“There are two causes principally chargeable with this. In the first {268} place, strange as it may seem in a country in which two-thirds of the population are agriculturists, agriculture is a very unhonoured occupation. Develope in the slightest degree a Frenchman’s mental faculties, and he flies to a town as surely as steel filings fly to a loadstone. He has no rural tastes, no delight in rural habits. A French amateur farmer would indeed be a sight to see. Again, this national tendency is directly encouraged by the centralising system of government—by the multitude of officials, and by the payment of all functionaries. From all parts of France, men of great energy and resource struggle up, and fling themselves on the world of Paris. There they try to become great functionaries. Through every department of the eighty-four, men of less energy and resource struggle up to the chef-lieu—the provincial capital. There they try to become little functionaries. Go still lower—deal with a still smaller scale—and the result will be the same. As is the department to France, so is the arrondissement to the department, and the commune to the arrondissement. All who have, or think they have, heads on their shoulders, struggle into towns to fight for office. All who are, or are deemed by themselves or others, too stupid for anything else, are left at home to till the fields, and breed the cattle, and prune the vines, as their ancestors did for generations before them. Thus there is actually no intelligence left in the country. The whole energy, and knowledge, and resource of the land are barreled up in the towns. You leave one city, and in many cases you will not meet an educated or cultivated individual until you arrive at another—all between is utter intellectual barrenness.”—Morning Chronicle. August, 1851.
To what end now is this constant abstraction of able men from rural districts? To the end that there may be enough functionaries to achieve those many desiderata which French governments have thought ought to be achieved—to provide amusements, to manage mines, to construct roads and bridges, to erect numerous buildings—to print books, encourage the fine arts, control this trade, and inspect that manufacture—to do all the hundred-and-one things which the State does in France. That the army of officers needed for this may be maintained, agriculture must go unofficered. That certain social conveniences may be better secured, the chief social necessity is neglected. The very basis of the national life is sapped, to gain a few non-essential advantages. Said we not truly, then, that until a requirement is spontaneously fulfilled, it should not be fulfilled at all?
And here indeed we may recognise the close kinship {269} between the fundamental fallacy involved in these State-meddlings and the fallacy lately exploded by the free-trade agitation. These various law-made instrumentalities for effecting ends which might otherwise not yet be effected, all embody a subtler form of the protectionist hypothesis. The same short-sightedness which, looking at commerce, prescribed bounties and restrictions, looking at social affairs in general, prescribes these multiplied administrations; and the same criticism applies alike to all its proceedings.
For was not the error that vitiated every law aiming at the artificial maintenance of a trade, substantially that which we have just been dwelling upon; namely, this overlooking of the fact that, in setting people to do one thing, some other thing is inevitably left undone? The statesmen who thought it wise to protect home-made silks against French silks, did so under the impression that the manufacture thus secured constituted a pure gain to the nation. They did not reflect that the men employed in this manufacture would otherwise have been producing something else—a something else which, as they could produce it without legal help, they could more profitably produce. Landlords who have been so anxious to prevent foreign wheat from displacing their own wheat, have never duly realized the fact that if their fields would not yield wheat so economically as to prevent the feared displacement, it simply proved that they were growing unfit crops in place of fit crops; and so working their land at a relative loss. In all cases where, by restrictive duties, a trade has been upheld that would otherwise not have existed, capital has been turned into a channel less productive than some other into which it would naturally have flowed. And so, to pursue certain State-patronized occupations, men have been drawn from more advantageous occupations.
Clearly then, as above alleged, the same oversight runs through all these interferences; be they with commerce, or be they with other things. In employing people to achieve {270} this or that desideratum, legislators have not perceived that they were thereby preventing the achievement of some other desideratum. They have habitually assumed that each proposed good would, if secured, be a pure good, instead of being a good purchasable only by submission to some evil which would else have been remedied; and, making this error, have injuriously diverted men’s labour. As in trade, so in other things, labour will spontaneously find out, better than any government can find out for it, the things on which it may best expend itself. Rightly regarded, the two propositions are identical. This division into commercial and non-commercial affairs is quite a superficial one. All the actions going on in society come under the generalization—human effort ministering to human desire. Whether the ministration be effected through a process of buying and selling, or whether in any other way, matters not so far as the general law of it is concerned. In all cases it must be true that the stronger desires will get themselves satisfied before the weaker ones; and in all cases it must be true that to get satisfaction for the weaker ones before they would naturally have it, is to deny satisfaction to the stronger ones.
To the immense positive evils entailed by over-legislation have to be added the equally great negative evils—evils which, notwithstanding their greatness, are scarcely at all recognized, even by the far-seeing. While the State does those things which it ought not to do, as an inevitable consequence, it leaves undone those things which it ought to do. Time and activity being limited, it necessarily follows that legislators’ sins of commission entail sins of omission. Mischievous meddling involves disastrous neglect; and until statesmen are ubiquitous and omnipotent, must ever do so. In the very nature of things an agency employed for two purposes must fulfil both imperfectly; partly because, while fulfilling the one it cannot be fulfilling {271} the other, and partly because its adaptation to both ends implies incomplete fitness for either. As has been well said à propos of this point,—“A blade which is designed both to shave and to carve, will certainly not shave so well as a razor or carve so well as a carving-knife. An academy of painting, which should also be a bank, would in all probability exhibit very bad pictures and discount very bad bills. A gas company, which should also be an infant-school society, would, we apprehend, light the streets ill, and teach the children ill.”[34] And if an institution undertakes, not two functions but a score—if a government, whose office it is to defend citizens against aggressors, foreign and domestic, engages also to disseminate Christianity, to administer charity, to teach children their lessons, to adjust prices of food, to inspect coal-mines, to regulate railways, to superintend house-building, to arrange cab-fares, to look into people’s stink-traps, to vaccinate their children, to send out emigrants, to prescribe hours of labour, to examine lodging-houses, to test the knowledge of mercantile captains, to provide public libraries, to read and authorize dramas, to inspect passenger-ships, to see that small dwellings are supplied with water, to regulate endless things from a banker’s issues down to the boat-fares on the Serpentine—is it not manifest that its primary duty must be ill-discharged in proportion to the multiplicity of affairs it busies itself with? Must not its time and energies be frittered away in schemes, and inquiries, and amendments, in discussions, and divisions, to the neglect of its essential business? And does not a glance over the debates make it clear that this is the fact? and that, while parliament and public are alike occupied with these mischievous interferences, these Utopian hopes, the one thing needful is left almost undone?
[34] Edinburgh Review, April, 1839.
See here, then, the proximate cause of our legal abominations. We drop the substance in our efforts to catch shadows. While our firesides, and clubs, and taverns are {272} filled with talk about corn-law questions, and church questions, and education questions, and poor-law questions—all of them raised by over-legislation—the justice question gets scarcely any attention; and we daily submit to be oppressed, cheated, robbed. This institution which should succour the man who has fallen among thieves, turns him over to solicitors, barristers, and a legion of law-officers; drains his purse for writs, briefs, affidavits, subpœnas, fees of all kinds and expenses innumerable; involves him in the intricacies of common courts, chancery courts, suits, counter-suits, and appeals; and often ruins where it should aid. Meanwhile, meetings are called, and leading articles written, and votes asked, and societies formed, and agitations carried on, not to rectify these gigantic evils, but partly to abolish our ancestors’ mischievous meddlings and partly to establish meddlings of our own. Is it not obvious that this fatal neglect is a result of this mistaken officiousness? Suppose that external and internal protection had been the sole recognized functions of the ruling powers. Is it conceivable that our administration of justice would have been as corrupt as now? Can any one believe that had parliamentary elections been habitually contested on questions of legal reform, our judicial system would still have been what Sir John Romilly calls it,—“a technical system invented for the creation of costs?” Does any one suppose that, if the efficient defence of person and property had been the constant subject-matter of hustings pledges, we should yet be waylaid by a Chancery Court which has now more than two hundred millions of property in its clutches?—which keeps suits pending fifty years, until all the funds are gone in fees—which swallows in costs two millions annually? Dare any one assert that had constituencies been always canvassed on principles of law-reform versus law-conservatism, Ecclesiastical Courts would have continued for centuries fattening on the goods of widows and orphans? The questions are next to absurd. A child may {273} see that with the general knowledge people have of legal corruptions and the universal detestation of legal atrocities, an end would long since have been put to them, had the administration of justice always been the political topic. Had not the public mind been constantly pre-occupied, it could never have been tolerated that a man neglecting to file an answer to a bill in due course, should be imprisoned fifteen years for contempt of court, as Mr. James Taylor was. It would have been impossible that, on the abolition of their sinecures, the sworn-clerks should have been compensated by the continuance of their exorbitant incomes, not only till death, but for seven years after, at a total estimated cost of £700,000. Were the State confined to its defensive and judicial functions, not only the people but legislators themselves would agitate against abuses. The sphere of activity and the opportunities for distinction being narrowed, all the thought, and industry, and eloquence which members of Parliament now expend on impracticable schemes and artificial grievances, would be expended in rendering justice pure, certain, prompt, and cheap. The complicated follies of our legal verbiage, which the uninitiated cannot understand and which the initiated interpret in various senses, would be quickly put an end to. We should no longer frequently hear of Acts of Parliament so bunglingly drawn up that it requires half a dozen actions and judges’ decisions under them, before even lawyers can say how they apply. There would be no such stupidly-designed measures as the Railway Winding-up Act, which, though passed in 1846 to close the accounts of the bubble schemes of the mania, leaves them still unsettled in 1854—which, even with funds in hand, withholds payment from creditors whose claims have been years since admitted. Lawyers would no longer be suffered to maintain and to complicate the present absurd system of land titles, which, besides the litigation and loss it perpetually causes, lowers the value of estates, prevents the {274} ready application of capital to them, checks the development of agriculture, and thus hinders the improvement of the peasantry and the prosperity of the country. In short, the corruptions, follies, and terrors of law would cease; and that which men now shrink from as an enemy they would come to regard as what it purports to be—a friend.
How vast then is the negative evil which, in addition to the positive evils before enumerated, this meddling policy entails on us! How many are the grievances men bear, from which they would otherwise be free! Who is there that has not submitted to injuries rather than run the risk of heavy law-costs? Who is there that has not abandoned just claims rather than “throw good money after bad?” Who is there that has not paid unjust demands rather than withstand the threat of an action? This man can point to property that has been alienated from his family from lack of funds or courage to fight for it. That man can name several relations ruined by a law-suit. Here is a lawyer who has grown rich on the hard earnings of the needy and the savings of the oppressed. There is a once wealthy trader who has been brought by legal iniquities to the workhouse or the lunatic asylum. The badness of our judicial system vitiates our whole social life: renders almost every family poorer than it would otherwise be; hampers almost every business transaction; inflicts daily anxieties on every trader. And all this loss of property, time, temper, comfort, men quietly submit to from being absorbed in the pursuit of schemes which eventually bring on them other mischiefs.
Nay, the case is even worse. It is distinctly proveable that many of these evils about which outcries are raised, and to cure which special Acts of Parliament are loudly invoked, are themselves produced by our disgraceful judicial system. For example, it is well known that the horrors out of which our sanitary agitators make political capital, {275} are found in their greatest intensity on properties that have been for a generation in Chancery—are distinctly traceable to the ruin thus brought about; and would never have existed but for the infamous corruptions of law. Again, it has been shown that the long-drawn miseries of Ireland, which have been the subject of endless legislation, have been mainly produced by inequitable land-tenure and the complicated system of entail: a system which wrought such involvements as to prevent sales; which practically negatived all improvement; which brought landlords to the workhouse; and which required an Incumbered Estates Act to cut its gordian knots and render the proper cultivation of the soil possible. Judicial negligence, too, is the main cause of railway accidents. If the State would fulfil its true function, by giving passengers an easy remedy for breach of contract when trains are behind time, it would do more to prevent accidents than can be done by the minutest inspection or the most cunningly-devised regulations; for it is notorious that the majority of accidents are primarily caused by irregularity. In the case of bad house-building, also, it is obvious that a cheap, rigorous, and certain administration of justice, would make Building Acts needless. For is not the man who erects a house of bad materials ill put together, and, concealing these with papering and plaster, sells it as a substantial dwelling, guilty of fraud? And should not the law recognize this fraud as it does in the analogous case of an unsound horse? And if the legal remedy were easy, prompt, and sure, would not builders cease transgressing? So is it in other cases: the evils which men perpetually call on the State to cure by superintendence, themselves arise from non-performance of its original duty.