Civil List and Constitutional History of the Colony and State of New York, Part 2

Author:
Publication date: 1886
Publisher: Albany
Number of Pages: 1380

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The Rhine was the natural boundary line between the Germans and the Kelts, who occupied Gaul and the British Isles. Certain tribes of Kelts and Germans doubtless coalesced, in pre-historic times, on the left bank of the lower Rhine; and this commingling must have had important beneficial results in the progress of mankind. There are certain characteristics of the two races which it is ad- visable to consider, in explanation of these results. The German 2

THE GERMANS AND THE KELTS.

was his own priest ; the Kelt ministered at the altar of a consecrated authority. The German was his own lord ; the Kelts were governed in time of peace by the Druids, who took advantage of the spiritual earnestness of the Keltic nature to punish disobedience by exclusion from the sacrifices, which was a terrible punishment to the condemned. The Druids were ecclesiastical despots ; the Germans permitted no dictation in religion. The German served his God ; the Kelt wor- shiped him. The German abhorred towns ; the Kelt instinctively preferred them. The German village assemblies elected their own magistrates ; the Kelts were ruled by their nobles and priests. The German princes or chieftains were really generals, and their armies consisted wholly of volunteers; the nobles among the Kelts elected annually a prince or chief-governor, who was the executive of the nobles and priests, and the commander of the armies when som- moned to battle. The clan was a predominant feature among the Kelts; while among the Germans it had been superseded by volun- tary associations, serving the same purpose of mutual protection, while preserving individual independence.

What are known as Indo-European races are thus seen to have been divided into two radically different types, which we will term here the Aryan and the Keltic. We adopt the word Aryan because its Sanscrit signification exactly expresses the theory of goverment we are endeavoring to trace. In Sanscrit the Aryan is the excellent householder.' Its root, also, may connect it with agriculture, while the Kelts were a pastoral people. There were diversified develop-

1 All the families of man now associated under a common government in this State trace their ancestry back to a common home on the great plateaus of Central Asia. The words in their various languages which can be shown to have a common origin are words of peace, words of home, words of rural ocenpation. War, foreign Intercourse and the sea gave birth to different words among, differing peoples. The word Aryan is connected by some with the root as ( Lat. urare, to plough) as it to distinguish a people who were tillers (carers) of the earth, from the purely nomadle Turcomans or Turks. Hence we would derive the Greek ari or aristos (the best) -- that is, In the origin of the word, the best plonghman or tiller of the soil; and thus aristocracy, or the government of the best, would have meant originally the government of the best farmers or land-owners. The root is common to the old German, the Selavonian, Lithuanian, Keltic. . Italian and Greek languages, in various forms related to agriculture. These peoples surrounded the great central Aryan State, on the north and west. The word Aryan Is commonly derived, more directly, from arrya, excellent and householder. Thus the Aryan was the excellent householder ; and the term Is used In the Sanserit books in the sense ot " the illustrions," the " land of the illustrlons," or of "heroes." In the Rig- Veda, allusion Is made to towns and citles, to mighty kings and their great wealth. Besides agricul- ture, varions useful arts were practiced by the profde, as the art of weaving, of fabricating cars, golden and iron mail, and golden ornaments. The employment of the needle and the use of musical Instruments were known. They were familiar with the ocean, but gave a different name therefor than the European branches of the family. We may look to the Chinese for contrasts and resemblances, recording the pro- gress of eastern civilization. The Chinese are unsocial ; live in families; have no partnerships or combina- tions ; no great middling class ; no independent and prosperous land-owners, Their land is subdivided into sinall holdings; there are mandarins and literati on the one side and millions of industrious poor on the other : wealth is not desired ; all honor is reserved for publle employment and learning, and they are very ingenions. In the cities there are guilds and associations, and in the country village communities cleet their ellers. Among similar communities in the original Arva, there arose a body of learned men or priests. Hindu law consists of a very great number of local bodies of usage, and of one set of enstoms reduced to writing by the priests, and claimed to have been given to Mann by the Supreme Being. These Institutes of Man, thus pretending to divine authority, had the Brahmin- for interpreters. This written Code has evi- dently been super-imposed upon the more ancient enstoms. It assumes the existence of king and judge, and the prevalence of the virtues and vices of civilization. In north-eastern Asia, were the great Mongolian warrior tribes who under the name of Huns, Turks, etc., made derce Invasions west ward from time to time. Further westward, and north of the Indo- European ( Aryan) races, were the Mongolian Finns. Far In the south-west corner of Europe, were the ancient Iberians, having enrions links with the Finns, and who were crowded back as the Kelts pressed toward the Atlantic coast. To the east of the Kelts were the Selavie tribes, nearest of kin to the Sanscrit branch of the Aryan family, and north of these were the German peoples.

ITALIAN POLITICAL SYSTEMS.

ments from the most primitive Aryan system. There were some small states, in which a more persistent form of patriarchal govern- ment had entailed a kind of hereditary paternalism. The prevailing type, however, was democratic or republican, as in Greece. The most perfect development of the republican type, among Aramean races, was the government of Carthage, which was rather a govern- ment of capitalists. On the Italian peninsula, the Etruscans so pressed upon the Italians as to result in compelling the latter to ef- fect a more perfect organization. The Etruscans maintained the independence of the clan, and their confederacies were very loose, having no common central authority. Their nobles were their priests, and there was a strict line of demarcation between them and the common people. Hence they formed a variety of the Keltic type of government.

Latin political history begins with the existence of clan-districts, hamlets or villages. These clanships became integral parts of a po- litical community called cantons, analogous to our townships. These cantons were independent. and were governed by a prince, with the co-operation of a council of ellers and an assembly of warriors. This earliest constitutional scheme was a primitive institution com- mon to all the Latins, and probably originated long anterior to the separation of the stocks; and seems to be a logical development from the common Indo-German root. The cantons were associated in what is known as the Latin League. It was a fundamental prin- ciple with the ancient Romans, who were deeply religious but thoroughly utilitarian, that the priests should be powerless in the State ; the State regulating its religion for itself, and each burgess controlling his own sanctuary and methods of worship. The burgess was the head of the household. The Roman commun- nity was originally constituted by the union of a number of village clanships, and whoever was a householder in one of these clans was a burgess of Rome. The king was the holder of executive power. The law itself, however, could only be altered by the a -- sembly of the people and the council of the elders. The council of elders, or senate, subsequently became supreme, or virtually a col- lege of magistrates with regal power ; but the sovereignty remained with the burgesses.

During the Sullian epoch a compromise was effected with the municipalities, as between their most ancient rights as integral parts of the Roman community, and the privileges dne them as allied states; by which primacy was attached to the metropolitan city.

ROMAN IMPERIAL GOVERNMENT.

Thus there arose the municipality as we understand the term-a subordinate civic community, supreme in its sphere, but divested of the independent sovereignty which belonged to the primitive can- ton and the still more primitive village. These municipalities re- tained the burgess assembly, which possessed the legislative power, and nominated the magistrates. There was also a municipal council, which consisted of one hundred members, and possessed functions similar to those of the Roman senate. Thus was perfected the Roman system of government, as distinguished from the Latin. Imperialism, as illustrated by Caesar, was simply leadership of the people. Later emperors converted this system into an imperial autocracy. The theory of the Roman empire was that of a repre- sentative despotism. The various offices of the republic were not annihilated, but their powers were gradually concentrated in the hands of a single man, and the senate became the last bulwark of political freedom. We must look beneath this aristocracy, however, if we would accurately judge the nature and extent of popular free- dom ; for large liberty may be enjoyed in the presence of imperfect political institutions. Distant peoples possessed perfect municipal and intellectual freedom ; which with good roads and wise rulers secured for all the provinces a large measure of prosperity. The Empire was the age of the freest circulation of humanity. Roman policy tolerated the customs, religion and municipal rights of the conquered, and gradually conferred upon them the privileges of the conqueror, so that the highest honors and most important offices were open to them. The Roman religion was a creature of the State, a political sentiment and moral discipline, but was neither the enthusiasm of humanity nor a spiritual worship. On the other hand, cosmopolitanism or the fraternity of mankind was the law of the empire, performing the preparatory work necessary for the uni- versal diffusion of the same idea by means of Christianity. Roman jurisprudence was framed by the Stoics, who based it on natural law, declaring that " all men are free," and " all men are born equal " (Ulpian) ; but there was a broad chasm between Roman moralists and the Roman people, which could only be bridged by Christianity. This religion, combining the Stoical doctrine of universal brotherhood regulated by law, and the Greek appreciation of the power of the affections and the influence of the beautiful, with the Egyptian and Keltie spirit of religious reverence and the German spirit of devo. tion, produced a sympathetic, ethical and aggressive but disciplined enthusiasm for humanity aglow with Divine love. The Christ-

SOCIETY REORGANIZED.

ian religion imperiously antagonized all existing religions, to the extent of uncompromising denunciation, and held the Roman empire to be Anti-Christ whose speedy downfall it foretold. While submitting to the temporal authority, the ministers of the Church became the arbi- ters of the differences among their people; and when the empire was disintegrated grew more and more aggressive in asserting a right to be their judges.

The German conquest of Western Europe compelled the entire reorganization of government. Society was thrown back upon its primitive elements to begin a new line of development. The Anglo-saxons covered England with the little farmer communities of the Germans The leaders in war of the various tribes became the chief executives of their realns. The German was jealon> of his local rights, which were few, and were designed simply to secure justice and protect his freedom. If these ends were attained, he gloried in the glory of his lord, and was ready to respond to any call to active duty. Out of this principle of leadership grew the feudal system, which was essentially the revival of the patriarchal idea, and its adaptation to existing conditions. It was the theory of the paternal relation, extending from the king to the lowest serf. The Christian religion elevated and ennobled this system. The Roman and German overthrow of the Druidie power, and the advent of the teachers of the Gospel, constituted a correlation of forces des- tined to produce the most important results. . The new faith was the golden fruit of an ancient Aramean theocracy. In their travel west- ward, its disciples had garnered all that was worth preserving in humanity. The local priests of the new faith in Gaul were from the conquered race, and therefore sympathized with the people. They succeeded, in the West as in the East, to a priesthood which claimed to rule by Divine authority. They proclaimed a religion of love to God and love to man. The inspirations and aspirations of that religion now breathed through Keltic worship, and its conse- crating devotion energized the German service. The Church spoke by anthority of God and man, therefore, when-holding the civiliza- tion of the ages in its keeping-it plead the cause of the people before king and noble, and demanded obedience. This clerical in- fluence culminated in the revival of imperialism by Charles the Great, king of the Franks and emperor of Rome, who recognized the ancient liberties of the people. German Imperialism, as thus illustrated, was liberal paternalism, seeking to reconcile with itself ancient Aryan freedom and clerical power over the people. The

ENGLAND'S CONQUERORS.

radical defect of the system was that, if Emperor and Church turned oppressors, the people were bound in a more galling servitude than before.

England was primarily a commonwealth of free land-owners, for all authority was vested in the General Assembly. Gradually, how- ever, the freemen absented themselves from the gathering of the Great Witan, and the grand council came to be little more than an assembly of the great officers of the Church, with the personal adher- ents of the king. This neglect of the Witenagemote by the English yeoman is easily explained, if we recall the ancient Aryan repug- nance to any change in the customs or departure from the traditions of the fathers. Legislation, as we understand it, was little known. Attendance at the General Assembly was a task, the performance of which imposed burdens without compensation or adequate results. The Dane, after the conquest, permitted no distinction between con- queror and conquered, recognized provincial autonomy, secured the friendship of the Church, began the improvement of the peasantry, and developed a national feeling. The Norman continued the work of consolidation, and used the Church to win the support of the peo- ple as against the great earldoms, which were abolished by William the Conqueror. He retained the local courts, built up the English agricultural borough, which was the natural development of the German village, and used the boroughs as an offset to baronial power. The inhabitants of these boroughs had been drawn together for trade or protection. They owed dues to the lord of the manor, who also appointed bailiffs, who administered justice in the presence and with the assent of the townsmen. Property and person were alike secure against arbitrary seizure. The burgesses gathered in town meeting for free deliberation, at which the right of free speech was guaran- teed. The land-owners, only, had civic existence. The finances were regulated by the merchant guild. The frith-guild took the place of kinsmen for the purposes of order and self-defense. These frith-guilds were general throughout Europe in the eighth and ninth centuries ; and while subsequently suppressed on the continent, they were encouraged in England as the basis of social order. The mer- chant-guilds were developed into municipal governments, as towns grew in importance. The king appointed the chief officer of the borough.

The feudal system, which began as a tribal government among conquerors and over conquered, in the progress of its development united Roman and German customs, and culminated in the ninth

ANCIENT FEUDAL SYSTEM.

century in territorial jurisdiction. The defects of the system ought not to blind us to its virtues. While the feudal proprietor, as the uit of political society, was almost an independent sovereign within his own small domains, he was, nevertheless, only a judge and leader ; not an arbitrary dictator. It was a system for the administration of law, not for its defiance; for the performance of equitable obliga- tions, not for the denial of justice. It was a system of loyalty to law by the lord as well as to him; and it provided securities for obe- dience, by making it the duty of the superior to see that the info- rior obeyed its requirements. The King, the Church and the Com- mons were arrayed against the feudal lord, in protection of the rights of the people; while the lords denied the right of the king to legislate or tax withont their consent. The fact that the ancient as- semblies of the people died ont in France as in England only shows how perfectly these obligations were kept ; and feudalism became universally prevalent because it served the purpose for which it was designed. In Germany personal and local liberties were as keenly appreciated as in the earlier ages, and while the people were power- less to protect themselves against oppression by their lords, they nevertheless seenred an enlarged freedom whenever and wherever the system was benignly administered Indeed, there was too little government, and the Carlovingian dynasty came to an inglorious end- ing because of that fact. As part of the feudal development, a danger- ous custom had grown up since Charles the Great, of abandoning the general levy of troops by the sovereign and relying upon the indi- vidnal noblemen to summon their vassals. Hence; when the fierce Magyars broke through the eastern frontier, each tribe was concerned only for itself, and the king ( Lewis the Child) was compelled to pay tribute. He died soon after (in 911) not having attained manhood.

When Henry, Duke of the Saxons, was elected king of the Ger- mans (919), they were still living on open farms, and there were but few cities, especially in the North. Henry, who is known as " the Fowler," built up cities to protect the industries of the Germans against the encroachments of the barons, and curtailed the power of the latter, thus restoring the ancient liberties of the people, as far as possible.1 The Saxon dynasty became extinct just as the Dane succeeded in fastening himself upon England. The imperial policy of strengthening the cities, building up the lower orders of nobility,

1 Henry defeated the northern Selavie (ribes, ronted Che Huns, an I beat back the Danes, thus giving to the Empire enlarged boundaries and aggressive force He had no fixed residence, but traveled from place to place within los dominions, exercising parental authority, living upon his own lands, and leading armies against the common enemy. Having certain means of revenue, there was no system of taxation. He realized Che German deal of a chief sovereign, and there Was no reason to resist supremacy so mildly and beneficently exercised.

GERMAN IMPERIAL GOVERNMENT.

and respecting the rights of the freemen was also pursued by Con- rad II, who founded the Franconian dynasty, having been elected by the clergy, nobility and freemen on the 4th of September, 1024. The bailiff's of the German villages, under the fendal sytem, well appointed by the barons or dukes. In the Netherlands, the freemen. artisans and traders began gradually to build their homes outside of the " lands master," or the burghs of the more powerful nobles, and to organize into guilds. These settlements obtained town charters. which, while not extensive, guaranteed them a local administration of justice, thus providing a government of law as against mere arbi- trary power. The schont and schepens, or chief magistrate and aldermen, were originally appointed by the sovereign. Th . towns along the principal highways of trade in Germany developed into cities. One of these highways, forming an avenne of communication from the East and South with England, passed through the Nether- lands. In the twelfth century, when the village boroughs of England Were growing in numbers, the continental cities had acquired consid- erable commercial and manufacturing importance, and attained the full privileges of municipal government. The trade guilds cho-e wardens, and these again chose burgomasters from their own num- ber. Each city had its senate, composed of burgomasters and sher- iffs, and a council of citizens, by whom the senate was elected.

Frederick I (Barbarossa) the sagacious German Emperor who gave greatest glory to the House of Hohenstaufen, after the capture of Milan in 1158, summoned the learned Italian lawyers from the universities, and they brought ont the Roman law from the dust of oblivion. These lawyers decided that, as the successor of the late Roman emperors, he possessed their rights, which included the right to appoint the magistrates of cities. He thereupon appointed Po- destas, royal dnes were conceded him, and absolutism was declared the law of the empire. By the peace of Constance, however, in 1153. the cities were given the exclusive choice of their own officers and the control of their internal affairs, the Imperial sovereignty being reserved. In this way the Roman law, sparingly modified by the fendal customaries, was introduced as the basis of statute law in the German cities, finally extending to the North and the Netherlands ; and its renewed study was an important element in the revival of learning which preceded the Reformation. The first incorporated city in the Netherlands was Middleburgh, which received its charter from Count William I of Holland and Countess Joan of Flanders in 1217. The large cities of the Netherlands had extensive dis-

ENGLISH PARLIAMENT. 17

tricts, including villages, under their government. A long and bloody struggle took place between the burghers and the barons, for the purpose of determining the sovereign rights in disputed sections of territory ; the free burghers of the cities electing knights to lead them to battle. Determined contests also took place between the people and the aristocracy of the cities, which were merely corporate individuals, wheeling into the fendal ranks by the side of the barons, and contesting supremacy with them.

Meantime the English barons had become the protectors of the pen- ple, and extorted from King John the Great Charter (1215), which was simply a constitutional guarantee of ancient rights.' The greatest revo- Intion in government was effected silently. The Great Council con- sisted of the prelates, the greater barons and the tenants-in-chief. The knightsof the shire attended as the representatives of the baronage, and became merged in the Great Assembly, and thus the whole body of rural frecholders were admitted to a share in the government of the realmn. In 1265, it was suggested to give the boroughs repre- sentation in the Parliament, and the suggestion was carried into of- feet in 1295. It is a singular fact that neither the counties nor the towns desired these representative rights, when first granted. The system was adopted by Edward the First, to obviate the necessity of direct negotiations with the sheriff's of counties and the magistrate- vi boroughs in the raising of funds for the support of government. While all burgesses were entitled to vote, most shirked the right as an irksome duty rather than a privilege, and left its discharge to a few principal burghers deputed for that purpose. The Roman law was obnoxious in England. The people steadily wrested their rights from prerogative, through such Parliaments as were influenced by them, and in the reign of Edward III (1826-77) it became estab- lished that the King enacted laws only at the request of the Com- mons and with the assent of the Lords. The English system was defective in that it afforded no adequate restraints upon irregular or arbitrary action either by King of Parliament.

We have still another German republican development to notice. in the rude but self-governed maritime province of Friesland, the communities of which were united in a simple federation. The. Frisians, nearest of kin to the Anglo-Saxons, never accepted feudal-

1 The Great Charter secured the freeman from interference. " save by legal judgment of his perisortie the law of the Fart; " provided that no tax " shall be imposed save by the Common Council of the Realm :" protected the poor in their tenements, the atrechant in his wares, and the countryman in his wain. In the of conviction of films, and decree that eri 's an I towns should possess their municipal privileges unim- paired, their freedom from arbitrary taxation, their control of trade, their right to deliberate and to .elmin- ister justice.

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Civil List and Constitutional History of the Colony and State of New York, Part 2

Author: Publication date: 1886 Publisher: Albany Number of Pages: 1380

Author:
Publication date: 1886
Publisher: Albany
Number of Pages: 1380