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 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.
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].