1902 Encyclopedia > Government

Government




GOVERNMENT. Without attempting to discriminate by verbal definitions the various shades of meaning which this word assumes, we shall use it in this article in its widest sense – that of the ruling power in a political society. The conception of society which this use of the word implies may be illustrated by two well-known theories.,

In John Austin’s celebrated analysis of law, the first step is the proposition that a law is a command issued by a superior to a subject and enforced by a sanction or penalty. The laws of God with reference to the conduct of men, the laws of a private club or association of men with reference to the conduct of its members, and the laws of a political society, are all, according to Austin’s definition, laws properly so called. The laws of nature are laws not properly so called. They are generalizations as to the uniform courses of nature, and have no analogy to laws properly so called except in point of uniformity. Positive law, again, is distinguished from other laws, properly so called, as the command of the sovereign of an independent political community. A sovereign is a person, or a determinate body of persons, to whom the bulk of the community is habitually obedient. Every word in this definition has its precise meaning, which is developed by Austin with admirable clearness. The faculty "of untying knots" on which he prided himself is nowhere more conspicuously manifested than in the analysis which lays bare the real meaning of the common phrases used to describe the fundamental parts of society. It is not our purpose to examine the value of this analysis here, but simply to call attention to the assumption that in every society of men there is a determinate body (whether consisting of one individual, or a few or many individuals) whose commands the rest of the community obey. This sovereign body is what in more popular phrase is termed the Government of the country, and the varieties which may exist in its constitution are known as forms of government.

Mr Herbert Spencer, approaching the study of society under the influence of conceptions derived from the study of physical organisms, brings us to very much the same result. The union of men in society is itself an organic structure, having parts and functions corresponding to the parts and functions of an animal or a plant. Mr Spencer pursues this analogy so fully and minutely as to leave the impression that he believes it to be something more than an analogy, -- that it is a general law from which true deductions regarding society may be drawn. The veins and arteries correspond to our railroads and highways; the nerves, communicating intelligence to the brain, are paralleled by the telegraph wires; the centralized action of society at the seat of government is the same thing as the regulative activity of the brain. Government is here represented by the regulative functions of a living organism, and forms of government are so many varieties in the structure. Austin, for the purposes of jurisprudence, finds it convenient to regard society as moulded by the will of a dominant body. Spencer exhibits the regulative parts of society as bound up with the rest in one organism. With both the existence of a government is necessary to the conception of society. In the one theory the element of command, in the other that of regulation, is conspicuous. If to these we add a third, that of simple agency, we shall have a tolerably complete view of the relations between Government and society. Besides commanding the conduct of individuals, besides regulating the relations of the various members of society, Government may be conceived of as merely the instrument of society. Where men are united in groups there arises from their union the necessity of action on behalf of the group. That part of society which attends to the business of the whole is the Government.

Two main lines of inquiry divide the subject. The first relates to varieties in the structure of the governing body – forms of government. The second relates to the functions of the governing body, the sphere of government, the things which fall within the province of state action. In both lines we have to deal with the ascertained facts of the past history and present condition of human societies. In both we have also to notice the speculative opinions of political thinkers. Notwithstanding the apparent confusion it will probably be found more convenient not to separate the historical from the speculative treatment of the subject. What is the best form of government? – is not quite the same question as What was the constitution of Athens or Rome? What are the proper limits of state interference? – is not the same question as What are the functions of the state in France or England? And yet the same answer may often serve for both sets of questions. Ideal constitutions have a suspicious resemblance to the constitutions with which their authors are most familiar. The political speculations of Plato and of Cicero are based on the state systems of Greece and Italy. Cicero’s ideal code in the treatise De Legibus is simply an adaptation of the Twelve Tables. On the other hand, the form of political speculations is often determined by, and in turn determines, the practical politics oft eh time. The intimate connexion between speculation and practice in political is strikingly illustrated in the period of controversy which culminated in the Revolution of 1688. The irreconcilable claims of crown and parliament threw the mind back on first principles. Never had theories a better chance. Popular government and absolute government each sought to establish itself on a basis of reason and nature. Filmer founds kingly authority on the natural subjection of mankind and the lineal succession of the king to Adam, the first and divinely appointed head of mankind. Locke’s general theories of civil government were, in his own opinion, sufficient "to establish the throne of our great restorer or present king, William, to make good his title in the consent of the people, which, being the only one of all lawful governments, he has more fully and clearly than any prince in Christendom." We all know how the political issue was decided. The practical was not more complete than the speculative victory. For two centuries the speculations invented to support the popular cause against albsolutism have been the accepted commonplace of Englishmen on the constitution of civil society. A more recent example may be given form modern politics. During the discussions which preceded the passing of the Reform Act of 1867, no question was more hotly disputed than that of the real nature of the franchise. Was it a right or was it a privilege? In form this is a scientific or, if we like, a metaphysical question. But the answer to it depended on another question altogether. – whether you wished the franchise to be extended to a large class or not.

Origin of Government. – A preliminary question, formerly of cast theoretical importance, would be. What is the origin of government? How did government come into existence? As a question of historical fact, it demands for its solution a knowledge of the whole past of the human race. It has been answered over and over again in times when historical could hardly be said to exist, and it has therefore been answered without any reference to history. The answers which have satisfied the minds of men may be distinguished broadly into three classes. The first class would comprehend the legendary accounts which nations have given in primitive times of their own forms of government. These are always attributed to the mind of a single lawgiver. The government of Sparta was the invention of Lycurgus. Solon, Moses, Numa, and Alfred in like manner shaped the government of their respective nations. There was no curiosity about the institutions of other nations, -- about the origin of governments in general; and each nation was perfectly ready to accept the traditional _____ of any other,

The second may be called the logical or metaphysical account of the origin of government. It contained no overt reference to any particular form of government, whatever its covert references may have been. It answered the question, How government in general came into existence; and it answered it by a logical analysis of the elements of society. The phenomenon to be accounted for being government and laws, it abstracted government and laws, and contemplated mankind as existing without them. The characteristic feature of this kind of speculation is that it reflects how contemporary men would behave if all government were removed, and infers that men must have behaved so before government came into existence. Society without government resolves itself into a number of individuals each following his own aims, and therefore, in the days before government, each man followed his own aims. It is easy to see how this kind of reasoning should lead to very different views of the nature of the supposed original state. With Hobbes, it is a state of war, and government is the result of an agreement among men to keep the peace. With Locke, it is a state of liberty and equality, -- it is not a state of war; it is governed by its own law, -- the law of nature, which is the same thing as the law of reason. The state of nature is brought to an end by the voluntary agreement of individuals to surrender their natural liberty, and submit themselves to one supreme Government. In the words of Locke, "Men being by nature all free, equal and independent, no one can be put out of this estate and subjected to the political power of another without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community" (On Civil Government, c. viii). Locke boldly defends his theory as founded on historical fact, and it is amusing to compare his demonstration of the baselessness of Filmer’s speculations with the scanty and doubtful examples which he accepts as the foundation of his own. But in general the various forms of the hypothesis eliminate the question of time altogether. The original contract from which government sprung is likewise the subsisting contract on which civil society continues to be based. The historical weakness of the theory was probably always recognized. Its logical inadequacy was conclusively demonstrated by Austin. But it still clings to speculations on the principles of government.

The "social compact" is the most famous of the metaphysical explanations of government. In has had the largest history, the widest influence, and the most complete development. To the same class belong the various forms of the theory that governments exist by divine appointment. Of all that has been written about the divine right of kings, a great deal must be set down to the mere flatteries of countiers and ecclesiastics. But there remains a genuine belief that men are bound to obey their rulers because their rulers have been appointed by God. Like the social compact, the theory of divine appointment avoided the question of historical fact.

The application of the historical method to the phenomena of society has changed the aspect of the question and robbed it of its political interest. The student of the history of society has no formula to express the law by which government is born. All that he can do is to trace governmental forms through various stages of social development. The more complex and the larger the society, the more distinct is the separation between the governing part and the rest, and the more elaborate is the subdivision of functions in the government. The primitive type of ruler is kind, judge, priest, and general. At the same time, his way of life differs little from that of his followers and subjects. The metaphysical theories wert in imputing greater equality of social conditions to more primitive times. Increase of bulk brings with it a more complex social organization. War tends to develop the strength of the governmental organization; peace relaxes it. All societies of men exhibit the germs of government; but there would appear to be races of men so low that they cannot be said to live together in society at all. Recent investigations have illustrated very fully the importance of the family in primitive societies, and the belief in a common descent has much to do with the social cohesion of a tribe. The government of a tribe resembles the government of a household; the head of the family is the ruler. But we cannot affirm that political government has its origin in family government, or that there may not have been states of society in which government of some sort existed while the family did not.


FORMS OF GOVERNMENT.

Three Standard Forms. – Political writers from the time of Aristotle have been singularly unanimous in their classification of the forms of government. There are three ways in which states may be governed. They may be governed by one man, or by a number of men, small in proportion to the whole number of men in the state, or by a number large in proportion to the whole number of men in the state. The government may be a monarchy, an aristocracy, or a democracy. The same terms are used by Austin as were used by Aristotle, and in very nearly the same sense. The determining quality in governments in both writers, and it may safely be said in all intermediate writers, is the numerical relation between the constituent members of the government and the population of the state. There were, of course, enormous differences between the state-systems present to the mind of the Greek philosopher and the English jurist. Aristotle was thinking of the small independent states of Greece, Austin of the great peoples of modern Europe. The unit of government in the one case was a city, in the other a nation. This difference is of itself enough to invalidate all generalization founded on the common terminology. But on one point there is a complete parallel between the politics of Aristotle and the politics of Austin. The Greek cities were to the rest of the world very much what European nations and European colonies are to the rest of the world now. They were the only communities in which the governed visibly took some share in the work of government. Outside the European system, as outside the Greek system, we have only the stereotyped uniformity of despotism, whether savage or civilized. The question of forms of government, therefore, belongs entirely to the European races. The virtues and defects of monarchy, aristocracy, and democracy are the virtues and defects manifested by the historical Governments of Europe. The generality of the language used by political writers must not blind us to the fact that they are thinking only of a comparatively small portion of mankind.

Greek Politics. – Aristotle divides governments according to two principles. In all states the governing power seeks either its own advantage on the advantage of the whole state, an the government is bad or good accordingly. In all states the governing-power is one man, or a few men, or many men. Hence six varieties of government, three of which are bad and three good. Each excellent form has a corresponding depraved form, thus: --

The good government of one (Monarchy) corresponds to the depraved form (Tyranny).

The good government of few (Aristocracy) corresponds to the depraved form (Oligarchy).

The good government of many (Commonwealth) corresponds to the depraved form (Democracy).

The fault of the depraved forms is that the governors act unjustly where their own interests are connected. The worst of the depraved forms is tyranny, the next oligarchy, and the least bad democracy.1 Each of the three leading types exhibits a number of varieties. Thus in monarchy we have the heroic, the barbaric, the elective dictatorship, the Lacedemonian (hereditary generalship, _____), and absolute monarchy. So democracy and oligarchy exhibit four corresponding varieties. The best type of democracy us that of a community mainly agricultural, whose citizens, therefore, have not leisure for political affairs, and allow the law to rule. The best oligarchy is that in which a considerable number of small proprietors have the power; here, too, the laws prevail. The worst democracy consists of a larger citizen class having leisure for politics; and the worst oligarchy is that of small number of very rich and influential men. In both the sphere of law is reduced to a minimum. A good government is one in which as much as possible is left to the laws, and as little as possible to the will of the governor.

The Politics of Aristotle, from which these principles are taken, presents a striking picture of the variety and activity of political life in the free communities of Greece. The kings and council of heroic times had disappeared, and self-government in some from or other was the general rule. It is to be noticed, however, that the Governments of Greece were essentially unstable. The political philosophers could lay down the law of development by which one form of government gives birth to another. Aristotle devotes a large portion of his work to the consideration of the causes or revolutions. The dread of tyranny was kept alive the facility with which an over-powerful and unscrupulous citizen could seize the whole machinery of government. Communities oscillated between some form of oligarchy and some form of democracy. The security of each was constantly imperiled by the conspiracies of the opposing factions. Hence, although political life exhibits that exuberant variety of form and expression which characterizes all the intellectual products of Greece, it lacks the quality of persistent progress. Then there was no approximation to a national government, even of the federal type. The varying confederacies and hegemonies are the nearest approach to anything of the kind. What kind of national government would ultimately have arisen if Greece had not been crushed it is needless to conjecture; the true interest of Greek politics lies in the fact that the free citizens were, in the strictest sense of the word, self-governed. Each citizen took his turn at the common business of the state. He spoke his own views in the agora, and from time to time in his own person acted as magistrate or judge. Citizenship in Athens was a liberal education, such as it never can be made under any representative system.

The Government of Rome. – During the whole period of freedom the government of Rome was, in theory at least, municipal self-government. Each citizen had a right to vote laws in his own person in the comitia of the centuries or the tribes.

The administrative powers of government were, in the hands of a bureaucratic assembly, recruited from the holders of high public office. The senate represented capacity and experience rather than rank and wealth. Without some such instrument the city government of Rome could never have made the conquest of the world. The gradual extension of the citizenship to other Italians changed the character of Roman government. The distant citizens could not come to the voting booths; the device of representation was not discovered; and the comitia fell into the power of the town voters. In the last stage of the Roman republic, the inhabitants of one town wielded the resources of a worldwide empire. We can imagine what would be the effect of leaving to the people of London or Paris the supreme control of the British empire or of France, -- irresistible temptation, inevitable corruption. The rabble of the capital learn to live on the rest of the empire.2 The favour of the effeminate masters of the world is purchased by panem et circenses. That capable officers and victorious armies should ling be content to serve much masters was impossible. A conspiracy of generals placed itself at the head of affairs, and the most capable of them made himself sole master. Under Caesar, Augustus, and Tiberius, the Roman people became habituated to a new form of government, which is best described by the name of Caesarism. The outward forms of republican government remained, but one man united in his own person all the leading offices, and used them to give a seemingly legal title to what was essentially military despotism. There is no more interesting constitutional study than the chapters in which Tacitus traces the growth of the new system under the subtle and dissimulating intellect of Tiberius. The new Roman empire was a full of fictions as the English constitution of the present day. The master of the world posed as the humble servant of a menial senate. Deprecating the outward symbols of sovereignty, he was satisfied with the modest powers of a consul or a tribunus plebes. The reign of Tiberius, little capable as he was by personal character of captivating the favour of the multitude, did more for imperialism than was done by his more famous predecessors. Henceforward free government all over the world lay crushed beneath the military despotism of Rome. Caesarian remained true to the character imposed upon it by its origin. The Caesar was an elective not an hereditary king. The real foundation of his power was the army, and the army in course of time openly assumed the right of nominating the sovereign. The characteristic weakness of the Roman empire was the uncertainly of the succession. The nomination of a Caesar in the lifetime of the emperor was an ineffective remedy. Rival emperors were elected by different armies; and nothing less than the force of arms could decide the question between them.





Modern Governments – Feudalism. – The Roman empire bequeathed to modern Europe the theory of universal dominion. The nationalities which grew up after its fall arranged themselves on the basis of territorial sovereignty. Leaving out of account the free municipalities of the Middle Ages, the problem of government had now to be solved, not for small urban communities, but for large territorial nations. The mediaeval form of government was feudal. One common type pervaded all the relations of life. The relation of king and lord was like the relation between lord and vassal (see FEUDALISM).

The bond between them was the tenure of land. In England there had been, before the Norman Conquest, an approximation to a feudal system. In the earlier English constitution, the most striking features were the power of the witan, and the common property of the nation in a large portion of the soil. The steady development of the power of the king kept race with the aggregation of the English tribes under one king. The conception that the land belonged primarily to the people gave way to the conception that everything belonged primarily to the king.1 The Norman Conquest imposed on England the already highly developed feudalism of France, and out of this feudalism the free governments of modern Europe have grown. One or two of the leasing steps sin this process may be indicated here. The first, and perhaps the most important, was the device of representation. For an account of its origin and for instances of its use in England before its application to politics, we must be content to refer to canon Stubbs’s Constitutional History, vol. ii. The problem of combining a large area of sovereignty with some degree of self-government, which has proved fatal to ancient commonwealths, was henceforward solved. From the time some form or representation has been deemed essential to every constitution professing, however remotely, to be free.

The connexion between representation and the feudal system of estates must be shortly noticed. The feudal theory gave the king a limited right to military service and to certain aids, both of which were utterly inadequate to meet the expenses of the government, especially in time of war. The king therefore had to get contributions from his people, and he consulted them in their respective orders. The three estates were simply the three natural divisions of the people, and Canon Stubbs has pointed out that, in the occasional treaties between a necessitous king and the order of merchants or lawyers, we have examples of inchoate estates or sub-estates of the realm. The right of representation was thus in its origin a right to consent to taxation. The pure theory of feudalism had from the beginning been broken by William the Conqueror causing all free-holders to take an oath of direct allegiance to himself. The institution of parliaments and the association of the king’s smaller tenants in capite with other commoners, still further removed the government from the purely feudal type, in which the mesne lord stands between the inferior vassal and the king.

Parliamentary Government. – The English System. – The right of the commons to share the power of the king and lords in legislation, the exclusive right of the commons to impose taxes, the disappearance of the clergy as a separate order, were all important steps in the movement towards popular government. The extinction of the old feudal nobility in the dynastic wars of the 15th century simplified the question by leaving the crown face to face with parliament. The immediate result was no doubt an increase in the power of the crown, which probably never stood higher than it did in the reigns of Henry VIII. And Elizabeth; but even these powerful monarchs were studious in their regard for parliamentary conventionalities. After a long period of speculative controversy and civil war, the settlement of 1688 established limited monarchy as the government of England. Since

that time the external form of government has remained unchanged, and, so far as legal description goes, the constitution of William III. might be taken for the same system as that which still exists.

The silent changes have, however, been enormous. The most striking of these, and that which has produced the most salient features of the English system, is the growth of cabinet government. Intimately connected with this is the rise of the two great historical parties of English politics. The normal state of government in England is that the cabinet of the day shall represent that which is, for the time, the stronger of the two. Before the Revolution the king’s ministers had begun to act as a united body; but even after the Revolution the union was still feeble and fluctuating, and each individual minister was bound to the others only by the tie of common service to the king. Under the Hanoverian sovereigns the ministry became consolidated, the position of the cabinet became definite, and its dependence on parliament, and more particularly on the House of Commons, was established. Ministers were chosen exclusively from one house or the other, and they assumed complete responsibility for every act done in the name of the crown. The simplicity of English politics has divided parliament into two nearly equal parties, and the party in opposition has been steadied by the consciousness that it, too has constitutional functions of high responsible. Along with this movement went the withdrawal of the personal action of the monarch in politics. No king has attempted to veto a bill since the Scotch Militia Bill was vetoed by Queen Anne. No ministry has been dismissed by the sovereign since 1834.Whatever the power of the monarch may be, it is unquestionable limited to his personal influence over his ministers. And it must be remembered that ministers are responsible ultimately, not to parliament, but to the House of Commons.

Apart, therefore, from the democratic changes of 1832 and 1867, we find that the Houser of Commons, as a body, has gradually made itself the centre of the government. Since the area of the constitution has been enlarged, it may be doubted whether the orthodox descriptions of the government any longer apply. The earlier constitutional writers, such as Blackstone and Delolme, regard it as a wonderful compound of the three standard forms, -- monarchy, aristocracy, and democracy. Each has its place, and each acts as a check upon the others. Hume, discussing the question "Whether the British government inclines more absolute monarchy or to a republic," decided in favour of the former alternative. "The tide has run long and with some rapidity to the side of popular government, and is just beginning to turn toward monarchy." And he gives it as his own opinion that absolute monarchy would be the easiest death, the true euthanasia of the English constitution. These views of the English Government in the 18th century may be contrasted with Mr Bagehot’s sketch of the modern government as a working instruments.2

Leading Features of Parliamentary Government. – The parliamentary government developed by England out of feudal materials has been deliberately accepted as the type of constitutional government all over the world. Nearly all the European states and nearly all the European colonies, dependent or independent, have adopted, more or less fully, the leading features of the English system – that is to say, popular representation more or less extensive, a bicameral legislature, and a cabinet of consolidated ministry. In connexion with all of these, numberless questions of the highest practical importance have arisen, the bare enumeration of which would surpass the limits of our space. We shall confine ourselves to a few very general considerations.

The Two Chambers. – First, as to the double chamber. This, which is perhaps more accidental than any other portion of the English system, has been the most widely imitated. In most European counties, in the English colonies, in the United States congress, and in the separation States of the Union1, there are two houses of legislature. This result has been brought about partly by natural imitation of the accepted type of free government, partly from a conviction that the second chamber will moderate the democratic tendencies of the first. The theoretical question would take too long to argue, but it is easy to show that the elements of the English original cannot be reproduced to order under different conditions. There have, indeed, been a few attempts to imitate the special character of hereditary nobility attaching to the English House of Lords, and these few have failed. The complete solidarity existing between the English nobility and at least the politically privileged, if not the whole mass, of their countrymen, is a result not to be attempted by the framers of constitutions. The English system, too, after its own way, obviates any danger of collision between the Houses, -- the standing and obvious danger of the bicameral system. In England there is no doubt where the real sovereignty lies. The actual ministers of the day must possess the confidence of the House of Commons; they need not – in fact they often do not – possess the confidence of the Hose of Lords. It is only in legislation that the Lower House really shares its powers with the Upper; and the constitution possesses, in the unlimited power of nominating peers, a well-understood last resources should the House of Lords persists in refusing important measures demanded by the representatives of the people. In all but measures of first-class importance, however, the House of Lords is real second chamber, and in these there is little danger of a collision between the English and any other second chamber. In the United State the senate (constitute on the system of equal representation of States) is the more important of the two Houses, and they only one whose control of the executive cane be compared to that exercised by the British House of Commons. In the English colonies a dead-lock between the two Houses is a matter of frequent occurrence. In France, it is an anticipated if not an intended source of danger to the new republican constitution.

The real strength of popular government in England has in the ultimate supremacy of the House of Commons. That supremacy had been acquired, perhaps to its full extent. Before the extension of the suffrage made the constituencies democratic. Foreign imitators, it may be observed, have been more ready to accept a wide basis of representation than to confer real power on the representative body. In all the monarchical countries of Europe , however unrestricted the right of suffrage may be, the real victory of constitutional government has yet to be won. Where the suffrage means little or nothing, there is little or no reason for guarding it against abuse. The independence of the executive in the United States brings that country, from one point of view, more near to the Continental than to the English state system. The people make a more complete surrender of power to the Government than is done in England.

Cabinet Government. – The peculiar functions of the English cabinet are not easily matched in any foreign system. They are a mystery even to most educated Englishmen. The cabinet in England is much more than a body consisting of chiefs of departments. It is the inner council of the empire, the arbiter of national policy, foreign or domestic, the sovereign in commission. The whole power of the House of Commons is concentrated in its hands. At the same time, it has no place whatever in the legal constitution. Its numbers and its constitution are not fixed even by any rule of practice. It keeps no record of its proceedings. The relations of an individual minister to the cabinet, and of the cabinet to its head and creator, the premier, are t5hings known only to the initiated3. With the doubtful exception of France, no other system of government presents us with anything like its equivalent. In the United States, as in the European monarchies, we have a council of ministers surrounding the chief of the state.

Sweden, a few years since, reduced her four mediaeval estates to two houses, and is more like Great Britain on the composition of the new parliament than any other state in Europe.

See Bagehot’s English Constitution, which exhibits a working view of this and other parts of the constitution as they appear to the outsider. Mr Gladstone’s political essays, in the collection entitled Gleanings of Past Years, contain much valuable information at first hand.

Change of Power in the English System. – One of the most difficult problems of government is how to provide for the devolution of political power, and perhaps no other question is so generally and justly applied as the test of a working constitution. If the transmission works smoothly, the constitution, whatever may be its other defects, may at least be pronounced stable. It would be tedious to enumerate all the contrivances stable. It would be tedious to enumerate all the contrivances which this problem has suggested to political societies. Here, as usual, Oriental despotism stands at the bottom of the scale. When sovereign power is imputed to one family, and the law of succession fails to designate exclusively the individual entitled to succeed, assassination becomes almost a necessary measure of presentation. The prince whom chance or intrigue has promoted to the throne of a father or an uncle, must make himself safe from his relatives and competitors. Hence the scenes which shock the European conscience when "Amurath an Amurath succeeds." Constantinople, Afghanistan, and Burmah have all recently illustrated the standing difficulty of the succession in Oriental despotisms . The strong monarchial governments of Europe have been saved from this evil by an indisputable law of succession, which marks out from his infancy the next successor to the throne. The king names his ministers, and the law names the king. In popular or constitutional government far more elaborate precautions are required. It is one of the real merits of the English constitution that it has solved this problem – in a roundabout way perhaps, after its fashion – but with perfect success. The ostensible seat of power is the throne, and down to a time not long distant the demise of the crown suspended all the other powers of the state. In point of fact, however, the real change of ministry. The constitutional practice of this century has settled, beyond the reach of controversy, the occasions on which a ministry is bound to retire. It must resign or dissolve when it is defeated in the House of Commons, and if after a dissolution it is beaten again, it must resign without alternative. It may resign if it thinks its majority in the House of Commons not sufficiently large. The dormant functions of the crown now come into existence. It recieves back political power from the old ministry in order to transmit it to the new. When the new ministry is to be formed, and how it is to be formed, is also clearly settled by established practice. The out-going premier names his successor by recommending the king to consult him; and that successor must be the recognized leader of his successful rivals. All this is a matter of custom, not of law; and it is doubtful if any two authorities could agree in describing the custom in language of precision. It is certain that the intervention of the crown facilitates the transfer of power from one party to another, by giving it the appearance of a mere change of servants. The real disturbance is that caused by the appeal to the electors. A general election is always a struggle between the two great political parties for the possession of the powers of government. It may be noted that recent practice goes far to establish the rule that a ministry beaten at the hustings should resign at once without waiting for a formal defeat in the House of Commons.

The English custom makes the ministry dependent on the will of the House of Commons itself is dependent on the will of the ministry. In the last result both depend on the will of the constituencies, as expressed at the general election. There is no fixity in either direction in the tenure of a ministry. It may be challenged at any moment, and it lasts until it is challenged and beaten. And that there should be a ministry and a House of Commons in harmony with each other but out of harmony with the people is rendered all but impossible by the law and the practice as to the duration of parliaments.





Change of Power in the United States. – The United States offers a very different solution of the problem. The American president is at once king and prime minister; and there is no titular superior to act as a conduit-pipe between him and his successor. His crown is rapidly fixed; unshakable for four years, after four years he ceases to reign. No hostile vote can affect his power as the head of the administration, and it is difficult to resist his will even in legislation. But the day to his demise is known from the first day of his government; and almost before he begins to reign the political forces of the country are shaping out a new struggle for succession. Further, a change of government in America means a change of the entire administrative staff. The commotion caused by a presidential election in the United States is thus infinitely greater than that caused by a general election in England. A change of power in England affects comparatively few personal interests, and absorbs the attention of the country for a comparatively short space of time. In the United States it is long foreseen and elaborately prepared for, and when it comes it involves the personal fortunes of large numbers of citizens. And yet the English constitution is more democratic than the American, in the sense that the popular will can more speedily he brought to bear upon the government.

Change of Power in France. – The established practice of England and America may be compared with the nascent constitutionalism of France. Here the problem presents different conditions. The head of the state is neither a premier of the English, nor a president of the American type. He is served by a prime minister and a cabinet, who, like an English ministry, hold office on the condition of parliamentary confidence; but he holds office himself on the same terms, and is, in fact, a minister like the others. So far as the transmission of power from cabinet to cabinet is concerned, he discharges the functions of an English king. But the transmission of power between himself and his successor is protected by no constitutional devices whatever, and recent experience would seem to show that no such devices are really necessary. Of course it is too soon to talk about the constitutional practice in France, but this much seems clear, that some rearrangement of the relations of the president and the cabinet musts soon take place. It seems difficult to distinguish between a parliamentary president and a parliamentary ministry, or to see why they should not stand or fall together. As yet the new French constitution has not had time to exhibit that which is a constant feature of the English constitution, viz, a government headed by the chief of the dominant political party. When that time comes the office of premier ought, one would suppose, to merge in the office of president. Possibly the existence of numerous political parties, and the open disloyalty to the existing constitution professed by some of them, may retard the simplification of the French governmental system. Other European countries professing constitutional government appear to follow the English practice. The Swiss republic is so peculiarly situated that it is hardly fair to compare it with any other. But it is interesting to note that, while the rulers of the states are elected annually, the same persons are generally re-elected.

Representation. – The question connected with representation are too numerous to be discussed with advantage here. Two recent changes of great importance may be noticed in the English system, -- the vote by ballot, and the partial introduction of what is called the minority vote. By the latter, in a constituency returning three members, each elector has only two votes, and minority exceeding one-third can thus elect at least one of the three. The representation of minorities is a device of political theorists, and the chief result of its partial application has been to weaken the influence of the large constituencies. The chief anomalies of the English system are the inequality of electoral districts and the multiplicity of votes. A town of 200 electors returns as many candidates as a constituency of ten times that number. On the other hand, while one man has a single vote only, his neighbout, by various qualifications, may be an elector in several constituencies. In each case there is a revolution of the only theory on which the representative system as a whole can be founded – the equality of the voters. The first of these anomalies is admittedly waiting the convenience of political parties. The second has been recently aggravated by the creation of new university constituencies, consisting almost entirely of persons who had already the right of voting under the ordinary qualification. The anomaly becomes a gross abuse in the practice of creating what are known as faggot votes. The simple remedy would be to require that each elector should be registered in one constituency only.

The Relation between Government and Laws. – It might be supposed that, if any general proposition could be established about government, it would be one establishing some constant relation between the form of a government and the character of the laws which it enforces. The technical language of the English school of jurists is certainly of a kind to encourage such a supposition. The entire body of law in force in a country at any moment is regarded as existing solely by the first of the governing power. There is no maxim more entirely in the spirit of this jurisprudence than the following: -- "The real legislator is not he by whom the law was first ordained, but he by whose will is continues to be law." The whole of the vast repertory of rules which make up the law of England – The rules of practice in the courts, the local customs of a county or a manor, the principles formulated by the sagacity of generations of judges, equally with the statutes for the year, are conceived of by the school of Austin as created by the will of the sovereign and the two Houses of Parliament, or so much of them as would now satisfy the definition of sovereignty. It would be out of place to examine here the difficulties which embarrass this definition, but the statement we have made carries on its face a demonstration of its own falsity in fact. There is probably no government in the world of which it could be said that it might change at will the substantive laws of the country and still remain a government. However well it may suit the purposes of analytical jurisprudence to define a law as a command set by sovereign to subject, we must not forget that this is on ly a definition, an that the assumption it rests upon is, to the student of society, anything but a universal fact. From his point of view the cause of a particular law is not one but many, and of the many the deliberate will of a legislator may not be one. Sir Henry Maine has illustrated this point by the case of the great tax-gathering empires of the East, in which the absolute master of millions of men never dreams of making anything in the nature of a law at all. This view is no doubt as strange to the English statesman as to the English jurist. The most conspicuous work of government of his view is that of parliamentary legislation. For a large portion of the year the attention of the whole people is bent on the operations of a body of men who are constantly in making new laws. It is natural for us, therefore, to think of law as a factitious thing, made and unmade by the people who happen for the time being to constitute parliament. We forget how small a proportion the laws actually devised by parliament are of the law actually prevailing in the land. No European country has undergone so many changes in the form of government as France. Republic, constitutional monarchy, and empire have there succeeded each other again and again in the course of a century. It is surprising how little effect these political revolutions have had on the body of French law. The change from empire to republic is not marked by greater legislative effects than the change from a Conservative to a Liberal ministry in England would be.

These reflexions should make us cautiuos in accepting any general proposition about forms of government and the spirit of their laws. We must remember, also, that the classification of governments according to the numerical proportion between governors and governed supplied but a small basis for generalization. What parallel can be drawn between a small town, in which half the population are slaves, and every freeman has a direct voice in the government, and a great modern state, in which there is not a single slave, while freemen exercise their sovereign powers at long intervals, and through the action of delegates and representatives? Propositions as vague as those of Montesquieu may indeed be asserted with more or less plausibility. But to take any leading head of positive law, and to say that monarchies treat it in one way, aristocracies and democracies in another, is a different matter. Laws affecting trade might be expected to depend on the more or less popular character of the government. Yet would it be safe to say that monarchy discourages, that democracy encourages, free trade? France under the empire was more free trading than France under the republic. If there is any differences at all between Great Britain and her colonies it is that the latter are generally supposed to be more democratic than the mother country. Yet protection rules the young democracies, while free trade reigns at home. The principle has indeed been broadly laid down that oligarchical governments interfere more actively and more extensively in the affairs of their subjects than popular governments. We shall have occasion to show directly that the popularization of government in England has up to this time been attended by a striking increase in the sphere of state action.


II. SPHERE OF GOVERNMENT

We may now ask, What is the appropriate sphere of government? What kind of business does it undertake, and what kind of business ought it to undertake? But what limits is its action to be restricted? Here too the field is occupied by disputed theories and diversified practice. And the sphere assigned to state action in different ages and countries varies as widely as the form of government.

The action of the state, or sovereign power, or government in a civilized community shpaes itself unto the threefold functions of legislation, judicature, and administration. The two first two are perfectly well-defined, and the last includes all the kinds of state action not included in the other two. It is with reference to legislation and administration that the line of permissible state-action requires to be drawn. There is no doubt about the province of the judicature, and that function of government may therefore dismissed with a very few observations.

The complete separation of the three functions marks a high point of social organization. In simple societies the same officers discharge all the duties which we divide between the legislator, the administrator, and the judge. The acts themselves are not consciously recognized as being of different kinds. The evolution of all the parts of a highly complex government from one original is illustrated in a striking way by the history of English institutions. All the conspicuous parts of the modern government, however little they may resemble each other now, can be followed back without a break to their common origin. Parliament, the cabinet, the privy council, the courts of law, all carry us back to the same nidus in the council of the feudal king.

Judicature. – The business of judicature, requiring as it does the possession of a high degree of technical skill and knowledge, is generally entrusted by the sovereign body or people to a separate and independent class of functionaries. In England, the appellate jurisdiction of the House of Lords still maintains in theory the connexion between the supreme legislative and the supreme judicial functions. It is only recently that the important subject of divorce passed from the legislative chambers to the courts of law. In some of the States of the American Union the judicial functions of the upper house are still maintained after the example of were founded. In England there is also still a considerable amount of judicial work in which the people takes its share. The inferior magistracies, except in populous places, are in the hands of private persons. And by the jury system the ascertainment of fact has been committed in very large measure to persons selected indiscriminately from the mass of the people, subject to a small property qualification. But the higher functions of the judicature are exercised by persons whom the law has jealously fenced off from external interference and control. The independence of the bench distinguishes the English system form every other. It was established in principle as a barrier against monarchial power, and hence has become one of the traditional ensigns of popular government. In many of the American States, the spirit of democracy has demanded the subjection of the judiciary to popular control. The judges are elected directly by the people, and hold office for a short term, instead of being appointed, as in England, by the responsible executive, and removable only by a vote of the two Houses. There is not the smallest sign that democratic opinion in England is tending in this direction1. At the same time the constitution of the Unites States has assigned to the supreme court of the Union a perfectly unique position, standing in singular contrast to the depraved condition of many of the State judicatories. It has to judge whether a measure passed by the legislative powers is not void by reason of being unconstitutional, and it may therefore have to veto the deliberate resolutions of both Houses of Congress and the president. It is admitted that this singular experiment is government has been completely justified by its success.

Limits of State Interference in Legislation and Administration. – The question of the limits of state action does not arise with reference to the judiciary. The enforcement of the laws is a duty which the sovereign power must of absolute necessity take upon itself. But to what conduct of the citizens the laws shall extend is the most perplexing of all political questions. The correlative question with regard to the executive would be what works of public convenience should the state undertake through its own servants. The whole question of the sphere of government may be stated in these two questions: What should the state do for its citizens? And How far should the state interfere with the action of its citizens? These questions are the direct outcome of modern popular government; they are equally unknown to the small democracies of ancient times and to despotic governments at all times. Accordingly ancient political philosophy, rich as it is in all kinds of suggestions, has very little to say that has any bearing on the sphere of government. The conception that the power of the state can be and ought to be limited belongs to the times of "government by discussion," to use Mr Bagehot’s expression, -- to the time when the sovereign number is divided by class interests, and when the action of the majority has to be carried out in the face of strong minorities, capable of making themselves heard. Aristotle does indeed dwell on one aspect of the question. He would limit the action of the government in the sense of leaving as little as possible to the personal will of the governors, whether one or many. His maxim is that the law should reign. But that the sphere of law itself should be restricted, otherwise than by general principles of morality, is a consideration wholly foreign to ancient philosophy. The state is conceived as acting like a just man, and justice in the state is the same thing as justice in the individual. The Greek institutions which the philosophers are unanimous in commending are precisely those which the most state-ridden nations of modern times would agree in repudiating.

Importance of this Question in English Politics. – Limitation, then, being a principle known only to free governments, we naturally took to English political history for its elucidation; and the speculative and practical treatment of this question is perhaps the most valuable contribution made by England to political science. From the time of the Revolution, the principle that there is a limit to the permissible action of government has been tacitly admitted. The theories which restricted the powers of the constitutional king by founding them on popular consent tended also to the restriction of the sphere of government in general. The connexion between the two may be seen very clearly in Locke. Government was created by the voluntary union of men in political society, and the object for which they agreed to unite was the preservation of their property. The scope of government is therefore limited by this its original object. "Though men, when they enter into society, give up the liberty, equality, and executive power they had in the state of nature into the hands of society, to be so far disposed of by the legislature as the good of society shall require, yet, it being only with an intention in every one the better to preserve himself, his liberty, and property,… the power of the society or legislature constitutes by them can never be supposed to extend further than the common good. "The practical application of these principles is to be found in his essay on Toleration. The business of the state being the protection of body and goods, it has not right to interfere with the religious worship or opinions of its citizens. The existence of religious dissent on a large scale kept up the practical importance of this theory. Even in the extreme absolutism of the partisans of monarchy, the curious doctrine of passive obedience recognizes the same principle. Although the will of the sovereign ought never to be resisted, there is a line of action beyond which he ought never to pass.

Another historical fact of some importance is the long-continued alienation of the aristocratic classes from the reigning family during the post-Revolution period. In the 18th century the natural champions of monarchical power were in opposition. Their vast local influence, which might otherwise have gone to aggrandize the influence of the crown, was really employed to thwart it. There thus sprang up in the most conservative classes of soceity a strong feeling of jealously for local independence, and a standing dislike of Government interference, Squire Western, in Tom Jones, may be taken as the type of the country party of the period. His idea of intellectual conversation is abusing the Government over a bottle. Nothing in the new-fangled notions of his sister disgusts him more than her affected sympathy with the politicians then in power. The sullen disaffection of the most powerful section of society was a most effectual butwark against any extension of the central power. It has been remarked by an acute observer1 that the weakness of government in the 18th century suffered even public institutions to assert their local independence. Corporations of very kind enjoyed the most complete liberty to action, and, freed from state control, became the private patrimony of their members. The same sort of resistance to state action has been repeated in the 19th century. The natural adherents of the crown, and the leaders of provincial society, and aristocracy, the county gentry, and the clergy, have generally been in opposition to ministers. It is a fact not without significance that the first constitutional question of this reign was raised by Sir Robert Peel, the leader of the Conservative party.

Again, the exhaustive discussion of all political measures, which for two centuries has been a fixed habit of English public life, has of itself established the principle that there are assignable limits to the action of the state. Not that the limits ever have been assigned in terms, but popular sentiments has more or less vaguely fenced off departments on conduct as sacred from the interference of the law. Phrases like "the liberty of the subject," the "sanctity of private property," " an Englishman’s house is his castle," "the right of conscience," are the commonplace of political discussion, and tell the state, "Thus far shalt thou go and no further."

State And Church. – The side on which the legitimate province of government has been most debated is that on which it comes in contact with religion. High ecclesiastical theories draw the lines of restriction as clearly as voluntaryism, but what they exclude is state control and not state support. The Roman Catholics, the High Church party in English, and the Free Church party in England, and the Free Church in Scotland, all unite in protesting against the intrusion of the secular government into spiritual affairs. This assertion of a spiritual government lying beyond the sphere of government, and sacred from its interference, unfortunately implies that there is another authority from which, on religious matters, the Government ought to take its instructions. The duty of a national recognition of religion – implying compulsion of the most personal character – is strongly asserted by the very persons who denounce state control as illegitimate and tyrannical. The exclusion of the state from the spiritual domain is, in fact, not founded on any reasoned theory of the functions of government of all, but on the belief in a divinely appointed order for spiritual things, which it is the duty of the state to enforce. An attempt to base this position on general principles has, indeed, been made by Mr Gladstone in his work on Church and State. Holding that the state is moral person, he argues that its action must be regulated by conscience, and that its religious obligations are the same as those of the individual man.

It must therefore recognize and practise a religion, and the true religion is that of the Christian Church, of which the English Established is a branch. That religion, which its divinely organized system of Episcopacy, the state should enforce in every way short of physical persecution. It should exclude heretics from office and privilege, but it should not put them in prison. Mr Gladstone’s book was the occasion of a controversy which doubtless had some effect on subsequent political events. Macaulay1 stated the Whig view of the subject – holding that while the state may justifiably endow an established church, it may not persecute for dissent in any way whatever. Government has principally to deal with the material wants of society, and with the protection of life and property. While this is the main end of government, it may pursue such secondary ends as the promotion of education and religion, the encouragement of arts, &c., but the primary end must not be sacrificed to the secondary end. The state is therefore not a moral person at all, any more than a railway company or a hospital; and government is certainly not an institution for the promotion of religion; but, if it finds it expedient, it may justly support Presbyterianism in Scotland, Protestant Episcopacy in England, and Roman Catholocism in Ireland. It is needless to say that Macaulay makes no attempt to define the limits within which the government may thus provide for the good of society. These may be said to have been the views of Liberal politicians and latitudinarian churchmen. On the other hand, the religious theory of government, as expounded in Dr Arnold’s Ocxford Lectures on History, is based on the conception that the ideal church and state are one. Here there can be no bounds to the legitimate action of the state except its conformity with religious truth. And Dr Arnold does not hesitate to forecast an ideal state of society in which disbelief in the Christian religion shall so outrage the moral sense of the community that it may fittingly be put down by the strong arm of the law. The weakness of all theological speculations about government cannot well be discussed to much purpose with a disputant who requires a series of theological propositions to be taken for granted.

The Laissez-faire Theory. – Mill. – A more profitable line of inquiry has been followed by writers of the economical school. The most important of these is John Stuart Mill, whose essay on Liberty, together with the concluding chapters of his treatise on Political Economy, gives a tolerably complete view of the principles of government. The leaning of political economists is towards what is called the laissez-faire or non-interference doctrine. There is a general presumption against the interference of Government, which is only to be overcome by every strong evidence of necessity. Governmental action is generally less effective than voluntary action. The necessary duties of Government are so burdensome, that to increase them destroys its efficiency. Its powers are already so great that individual freedom is constantly in danger. As a general rule, nothing which can be done by the voluntary agency of individuals should be left to the state. Each man is the best judge of his own interests. But, on the other hand, when the thing itself is admitted to be useful or necessary, and it cannot be effected by voluntary agency, or when it is such a nature that the consumer cannot be considered capable of judging of the quality supplied, then Mr Mill would allow the state of interpose. Thus the education of children, and even of adults, would fairly come within the province of the state. Mr Mill even goes so far as to admit that, where a restriction of the hours of labaour, or the establishment of a periodical holiday, is proved to be beneficial to labourers as a class, but cannot be carried out voluntarily on account of the refusal of individuals to co-operate, Government may justifiably compel them to co-operate.

Still further, Mr Mill would desire to see some control exercised by the Government over the operations of those voluntary associations which, consisting of large numbers of shareholders, necessarily leave their affairs in the hands of one or a few persons. In short, Mr Mill’s general rule against state action admits of many important exceptions, founded on no princip0le less vague than that of public expediency. The essay on Liberty is mainly concerned with freedom of individual character, and its arguments apply to control exercised, not only by the state, but by society in the form of public opinion. The leading principle is that of Humboldt, " the absolute and essential importance of human development in its richest diversity." Humboldt broadly excluded education, religion, and morals from the action, direct and indirect, of the state. Mill, as we have seen, conceives education to be within the province of the state, but he would confine its action to compelling parents to educate their children.

Herbert Spencer. – The most thoroughgoing opponent of state action, however, is Mr Herbert Spencer. In his Social Statics, published in 1850, he holds it to be the essential duty of Government to protect – to maintain men’s right to lift, to personal liberty, and to property; and the theory that the Government ought to undertake other offices besides that of protector he regards as an untenable theory. Each man has a right to the fullest exercise of all his faculties, compatible with the same right in others. This is the fundamental law of equal freedom, which it is the duty and the only duty of the state to enforce. If the state goes beyond this duty, it becomes, not a protector, but an aggressor. Thus all state regulations of commerce, all religious establishments, all Government relief of the poor, all state systems of education and of sanitary superintendence, even the state currency and the post-office, stand condemned, not only as ineffective for their respective purposes, but as involving violations of man’s natural liberty. Many of the principles enunciated in this book are not reconcilable with the later view of the author, but he would still appear to maintain this theory of government to the fullest extent. Thus, is the Principles of Sociology, published in 1877, he distinguishes between the militant type of society and the industrial type. The former is framed on the principle of compulsory co-operation, while the latter is framed on the principle of voluntary co-operation. He vaguely indicates "a possible future social type, differing as much from the industrial as this does from the militant, -- a type which, having a sustaining system more fully developed than any one known at present, will use the products of industry neither for maintaining a militant organization nor exclusively material aggrandizement, but will devote them to the carrying on of higher activities." Of the two actually existing types, the militant is distinguished by a strong and the industrial by a feeble Governmental system. Reversing the analogy suggested by individual organisms, he holds the latter to be a higher and better type than the former2. And he maintains that military activity in a state distinguished by a high degree of industrial development produces a recurrence to the militant type of institutions generally. Thus, in Germany, the dealings of Bismarck with the ecclesiastical powers, and the measures taken for centralizing the state control of railways, are instances of a more coercive régime established by war. In England, the peaceful period form 1815-1850 is contrasted with the militant period since 1850. The latter has been marked by the usurpations of military officialism, by sanitary dictation, by coercive philanthropy, by compulsory education, by an unhesitating faith in state-judgment, and by a general disregard of the principles of free government, even on the side of the party which in the previous period effected changes in the direction of freedom.

Tendency of recent Legislation. – Turning from political theory of political practice, let us see how the legislation of the last fifty years in England has drawn the line between legitimate and illegitimate state action. The period that has elapsed since the passing in the Reform Act of 1832 has been one of great legislative activity. In no former period has legislation been so completely under the control of public opinion, or so directly affected by open discussion of the principles of projected measures. IT will be of some interest, therefore, to inquire how the most enlightened political community in the world has, during the period of its fullest freedom, defined the business of government.

Reduction of State Action. – Religion. – The cases in which Government interference has been abolished or greatly limited during this period are mainly two – in matters of opinion (especially religious opinion), and in matters of contract. The principle that the state ought to maintain some form of religion has been surrendered by the disestablishment of the Irish Church. The disqualifications, political and civil, of dissenters, been removed. The last remnant of the old rule, making witnesses incompetent on religious grounds, was removed by the Act enabling persons to give evidence without an oath. A few statutes making various forms of irreligion punishable still remain, but they are never enforced, and any attempt to enforce them would almost certainly end in their formal repeal. State prosecutions practically the only instrument of control now left is the law of libel. Under the influence of the judges, that law has, during the period in question, been uniformly interpreted in a sense favourable to the freedom of discussion. One of the few remaining restrictions on religious freedom is the principle, acted on in several recent cases, that a contract may be broken if its object is to facilitate the expression of irreligious opinions.1

At the same time there appears to be a tendency to distinguish between merely irreligious opinions and opinions pronounced to be immoral. Convictions have lately been obtained for publishing and selling books advocating opinions on certain moral and social questions which appeared to a jury to be calculated to deprave the morals of the people. But here again the distinction has been authoritatively drawn between such views when presented in a scientific form, and adapted to a scientific audience, and the same views offered openly to the unscientific public. Untenable as such distinctions are, they manifest a tendency on the part of the courts to confine the prosecution of opinion within the principle of the law against indecent publications. It may further be added that, with one notable exception, -- the Public Worship Regulation Act, -- the dealings of the state with the church have been confined within a very narrow compass. The endowment of new sees, for instance, although sanctioned by the state, is left to the voluntary contributions of the public.

Contract. – Freedom of contract, in general, has been greatly advanced by the success of the free-trade agitation in 1843, which was not so much a protest against state regulation as a demand for a cheap supply of food, Since that time, the principle that the state should leave men to make what bargains they please, without attempting to encourage any particular industry or to favour any special class, has taken rank of a maxim of universal application. One class of contracts – those between master and servant – long remained an exception to the general rule. Breach of such contracts by the servant was treated as a criminal offence, and the combination of servants to obtain a rise of wages as a conspiracy. A series of statutes, the last of which was passed a few years ago, has abolished the criminal character of the breach of the contract of service, except in a few cases. The abolition of the laws against usury in 1857 is another instance; the authorization of trading companies with limited liability is another. The last great legislative measure before parliament (the Criminal Code Bill of 1879) proposes to do away with the old offences of maintenance and champerty. Besides the classes regarded by law as under disability to contract (infants, lunatics, and married women), a few doubtful instances of protected persons might still be named. Thus expectant heirs are treated in the spirit of the old laws against usury. Seamen are not allowed to make a charge upon their wages. In certain employments specified in the Truck Act wages are not allowed to be paid otherwise than in coin. The principle of free trade is outrages in its own name by the legal rule which vitiates contracts made "in restraint of trade."

Increase of State Action. – The enumeration of new restrictive measures, and instance of increased state interference within the same period, would occupy a much more formidable list. A rough classification only will be here attempted. We shall take first, interference for the protection of definite classes of persons.

Education of Children. – This is perhaps the most conspicuous, as it is certainly the most beneficial and the least disputed, of the recent encroachments of the state. The progress of opinion and legislation of this subject has been singularity rapid. Beginning with Government grants in aid of education, strenuously resisted on grounds going to the very root of the question of legitimate state interference, the system has now culminated in a net-work of state-supported and state-administered schools spread over the whole country. That the state should compel parents to educate their children would only be a slight departure, if any, from the general principle imposing duties on parents and disabilities on children. Under the present system the state not only compels the parent to educate, but itself provided, and in great measure pays for, the education. A generation of discussion has, however, drawn very distinctly the line beyond which this advance of state authority must not proceed. Compulsory state education is for children only, and may be justified by the general argument which justifies state protection to the helpless; it is elementary only; and it is secular only.

Regulation of the Labour of Children and Women. – The long series of Factory Acts is the best example of the steady and persistent advance of Government control in this direction. Here the line protection is considerably advanced, but is again carefully drawn under male adults, although these of necessity share in the benefits of the protection in all employments while their work requires the co-operation of women and children. See FACTORY ACTS.

Regulation fo Dangerous Employments. – Of these the Mines Regulation Acts are perhaps the best example. Here the Government actually lays down the rules under which alone these employments are suffered to be carried on. Here the principle that adults are capable of looking after themselves is overruled by the dangerous character of the employment.

In all these cases the action of the state is defended on the ground that the persons protected are unable sufficiently to protect themselves; and the principles adopted is that of prevention instead of mere punishments for breach of duty. Hence as enormous army of inspectors is required for the work of control.

Another class of interference is justified on the ground of public health, and these, in respect of the amount of state supervision required, stand next to the protective measures already enumerated. The common law of nuisance recognizes the principle that any source of contagion or discomfort set up by an individual is an injury to those who may be affected by it, which they may call upon the state to suppress. The Sanitary Acts interpose the remedy at an earlier stage, and by the usual apparatus of Government inspectors and detectives. The largest measure on this subject if the Public Health Act, and the most extreme development of the principle is the lending of money by the Government to municipalities for the erection of healthy dwelling houses for labourers. Personal freedom is more directly affected by measures like the Vaccination Act, for which, however, the double ground of the helplessness of the subjects and the prevention of danger amounting to nuisance may be taken. The least defensible of all the measures of this class are those relating to the adulteration of various kinds of food. The fraudulent or negligent supply of food injurious to health is an injury which may be appropriately punished by awarding compensation to the person injured, and inflicting punishment on the delinquent. But under the last Act (Sale of Food and Drugs Acts, 1875) it is a criminal offence to sell good of a quality not asked for, and the usual staff of analysts and inspectors is established to facilitate detection. The mighty engine of Government determines the exact percentage of water which the dairyman may put in his milk and the publican in his gin.

Next come the cases in which the Government either aids or itself undertakes works of public convenience. The state monopoly of the post-office is the most conspicuous example, and we have recently seen it extended by the acquisition of the telegraphs. Less directly the state has acquired control of the locomotive system, by granting compulsory powers of various sorts and a partial monopoly to railway companies, and by imposing certain regulations on them. This department of state activity has been greatly increased by the operations of the Public Works Loans Commission, which leads money to local bodies for such purposes as the erection of baths and wash-houses, improving rivers, harbours, and towns, building light-houses and public libraries, and the like.

The assertion of state control over endowments in another marked feature of the period. Except in this way. Government has not, in England at least, interfered with the higher sort of education to any great extent. But most of the endowed schools and the universities have been subjected to inquiry, and remodelled according to what are understood to be the demands of the age. Almost every kind of corporation has been revised in the same way, the most notable and scandalous exception being the numerous and wealthy corporations of the city of London. The history of these reforms reveals a perfectly clear rationale of the relations existing between an endowed institution and the state. All endowments are privileges created by the state in the way of exception to the universal rule of law against perpetuities – the rule which limits the operation of dead men’s wills, and makes each generation master of its existing resources. When the purposes of an institution cease to be useful, or its organization is seen to be defective, it is the right and duty of the state to withdraw the privilege altogether, or continue it under new conditions. All endowments become, in virtue of this rule, the property of the state; and how it shall deal with them becomes a question of statesmanship, not of interference with private interest. Under the name of "vested interest," all existing rights of individuals are stringently preserved. These two correlative principles – the right of the state to revise all endowments, and the obligation to respect vested interests in an y such revision – have ceased to be disputable in English politics.

A similar extension of state control is to be seen in the organization of the professions – i.e., persons licensed to practice particular arts. The church, like the army, is not, properly speaking, a profession, and its regulations being to the same class as those of the army or the civil service. The true professions are the various grades of lawyers and medical men. They have an exclusive monopoly of the arts which they profess. The protection of this monopoly was long the only connexion between them and the Government. They were left to the management of self-governing societies or corporations. Within our own generation there has been, not only a marked increase of state of control over the professions, but a marked tendency to extend it to occupations hitherto uncontrolled. The system of medical licentiation is year by year becoming more stringent and more centralized. A recent Act provided for the more efficient testing of the qualifications of solicitors. The bar, which has hitherto with immerse practical wisdom governed itself by means of voluntary societies, is threatened with a parliamentary constitution, settling the conditions of admission, examination, discipline, and dismissal. The free professions are demanding the like recognition and supervision by the state. A bill is now (1879) before parliament for organizing the professions of schoolmasters in the higher class of schools; and elementary schoolmasters are claiming to be included in its scope. The business of buying and selling stocks and shares has narrowly escaped, if it has escaped, the rules and regulations of an act of parliament. A commission was actually appointed a few years ago to investigate the practices of brokers and jobbers, and one its recommendations was that the Stock Exchange should forthwith become a corporation. The last interference of this sort was the appointment of a committee of the House of Commons, at the instance of the London retail traders, to inquire into the working of what are called co-operative stores. Inquiry does not course imply interference, and a committee or a commission is often a convenient way of stopping the mouths of agitators whom it might not be convenient to ignore altogether. Futile as the remedy may be, the first thought of every aggrieved class is to lay its wrongs before parliament.

Protection of things from Excessive Consumption. – Another class of interferences may be describes, in the most general terms, as measures taken for the protection of things which would otherwise perish, or greatly diminish, by reason of excessive use. Statutes of this sort have greatly, multiplied during the last fifty years. There is hardly any kind of animal, which men think worth catching or eating, without its statutory close-time. The ostensible reason for this kind of legislation is that salmon, let us say, or oysters, are a very important article of food, and unless men are restrained from pursuing them to excess, the whole breed would ultimately be extinguished, or so reduced in number as to be of little use. Another and less avowed reason is that animals of the protected order are necessary for the recreation of a certain class of gentlemen, who, in the interest of their own pleasures, must be restrained form carrying them to excess. Thus no gun must be lifted against grouse before the 12th of August, or against partridges before the 1st of September , so that next year there may still be grouse and partridges in the land. The great majority of these enactments belongs in spirit to the game-laws, but many of them are genuinely intended for the perpetuation of perishable supplies of foods. Some of them, like the Seabirds Protection Act, or the Small Birds Protection Acts, are dictated by some sentimental fear of the extinction of such animals. As a whole, they are among the least defensible of the modern extensions of state-power.

Coercion for Moral Purposes. – The measures hitherto noticed may in general be justified either on the ground of the inability of the persons protected to help themselves, or on the ground that some good to society as a whole, or to large portions of it, is secured thereby. Another class of measures openly aims at the moral improvement of the individuals affected by them, and in this class there has been as amazing and alarming increase. The law against gaming are one of the best examples. At common law a wager was a contract, enforceable by the tribunals like any other. Not content with declining to enforce wagers, the state went further, and tried to put them down altogether. It made lotteries illegal. It visited with heavy penalties the keeping of betting-houses, all betting in public places, the publication of betting lists, &c., Games which lead to betting are put the restraint of a licensing system, and in some parts of the provinces the state orders its citizens not to play billiards after eleven o’clock at night. To this class belongs the severe code regulating what is called the liquor traffic. Through the agency of licensing magistrates, the state first of all limits the numbers of public-houses; then it dictates directly the hours during which liquor may be bought and sold; and in Scotland and Ireland on Sunday. A committee of the House of Lords has touched the highest point of government control in proposing houses in their districts, and carry on the business on the business for themselves. There is a simultaneously increasing tendency to interfere with people’s amusements: fairs are being put down as immoral, music and dancing require licenses very charily granted, the grip of the lord chamberlain over the London theatres is tightened, and so on. The course of moral legislation, in fact, threatens to sweep away every barrier to the encroachments of the state. The extended range of Government interference in other things has been accompanied, as we have seen, by a distinct recognition of limits, either in the rights of the individual conscience, or in the capacity of adult manhood to manage its own affairs. But Acts of Parliament for improving the moral characters of men seem to recognize no limit at all. And it is a singular fact that, while this kind of legislation, under existing social arrangements, fails to affect the well-to-do classes, and presses chiefly on the comparatively poor, it is becoming more and more identified with the popular with the popular party in politics, and gathers strength with every addition to the popular elements in government.

We have hitherto confined our attention to simple as opposed to compound forms of government, and to the supreme as opposed to the subordinate functions of government. The complete treatment of the subject would require us to take some notice of the (1) association of several communities, with separate governments under one sovereignty, and (2) of the subordinate organizations for carrying on the government of localities, under the supreme government.

1. Federal Government. – As this is the subject of a separate article (vol. ix. P. 16). We need only notice here the case in which one of the associated Governments is the ultimate seat of sovereign power – the others being its colonies or dependencies. England is, of course, by far the most illustrious example of a country so situated, and her relations with the subordinate communities exhibit much variety of form. One leading distinction may be drawn, -- namely, between the communities which are allowed to govern themselves and those which, either as being unfit for self-government, like India and Fiji, or on account of the military necessities of the situation, as Malta and Gibraltar, are governed by the officers of the English Government. In the subject dependencies, as the latter may be called, the government is usually carried on by a governor and council, nominated by the crown, and holding office for various terms of years. The council, as a general rule, consists of the higher officers of the dependency, such as the chief-justice or the attorney-general. The governor and council are strictly the delegates of the home Government and have no legal or constitutional status of their own. The recently acquired island of Cyprus occupies an anomalous position in the British state system. The English Government holds it, not as sovereign, but as lieutenant-general of the sovereign, the sultan of Turkey. The government of the island is vested in a commissioner who takes his orders, not from the colonial, but from the foreign office. As a general rule the relations between the mother country and her dependencies are under the charge of a special department of state – the colonial office.

In free dependencies the alternative is between some kind of confederation with the mother country, whereby the dependency shall have a representative voice in the supreme government, and the practical independence of the dependency in all but international affairs. In the French system the deputies of Algiers and other colonies sit in the supreme legislature along with the other representatives of France. In the English system distance alone would render such a scheme impracticable; and, even there distance would be little or no hindrance, there has been no desire on either side for any such connexion. Dependencies like the Isle of Man and the Channel Islands are completely separated form England as New Zealand and Canada. The free dependencies have local constitutions framed on the model of the home Government – two chambers of legislature, a governor nominated by the crown, and a ministry dependent on parliament. The governor is supposed to stand to the ministry and parliament as the crown to the ministry and parliament at home; but it is to be remembered that the governor is, properly speaking, the representative not the English crown but of the English Government. It is from the colonial secretary that the Government. It is from the colonial secretary that the governor takes his instructions, and the colonial secretary and his colleagues take their instructions from the House of Commons. And, just as the practice of the constitution has made it impossible for the monarch to resist the wishes of parliament, so it is established that the governor, as colonial legislature. Just as in England the House of Commons invariably determines the fate of a ministry, so does the lower or popular house in a colonial legislature. It is needless to say that this is a very great advance on the old theory of colonial relations. Beginning in special grants of charters granted to individuals or corporations, the English colonies in North America held their liberties by the grace of the crown. The successful revolt of the colonies taught the mother country the folly of supposing that Englishmen is America would consent to be governed by Englishmen at home.

Although colonial institutions are modelled as nearly as may be after the original type, they are not entirely free from questions of fundamental difficulty. The central question or government – Whose will is to prevail? – has at the present time (1879) been agitating two of the great of the colonies, a deadlock between the council and the assembly in Victoria being referred to England, and the governor-general of Canada refusing to dismiss a leiutenant-governor on the advice of his responsible ministry.

The subjection of colonies to the home Government is still retained in two important cases. The colonies have no voice whatever in determining the nature of their relations with other communities; the question of peace or war is decided for them by the home Government. Again, all the colonies, whatever may be their powers of local self-government, seek justice in the resort from the sovereign in council.

2. Local Government. – As the business of society at large must be undertaken by the supreme government, so the local business of the subdivisions of society must be undertaken by local sub-governments. Local government repeats on a small scale the features of the supreme government, but its business is chiefly judicial and administrative. The most marked distinction here is between rural and urban communities – between the country and the borough. Self-government or representative government is the rule in the latter, the exception in the former. In England, since the Municipal Corporations Act, the affairs of all urban communities, except the city of London and a few unimportant boroughs, are managed by the direct representatives of the inhabitants. In the counties the control of affairs rests with the justices of the peace, who are nominated by the crown exclusively from the class of gentry.

The degrees of control exercised by the supreme government over local government is a point of first-rate importance in the constitution of a country. Among free countries England and France stand at opposite ends of the scale, -- England being characterized by great local independence, France by strict central control. Thus it is said that, even under the republic, the minister of education can say that at a given hour all the children in all the schools of France are learning the same lesson. The habitual depended of the French people upon the action of the state has been described as a survival from the times of imperial despotism which may be expected to disappear gradually under the influence of freedom. A step in this direction has certainly been taken in the proposal to allow communes to elect their own maire; and the abuse of the prefectoral system by a recent ministry ought to lead to some dimunition of its enormous powers. On the other hand the increased activity of the state, which, as we have already seen, has accompanied the establishment of popular government on a wide basis in England, has shown it self also in increased centralization. The new functions – educational, sanitary, and other –imposed on local bodies are controlled by the supreme government through central boards. In 1871 the local government board was constitutes to take over the powers of control over local boards hitherto exercised by various high officers of state, the poor law board, and the privy council. More recently the Prisons Act of 1877 has transferred to the secretary of the state the powers hitherto exercised by the local prison authorities, and has made the cost of maintaining local prisons as burden on the public funds.

As we have already said, the work of local governments generally embraces very little that can properly be called legislation. They have a power of making bye-laws for carrying out within their district the purposes of a general law, and over that power the courts of justice exercise a vigilant control. Parliament in England has hitherto looked with great distrust on subordinate legislatures, and it is a common saying that the jealously of the House of Commons is one of the reasons why the metropolis remains without municipal government. But it would now be generally admitted that the legislation demanded of parliament every year is greatly beyond its effective powers. There are indications of an approach to something that may be described as home rule – a name which inspires more distrust than the reality. Parliament makes no pretence of consistency in legislating separately for England, Scotland, and Ireland. To take only notorious examples, -- the Irish Land Act, the Disestablishment Act, and the Sunday Liquor Act of Ireland, and the Forbes Mackenzie Act of Scotland are instances of legislation according to the supposed wishes of the people specially affected. Irish and Scotch business tends in the House of Commons more and more to fall into the hands of Irish and Scotch members, and the interference of others is not unfrequently resented as an intrusion. Again, private bill legislation, regulated as it is by ascertained general principles, has come to be in fact, as in form, a purely judicial proceeding, which might well be relegated, as it no doubt one day will be relegated, to local tribunals. Another indication of the same tendency is to be found in what is called permissive legislation, which leaves to local authorities the responsibility of deciding how far a given principle shall be applied. (E. R.)



Footnotes

FOOTNOTES (page.11)

(1) Aristotle elsewhere speaks of the error of those who think that any one of the depraved forms is better than any other.


FOOTNOTES (page 11)

(2) None of the free states of Greece ever made extensive or permanent conquests; but the tribute sometimes paid by one state to another (as by the Aeginetans to the Athenians) was a manifest source of corruption. Compare the remarks of Hume (Essays, part, i. 3, That Politics may be reduced to a Science). "free governments are the most ruinous and oppressive for their provinces."


FOOTNOTES (page 12)

(1) Ultimately, in the theory of English law, the king may be said to have become the universal successors of the people. Some of the peculiarities of the prerogative rights seem to be explainable only on this view, e.g., the curious distinction between wrecks come to land and wrecks still on water. The common right to wreckage was no doubt the origin of the prerogative right to the former. Every ancient common right has come to be a right of the crown or a right held of the crown by a vassal.


FOOTNOTES (page 12)

(2) See Bagehot’s English Constitution.


FOOTNOTES (page 13)

The double government in the last case was founded, says Sir G. C. Lewis, on the English municipal system, and correspond to the difference between aldermen and common-council men.


FOOTNOTES (page 15)

(1) It is worth noting that direct election to offices – supposed to be characteristic of the democratic spirit – has no place in English political ideas. The few instances in which it occurs are regarded with indifference. The election of the coroner by the freeholders is universally condemned. In the few parishes where the clergyman may be appointed by the parishioners, the right is often left to be exercised by the bishop.


FOOTNOTES (page 16)

Mr Mark Pattison in Essays and Reviews.


FOOTNOTES (page 17)

Critical and Historical Essays, vol. 1.


FOOTNOTES (page 17)

(2) Principles of Sociology, vol. 1. London, 1877. In a postscript to part ii. Mr Spencer explains the "origin of this seeming incongruity." Individual organisms, high or low, have to maintain their lives by offensive or defensive activities or both; social organisms, except during the militant stage of their evolution, have not.


FOOTNOTE (page 18)

(1) E g., a contract to let a hall for a lecture advocating atheistic principles.



The above article was written by Edmund Robertson, K.C., M.A., LL.D., Barrister; late Fellow of Corpus Christi College, Oxford; Reader on Law to the Council of Legal Education; M.P. for Dundee from 1885; Civil Lord of the Admiralty, 1892-95; author of American Home Rule.




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