volves, first of all, reaching a definite conclusion on the point whether dependencies are prolongations of the soil of the State, or whether they are, in the nature of things, within territorial limits determined by natural circumstances and conditions, States in permanent relationship with the State. Even if it be granted that they are States, it must be settled whether they are in a noncontractual or a contractual relationship, and if in a contractual relationship, whether under an implied or an express contract. If it shall be concluded that dependencies are essentially States in a permanent contractual (that is, federal) relationship with the State, the question will arise whether the power which the State exercises over its dependencies is in its essence strictly legislative, judicial, or executive, or a power distinct from, though inclusive of, all these powers, and whether the power can best be exercised by the popular or the expert branch of the Government of the State, and in what manner the one should act and the other superintend. If it shall be concluded that the administration of dependencies is a kind of governmental work which can be best performed through the expert branch of the Government under the superintendence of the popular branch, it will be necessary to consider the form which the instrumentalities of expert Government must take, in order to best fulfil the functions and obligations of the Imperial State.

This requires a study of the whole administration of dependencies by States from the time that the personality of States began to be recognized and it was possible to distinguish between the State and its dependencies,— that is, from the beginning of the seventeenth century. Starting at this point, it is necessary to select out of the multitude of acts and documents those which have, by the common consent of the successors of the actors of them, had an effect in formulating opinion concerning the relationship of the State to its dependencies and

concerning the character and extent of its power over them; and to study these acts and documents in the light of modern political science. France and England furnish the earliest examples of States consciously recognizing themselves as legal and political persons, and as such entering into a permanent relationship with external dominions and countries and endeavoring to maintain the relationship unbroken. The experience and thought of these States, therefore, naturally demand first attention.

F

CHAPTER I

FRENCH ADMINISTRATION, 1600-1787

OR eight centuries before the French Revolution, the King, in exercising the supreme power, stood, according to the theory of French jurisprudence, in a fiduciary relation to the people, being regarded as under an obligation to decide problems of government scientifically and judicially. No written Constitution had ever been dreamed of. No system of popular elections was considered desirable. Yet there was, until the seventeenth century, at least, a good and orderly government. France was a great nation and successfully governed throughout a great domain until the middle of the eighteenth century.

Vicomte d'Avenel, in his Richelieu et la Monarchie Absolue, published in 1895, speaking of the Constitution of France during the period of the traditional monarchy, -from 987 to 1620,-quotes with approval the saying of Bodin in his treatise De la République, published in 1580:

The royal or legitimate monarchy is that in which the subject obeys the laws of the monarch and the monarch the laws of nature, leaving to the subjects their natural liberty and their private property.

Vicomte d'Avenel, in the course of his remarks on the way in which these principles were worked out during the traditional monarchy, says:

The relationship between the King and the subject differed from that between lord and vassal, in that the King was the

only lord in France who made oath to his vassals. There were in France sovereign laws, which were supreme over the power of the King, and according to which he was obliged to direct his political life; in his private life, the King was only a private citizen before the proper courts. The fundamental laws of the Kingdom were nothing but legal usages, which were binding on the monarchs themselves. Whether written or unwritten, whether enacted by a previous King or deriving their force from tradition only, these laws were regarded as unchangeable. "They have been observed for so long," says Seyssel, in 1519, in his book La Grande Monarchie de France, " that the Kings do not undertake to interfere with them, and when they wish to do so, no one obeys their commands." Although the King possessed the legislative power, nevertheless if he saw fit to change, by edict, certain ancient arrangements (dispositions) ratified by public opinion, he was reproached with having violated the laws of the State, as if the consecration of time had given them an indestructible force. This regard for tradition appears incessantly in the writings and public discourses of the period. Under Louis XIII. [from 1610 to 1643, during which time, under the influence of Richelieu, the traditional monarchy ceased to exist except in theory], writers and public speakers were in the habit of citing freely, as authorities, the acts, the charters, or the bulls of the first Capetian Kings, and even those of earlier date. In the books, when a subject was examined, the author went back to the times of the Greeks and Romans. In the matter of taxation, the right of the King was remarkably limited. The States-General not only discussed the necessity of the aide, but also determined the manner in which it should be levied and collected. . The principle that taxes are not legal except by consent of the people who pay them was violated more than once before the time of Louis XIII., but it had not ceased to be recognized even then. It was the doctrine of Old France. Every one knows what happened later on, but no one, in those old days, could have imagined the taillable et corvéable à merci" of Louis XIV.

From the beginning of the Capetian monarchy, we observe two distinct kinds of legislative acts of the King; one relating to the domains of the King, in which he speaks in his own name; the other relating to the whole of France, emanating from the united action of the King and Barons,—often even from that of the King and the people. Seyssel thinks

that "it is necessary the important affairs of the Kingdom should be consulted upon by a Council of personages drawn from the different Estates, both ecclesiastical and secular." Bodin regards it as less dangerous to have a bad King, guided by a good Council, than a good King, guided by a bad Council.

Throughout the existence of the traditional monarchy, the King acted by the advice of expert counsellors, some of whom acted as his Ministers.

During this period, this theory of government became crystallized in the French language, and the study of the words they used to express the exercise of the supreme power is, in fact, a study of the unwritten Constitution of France. The two words which expressed the exercise of the supreme power were the verbs ordonner and disposer. Of these the latter was the more strictly generic, though the former was used also in a generic sense. The Grand Vocabulaire François of 1770 treats the words as synonymes, defining ordonnance (ordinance) as a disposition (disposition).

Vattel, writing of the general public law in 1758, in his great work, The Law of Nations, said of the power of the state:

Le pays qu'une nation habite

est l'établissement

de la nation; elle y a un droit propre et exclusif.

Ce droit comprend deux choses: I. Le domaine, en vertu duquel la nation peut user seule de ce pays pour ses besoins, en disposer et en tirer tout l'usage auquel il est propre. 2. L'empire, ou le droit du souverain commandement, par lequel elle ordonne et dispose à son volunté de tout ce qui se passe dans le pays.