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the point of sovereignty moves from one body to another, and the old sovereign body, i.e. the old state, becomes, in the new system, only the government, or a part of the government. Take the example of English history after 1066, to make this clearer. First, the king was the state as well as the government. Then the nobles became the state, and the king became government only. Then the commons became the state, and both king and lords became but parts of the government. Now this change from the old form of state to the new, when it works itself out gradually and impliedly, so to speak, does not mark off the boundary sharply and exactly between the old and the new systems. Naturally the old state does not perceive the change at all or, at least, not for a long time, and not until after suffering many bitter experiences. It still expresses itself in the language of sovereignty. It still struts about in the purple, unconscious that the garment is now borrowed. On the other hand, the new sovereignty comes very slowly to its organization. Moreover, it organizes itself, for the most part, in the government, and only very imperfectly outside of and supreme over the government. For a long time it has the appearance of being only a part of the government, and, at first, the less important part. For a considerable time it is uncertain where the sovereignty actually is. With such conditions and relations in the objective political world, it is not strange that the European publicists have failed, as yet, to distinguish clearly and sharply between state and government, nor that their treatment of all problems, dependent for correct solution upon this distinction, is more or less confused and unsatisfactory.
In America, on the contrary, existing conditions and relations are far more favorable to the publicists. Our state is but little more than a century old, and rests wholly and consciously upon a revolutionary basis. The organization of the state existing previous to the year 1774 was completely de. stroyed, and did not reappear in the succeeding organization as a part of the government, holding on to its traditions of sovereignty. We Americans have seen the state organized outside of, and supreme over, the government. We have, therefore, objective aids and supports upon which to steady our reflection and by which to guide our science. The reason why the American publicists have not written better upon this subject cannot, therefore, be the lack of the proper external occasions for the excitation of thought. It is, it seems to me, as I have already said, the fact that they still copy too closely the European authors, and have not ventured to essay independent work. America has yet to develop her own school of publicists and her own literature of political science. Down to this time, the two names which stand highest in our American literature of political science are Francis Lieber and Theodore D. Woolsey. The former was, as everybody knows, a European, educated under European institutions, and a refugee from their oppression, as he regarded it. The latter was Lieber's ardent admirer, -- we might almost say disciple. It is not strange that they should have suffered under the power of the old influences, and should have confounded, in some degree at least, state and government in their reflections. The new and latest generation of American students of political science have been most' largely trained in European universities, under the direction of European publicists, again, and by means of European literature. It will be an effort for them to make such use of their European science as always to gain advantage. It will be of the greatest service to them if they can employ it as a stepping-stone to a higher and more independent point of view; one which will enable them to win scientific appreciation of the distinctive lessons of our own institutions. If they fail to do this, however, we can expect little help from them in the attainment of a better and more satisfying treatment of the topic of this chapter.
It is, therefore, with a good deal of misgiving that I approach this part of my subject. I know that nothing has, as yet, been written in regard to it which has commanded general assent from the political scientists. I am myself conscious of mental dissatisfaction with all that has been advanced, and I believe that the cause of the confusion of thought, clearly manifest in the different theories presented, is what I have above indicated; but when I come to the task of making clear and exact the distinction between state and government myself, I find myself involved in the same difficulties against which I have just given the word of warning. The fact is, that the organization of the state outside of, and supreme over, the government is, as yet, everywhere incomplete; and that when we assign to it this separate and supreme position, we are, in greater or less degree, confounding the subjective with the objective state, the ideal with the actual state. Nevertheless, I am resolved to make the trial upon this line; content if, upon a single point, I can bring a little more light into this discussion, and make it manifest that a better organization of the state outside of the government would be a great advance in practical politics.
The great classic authority upon this topic is Aristotle. Every student of political science is acquainted with his noted distinction of states, as to form, into monarchies, aristocracies, and democracies (roditelaí).1 Not every student reflects, however, that the Greek states were organized wholly in their governments; i.e. completely confounded with them. This fact made the question far more simple than it is at present. We of to-day have a double question instead of a single one. We must determine, first, the forms of state, and then, the forms of government. It is perhaps natural that the state and its government should harmonize in this respect; but it is not always a fact that they do, and it is not always desirable that they should completely coincide in form. It is difficult to see why the most advantageous political system, for the present, would not be a democratic state with an aristocratic government, provided only the aristocracy be that of real merit, and not of artificial qualities. If this be not the real principle of the republican form of government, then I must confess that I do not know what its principle is. Now, it seems to me that the Aristotelian proposition contains the true solution of the whole question for the Hellenic politics, and for all systems in which the state and the government are identical ; and that it is the true and complete principle of distinction in regard to the forms of state, but not of government, in those systems where state and government are not identical, but exist under more or less separate organization. I accept the Aristotelian proposition, therefore, as to the forms of state, and reserve the discussion of the forms of government to a later part of this work.
1 Polit. III, 4 and 5.
Under this modification, the principle of Aristotle must be explained somewhat differently from what he himself intended. He undoubtedly had government in mind more than state when he invented this classification. He spoke of monarchy as the rule of one, of the aristocratic form as the rule of the minority, and of the democracy as the rule of the masses. In limiting his proposition strictly to the state, as distinguished from the government, I must define the monarchy to be the sovereignty of a single person, the aristocracy to be the sovereignty of the minority, and the democracy to be the sovereignty of the majority. Von Mohl criticises the doctrine of Aristotle as being purely arithmetical, and containing no organic principle. If this were a just criticism, it would also condemn the proposition in the modified form which I have imposed upon it. I think it is not only an unjust, but a crude and careless, criticism. Forty-five years before von Mohl published the first edition of his noted treatise, Schleiermacher had demonstrated the spiritual and organic character of this Aristotelian principle of classification. The numbers and proportions are used simply to indicate how far the consciousness of the state has spread through the population, and to note the degree of intensity with which that consciousness is developed; and the principle is, that no part of the population in which the consciousness of the state is strongly developed can be kept out of the organization of the state, and that, therefore, the number inspired with this consciousness and participating in this organization really does determine the organic character of the state.
1 Encyklopädie der Staatswissenschaften, S. 110.
Von Mohl's own classification appears to me confused and fanciful.2
He distinguishes the forms of state into patriarchal, theocratic, despotic, classic, feudal and constitutional. Now patriarchal and theocratic states are generally monarchies. All states are despotic legally. The feudal state is aristocratic. The phrase constitutional state (Rechtsstaat) is very misleading Looked at from one standpoint, all states are constitutional; and from another, none. As a term of distinction the expression applies to government rather than to state. The state makes the constitution, instead of being made by it, and through it organizes a government which may act only in accordance with the legal forms, and for the legal purposes, prescribed in the constitution. Evidently this is what von Mohl means by his “Rechtsstaat.” While as to his “classic state,” nothing definite can be concluded from the phrase itself; the adjective is no term of political science at all; it belongs rather to the nomenclature of belles-lettres. Von Mohl concedes himself that the classic state may be either monarchic, aristocratic, or democratic.4
1 Ueber die Begriffe der verschiedenen Staatsformen. — Abhandlungen der Berliner Akademie, 1814.
2 Encyklopädie der Staatswissenschaften, S. 103 ff. 8 Von Holtzendorff, Principien der Politik, S. 205.
Encyklopädie der Staatswissenschaften, S. 106.