1911 Encyclopædia Britannica/Government
GOVERNMENT (O. Fr. government, mod. gouvernement, O. Fr. governer, mod. gouverner, from Lat. gubernare, to steer a ship, guide, rule; cf. Gr. κυβερνᾶν), in its widest sense, the ruling power in a political society. 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 are bound to 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. For the opposite theory of a community with "no government," see Anarchism.
How did government come into existence? Various answers to this question have at times been given, which 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 νομοθέται 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 Sir R. 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 sprang 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 John Austin. But it still clings to speculations on the principles of government.
The "social compact" (see Rousseau) is the most famous of the metaphysical explanations of government. It 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 courtiers 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 king, judge, priest and general. At the same time, his way of life differs little from that of his followers and subjects. The metaphysical theories were so far right 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. Modern investigations have illustrated very fully the importance of the family (q.v.) 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.
I. 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 John 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 characteristically 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 or the advantage of the whole state, and 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 concerned. The worst of the depraved forms is tyranny, the next oligarchy and the least had democracy. 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, στρατηγία), and absolute monarchy. So democracy and oligarchy exhibit four corresponding varieties. The best type of democracy is 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 a 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 king and council of heroic times had disappeared, and self-government in some form 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 of revolutions. The dread of tyranny was kept alive by 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 imperilled 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, however, 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 world-wide 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. The favour of the effeminate masters of the world is purchased by panem et circenses. That capable officers and victorious armies should long be content to serve such 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 as 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 plebis. 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. Caesarism 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 uncertainty 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 medieval 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 pace 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. 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 leading steps in 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 Stubbs's Constitutional History, vol. ii. The problem of combining a large area of sovereignty with some degree of self government, which had proved fatal to ancient commonwealths, was henceforward solved. From that time some form of 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 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 the representatives of two parties, and the party in opposition has been steadied by the consciousness that it, too, has constitutional functions of high importance, because at any moment it may be called to provide a ministry. Criticism is sobered by being made responsible. Along with this movement went the withdrawal of the personal action of the sovereign in politics. No king has attempted to veto a bill since the Scottish Militia Bill was vetoed by Queen Anne. No ministry has been dismissed by the sovereign since 1834. Whatever the power of the sovereign may be, it is unquestionably limited to his personal influence over his ministers. And it must be remembered that since the Reform Act of 1852 ministers have become, in practice, responsible ultimately, not to parliament, but to the House of Commons. Apart, therefore, from democratic changes due to a wider suffrage, we find that the House of Commons, as a body, 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 J. L. 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 to absolute monarchy or to a republic," decides 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 British constitution. These views of the English government in the 18th century may be contrasted with Bagehot's sketch of the modern government as a working instrument.
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. Its leading features are popular representation more or less extensive, a bicameral legislature, and a cabinet or 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 British system, has been the most widely imitated. In most European countries, in the British colonies, in the United States Congress, and in the separate states of the Union, 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. But the elements of the British 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 British House of Lords. In some countries, where the feudal tradition is still strong (e.g. Prussia, Austria, Hungary), the hereditary element in the upper chambers has survived as truly representative of actual social and economic relations. But where these social conditions do not obtain (e.g. in France after the Revolution) the attempt to establish an hereditary peerage on the British model has always failed. For the peculiar solidarity between the British nobility and the general mass of the people, the outcome of special conditions and tendencies, is a result beyond the power of constitution makers to attain. The British system too, after its own way, has for a long period worked without any serious collision between the Houses,—the standing and obvious danger of the bicameral system. 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 House of Lords. It is only in legislation that the Lower House really shares its powers with the Upper; and (apart from any such change in the constitution as was suggested in 1907 by Sir H. Campbell-Bannerman) the constitution possesses, in the unlimited power of nominating peers, a well-understood last resource should the House of Lords persist in refusing important measures demanded by the representatives of the people. In the United Kingdom it is well understood that the real sovereignty lies with the people (the electorate), and the House of Lords recognizes the principle that it must accept a measure when the popular will has been clearly expressed. In all but measures of first-class importance, however, the House of Lords is a real second Chamber, and in these there is little danger of a collision between the Houses. There is the widest possible difference between the British and any other second chamber. In the United States the Senate (constituted on the system of equal representation of states) is the more important of the two Houses, and the only one whose control of the executive can be compared to that exercised by the British House of Commons.
The real strength of popular government in England lies 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 state system of the continent of Europe than to that of the United Kingdom. The people make a more complete surrender of power to the government (State or Federal) 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 (q.v.) 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 things known only to the initiated. 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.
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 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 precaution. 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." The strong monarchical 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 governments 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 power occurs on a change of ministry. The constitutional practice of the 19th century 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 receives 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 outgoing 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. In theory the monarch may send for any one he pleases, and charge him with the formation of a government; but the ability to form a government restricts this liberty to the recognized head of a party, subject to there being such an individual. 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 great political parties for the possession of the powers of government. It may be noted that modern 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; and, on the other hand, 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 rigidly fixed; he can be removed only by the difficult method of impeachment. No hostile vote on matters of legislation can affect his position. But the end of his term 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 the succession. Further, a change of government in America means a considerable change in the administrative staff (see Civil Service). The commotion caused by a presidential election in the United States is thus infinitely greater and more prolonged 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 British constitution is more democratic than the American, in the sense that the popular will can more speedily be brought to bear upon the government.
Change of Power in France.—The established practice of England and America may be compared with the 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 experience would seem to show that no such devices are really necessary. 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.
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 fiat 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 it 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 only a definition, and 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 in 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 engaged in making new laws. It is natural, therefore, to think of law as a factitious thing, made and unmade by the people who happen for the time being to constitute parliament. It is forgotten how small 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. 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 reflections should make us cautious 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 supplies but a small basis for generalization. What parallel can be drawn between 3. 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.
II. Sphere of Government
The action of the state, or sovereign power, or government in a civilized community shapes itself into the threefold functions of legislation, judicature and administration. The two first 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 be 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. In some states of the American Union certain judicial functions of the upper house were for a time maintained after the example of the English constitution as it existed when the states 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 from every other. It was established in principle as a barrier against monarchical 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. At the same time the constitution of the United States has assigned to the supreme court of the Union a perfectly unique position. The supreme court is the guardian of the constitution (as are the state courts of the constitution of the states; see United States). 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 in 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 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. The exhaustive discussion of all political measures, which for over 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 sentiment has more or less vaguely fenced off departments of 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 rights of conscience,” are the commonplaces of political discussion, and tell the state, “Thus far shalt thou go and no further.”
The two contrasting policies are those of laissez-faire (let alone) and Protection, or individualism and state-socialism, the one a policy of non-interference with the free play of social forces, the other of their regulation for the benefit of the community. The laissez-faire theory was prominently upheld by 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. There is a general presumption against the interference of government, which is only to be overcome by very 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 of such a nature that the consumer cannot be considered capable of judging of the quality supplied, then Mill would allow the state to interpose. Thus the education of children, and even of adults, would fairly come within the province of the state. Mill even goes so far as to admit that, where a restriction of the hours of labour, 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, 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, Mill’s general rule against state action admits of many important exceptions, founded on no principle 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.
The most thoroughgoing opponent of state action, however, is 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 rights to life, 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.
The tendency of modern legislation is more a question of political practice than of political theory. In some cases state interference has been abolished or greatly limited. These cases are mainly two—in matters of opinion (especially religious opinion), and in matters of contract.
The mere enumeration of the individual instances would occupy a formidable amount of space. The reader is referred to such articles as England, Church of; Establishment; Marriage; Oath; Roman Catholic Church, &c., and Company; Contract; Partnership, &c. In other cases the state has interfered for the protection and assistance of definite classes of persons. For example, the education and protection of children (see Children, Law Relating to; Education; Technical Education); the regulation of factory labour and dangerous employment (see Labour Legislation); improved conditions of health (see Adulteration; Housing; Public Health, Law of, &c.); coercion for moral purposes (see Bet and Betting; Criminal Law; Gaming and Wagering; Liquor Laws; Lotteries, &c.). Under numerous other headings in this work the evolution of existing forms of government is discussed; see also the bibliographical note to the article Constitution and Constitutional Law.
- Aristotle elsewhere speaks of the error of those who think that any one of the depraved forms is better than any other.
- None of the free states of Greece ever made extensive or permanent conquests; but the tribute some times 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."
- Ultimately, in the theory of English law, the king may be said to have become the universal successor 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.
- See Bagehot's English Constitution; or, for a more recent analysis, Sidney Low's Governance of England.
- 2 For an account of the double chamber system in the state legislatures see United States: Constitution and Government, and also S. G. Fisher, The Evolution of the Constitution (Philadelphia, 1897).
- A government "defeat" may, of course, not really represent a hostile vote in exceptional cases, and in some instances a government has obtained a reversal of the vote and has not resigned.