by the first constitution: Beginning at the mouth of the river Sabine; thence up the middle of the Sabine, including islands, to north latitude 32°; thence due north to north latitude 33°; thence due east to the Mississippi; thence down the Mississippi to the river Iberville; thence along the middle of the Iberville and lakes Maurepas and Pontchartrain to the gulf of Mexico; and thence to the place of beginning; including all islands within three leagues of the coast. By a supplementary act of April 14, 1812, the following territory was added to the state: Beginning at the junction of the Iberville and the Mississippi; thence along the middle of the Iberville, the river Amite, and lakes Maurepas and Pontchartrain to the eastern mouth of the Pearl river; up this river to north latitude 31°; thence due west to the Mississippi, and down the Mississippi to the place of beginning.

—CONSTITUTIONS. 1. The first constitution was framed by a convention at New Orleans, Nov. 4, 1811 - Jan. 22, 1812. It gave the right of suffrage to adult white male tax payers on one year's residence. Representatives were to hold office for two years, and to be possessed of $500 in land; senators to hold office for four years, and to be possessed of $1,000 in land; and the governor to hold office for four years, and to be possessed of $5,000 in land. The governor was to be chosen by the legislature from the two highest candidates in a popular election. New Orleans was made the capital. 2. The second constitution was framed by a convention at Jackson and New Orleans, Aug. 5-24, 1844, and Jan. 14 - May 16, 1845, ratified by popular vote Nov. 5, 1845. Its main object was to restrict the legislature in chartering corporations, and to prohibit state aid to corporations. Its further changes were the omission of the property qualifications for office; the lengthening of the suffrage residence to two years; the choice of the governor by popular vote, with a choice reserved to the legislature in case of a tie; and the location of the capital at New Orleans until the close of the year 1848, and thereafter at some place to be fixed by the legislature, not less than sixty miles from New Orleans, whence it was not to be removed but by a four-fifths vote of both houses. Baton Rouge was the point chosen by the legislature. 3. The third constitution was framed by a convention at Baton Rouge, July 5-31, 1852, and ratified by popular vote Nov. 1, 1852. Its main objects were to secure an elective judiciary for short terms, and to empower the legislature to grant state aid to corporations for internal improvements to the extent of one-fifth of the paid-up capital. Baton Rouge was to remain the seat of government. 4 Jan. 26, 1861, a state convention at New Orleans passed an ordinance of secession, which it refused to submit to popular vote. In the same manner it ratified the constitution of the confederate states, and substituted that title for "United States" in the constitution. 5. The fourth constitution was framed by a state convention at New Orleans, April 6 - July 23, 1864, and ratified by a small popular vote Sept. 5. It for the first time mentioned slavery in the state, for the purpose of abolishing it. There was no limitation, except for crime, on white adult male suffrage. The capital was fixed at New Orleans. This constitution remained in force in the state until March, 1867, but was not recognized by congress. 6. The fifth constitution was framed by a convention at New Orleans, Nov. 23, 1867 - March 9, 1868, and ratified by popular vote Aug. 17-18. It prohibited slavery; declared the ordinance of secession null and void; declared all citizens of the United States to be citizens of the state, and their paramount allegiance to be due to the United States; and gave the right of suffrage to all adult male citizens on one year's residence but the disfranchisement of ex-rebels was most searching and vindictive, including even those who had written newspaper articles or preached sermons in favor of the rebellion: these were neither to vote nor to hold office until they had filed with the secretary of state and published in the official journal a certificate that they "acknowledged the late rebellion to have been morally and politically wrong, and that they regretted any aid and comfort they may have given it." A committee of seven was appointed as a returning board. New Orleans continued to be the capital. 7. The sixth constitution was framed by a convention at New Orleans, April 21 - July 23, 1879. It made adult male suffrage universal, and prohibited any legislative qualification for suffrage or office. The state capital was removed to Baton Rouge—GOVERNORS: Wm. C. C. Claiborne (1812-16); Jas. Villare (1816-20); Thos. B. Robertson (1820-24); Henry Johnson (1824-8); Peter Derbigney (1828-30); Andre B. Roman (1830-34), Edward D. White (1834-8); Andre B. Roman (1838-42); Alexander Mouton (1842-6); Isaac Johnson (1846-50); Joseph Walker (1850-54), Paul O. Hebert (1854-8); R. C. Wickliffe (1858-60); Thomas O. Moore (1860-64); James Madison Wells (1864-7); B. F. Flanders (military governor, 1867-8); Henry C. Warmoth (June 25, 1868-73); Wm. Pitt Kellogg (1873-7); Francis T. Nicholls (1877-81); Louis A. Wiltz (1881-5).

—POLITICAL HISTORY. For the first twenty years of her existence as a state, Louisiana was nominally democratic; her governors belonged to that party, as well as her senators and representatives, though several of them were afterward whigs. The diversity of interests of the French and American citizens, however, formed the more usual dividing line of politics in the state. The former were at least a strong minority, and a singular evidence of its strength was a provision in the constitution which allowed members of the legislature to debate either in French or in English. The organization of the whig party, one of whose tenets was a protective tariff (see WHIG PARTY), changed the course of Louisiana, and from 1830 until 1850 the state, although not steadily whig, was the most nearly so of the southern states, except Maryland and Kentucky. Its electoral vote was given to Harrison and Taylor, the whig candidates, in 1840 and 1848; in 1844 the state was only carried for Polk, the democratic candidate, by unblushing frauds in Plaquemines parish; and in 1836, 1852 and 1856 the democratic majority in the state was under 2 per cent. of the total vote. From 1833 until 1855 the state congressional delegation was never entirely without a whig representative, and Senator Benjamin, who was elected as a whig, held his seat until his state seceded. The strong whig element in the state was the result of its large sugar planting interest, which desired protection against foreign sugars, and could not hope for it from the democratic party.

—In presidential elections the whig vote of the state was hardly decreased until the downfall of the party; in congressional elections the democrats steadily gained after 1850, as slavery became the controlling question in national politics. One New Orleans district continued to send a whig representative while there were whigs to vote for, and then sent an "American" representative, who kept his seat until March 3, 1861, after his state had seceded. Throughout the state the American party took the place of the whig organization after 1855, but with a much smaller vote; and in 1860 the state was practically unanimous for secession.

—After the capture of New Orleans by the United States forces, April 25, 1862, the former state government was transferred to Opelousas. From that point it controlled the larger part of the state during the war. June 2, 1865, the new governor under the old régime, Allen, issued a proclamation declaring his administration at an end.

—In August, 1862, Major General George F. Shepley was appointed military governor, a provisional judiciary was organized by the president's order, and a substitute for a state government was set in motion; but its authority never extended far beyond the immediate neighborhood of New Orleans. Two members of congress were elected, admitted, and held their seats Feb. 9 - March 3, 1863. Under a proclamation of the president, Dec. 8, 1863, an election for state officers was held Feb. 22, 1864, and Michael Hahn was elected governor. March 15, 1864, he was also appointed military governor by the president. A new constitution, the fourth above mentioned, was framed in 1864, under which J. M. Wells was elected governor and was inaugurated March 4, 1865. In November of the same year, apparently with the intention of introducing the late confederate portion of the state to the new constitution, he ordered a new election for state officers, at which he was again elected as the democratic candidate. Although this government was never recognized by congress, it controlled state affairs until March, 1867. The blacks, who were still disfranchised under this constitution, were much dissatisfied with it, and an attempt made by their leaders to reconvene the convention of 1864 at New Orleans for the purpose of framing a new constitution, or of revising the old one, resulted in the riot of July 30, 1866, in which several hundred negroes were killed or wounded.

—In March, 1867, Louisiana, like the other insurrectionary states, passed under military government. (See RECONSTRUCTION.) Its succession of major generals commanding was as follows: Philip H. Sheridan, March 19 - Aug. 17, 1867; Winfield S. Hancock, Aug. 26, 1867 - March 18, 1868; R. C. Buchanan, March 20 - June 25, 1868. On Sheridan's recommendation, Wells was removed from his position as governor, and Benj. F. Flanders was appointed in his stead. Under the auspices of these officials the reconstruction of the state was completed, the fifth constitution, as above given, was framed, Henry C. Warmoth was elected governor, and the state was readmitted June 25, 1868.

—For a time the republican majority in the state was undisturbed, though the first legislature had to call upon the federal government for troops. (See INSURRECTION, II.) In July, 1871, the republican party fell apart. One faction, headed by Warmoth and P. B. S. Pinchback, held the state books and records, and was supported by the "metropolitan police," a New Orleans body of men, which the governor was at liberty to use throughout the state. The other faction was led by W. P. Kellogg, F. F. Casey, collector of the port, and S. B. Packard, the United States marshal for the district; and the latter two obtained control of the party organization by holding its conventions in the custom house building, guarding it with federal soldiers, and refusing tickets of admission to the Warmoth delegates. Most of the succeeding difficulties, which soon entirely banished truth, honor and decency from Louisiana politics, seem to have flowed from this action of Casey and Packard, in prostituting the federal buildings to party use in order to compel the federal government, by defending its own property, to defend them; but the federal government, which refused to remove them from office, must take its share of the responsibility.

—Early in January, 1872, the members of the two factions in the legislature had split into two legislatures, the Warmoth body meeting in the Mechanics' Institute, and the other at first in Packard's office, and afterward in the "Gem saloon." Open conflict between them was prevented by the federal troops, and the struggle turned toward the control of the state's returning board, and the consequent control of the next legislature. (See RETURNING BOARDS.) The returning board, as constituted in 1870, was composed of the governor, the lieutenant governor, the secretary of state, and two citizens appointed by name. The governor made removals of state officials and appointments of his friends to their places, in order to secure a majority of the omnipotent returning board; the ousted officials, protesting against the legality of their removal, still claimed to be members of the board; and when each set had formally filled the "vacancies" caused by refusal to act with it, the identity of the body was obviously unascertainable. Two returning boards made their appearance, the Warmoth board and the Lynch board, alike in having the governor as a member and in claiming to be the only real board, but different in all other respects.

—After a great number of conventions had been held by various factions, the state tickets were at last narrowed down, in August, 1872, to two: one, beaded by McEnery and D. B. Penn, for governor and lieutenant governor, supported by the democrats and liberal (or Warmoth) republicans; the other, headed by Kellogg and Pinchback (who had lately abandoned Warmoth), supported by the Packard (or custom house) republicans. The formal voting took place Nov. 4, and then the real struggle began. The McEnery party, through a state judge, obtained an injunction forbidding the Lynch board to canvass the votes; but their opponents had a more potent ally in the person of the federal district judge, Durell, who not only temporarily enjoined the Warmoth board, Nov. 16, from counting the votes, but afterward committed his rival, the state judge, to jail for contempt.

—The governor now complicated the case by introducing a third returning board upon the scene. The state constitution of 1868 allows the governor to hold, until the next session of the legislature, bills whose return by him to the legislature within five days has been prevented by adjournment. A new election law had passed less than five days before adjournment, which provided for a returning board of five persons, "to be elected by the senate." Nov. 20, 1872, the governor at last signed the bill; then, since the senate was not in session to elect the members of the board, he appointed five persons, the so-called De Feriet board, to "fill the vacancies." Durell, Dec. 4, decided that he had jurisdiction under the enforcement laws, and made his injunction permanent. Dec. 5, the governor, abandoning the Warmoth board, issued a proclamation announcing the names of the new legislature as ascertained by the De Feriet board. Dec. 6, Durell issued an order, which declared the governor's proclamation to be a violation of his injunction, and directed the marshal, Packard, to seize the state house and prevent the meeting of any "unlawful assemblages." This Packard did, with the assistance of two companies of federal troops. In this place, the Packard legislature was organized Dec. 7; the McEnery legislature met in the city hall Dec. 9; and Jan. 14, 1873, Kellogg and McEnery were both inaugurated as governor.

—Two rival United States senators were elected, and the case thus came before the senate. Its committee reported that there was no government in Louisiana; that the McEnery government was most nearly a government de jure, and that the Kellogg government was most nearly a government de facto; and recommended the passage of a bill for a new election in the state. The bill failed to pass; congress adjourned without action; and the president recognized the Kellogg government, as he had informed congress, in a message of Feb. 25, he would do unless it acted in the matter. The senate committee's judgment on Durell's actions was as follows: "The orders and injunctions made and granted by Judge Durell are most reprehensible, erroneous in point of law, and wholly void for want of jurisdiction, and your committee must express their sorrow and humiliation that a judge of the United States should have proceeded in such flagrant disregard of his duty, and have so far overstepped the limits of federal jurisdiction."

—As congress had abandoned the case to the president, and the president had recognized the Kellogg government, the opponents of the latter at first contented themselves with an organized but peaceable resistance to the payment of taxes. The Kellogg legislature proceeded to enforce collection by use of the military and the contest rapidly developed into one of force, marked by such tragedies as those of Grant parish, in April, 1873, and Coushatta, in August 1874, in which the victims were almost invariably negroes. Nothing but the violent revulsion in the feelings of the north and west against such horrors enabled the federal government to continue its support of the Kellogg government. Sept. 14, 1874, the McEnery party rose in arms, wiped out for the time every vestige of the Kellogg government, and assumed control. Sept. 17 they surrendered without resistance to the federal forces, acting under instructions from Washington; and Sept. 20 the Kellogg government returned to life.

—The election in November, 1874, was accompanied by the usual republican charges against the democrats of violence in the election, and by the usual democratic charges of frauds by the returning board. Both parties, however, seemed to acquiesce in the results, which returned fifty democrats and fifty-two republicans to the lower house. The democrats, on the organization of the legislature, Jan. 4, 1875, seated their candidate for speaker in a hasty and disorderly fashion, and proceeded to seat several members whose election was contested. Thereupon Governor Kellogg sent for Gen. De Trobriand, commanding the federal troops in the city, who turned out the just seated members, and restored the house to the control of the republicans. In giving the essential facts of this affair, which caused intense excitement throughout the country, as a startling novelty in legislative organization, it should be mentioned that De Trobriand had just previously entered the hall once before, to keep the peace, at the summons of the democratic speaker.

—In March, 1875, congress, by resolution, approved the president's support of the Kellogg government; and in the following month the McEnery legislature agreed to a compromise proposed by a congressional investigating committee, the "Wheeler adjustment," so called from its contriver, Wm. A. Wheeler, afterward vice-president. Under this arrangement the committee seated a number of members whom the returning board had unseated; the democrats gained control of the lower house of the legislature; but the Kellogg government itself was not to be disturbed, but was to be "accorded all necessary and legitimate support in maintaining the laws." Under this compromise the state remained politically in peace until November, 1876, with one exception. In February, 1876, the democratic house impeached Kellogg for "high crimes and misdemeanors" committed since the date of the Wheeler adjustment; but the republican senate fixed the time of trial at less than an hour's time after the reception of the impeachment, and then acquitted Kellogg for want of prosecutors.

—The republican state ticket for 1876 was headed by the name of S. B. Packard for governor, and the democratic ticket by that of Francis T. Nicholls. The returns, as sent to the returning board, showed democratic majorities of about 8,000 for the state ticket, and from 3,459 to 6,405 for presidential electors. Gov. Kellogg, on the other hand, telegraphed north that the republicans had carried the state, and that the apparent democratic majorities were due only to democratic violence in five parishes, or counties, whose vote the returning board would certainly reject. Before the returning board met, Nov. 16, it had become evident that the result of the presidential election depended on the decisions of the returning boards of Louisiana and Florida (see DISPUTED ELECTIONS, IV.; ELECTORAL COMMISSION); and a large number of republican leaders, named by the president, and of democratic leaders, named by the democratic national committee, had arrived in New Orleans from all parts of the country to watch the progress of the count.

—The main democratic objections to the action of the board, outside of the constitutionality of the board itself, were threefold: 1. The law of 1872 required the board to be composed of "five persons, to be elected by the senate from all political parties." The democratic member had resigned, and the four remaining members (republicans) acted as the board, refusing to pay any attention to four petitions, Nov. 10, 16, 21 and 22, that a democrat should be appointed to the vacancy. 2. The board held secret sessions, from which even the United States supervisors were excluded, in order to decide the cases of contested elections. 3. The board cast out the votes of sixty-nine polls, embracing a part or the whole of twenty-two parishes, for fraud, violence or intimidation, including 13,236 democrats and 2,178 republican votes, changing the result in the state to about 4,000 republican majority. On all these points, the board rested on the absolute control which the election law gave them over the canvass of the votes, without any power of revision by any other authority. From the canvass the board announced, as elected, the republican presidential electors, state ticket, a majority of both houses of the legislature, and four of the six congressmen.

—The democratic members of the legislature, to whom the board had given certificates, refused to meet with the returning board legislature. Jan. 1, 1876, two legislatures were organized in different buildings, and Jan. 8 both Nicholls and Packard were inaugurated as governor. By the returning board's count, neither body had a quorum of the senate, but the republican legislature had a quorum of the house. Open conflict was averted, however, until the new president, Hayes, had been inaugurated. In April he sent an unofficial commission to New Orleans, by whose intervention a number of members deserted the Packard legislature, sufficient to give the Nicholls legislature a quorum in both houses. April 20 the federal troops were withdrawn; April 21 the Packard legislature disbanded; and April 25 Packard himself retired from the contest. Since that time the state has been democratic in all elections, state and federal, but there has been no political action worthy of note, except the formation of a new constitution, the sixth, in 1879.

—The state has furnished one president to the United States. (See TAYLOR, ZACHARY.) Among those who have became prominent, rather than notorious, in state politics are the following: Judah P. Benjamin, whig United States senator 1853-61, and secretary of war and secretary of state under the confederacy; Chas. M. Conrad, whig United States senator 1842-3, representative 1849-50, secretary of war under Fillmore, and a representative in the confederate congress; Benj. F. Flanders, republican representative in 1863, and military governor 1867-8; Randall Lee Gibson, democratic representative 1875-83; Wm. H. Hunt, secretary of the navy under Garfield; Josiah S. Johnston, representative 1821-3, and United States senator (whig) 1824-33; Wm. P. Kellogg, republican governor 1873-7, and United States senator 1868-72, and 1877-83; John Slidell, democratic representative 1843-5, United States senator 1853-61, and confederate commissioner to France in 1861 (see TRENT CASE); and Pierre Soulé, democratic United States senator 1847 and 1849-53, and minister to Spain 1853-5.

—The name of the province, from which that of the state was taken, was given by La Salle in 1682, in honor of Louis XIV, of France.

—See 2 Stat. at Large, 283, 701 (for acts of March 26, 1804, and April 8, 1812); authorities under ANNEXATIONS, I.; 1 Poore's Federal and State Constitutions; Martin's History of Louisiana (1829); Bonner's History of Louisiana (to 1840); Gayarre's History of Louisiana under American Domination (to 1861); Report of Senate Committee on Privileges and Elections (Feb. 10, 1873); Report of House Committee on Louisiana (Feb. 23, 1875); Senate Journal (1874-5), 475; House Journal (1874-5), 603, 25 La. Ann. Rep., 265; Story's Commentaries (Cooley's edition), § 1814 (note); and authorities under articles referred to.

ALEXANDER JOHNSTON.

L8Uuml;BECK

L8Uuml;BECK, a free Hanseatic city, situated on the Baltic sea, and forming part of the German empire. This city formerly possessed considerable importance; it was for four years the capital of the Hanseatic league, extending its influence from London to Novogorod, and from Bergen in Norway to the commercial cities of the Rhine and the Danube. But this brilliant epoch in its history has long passed away. Lübeck was, at the close of the year 1882, a city of 50,979 souls, (in 1857 it had 26,672 in the city and 4,045 in the suburbs), and the state does not contain in its entire extent (about 127 square miles) but 63,448 inhabitants.

—Lübeck is known as a seaport, and commerce and navigation form its chief industry. This commerce may be estimated at about $50,000,000 a year, imports and exports combined, and over 2,200 vessels enter and sail from its port; in this number are included the arrival and departure of two steamboats daily during the summer months. Fifty ships constitute the force of its merchant marine, thirty of which are steamships.

—The political constitution of Lübeck was relatively aristocratic down to the year 1848. While many of the fundamental laws of Germany were being modified through the influence of the French revolution, those of Lübeck also were amended. Since Dec. 23, 1851, a new constitution has been in force in the old Hanseatic capital, the essential provisions of which we give herewith.

—The governing power is vested in a senate composed of fourteen members chosen from the citizens of Lübeck, but in such manner that six of the number shall be lawyers and five merchants. The president of this body is styled the burgomaster. During the two years of their term of office, the senators in turn fill the different public offices. The burgesses, one hundred and twenty in number, are elected for six years by their fellow citizens, who are all voters and all eligible to office. The consent of the burgesses is necessary to validate changes in the constitution, to pass or abrogate a law, to impose taxes, to allow the public exercise of an unrecognized form of worship, etc. Finally, the burgesses have a right to share in the management of the public revenue, in that of the churches and of charitable institutions. The burgesses assemble six times a year, and in addition as often as the senate or one-fourth of the deputies (burgesses) require it. A committee of thirty members, chosen from among its own members and elected for two years, meets every fifteen days, and to this committee the senate refers all matters to be discussed by the burgesses; the committee is authorized to decide questions of administration, and other matters of little importance. When the senate and the burgesses can not agree upon the interpretation of a law, they submit the matter to the arbitration of a higher court of appeal, of which there is one in common for the four free cities of Germany, or, in case of urgent necessity, to the decision of a mixed commission, composed of senators and deputies.

—The administration of this little state is, for the most part, intrusted to senators or deputies, and the different branches of the service are organized on a footing of rational economy. Lutheranism is the religion of the greater part of the population, but it enjoys no special privileges; liberty of conscience is guaranteed to every citizen.

—The revenues of the free city amounted, in 1880, to 2,739,381 marks. The public or state debt amounted, in 1879, to 23,486,045 marks.

—BIBLIOGRAPHY. Becker, Geschichte der Stadt Lübeck, 3 vols., Lübeck, 1782-1805; Behrens. Topographie and Statistik von Lübeck und dem Amte Bergedorf, 2 vols., Lübeck, 1829-39, 2d ed., 1856; Deecke, Geschichte der Stadt Lübeck, Lübeck, 1844, and Die freie und Hansestadt Lübeck, 2d ed., Lübeck, 1854; Waitz, Lübeck unter Jürgen Wullenueber, 3 vols., Berlin, 1855-9; Klug, Geschichte Lübecks während der Vereinigung mitdem franz. Kaiserreiche, Lübeck, 1857; Pauli, Lübeckische zustände im Mittelalter, 2 vols., Lübeck, 1847-72; Urkundenbuch der Stadt Lübeck, vols. 1-5, Lübeck, 1843-76.

L. SCHWARTZ.

LUXEMBURG

LUXEMBURG. The grand duchy of this name, whose capital of the same name was formerly celebrated as a fortress, is subject to the king of Holland as its sovereign; but, beyond this, the grand duchy has nothing in common with the Batavian kingdom. The state of Luxemburg has an area of about 2,587 square kilometres, with a population numbering a little more than 200,000, nearly nine-tenths of whom speak German. With the exception of 580 Protestants and about as many Jews, the people profess the Catholic faith. The government is representative. According to the constitution of Oct. 11, 1868, and the electoral law of November 30 of the same year, the legislative body is composed of only one chamber of forty deputies, elected directly by the people in as many election districts, twenty members being elected every third year. The sovereign is represented by a prince of his family, who is styled the lieutenant of the king grand duke. The government is composed of a minister and several directors general. The revenue amounts to about 7,200,000 francs, and is slightly in excess of the expenditure. The grand duchy would therefore have no debt had it not borrowed $240,000 to build railroads. A portion of this debt has been repaid.

—Luxemburg has not been favored by nature, and it is not very rich in agricultural wealth, but certain other interests are flourishing, especially the production of iron, which, in 1869, exceeded 924,000 tons (911,165 in 1870), worth about $700,000. The Franco-German war of 1870-71 naturally retarded commerce; but in 1869 the railroad transported 1,624,457 tons of merchandise, 381,000 of which were carried from place to place in the interior of the country, 259,000 were received into the country from abroad, 732,000 were sent out of the country, and the rest was transient freight. The same year the postal service distributed about 700,000 letters, 425,000 copies of newspapers, and 12,000 postal orders, without considering letters containing valuables. There were received into and sent out of the country about 27,000 to 28,000 telegrams.

—These figures show that this country is not very important, but its geographical situation and the walls which surrounded its capital gave it for a time an exceptional importance. Entering the Germanic confederation in 1815, the grand duchy remained in it until its dissolution in 1866. After the war between Prussia and Austria, the independence of Luxemburg seemed threatened, and it was feared for a moment that it would become a cause of war between France and Germany. But this difficulty was settled by a treaty, signed in London March 11, 1867, between the six great powers and the king grand duke. We give herewith the articles of this treaty, according to the Bulletin des Lois.

—Art. I. His majesty, the king of Holland, grand duke of Luxemburg, retains the rights which attach the said grand duchy to the house of Orange-Nassau, in virtue of the treaties which have placed this state under the sovereignty of his majesty the grand duke, his descendants and successors. The rights which the direct line of the house of Nassau has to the succession to the grand duchy, in virtue of these same treaties, are maintained. The high contracting parties accept and take cognizance of the present declaration.

—Art. II. The grand duchy of Luxemburg, with the limits determined by the act annexed to the treaty of April 19, 1839, under the guarantee of the courts of France, Austria, Great Britain, Prussia and Russia, shall henceforth constitute a perpetually neutral state. It shall be obliged to observe this same neutrality toward all other states. The high contracting parties pledge themselves to respect the principle of neutrality stipulated by the present article. This principle is and shall continue under the sanction of the collective guarantee of the powers signing the present treaty, with the exception of Belgium, which is itself a neutral state.

—Art. III. The grand duchy of Luxemburg, having been made neutral by the terms of the preceding article, the maintenance or establishment of fortified places upon its frontiers becomes unnecessary and aimless. Wherefore it is agreed, with common consent, that the city of Luxemburg, which in the past was considered as a federal fortress, shall no longer be a fortified city. His majesty the grand duke reserves the right to maintain in this city sufficient troops to assure the maintenance of good order.

—Art. IV. Conformably to the stipulations contained in articles II. and III., his majesty the king of Prussia declares that his troops now in garrison in the fortress of Luxemburg shall be ordered to evacuate that place immediately after the ratification of this present treaty. He will begin to remove simultaneously the artillery, the munitions and everything which forms part of the equipment of the said fortified place. During this removal there shall remain there only the number of troops necessary to insure the safety of the materials of war and to effect their removal, which shall be completed in the shortest possible space.

—Art. V. His majesty, the king grand duke, in virtue of the rights of sovereignty which he exercises over the city and fortress of Luxemburg, pledges himself, on his part, to take the measures necessary to convert the said fortified place into a free city, by destroying what his majesty shall judge sufficient to fulfill the intentions of the high contracting parties expressed in article III. of the present treaty. The work necessary for this purpose shall commence immediately after the withdrawal of the garrison. It shall be effected with all due regard for the interests of the city's inhabitants. His majesty the king grand duke promises, moreover, that the fortifications of the city of Luxemburg shall not be rebuilt in the future, and that no military force shall be maintained or established there.

—Art. VI. The powers who sign the present treaty agree that the dissolution of the Germanic confederation having likewise brought about the dissolution of the ties which united the duchy of Limburg, collectively with the grand duchy of Luxemburg, to the said confederation, it follows that the agreements mentioned in articles III., IV. and V. of the treaty of April 19, 1839, between the grand duchy and certain territories belonging to the duchy of Limburg, have ceased to exist, the said territories continuing an integral part of the kingdom of Holland.

—Although separated from Germany as a state, Luxemburg remains united to the revenue system of that country in accordance with the combination agreed upon in the treaty of Oct. 20-25, 1865, according to which the grand duchy formed part of the Prussian group as a member of the zollverein. This treaty was confirmed in the convention of June 11, 1872, by which the grand duchy contracted with those managing the railroads of Alsace-Lorraine to manage the Luxemburg lines in place of the French eastern company, and upon the same conditions, to Dec. 31, 1912. And it was expressly agreed by article XIV., that the royal contracting parties should not use their right to denounce the treaty of the customs union (Oct. 20-25, 1865), so long as the Luxemburg railroads should continue under the same management as those of Alsace-Lorraine. We must add that, after it had been declared neutral by the treaty of 1867, the grand duchy was obliged to introduce the restrictions indicated in article II., which read as follows: "The German government pledges itself never to use the Guillaume-Luxemburg railway for the transportation of troops, arms, munitions or stores of war, and not to use it in any war in which Germany shall be engaged, for provisioning troops, in a manner incompatible with the neutrality of the grand duchy, and in general not to allow by means of the management of these railroads, any act that would not be in perfect accord with the duties incumbent on the grand duchy as a neutral state."

—BIBLIOGRAPHY. König, Das Luxemburger Land, Diekirch, 1850; Livering, Statistique du Grand-Duché de Luxembourg, Luxemburg, 1865; Reuter, De l'industrie agricole dans la province de Luxembourg, Luxemburg, 1875.

M. B.

[44.]"This term was originally applied by Bentham to what was previously called the 'law of nations,' and it has been generally received as a more apt designation than that which it superseded. When the term 'law of nations' was in use, that of 'law of peace and war' was sometimes employed as a synonym, and as indicative of the boundaries of the subject. It was thus in its proper sense restricted to the disputes which governments might have with each other, and did not in general apply to questions between subjects of different states, arising out of the position of the states with regard to each other, or out of the divergences in the internal laws of the separate states. But under the more expressive designation, international law, the whole of these subjects, intimately connected with each other as they will be found to be, can be comprehended and examined, and thus several arbitrary distinctions and exclusions are saved. To show how these subjects are interwoven. the following instances maybe taken: A port is put in a state of blockade: a vessel of war of a neutral power breaks the blockade: this is distinctly a question between nations, to be provided for by the law of peace and war, in as far as there are any consuetudinary rules on the subject, and the parties will submit to them. But suppose a merchant vessel belonging to a subject of a neutral power attempts an infringement of the blockade, and is seized—here there is no question between nations in the first place. The matter is adjudicated on in the country which has made the seizure, as absolutely and unconditionally as if it were a question of internal smuggling; and it will depend on the extent to which just rules guide the judicature of that country, and not on any question settled between contending powers, whether any respect will be paid to what the party can plead in his own favor, on the ground of the comity of nations, or otherwise. But there is a third class of cases most intimately linked with these latter, but which are completely independent of any treaties, declarations of war. or other acts by nations toward each other They arise entirely out of the internal laws of the respective nations of the world, in as far as they differ from each other. The 'conflict of laws' is a term very generally applied to this branch of international law, and the circumstances in which it comes into operation are when the judicial settlement of the question takes place in one country. but some of the circumstances of which cognizance had to be taken have occurred in some other country where the law applicable to the matter is different.

—Thus the three leading departments of international law are: 1. The principles that should regulate the conduct of states to each other: 2. The principles that should regulate the rights and obligations of private parties, arising out of the conduct of states to each other, and 3. The principles that should regulate the rights and obligations of private parties, when they are affected by the separate internal codes of distinct nations.

—The first of these has been the principal subject of the well-known works of publicists, who have derived from general principles of morality and justice a series of minute abstract rules for the conduct of nations toward each other, and subsidiarily for the conduct of their subjects in relation to international questions. It has been usual to call this department the 'law of nature,' as well as the law of nations, on the supposition that, though it has not the support of the authority of any legislature, it is founded on the universal principles of natural justice.

—It is clear that thus in its large features, as a rule for the conduct of independent communities toward each other, the law of nations wants one essential feature of that which is entitled to the term law—a binding authority. Nations even the most powerful are not without checks in the fear of raising hostile combinations and otherwise; but there can be no uniformity in these checks; and in general when the interest is of overwhelming importance, and the nation powerful, it takes its own way. The importance of the questions which may be involved in the law of nations thus materially affects the question how far it is uniformly obeyed. In a set of minor questions, such as the safety of the persons of ambassadors, and their exemption from responsibility to the laws of the country to which they are accredited, and in other matters of personal etiquette, a set of uniform rules has been established by the practice of all the civilized world, which are rarely infringed. But in the more important questions, regarding what is a justifiable ground for declaring war, what territory a nation is entitled to the sovereignty of, what is a legitimate method of conducting a war once commenced. etc, the rules of the publicists are often precise enough; but the practice of nations has been far from regular, and has been, as every reader of history knows, influenced by the relative strength of the disputing parties more than by the justice of their cause. The later writers on this subject have from this circumstance directed their attention more to the means by which any system of international law can be enforced, than to minute and abstract statements of what may be theoretical justice, but has little chance of being enforced. They have found several circumstances which have an influence in the preservation of international justice, though of course no sanctions which can give it the uniformity and consistency of internal laws. The combinations for the preservation of what is called the balance of power are among the most useful restrictions of ambition. All periods of history furnish illustrations of this principle. Hume found that the Peloponnesian war was carried on for the preservation of the balance of power against Athens. The late war exhibited a noted illustration of combination to prevent universal conquest on the part of the French. The safety of small states from being absorbed by their larger neighbors, is in the jealousy which these neighbors feel of each other's aggrandizement. Thus the jealousy of rulers is one barrier to national injustice. Another is public opinion: sometimes that of the nation whose rulers would be prepared to commit injustice: sometimes that of other nations. Of course it can only be to a very limited extent that the public feeling of a despotic government can check the grasping spirit of its rulers; but the public feeling of the constitutional and democratic states is the great check on the injustice that might be perpetrated by a nation when it becomes so powerful as Great Britain.

—The seizure of the Danish fleet by the English has been a subject of warm censure in England. Necessity—even the plea that Napoleon would have used the fleet to invade the shores of England—has not been accepted in palliation of the act; and the manner in which it has been canvassed is very likely to prevent any British government from adopting the precedent. The partition of Poland is an instance of national injustice condemned by the public feeling of countries other than those by which it was perpetrated; and it may be questioned whether the states which accomplished the partition may not yet suffer by it. Good fame in the community of nations is like respectability in private circles, a source of power through external support; and the conduct of Russia toward Poland has frequently diverted from the former country the sympathy of free nations. It need scarcely be observed that the press, whether fugitive or permanent, is the most powerful organ of this public opinion, and that the views of able historians, jurista and moralists have much influence in the preservation of international justice. Among the principal subjects of dispute in this department of international law are: the sovereignty of territory and the proper boundaries of states, as in the question regarding the Oregon territory in North America; questions as to discovery and first occupancy of barbarous countries; questions as to any exclusive right to frequent certain seas—and here there is a well-known distinction between the broad ocean and the narrow seas that lie close to particular territories, questions regarding the right of navigation in rivers which may be either between the upper and lower territories, or between states on opposite banks; questions as to the right of harbor or fishing, etc.; and questions as to the right of trading with particular states. In cases of arbitration the national pride is not injured when that which is yielded to is the award of a neutral party, not the demand of an opponent. It has been suggested by Bentham and Mill that the civilized states of the world should establish among themselves a congress. which should adjudicate on all disputes between its members, the members being excluded from voting in their own disputes.

—The second department into which we have considered international law divided—the rights and obligations of individuals as affected by the conduct of states toward each other—has, like the first, been examined by the publicists in their theoretical manner; but it has never, perhaps, received so much practical illustration as it has in the British courts. In a despotic country it would of course scarcely ever occur that the bench should fail to give effect to the national policy of the government, whatever that may be. But in England it was the rule that foreigners as well as natives were entitled to the rigid administration of the law, and that, if the proceedings of the government were at variance with the rights of parties according to the law of peace and war, individuals might have redress. Thus, when Great Britain, in opposition to the Berlin decrees, tried to establish a 'paper blockade,' that is to say, by force of orders in council to declare places to be under blockade, whether there were a force present to support it or not, Sir William Scott found that 'in the very notion of a complete blockade, it is included that the besieging force can apply its power to every point in the blockaded state. If it can not, it is no blockade of that quarter where its power can not be brought to bear'.

—The third division of international law is that which most properly comes under the head 'conflict of laws,' viz. the principles that should regulate the rights and obligations of private parties when they are affected by the separate internal codes of distinct nations. This has some points in common with the preceding department of the subject." (Bohn.)

Footnotes for LAWS

[45.]This passage of Appian is very obscure, but it has certainly been misunderstood by Niebuhr. The Latin version is "Decretum praeterea est, nt ad curanda opera rustics cerium numerum liberorum aleret quiaque, qui ea quae agerentur inspicerent dominoque renunciarent." The word "domino" is an invention of the translator. The words may mean all "the produce," as in Thucydides (vi., 54); and this is a more probable interpretation than that given above.

[46.]is probably corrupt.

[47.]The precise meaning of this passage of Appian is uncertain. If the words refer to the produce, their duty was to make a proper return for the purpose of taxation, that is, of the tenths and fifths. But this passage requires further consideration. All that can be safely said at present is, that Niebuhr's explanation is not warranted by the words of Appian.

Footnotes for LAWS

[48.]The error of this statement appears from the writings of Aristotle. Vids Blanqui's Hist. of Polit. Econ., chap. ii., p. 10.—E. J. L.

Footnotes for MECKLENBURG

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